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2021 DIGILAW 63 (GAU)

Vilaho Zehol v. State of Nagaland

2021-02-02

S.HUKATO SWU

body2021
JUDGMENT : S. Hukato Swu, J. 1. Heard Mr. Elivil Zao, learned counsel for the petitioners and Mr. V. Zhimomi, learned Government Advocate appearing on behalf of respondent Nos. 1 to 5. 2. This matter emanates due to the dispute that arose between the two villages of Leshemi and Khezhakeno out of the clandestine agreement dated 17.11.2012 between some villagers of the aforementioned village to share water from the source which originates from Khezhakeno Village. However, after 5 (five) years, the contents of the agreement came to light on 02.12.2017 to the remaining villagers of Khezhakeno. Since the agreement was signed clandestinely between some villagers of Khezhakeno and Leshemi Village, the remaining villagers of Khezhakeno was opposed to the agreement and filed a civil suit which is nomenclatured as Civil Suit No. 1/2020, which is still pending before the Civil Judge, Junior Division, Phek, seeking to quash and set aside the agreement dated 17.11.2012, which was made between some of the villagers of Khezhakeno and Leshemi Village clandestinely. When the Leshemi villagers attempted to draw water from the source, this was objected by the Khezhakeno villagers, which led to the present dispute. In the process of dispute, the pipelines and electricity lines were damaged by the villagers of Leshemi Village and Khezhakeno villagers were stranded without electricity and water supply. After some time, the electricity supply was restored, however, water supply has not been restored till date. Under the circumstances, representations were made to the Deputy Commissioner (DC) for restoration of water supply and electricity and also taking action against the offending villagers. In connection with the dispute, the DC had also, by an order dated 03.03.2020 ordered both the disputing parties to refrain from undertaking any activities in the disputed area. However, it has been reported that the Leshemi Village has forcefully drawn water from the same water source violating the order of the DC dated 03.03.2020. After the dispute arose, the Village Chairman, the VDB Secretary of the Village and the Head GB of Khezhakeno Village proposed to resign on moral grounds. However, it has been reported that the Leshemi Village has forcefully drawn water from the same water source violating the order of the DC dated 03.03.2020. After the dispute arose, the Village Chairman, the VDB Secretary of the Village and the Head GB of Khezhakeno Village proposed to resign on moral grounds. In the writ petition, the prayer of the petitioners are as follows: (i) that this Court give a direction to respondent No. 3 to fill up the 3 (three) vacant posts of GB of the Middle Khel and Lower Khel of Khezhakeno Village in accordance with the Nagaland Village and Area Councils Act, 1978, (ii) direct the respondent No. 3 to quash and set aside the appointment of the newly inducted chairman and Secretary of Khezhakeno Village Council dated 18.05.2020, (iii) direct the respondent No. 3 to strictly implement the Order No. DCP/JDL-1-15 dated 03.03.2020 in toto for both the Khezhakeno and Leshemi Villages, (iv) pending disposal of the writ petition, direct the respondent No. 3 to set up inquiry into the incident of damages of electric poles and wires and also provide immediate water and electricity connection to the village of Khezhakeno which are basic needs of the people, (v) quash and set aside the meeting minutes and the undertaking executed before the respondent No. 3 on 29.06.2020. 3. On examination of the writ petition, this Court, by an order dated 25.11.2020, was of the view that the writ petition filed before this Court does not contain common cause of action concerning all the connected prayers. On the prayer of the petitioners to fill the vacant posts of GB, it is opined that Section 4 of the Nagaland Village and Area Council Act, 1978 requires that the members be chosen by the villagers which is to get the approval of the State Government. This being the position, it is the duty of the petitioner to see that they choose their members and forward the same for steps by the Government and in this context, this Court does not see how the fundamental rights of the petitioners have been violated. The report of the EAC which is placed before this Court for consideration contains that the documents have not been received from the parties for appointment of Village Council members which is the initiating point of appointment as per the Village Council Act. The report of the EAC which is placed before this Court for consideration contains that the documents have not been received from the parties for appointment of Village Council members which is the initiating point of appointment as per the Village Council Act. Sans this action from the petitioners, there cannot be an appointment. Hence, there can be no violation of the petitioners' right guaranteed under the Constitution. 4. The next issue raised for relief in the writ is that the destruction of public property, which is an issue in the instant writ is addressable by criminal courts and the same can be addressed without resorting to the provisions of Article 226. Furthermore, the prayer of the petitioners should array necessary parties as respondents as required under the law of pleadings, which should necessarily incorporate the Department of the PHE and also the Department of Electricity which has not been done in the instant case. Therefore, viewing that the writ petition suffers from non-involvement of parties, this Court is unable to give directions. With respect to the one sole issue that has only been raised by the learned counsel for the petitioners today, which is placed before this Court, is the restoration of water supply to the villages. 5. Answering the plea of the petitioners, the learned Government Advocate for the State, Mr. V. Zhimomi has filed a copy of the communication addressed to the Village Council of Khezhakeno and Leshemi Village jointly by letter dated ADC PFRO/DEV-PHED/2020/12151 dated Pfutsero, the 29th October, 2020, wherein assurance for construction of water tank and pipeline has been given by the authority concerned through its Extra Assistant Commissioner stating that the administration is ready to restore the pipeline and tank for both the disputing villages of Leshemi and Khezhakeno on the condition that the disputing party will not damage the constructed tank and also the connecting pipes to the two villages. As is seen from the assurance given by the administration, the prayer of the petitioners are already answered though it is conditioned in the letter to maintain peace. This Court does not see any defect in the so called assurance with a rider considering that damage to the Government property is being committed by the public in occasions where dispute arise. Unless this is assured by the two disputing villages, the restoration of pipelines or electricity lines or road conditions etc. This Court does not see any defect in the so called assurance with a rider considering that damage to the Government property is being committed by the public in occasions where dispute arise. Unless this is assured by the two disputing villages, the restoration of pipelines or electricity lines or road conditions etc. by the respondent may be an exercise wasted, both physically and financially. Therefore, this Court finds no fault in the pre conditions that has been given. 6. Seen the documents as furnished by the learned Government Advocate and also the facts as projected before this Court. 7. The matter of dispute which is lying pending on the civil side before the Civil Judge, Junior Division can find a solution to the dispute. Furthermore, the other issues that concerns this writ petition which is filed before this Court may be addressed by criminal courts without involving the writ jurisdiction. Since the issues that is raised in the writ petition, have been addressed by restoring electricity supply and also the restoration of water supply has been assured with the conditions that we find grounds for filing the writ petition has been satisfied as per the records. With respect to other issues, that is for appointment of council members and GB it is a matter which requires the initiation of the petitioners themselves which need not be addressed in the writ petition. Seeing that the matter involves delicate law and order issue, the respondents who are the administrative officials in the concerned district shall handle the matter with utmost care so that peace is not breached and restoration of water supply to the two villages be given at the earliest. 8. Writ petition is disposed of accordingly.