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2022 DIGILAW 153 (MAN)

Soitinkhup Vaiphei v. State of Manipur

2022-08-10

M.V.MURALIDARAN

body2022
JUDGMENT 1. Calling into question the order dated 24.4.2017 passed by the first respondent in connection with the dispute of customary and hereditary Chief of Thingkeu Hill Village, the present writ petition has been filed. 2. Succinctly put, the facts of the case are as under: The petitioner claims to be a bona fide hereditary chief of Thingkeubung @ Thingkeu Hill Village. The said village has been in existence since 1924 and recognized by the British administration which appeared at S.No.124 of Sardar-Circile No.3 of Villages under new Churachandpur Circle of the Manipur State Hill Peoples (Administration) Regulation, 1947, under the Chiefship of the petitioner's grandfather, EksoiVaiphei. 3. It is stated that after the demise of the petitioner's grandfather, his eldest son Soikholian Vaiphei inherited the Chiefship of the village from his father. After his father passed away, the Deputy Commissioner, Churachandpur District, vide order dated 4.5.1990 transferred the Chiefship of Thingkeu Village to the petitioner, being the eldest son, and he was discharging his responsibilities as such without any blemish. While the petitioner was functioning as the Chief of the Village, as he was indisposed, he submitted an authorization letter to the Deputy Commissioner seeking to appoint his younger brother, Kaitinmang Vaiphei [the fifth respondent herein] as Chief In-Charge of Thingkeu Village. The Deputy Commissioner, vide letter dated 15.1.2011, allowed the request of the petitioner. 4. It is averred that, on recuperation, the petitioner submitted an application to the Deputy Commissioner expressing his willingness to take over the responsibility of the village administration as the rightful Chief, thereby to cancel the name of his younger brother as Chief In-charge. In response to the request made by the petitioner, the Deputy Commissioner passed an order dated 11.5.2016 cancelling the order dated 15.1.2011 permitting the petitioner's younger brother to act as Chief In-Charge. Thereafter, the petitioner took over as Chief of the Thingkeu Village and was discharging his duties. 5. When things stood thus, it is alleged that the first respondent vide order dated 8.11.2016 stayed the order 11.5.2016 passed by the Deputy Commissioner. Based on the said order, the fourth respondent passed an order dated 18.11.2016 staying the order dated 11.5.2016. Thereafter, the petitioner took over as Chief of the Thingkeu Village and was discharging his duties. 5. When things stood thus, it is alleged that the first respondent vide order dated 8.11.2016 stayed the order 11.5.2016 passed by the Deputy Commissioner. Based on the said order, the fourth respondent passed an order dated 18.11.2016 staying the order dated 11.5.2016. It is the specific case of the petitioner that before passing either of the above orders, no opportunity of hearing was afforded to him and such orders were passed in an appeal filed at the behest of the private respondent. 6. The petitioner raised serious objection to the jurisdiction of the respondent authorities to decide a dispute about the Chiefship, as it has to be decided only by a competent civil court. In spite of submitting an objection dated 20.3.2017 to the aforesaid effect, the Commissioner passed an order on 24.4.2017 to the effect that the private respondent be allowed to be the Chief of the Thingkevu Village. Hence, the present writ petition. 7. Mrs. H. Bisheshwar, learned counsel for the petitioner vehemently contended that the orders dated 8.11.2016 and 18.11.2016 are non-est in law, inasmuch as the authorities who passed the orders have no jurisdiction under the Manipur Hill Areas (Acquisition of Chiefs' Rights) Act, 1966 to decide a dispute about Chiefship. In any event, such civil dispute as to who should hold the Chiefship can never be adjudicated by the first respondent or the fourth respondent, but only by a competent civil court. 8. The next plank of the argument is that the order dated 24.4.2017 has been passed in gross violation of the elementary principles of natural justice. Moreover, the objections submitted by the petitioner were not considered by the Commissioner. 9. Per contra, Mr. Lenin Hijam, learned Advocate General appearing for the State respondent authorities submitted that when a dispute as to Chiefship was raised, this Court in W.P. (C) No.605 of 2016 directed the Commissioner to consider the dispute as contemplated under Section 7 of the aforesaid Act and, therefore, the first respondent is empowered to consider such a dispute and the order impugned is a reasoned order, which does not warrant any interference. 10. It is further submitted that the petitioner and the private respondent were granted ample opportunity of hearing and, therefore, there is no violation of the principles of natural justice. 11. 10. It is further submitted that the petitioner and the private respondent were granted ample opportunity of hearing and, therefore, there is no violation of the principles of natural justice. 11. Heard learned counsel on either side and perused the records. 12. Before adverting to the merits of the case on hand, it is apposite to refer to the relevant portion of the judgment of this court in W.P. (C) No.605 of 2016, dated 23.9.2016: '17. It is, therefore, clear from the above that under the scheme of the Manipur Hill Areas (Acquisition of Chiefs Rights) Act, 1966 the Deputy Commissioner is empowered to decide the dispute about Chiefship against which an appeal would lie to the Chief Commissioner. These authorities are discharging important judicial functions in as much as dispute relating to Chiefship is also a dispute relating to title which normally is decided by the Civil Court of competent jurisdiction. However, since this jurisdiction has been also conferred to the Deputy Commissioner against whose order an appeal lies to the Chief Commissioner it does not require a serious introspection to come to the conclusion that these authorities have to follow judicial norms though they are not strictly civil courts as understood normally. 18. This Court, however, would like to put a caveat. The issue, whether, in view of now well entrenched principle of separation of judiciary from the executive, whether the Deputy Commissioner as well as the Commissioner, though they are not judicial members, could continue to exercise the judicial power of deciding disputed question of title as regards the Chiefship has not been raised in this petition and accordingly the same is left to be decided at appropriate proceeding. The discussion and observation made in this judgment is thus confined to this petition only. It is also admitted at the bar that civil courts of competent jurisdiction also continues to decide title suits relating to Chiefship of the hill villages.The Manipur Hill Areas (Acquisition of Chief Rights) Act, 1966 seem to confer additional forum for deciding dispute about chiefship. 19. Thus, it is seen that the dispute relating to claim to Chiefship can be decided by the Deputy Commissioner under the Manipur Hill Areas (Acquisition of Chief Rights) Act, 1967. 19. Thus, it is seen that the dispute relating to claim to Chiefship can be decided by the Deputy Commissioner under the Manipur Hill Areas (Acquisition of Chief Rights) Act, 1967. Though the Deputy Commissioner has not been described as a Court, as discussed above, as required under Section 6 of the Act, this power is to be exercised by the Deputy Commissioner after giving due notice to all the persons interested to file written statement relating to the claim of Chiefship. The Deputy Commissioner, thereafter, has to consider the statements so filed by the interested persons and after giving reasonable opportunity of being heard to them will record his decision. Section 6 further stipulates that decision of the Deputy Commissioner shall contain a concise statement of the case, the points for determination, the decision thereof and reasons for such decision. In other words, such decision of the Deputy Commissioner should deal with the facts of the case, the issues raised and then give a reasoned decision, which are also the requirements of a proper valid judgment rendered by a Court of law. Section 6 also provides that every such decision of the Deputy Commissioner though final, shall be subject to provisions of Sections 7 and 15. As mentioned above, Section 7 provides for the first appeal against such decision of the Deputy Commissioner and Section 15 provides for a second appeal before the High Court. Reading of Sections 6, 7 and 15 of the Act as mentioned above would clearly indicate that while deciding the dispute of Chiefship, the Deputy Commissioner has to function more or less like a Court and it has got the trappings of the Court as far as the decision making process is concerned. Under the Civil Procedure Code, a civil court has to frame issues, give its finding on these issues with reasons for such findings as required under Order XX Rule 5. Similar exercise is required to be undertaken by the Deputy Commissioner as provided under Section 6 of the Act. Therefore, even if the Deputy Commissioner, while deciding the dispute about Coheirship under Section 6 of the Act, has not been declared as a Court under the Act, it definitely exercises power which is judicial in nature which it is expected to exercise in a manner akin to a court. Therefore, even if the Deputy Commissioner, while deciding the dispute about Coheirship under Section 6 of the Act, has not been declared as a Court under the Act, it definitely exercises power which is judicial in nature which it is expected to exercise in a manner akin to a court. The decision to be rendered by the Deputy Commissioner has all the trappings of judgment rendered by a Court of law which is again subjected to appeal before an appellate forum under Section 7 and further subject to a second appeal as provided under Section 15 of the Act. 20. Coheirship is a very important functionary of the village administration in as much as a village Chief plays a very vital role in the day to day life of the villages in the hills areas. For the said reason, any decision rendered by Deputy Commissioner would have far reaching repercussions in the smooth running of the village administration and hence while deciding any dispute of Chiefship, it acts as a judicial body. 21. Though it has not been specifically provided under Section 7 of the Act as to how the appellate authority has to decide the appeal, yet Section 7 emphasises that the appellate authority shall decide the appeal after giving an opportunity to the appellant and making such further enquiry as may be necessary in confirming or modifying or annulling the decision appealed against. It goes without saying that this power of appeal has to be also exercised by conforming to the well established judicial norms as regards the power of the appellate authority. Since the appellate authority is to either confirm or vary the decision rendered by the Deputy Commissioner, the appellate authority has to consider any such appeal in the manner as expected of an appellate authority, though the same has not been specifically mentioned or described in the Act.' 13. A bare perusal of the observations referred to above makes it clear that the Deputy Commissioner and the Chief Commissioner are discharging important judicial functions, inasmuch as dispute relating to Chiefship is also a dispute relating to title, which normally is decided by the Civil Court of competent jurisdiction. A bare perusal of the observations referred to above makes it clear that the Deputy Commissioner and the Chief Commissioner are discharging important judicial functions, inasmuch as dispute relating to Chiefship is also a dispute relating to title, which normally is decided by the Civil Court of competent jurisdiction. It was further observed that the issue as to whether the Deputy Commissioner as well as the Commissioner, though they are not judicial members, could continue to exercise the judicial power of deciding disputed question of title as regards the Chiefship has not been raised in this petition and accordingly the same is left to be decided at appropriate proceeding. The discussion and observation made in aforesaid judgment was thus confined to the said case only. However, in the case on hand, a serious contest is raised to the competence of the Deputy Commissioner and the Commissioner in exercising judicial power to decide dispute question of title as regards the Chiefship of the village. 14. In such view of the matter, we are considering the rival submissions made by the parties. In the case on hand, it is beyond any demur that the writ petitioner is the eldest son of Soikholian Vaiphei and on his demise the petitioner the Chiefship of Thingkey Village was transferred in favour of the petitioner vide order dated 4.5.1990. At this juncture, it needs to be noted that 'The Vaiphei Chieftainship is hereditary and the eldest son succeeds to it. The village land is considered entirely to be the property of the Chief of the Village. The Vaipheis practice shifting cultivation and the area of jhumming in each year is selected by the Chief in consultation with his minsters (Siamang) and the elders (pachawng). Selection of jhum site and distribution of the plots known as paam-lolell is one of the most important administrative branches of the Chief and his ministers.' [See: The Customary Laws of the Vaipheisof Manipur published by Law Research Institute Eastern Region, Gauhati High Court.] 15. It is also not in dispute that, on the request of the petitioner by way of an authorization letter, the private respondent was appointed as Chief In-charge in the year 2011. Such request was made by the petitioner owing to his ill-health and pre-occupation. It is also not in dispute that, on the request of the petitioner by way of an authorization letter, the private respondent was appointed as Chief In-charge in the year 2011. Such request was made by the petitioner owing to his ill-health and pre-occupation. There is nothing on record to show that the petitioner had acted in a manner which disqualified him from holding the post of Chiefship. 16. It was based on the request made by the petitioner seeking cancellation of the appointment of the private respondent, the Deputy Commissioner, after hearing both the parties, by order dated 11.5.2016 allowed the writ petitioner to continue as Chief of the Village. When such an order passed after hearing both the parties is stayed by a higher authority like the Commissioner, strict adherence to the principles of natural justice ought to have been afforded. More so, when such order passed runs counter to the Customary Laws of the Vaipheis of Manipur, inasmuch as the private respondent is the younger son and not the eldest son and the eldest son is surviving. 17. When there is a serious contest as to the authority of the Deputy Commissioner and the Commissioner to decide a civil dispute about the Chiefship of the Village, in my considered opinion, the said respondents ought to have not passed an order directly in conflict with the Customary Laws of the Vaipheis of Manipur. It is not in dispute that customary law prevails over the statutory law. The custom is altered by the respondent authorities by allowing a younger son to hold the Chiefship even during the existence of the eldest son. In the considered opinion of the court, the act of the respondent authorities is without jurisdiction and even beyond the customary law governing the Vaipheis of Manipur. On this score, the writ petition is liable to be allowed. 18. The next issue that, however, needs consideration is the violation of the principles of natural justice. The petitioner, on his request for appointment as Chiefship, was reappointed by the Deputy Commissioner on 11.5.2016 after hearing both sides. When the Deputy Commissioner found the petitioner to be qualified to hold the post of Chiefship, the Commissioner, without affording an opportunity of hearing to the petitioner, stayed the order passed by the Deputy Commissioner. 19. The petitioner, on his request for appointment as Chiefship, was reappointed by the Deputy Commissioner on 11.5.2016 after hearing both sides. When the Deputy Commissioner found the petitioner to be qualified to hold the post of Chiefship, the Commissioner, without affording an opportunity of hearing to the petitioner, stayed the order passed by the Deputy Commissioner. 19. It is trite law that everything that affects a citizen in his civil life and has a civil consequence must be done in conformity with the principles of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. In the case on hand, the order passed by the respondent authorities affecting the civil right of a person is against the rudimentary principles of customary law and in gross violation of the principles of natural justice. 20. For the foregoing reasons, (a) the writ petition is allowed and the order dated 24.4.2017 is set aside. (b) The order dated 11.5.2016 passed by the Deputy Commissioner permitting the petitioner to continue as the Chief of Thingkeu Village is upheld and the petitioner shall function as Chief of Thingkeu Village. (c) There will be no order as to costs.