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2022 DIGILAW 46 (GAU)

Shri Neizo Zumu v. State Of Nagaland

2022-01-19

KAKHETO SEMA

body2022
JUDGMENT : This writ petition is directed against the appointment of the respondents No. 7, 8, 9, 10, 11 & 12 as the Village Council Member (VCM) of Botsa Village under Sub-division Chiephobozou in the district of Kohima, Nagaland. 2. Heard Mr. Imti Longjem, learned counsel for the petitioners and Mr. Kekhriengulie, learned Additional Advocate General, Nagaland for the State respondents No. 1, 2, 3, 4 & 5. Also heard Mr. A. Zho, learned counsel for the private respondents No. 7 to 12. 3. The Botsa village was established in the year 1947 in the community land of Tuophema village by some elders of Tuophema village. The village has a separate and a distinct identity from the parent village. The village is recognized by the Government of Nagaland and has a separate and independent village council constituted in accordance with the Nagaland Village Council Act, 1978 (hereinafter referred to as the Act). 4. That sometime in the year 2019, the village council of Tuophema wanted the name of the Botsa village to be changed to Touphe-Botsa and communicated the same to Botsa village council. To deliberate on the issue several village council meetings as well as the general public meeting of Botsa village was held. Thereafter, by the resolution dated 12.07.2020 adopted in the meeting of the G.Bs of the village and khel members and the resolution dated 20.02.2021 adopted in the general meeting convened by the Botsa village council it was decided that the name of the village shall not be changed and the village shall continue to retain the name Botsa. 5. When the matter was thus situated, the Government of Nagaland, Office of the Deputy Commissioner, Kohima, Nagaland, issued the Notification No. SDR/DCK/VC/42/2011(Pt-I), dated 18.03.2021, declaring the dissolution of all the village councils of recognized villages under Kohima district with immediate effect. Further, all the recognized villages were informed to form the new village council for the current tenure by selecting/electing the village council members of their respective villages in accordance with the prevailing customary practices and usages as provided for in the Act. The notification also conveyed that the village council duly formed under the Act shall continue for 5(five) years unless otherwise dissolved by the Government of Nagaland and the process of selection of the VCM was to be completed on or before 31.03.2021. The notification also conveyed that the village council duly formed under the Act shall continue for 5(five) years unless otherwise dissolved by the Government of Nagaland and the process of selection of the VCM was to be completed on or before 31.03.2021. This notification was also served to all the village councils and the head G.B of Kohima district. The notification dated 18.03.2021, issued by the Deputy Commissioner, Kohima was also endorsed to the head G.B of Botsa village by the Additional Deputy Commissioner, Chiephobozou, Kohima, Nagaland by the letter dated 19.03.2021. In the said letter, the ADC, Chiephobozou, Kohima, Nagaland, also directed the G.Bs under his jurisdiction to submit the village council members on or before 26.03.2021 for onward submission to the Government for approval. 6. It is submitted by Mr. Imti Longjem, learned counsel for the petitioners that the customary practices and usages for selecting the village council members since the establishment of Botsa village, is that, the respective clan member will select one member each and give the names to the Head G.B of the village who in turn will forward such name(s) to the Government for approval for the constitution of the village council. It is submitted that there are 6(six) clans in Botsa village, namely the Rio clan, the Kense clan, the Seyie clan, the Zumu clan, the Sanchu clan and the Zirrü clan. The practice followed in the village is that unless a clan has eight to ten households it shall have no representation in the village council. The Zirrü clan has only two households in the village. 7. It is submitted that in terms of the letter dated 19.03.2021, issued by the ADC, Chiephobozou, Nagaland, the five clans of the village excluding the Zirrü clan which has only two households, selected one person each from their respective clan and submitted the names to Shri. Keduolhoutuo Seyie, the Head G.B of Botsa village, who in turn by letter dated 23.03.2021 submitted the names of the persons selected by the respective clan to the Extra Assistant Commissioner, Botsa for approval by the Government. The Head G.B by the letter dated 23.03.2021 also submitted the endorsement by the persons representing the households in each clan in favour of the person selected by them. The Head G.B by the letter dated 23.03.2021 also submitted the endorsement by the persons representing the households in each clan in favour of the person selected by them. The persons who were selected by the respective clan are Shri. Thepfuneituo from Rio clan (petitioner No.3), Shri. Keduokuolie from Kense clan (petitioner No.14), Shri. Asou from Seyie clan (petitioner No. 9), Shri. Vilalhoulie from Sanchu clan (petitioner No. 8) and Shri. Asou @ Khelhouhetuo from Zumu clan (petitioner No. 15). 8. It is also submitted by the petitioner that instead of accepting the names submitted by the Head G.B by the letter dated 23.03.2021, the Extra Assistant Commissioner, Botsa, surprisingly, issued the Circular No. BOTSA/JUD/1-2014, dated 03.04.2021 directing the heads of families of the six clans of Botsa village that the verification process for the village council members of the clans will be held on 06.05.2021 at the Office of the Extra Assistant Commissioner, Botsa from 11:00 A.M onward. Different timeslot were given to the six clans for the purpose of verification which are as follows; Sl. No. CLAN Time 01 Rio 11:00 A.M-11:30 A.M 02 Seyie 11:30 A.M-12:00 P.M 03 Zumu 12:00 P.M-12:30 P.M 04 Sanchu 12:30 P.M-1:00 P.M 05 Kense 1:00 P.M-1:30 P.M 06 Zirrü 1:30 P.M-1:40 P.M 9. It is submitted that in the meantime, Shri. Keduolhoutuo Seyie the Head G.B and Shri. Pfheliezhu Rio, G.B, the two of the four G.Bs of Botsa village were disqualified from holding the post of G.B on the ground that the two G.Bs were salaried government servant. Their disqualification was effected by the order dated 08.04.2021, issued by the Deputy Commissioner, Kohima, Nagaland. The petitioner however, submits that the disqualification of the two G.Bs is not the issue in the present petition. 10. It is the case of the petitioner that as directed by the letter dated 03.05.2021, the villager went to the Office of the Extra Assistant Commissioner, Botsa on 06.05.2021. There were however about 150 to 200 Tuophema villagers outside the Office complex of the Extra Assistant Commissioner, Botsa who were preventing persons who did not want to change the nomenclature of the village from entering the Office but allowing only those who wanted to change the name of the village with the sole intent of allowing such persons to get themselves elected/selected as the village council members. This led to a clash where four persons from Botsa village belonging to the group not wanting a change in the name of the village got physically assaulted. Some members of the Rio clan who were to appear before the Extra Assistant Commissioner, Botsa between 11:00 A.M to 11:30 A.M managed to enter the Office led by the petitioner No.3 and conveyed to the EAC not to conduct any verification for selection/election of the VCM in view of the unwarranted situation created by the Tuophema villagers. The EAC agreed to do so and therefore, the members of the Rio clan left the venue. In regard to the Seyie clan who were directed to appear between 11:30 A.M-12:00 P.M only their leader one Mr. Thepfusatuo Seyie managed to enter the Office of the EAC and he too conveyed to the respondent No.6 not to conduct any proceeding because majority of the villagers were being prevented from entering the Office to which the EAC agreed. Thereafter, majority of the Botsa villagers left the Office complex of the EAC, Botsa. It is further the case of the petitioners that at the instance of the Touphema villager, some Botsa villagers who were in favour of the changing the name of the village met the EAC, Botsa and submitted a list of six names for the new village council. Consequent thereto, the petitioners No. 1 & 2 who are the two G.Bs of the village submitted a complaint to EAC, Botsa on 06.05.2021 itself stating that in view of the interference of Tuophema villagers, the Botsa village is withdrawing from the verification process and further made an appeal to the EAC to re-fix another date for the verification process. The two G.Bs also by the letter dated 17.05.2021 informed the Deputy Commissioner, Kohima, Nagaland, of the illegitimate actions resorted to by the Tuophema villager on 06.05.2021 and requested the Deputy Commissioner, Kohima to conduct the verification of the village council members to another date. 11. That it is the case of the petitioners that in spite of submitting representation to the EAC, Botsa and the Deputy Commissioner, Kohima, for a re-verification to select/elect the village council member, the EAC Botsa by the letter No. BOTSA/VC/2012, dated 06.05.2021 addressed to the Addl. 11. That it is the case of the petitioners that in spite of submitting representation to the EAC, Botsa and the Deputy Commissioner, Kohima, for a re-verification to select/elect the village council member, the EAC Botsa by the letter No. BOTSA/VC/2012, dated 06.05.2021 addressed to the Addl. Deputy Commissioner, Chiephobozou, Kohima submitted a purported verification report stating that the six clans of the Botsa village had proposed the names of the private respondents No. 7 to 12 to be chosen as the village council members. 12. The petitioners while seriously disputing the bonafide of the letter dated 06.05.2021, also submits that the letter itself discloses that the private respondents are not supported by the majority of the respective clan members. So also the proposal to select persons from the Zirrü clan is wholly against the prevalent practices of the village. However, basing on the letter dated 06.05.2021, issued by the EAC Botsa, the Government of Nagaland, Home department, General Administration Branch-I by the letter No. HOME/VC/ELECTION/2021/106, dated 08.06.2021 has approved the names of the private respondents No. 7, 8, 9, 10, 11 & 12 for formation of the Botsa village council for the period 2021-2026 and communicated the same to the Commissioner, Nagaland, Kohima. The Commissioner, Nagaland, thereafter by the letter No. CND-1/1/VC/ELE/2015, dated 09.06.2021 has forwarded the list of the approved village council members under Kohima district to the Deputy Commissioner, Kohima who in turn by the letter No. DCK/SDR/VC/42/2011(Pt-I)AK-169, dated 12.06.2021 has amongst other forwarded the same to the EAC Botsa. The EAC Botsa by the letter No. BOTSA/VC/2012, dated 14.06.2021 accordingly forwarded the approved list of the newly elected/selected VCMs to the G.B of the villages under Botsa circle including that of the Botsa village. 13. The counsel for the petitioners submits that the verification conducted by the EAC Botsa on 06.05.2021 and the consequent selection and approval of the private respondents No. 7 to 12 by the respondents authorities is absolutely illegal and in blatant violation of section-4 of the Act. The counsel submits that the prevailing customary practices and usages of selecting the village council members wherein each clan of the village chooses their representative through deliberation among themselves was completely sidelined and for the first time the villagers were called to the Office of the EAC Botsa for choosing/verification of the village council members. The counsel submits that the prevailing customary practices and usages of selecting the village council members wherein each clan of the village chooses their representative through deliberation among themselves was completely sidelined and for the first time the villagers were called to the Office of the EAC Botsa for choosing/verification of the village council members. It is the case of the petitioners that the persons whose name has been approved for constitution of the village council were purportedly selected in the Office of the EAC Botsa and this by itself has vitiated the entire selection process and the subsequent approval of the respondents as members of the Botsa village council. It is further the case of the petitioners that if the EAC Botsa wanted to verify the selection of the members between the two disputing parties, the verification ought to have been done through a public meeting in the village council hall where all disputes could have been resolved through deliberation without any outside disturbance or interference. The selection/election of the village council members by the EAC Botsa without the participation and in the absence of majority of the Botsa villagers and by completely ignoring the names of the persons submitted by the Head G.B on 23.03.2021, therefore, it is submitted, is wholly contrary to the customary practices and usages of the village in selection of the village council members and in total violation of section4 of the Act. The petitioners has accordingly sought for direction(s)/order(s) to quash and set aside the impugned letter(s)/order(s) issued by the respondents authorities and to declare the selection/election of the private respondents as village council members of Botsa village as void and illegal. The petitioners has also sought for a direction to the State respondents to approve and appoint the petitioner No.3,8,9,14 & 15 who were selected by their respective clan and whose name were submitted to the respondents authorities by the Head G.B of Botsa village by the letter dated 23.03.2021 (Annexure-E to the writ petition). In the alternate, the petitioners has also prayed for a direction that the members of the Botsa village council should be selected/elected afresh in accordance with the prevailing customary practices and usages free from all outside interference. 14. The writ petition is opposed by the State respondents No. 1 to 6 as well as by the private respondents No. 7 to 12 by filing their respective affidavit-in-opposition. 14. The writ petition is opposed by the State respondents No. 1 to 6 as well as by the private respondents No. 7 to 12 by filing their respective affidavit-in-opposition. 15. Mr. Kekhriengulie, learned Additional Advocate General, Nagaland, for the State respondents submits that the notification dated 18.03.2021, issued by the Deputy Commissioner, Kohima dissolving all the village councils of the recognized villages under Kohima district with immediate effect and for the selection/election of the new village council members on or before 31.03.2021 was extended to 30.04.2021 by the letter No. CND/VC/ELE-2015, dated 31.03.2021, issued by the Office of the Commissioner, Nagaland, Kohima. Subsequent to the extension of the date for submission of the village council members, the respondents forwarded the list containing the names of private respondent Nos. 7 to 12 to the Head G.B of Botsa village. The Head G.B however, refused to accept and forward the names of the private respondents to the authorities concerned. The respondents therefore, submitted the letter dated 05.04.2021 to the Deputy Commissioner, Kohima complaining against the Head G.B Botsa village in not forwarding the names of the private respondents who were properly selected as VCMs by their respective clans in accordance with the customary practices and usages as prevalent in the village. Pursuant to the letter submitted by the private respondents, the Deputy Commissioner, Kohima wrote the letter No. DCK/SDR/VC/CBZ/9/2016/K928, dated 09.04.2021 to the Addl. Deputy Commissioner, Chiephobozou, Kohima to verify the veracity made by the private respondents and to submit the report for further necessary action. Consequent thereto, the Addl. Deputy Commissioner, Chiephobozou wrote the letter No. DCK/SDR/VC/CBZ/9/2016/K928/262, dated 13.04.2021 to the EAC Botsa to verify the veracity of the claim on the issue of the house tax and the selection of VCMs as submitted by the respondents. It was only thereafter that the EAC Botsa issued the circular dated 03.04.2021 directing the head of the families of the six clans to attend the verification process on 06.05.2021 in his Office without fail. The circular dated 03.04.2021 had clearly stipulated the timeslots allotted to each of the clan for the purpose of verification. 16. The learned State counsel has vehemently denied that the petitioners who were against the change in the name of the village were forcibly prevented by the villagers of Tuophema village from entering the Office of Extra Assistant Commissioner, Botsa. The circular dated 03.04.2021 had clearly stipulated the timeslots allotted to each of the clan for the purpose of verification. 16. The learned State counsel has vehemently denied that the petitioners who were against the change in the name of the village were forcibly prevented by the villagers of Tuophema village from entering the Office of Extra Assistant Commissioner, Botsa. The State counsel submits that although there was information that there was some commotion taking place outside the EAC Office premises, there were adequate security arrangement made to monitor the law and order situation and accordingly, the entire process of verification of the six clans were completed by 1:40 P.M. and immediate to which the respondent No. 6 vide the letter dated 06.05.2021 forwarded the verification report to the higher authority for approval. It is also the case of the State respondents that keeping the provisions of the Village Council Act, 1978 the authorities only verified the veracity of the list of VCMs submitted by the villagers but did not interfere in the selection process of the VCMs which was forwarded through the resolution of their respective clans. The State counsel has also submitted that the process of verification was carried out by head count of the members present and therefore, the question of majority support did not arise. It is also the stand taken by the State respondents that the circular dated 03.05.2021, issued by the respondent No.6 was only for the purpose of verification of VCMs submitted by the different groups but not for selection of the VCMs of Botsa village council, however for reasons best known to the petitioners many of them they did not turn out to participate in the verification process in spite of the prior information. 17. 17. The State counsel while admitting that the village council members has to be chosen in accordance with the prevailing customary practices and usages of the village where the respective clans has to choose their representatives through deliberation and forward it to the authorities for approval and appointment, the same was not adhered to by the Head G.B of the village while forwarding the names of Shri. Thepfuneituo from Rio clan (petitioner No.3), Shri. Keduokuolie from Kense clan (petitioner No.14), Shri. Asou from Seyie clan (petitioner No. 9), Shri. Vilalhoulie from Sanchu clan (petitioner No. 8) and Shri. Asou @ Khelhouhetuo from Zumu clan (petitioner No. 15) to the respondent No.6 vide letter dated 23.03.2021. On the other hand, the private respondents No. 7 to 12 whom the Head G.B refused to accept were selected by the clan members after proper deliberation and in accordance with customary practices and usages. In so far the first time selection of VCMs from the Zirrü clan is concerned, it is submitted that the respondent No.6 has made necessary enquiry and found that no such decision prevailed where only a clan which has 8 to 10 households could have representation in the village council. 18. It is further the case of the State respondents that the petitioners No. 1 & 2 who are the G.B of Botsa village have no locus to challenge the selection of the new VCMs of the village for the selection of the private respondents as the VCMs has in no way violated the constitutional or the legal right of the petitioners. It is also the case of the State respondents that the present petition is prematurely filed as the authorities are yet to dispose the representation dated 30.06.2021 submitted by the petitioners against the letter dated 08.06.2021 approving the names of the private respondents as VCMs of Botsa village. 19. The learned State counsel submits that the selection and approval of the private respondent No. 7 to 12 as VCMs was done in accordance with the customary practices and usages as prevailing in the village and by strictly adhering to the provisions of section-4 of the Nagaland Village Council Act, 1978 and therefore, the order(s)/letter(s) impugned in the writ petition may not be interfered with. 20. Mr. 20. Mr. A. Zho, learned counsel for the private respondents No. 7 to 12 while subscribing to the submission made by the learned State counsel has raised preliminary objection against the maintainability of the writ petition on the ground that the petitioner Nos. 1, 2, 4, 6, 7, 11, 12, 13, 16 & 17 has no locus standi to file the instant writ petition, that the petitioner No. 3, 5 & 10 has suppressed material facts and that the present petition is premature. Mr. A. Zho submits that since the petitioner Nos. 1, 2, 4, 6, 7, 11, 12, 13, 16 & 17 are not the contenders for the post of the VCMs of Botsa village for the tenure 2021-2026 they can have no grievances against the letter dated 08.06.2021 (inadvertently written as 09.06.2021), issued by the Government approving the names of the private respondents as VCMs of Botsa village. In support of his submission, the learned counsel has placed reliance in the case of Ayaaubkhan Noorkhan Pathan -versus-State of Maharashtra & Others, reported in (2013) 4 SCC 465 to substantiate that as neither the fundamental rights nor the statutory rights of the petitioners has been infringed they cannot be termed as persons aggrieved in law having the locus standi to file the instant petition. It is then submitted that the petitioner No.3 is presently serving as the Head G.B of another village called ‘Razhaphe’ and therefore, attracts disqualification under section-16(8) of the Act from being selected as a member of the Botsa village council. The petitioner No.3 has however suppressed the facts while his name was proposed as one of the VCMs by the Head G.B of the village. Likewise, the counsel submits that the petitioner No. 5 & 10 are government servant who have not disclosed their credentials while challenging the actions of the government appointing the private respondents as the VCMs of Botsa village. In support of his submission, the learned counsel has cited the case of Kishore Samrite -versus-The State of Uttar Pradesh & Others, reported in (2013) 2 SCC 398 to bring home the point that the obligation to approach the court with clean hands is an absolute obligations and has repeatedly been reiterated by the Hon’ble Apex Court. In support of his submission, the learned counsel has cited the case of Kishore Samrite -versus-The State of Uttar Pradesh & Others, reported in (2013) 2 SCC 398 to bring home the point that the obligation to approach the court with clean hands is an absolute obligations and has repeatedly been reiterated by the Hon’ble Apex Court. The learned counsel has also submitted that the present writ petition is pre-matured as the representation dated 30.06.2021 submitted by the petitioners against the approval letter dated 08.06.2021 selecting the private respondents as VCMs is still pending disposal before the Government. 21. Supplementing the submission made by the State counsel, Mr. A. Zho submits that as there were two different lists of the new VCMs submitted by the clan representative and the Head G.B of Botsa village, the Deputy Commissioner, Kohima through the Additional Deputy Commissioner, Chiephobozou directed the EAC Botsa to verify and to submit the report for necessary action. The EAC Botsa therefore, by the circular dated 03.05.2021 had informed all the household of the six clans to be present in his Office on 06.05.2021 for verification. Mr. A. Zho submits that the misunderstanding arose between the villagers because the Head G.B had prepared a separate list of VCMs but refused to accept the list submitted by the representative of the six clans. It is further submitted by the learned counsel for the private respondents that the EAC Botsa conducted the verification of all the head of the households of the clan of Botsa village on 06.05.2021 in a fair and transparent manner and on completion of the verification, the report dated 06.05.2021 choosing the private respondents as the VCMs of the respective clan was submitted to the Additional Deputy Commissioner, Chiephobozou. Mr. A. Zho also submits that the names of the VCMs containing in the two separate list was duly verified by the respondent No. 6 on 06.05.2021 where it was ascertained and confirmed that the private respondents had the majority support of the members present from the six clans of Botsa village. Mr. Mr. A. Zho also submits that the names of the VCMs containing in the two separate list was duly verified by the respondent No. 6 on 06.05.2021 where it was ascertained and confirmed that the private respondents had the majority support of the members present from the six clans of Botsa village. Mr. A. Zho therefore, submits that the disputed list of VCMs containing the names of the petitioners No. 3, 8, 9, 14 & 15 and that containing the name of the private respondents No. 7, 8, 9, 10, 11 & 12 was resolved by the respondent No.6 in the presence of all the parties and it was only thereafter that the respondent No.6 submitted the report dated 06.05.2021 to the higher authorities proposing the name of the private respondents as the VCMs of Botsa village. The respondents therefore, submits that since there is no infirmity in the action of the authorities in selecting and appointing the private respondents as VCMs of Botsa village the action of the government should not be interfere with. 22. In the affidavit-in-reply to the affidavit-in-opposition filed by the State, the petitioner has stated that by the letter dated 19.03.2021 (Annexure-D to the writ petition) the respective Head G.Bs were directed to submit the names of the new village council on or before 26.03.2021. The petitioner No.10 accordingly submitted the names of the petitioner No.3, 8, 9, 14 & 15 who were selected by their respective clans to the respondent No. 6 by the letter dated 23.03.2021. Post 26.03.2021 the names of the private respondents were submitted to the petitioner No.10 who however, refused to accept the same as the names of the petitioners has already been submitted to the respondent No.6 in terms of the direction contained in the letter dated 19.03.2021. The petitioners has also reiterated that they were not only threatened by the Tuophema villager’s but restrained from participating in the verification process and only those who favoured the change in the name of the village were allowed peaceful entry and participation in the verification process. The petitioners therefore states that the verification results based only on the number of persons who were allowed entry inside the EAC Office on 06.05.2021 does not reflect the mandate of the village as a whole. The petitioners therefore states that the verification results based only on the number of persons who were allowed entry inside the EAC Office on 06.05.2021 does not reflect the mandate of the village as a whole. It is further stated that since the verification process conducted by the respondent No.6 itself amounted to selection/election of the private respondents as the VCMs, the selection must stand vitiated being unfair and contrary to the customary practices and usages as contemplated under section-4 of the Act. 23. I have considered the submissions of the learned counsel for the parties and also perused the pleadings submitted by the parties. Before adverting on the moot question as to whether the private respondents were selected/elected as village council members in accordance with the law laid down in section-4 of the Nagaland Village Council Act, 1978, this Court deems it proper to first traverse on the issue of the preliminary objection raised by the respondents on the maintainability of the writ petition. 24. Firstly, the learned counsel for the private respondents has questioned the locus standi of the petitioner Nos. 1, 2, 4, 6, 7, 11, 12, 13, 16 & 17 to file the instant writ petition solely on the ground that as the petitioners do not have any interest to get themselves selected/elected as the VCMs of Botsa village they can have no grievances against the letter dated 08.06.2020 (Annexure-O to the writ petition), issued by the Home Department appointing the private respondent Nos. 7 to 12 as VCMs. This submission does not convince the Court. Section-4 of the Act starts with the sentence “A village council shall consist of members chosen by villagers in accordance with the prevailing customary practices and usages………”. A bare perusal of section-4 makes it abundantly clear that all the bonafide villagers of a village shall have the right to select/elect the village council members in accordance with the prevailing customary practices and usages, a fortiori any members of the village being aggrieved by the wrongful selection/election of the VCMs can always question such actions on the ground that the selection/election was not fair or against the prevalent customary practices and usages. In the instant case, the petitioners who are all the bonafide members of Botsa village have filed the instant writ petition impugning the appointment of the private respondents as VCMs on the ground that the selection was not free and fair and against the customary practices and usages. In view of the clear language used in section-4 of the Act, this Court is of the opinion that the petitioners have the locus standi to file the present writ petition. The decision of Ayaaubkhan Noorkhan Pathan -versus- State of Maharashtra & Others (supra) cited by the respondents therefore, do not come to the aid of the respondents. 25. Secondly, the learned counsel for the respondents submits that the petitioner No.3 has suppressed the fact that he is serving as the Head G.B of ‘Razhaphe’and is contesting for one of the post of VCM in Botsa village. To buttress this point, the learned counsel has quoted section-16(8) of the Act which provides as follows; 16. A person shall be disqualified from being selected and for being appointed a member of village council:- (1)…………………………………………………………………… ………………………………………………………………………. (8) if he is a member of any other village council ; or” Section-16(8) of the Act nowhere states that a person shall be disqualified from being selected as and for being a member of the village council if he is a G.B of another village, it only speaks that disqualification shall be attracted if he is a member of any other village council. The State respondents in their affidavit in paragraph-21 has clearly stated that ‘the position of G.Bs and village council members are absolutely different’. So also the private respondents in their affidavit in paragraph-16 has categorically averred that ‘the G.Bs are Government appointees and not village council members’. If this be so, section-16(8) of the Act by itself does not dislodge the rights of the petitioners to be selected as the VCMs of Botsa village. The question of suppression of facts therefore, does not arise. Even otherwise, the petitioner No.3 did not nominate himself as a prospective VCM by concealing his credential as a G.B but was proposed and selected by his clan members. It would therefore be unjustified to hold that the petitioner No.3 had willfully concealed his appointment as G.B to get himself selected as VCM of Botsa village. Even otherwise, the petitioner No.3 did not nominate himself as a prospective VCM by concealing his credential as a G.B but was proposed and selected by his clan members. It would therefore be unjustified to hold that the petitioner No.3 had willfully concealed his appointment as G.B to get himself selected as VCM of Botsa village. Section-17 of the Act then provides that ‘if any question arises as to whether a member of a village council has been subjected to disqualification, the question shall be referred to the decision of the State Government whose decision thereon shall be final’. The selection of the petitioner No.3 by his clan was not acted upon by the Government. In other words, the petitioner was never appointed as a VCM of Botsa village. The question whether the petitioner stood disqualified as a VCM in view of his appointment as G.B of Razhaphe village could have been decided by the Government under section-17 of the Act only if the petitioner No.3 was effectively appointed as the VCM of Botsa village. This being not the position, it is only premature and illogical for the respondents to aver and allege that the petitioner No.3 had suppressed the information of his appointment as the G.B. while proposing to get himself selected as VCM. In regard to the petitioner Nos. 5 & 10, the respondents has only made a bare statement that both of them being government servant, the letter dated 08.06.2021, issued by the Home department approving the names of private respondents as VCMs of Botsa village does in no way affect the rights of the petitioners. This question has more or less been addressed to in the foregoing paragraph-24 of this judgment. 26. Thirdly, the respondent submits that the writ petition is prematurely filed since the representation dated 30.06.2021 submitted by the petitioners to the State Government against the letter dated 08.06.2021 approving the newly elected/selected village council members in respect of Botsa village is still pending final disposal. To this, Mr. I. Longjem, learned counsel for the petitioners submits that the representation dated 30.06.2021 is the third representation, as prior to this, the petitioners had also submitted the letter dated 06.05.2021 to the Extra Assistant Commissioner Botsa and the letter dated 17.05.2021 addressed to the Deputy Commissioner, Kohima against the selection of the private respondents as VCMs. Mr. To this, Mr. I. Longjem, learned counsel for the petitioners submits that the representation dated 30.06.2021 is the third representation, as prior to this, the petitioners had also submitted the letter dated 06.05.2021 to the Extra Assistant Commissioner Botsa and the letter dated 17.05.2021 addressed to the Deputy Commissioner, Kohima against the selection of the private respondents as VCMs. Mr. I. Longjem submits that as the Government has not taken any action on any of the representations submitted by the petitioners, there is no justification for the respondents to submit that the present petition is filed premature. Mr. I. Longjem also submits that, the Government, while totally ignoring the representation submitted by the petitioners has however, allowed the private respondents to continue as the village council members which by itself is highly questionable. This Court has perused the three representations/letters submitted by the petitioners, the last being the representation dated 30.06.2021. The present petition was filed on 26.07.2021 as the representation failed to evoke any positive response from the authorities. The inaction of the Government in disposing the representations submitted by the petitioners even as of date leads to an inference that the respondents authorities have the least interest in disposing the representations. It is only when the present writ petition has been filed that the respondents are raising the issue of premature filing of the writ petition. This is unreasonable. Dispensation of justice cannot be delayed by taking such ground more particularly, when the fault can be clearly attributed to the State. This Court is therefore of the view that the preliminary objection on premature filing of the writ petition cannot be sustained. 27. Section-4 of the Nagaland Village Council Act, 1978 is recapitulated as under; “4. A village council shall consist of members chosen by the villager in accordance with the prevailing customary practices and usages, the same being approved by the State Government, provided that hereditary village chiefs GBs and Angs shall be ex-officio members of such council and having voting right.” 28. A village council shall consist of members chosen by the villager in accordance with the prevailing customary practices and usages, the same being approved by the State Government, provided that hereditary village chiefs GBs and Angs shall be ex-officio members of such council and having voting right.” 28. Both the petitioners and the respondents are in unanimity that the prevailing customary practices and usages in the village is that the respective clan members after due deliberation chooses and selects one member each from the clan and informs the Head G.B of the village who in turn forwards the names to the Government for approval and appointment as the village council members to constitute the village council. The Botsa village has 6(six) clans. The only disagreement is the representation of the Zirrü clan in the village council as it has only two household in the village. The petitioners claiming that unless a clan has eight to ten households such clan cannot have representation in the village council while the respondents disputing the same. The admitted position however is that the Zirrü clan, for the first time, has representation in the village council. This disagreement as to whether the Zirrü clan can have representation in the village council is however not the issue for deciding the present case, the pertinent question germane for a decision being as to whether the private respondents were chosen and selected as the village council member in accordance with the mandate of section-4 of the Act. 29. The centre of the controversy in the case is the letter No. BOTSA/VC/2012, dated 06.05.2021 (Annexure-N to the writ petition) written by the Extra Assistant Commissioner Botsa to the Additional Deputy Commissioner, Chiephobozou, Kohima submitting the verification report on selection of the VCM by the different clans of Botsa village where the respondents No. 7 to 12 are said to have been proposed and of the private respondents have been approved by the Government as the new VCM’s of Botsa village for the tenure 2021-2026 and appointed accordingly. 30. The letter dated 06.05.2021 is reproduced below; “GOVERNMENT OF NAGALAND OFFICE OF THE EXTRA ASSISTANT COMMISSIONER BOTSA : NAGALAND No. BOTSA/VC/2012 Dated the 6th May, 2021 To, The Additional Deputy Commissioner, Chiephobozou, Kohima Sub:-Submission of verification report regarding clan representatives of Botsa village for selection of VCMs. 30. The letter dated 06.05.2021 is reproduced below; “GOVERNMENT OF NAGALAND OFFICE OF THE EXTRA ASSISTANT COMMISSIONER BOTSA : NAGALAND No. BOTSA/VC/2012 Dated the 6th May, 2021 To, The Additional Deputy Commissioner, Chiephobozou, Kohima Sub:-Submission of verification report regarding clan representatives of Botsa village for selection of VCMs. Sir, With reference to the subject cited above and to your letter No. DCK/SDK/VC/CBZ/2016/K928 dated Kohima the 9th April, 2021 regarding clan representatives of Botsa Village for selection of VCMs. I have the honour to state that the undersigned issued a Circular on 3rd April, 2021 for verification of the clan representatives of Botsa village for selection of the VCMs to be held on 6th April, 2021. I would like to state the following verification reports as; 1. The Rio clan has 63(sixty three) number of bonafide heads of tax paying households. There are 31(thirty one) members present and all were in favour of Shri. Kehouzelie Rio who was the lone candidate. 2. The Seyie clan has 24(twenty four) number of bonafide heads of tax paying households. There were 11(eleven) members present and all were in favour of Shri. Ketoukhrielie Seyie who was the lone candidate. 3. The Kense clan has 53(fifty three) numbers of bonafide heads of tax paying households. There were 24(twenty four) members present and all were in favour of Shri. Kechangulie Kense who was the lone candidate. 4. The Zumu clan has 37(thirty seven) number of bonafide heads of tax paying households. There were 15(fifteen) members present and all were in favour of Shri. Keviletuo Zumu who was the lone candidate. 5. The Sanchu clan has 21(twenty one) number of bonafide heads of tax paying households. There were 06(six) members present and all were in favour of Shri. Khrievizolie Sanchu who was the lone candidate. 6. The Zirru clan has 01(one) number of bonafide heads of tax paying households i.e. Shri. Khrietsilie Zirru also to state that Shri. Satuolie Zirru name does not appear in the list of tax paying household but he is a bonafide citizen of Botsa Village Council as VCM for the first time in this regard, higher authority may give further directive. This is for your information and necessary action. Yours faithfully, Sd/- (SARATHO KATIRY) Extra Assistant Commissioner Botsa.” 31. This is for your information and necessary action. Yours faithfully, Sd/- (SARATHO KATIRY) Extra Assistant Commissioner Botsa.” 31. A perusal of the letter dated 06.05.2021 clearly reveals that in the verification conducted by the EAC Botsa on 06.05.2021, only 31(thirty one) out of the 63(sixty three) household of the Rio clan favoured the lone candidature of Shri. Kehouzelie Rio, the respondent No. 7, as the village council member, only 11(eleven) out of the 24(twenty four) household of the Seyie clan favoured the lone candidature of Shri. Ketoukhrielie Seyie, the respondent No.8 as the village council member, only 24(twenty four) out of the 53(fifty three) household of Kense clan favoured the lone candidature of Shri. Kechangulie Kense, the respondent No. 9 as the village council member, only 15(fifteen) out of the 37(thirty seven) household of the Zumu clan favoured the lone candidature of Shri. Keviletuo Zumu, the respondent No. 10 as the village council member, only 6(six) out of 21(twenty one) household of the Sanchu clan favoured the lone candidature of Shri. Khrievizolie Sanchu, the respondent No. 11 as the village council member and the Zirrü clan which has only 1(one) taxpaying household favoured the candidature of Shri. Satuolie Zirrü, the respondent No. 12 as the village council member. The letter dated 06.05.2021 also clearly states that the Zirrü clan is represented for the first time in the Botsa village council. 32. From the letter dated 06.05.2021, it is perceived that the majority household of the different clans of Botsa village barring the Zirrü clan, did not attend the verification process and the private respondents were chosen as the village council members by the minority household of the clan. This certainly raises the concern of the Court and leads credence that the group supporting the candidature of the petitioner No. 3, 8, 9, 14 & 15 who were opposing the change in the name of the village were either restrained or prevented by the members of the parent village from attending the verification process and only the respondents who were supporting the change in the name of the village were allowed to enter the Office of the EAC and take part in the deliberations for choosing the village council members, the reason being very obvious. 33. 33. That both the counsel for the State as well as the private respondents submits that the verification for choosing the village council member was peaceful and no member of the clan representing the households were prevented from taking part in the verification process. The submission made by the State counsel that there was information about some commotion taking place outside the EAC’s Office however, corroborates the petitioners account that there was a clash outside the Office as persons from parent Tuophema village were preventing the petitioners from entering the EAC’s Office. Over and above, a close look at the attendance sheet dated 06.05.2021 signed by the head of the household of the clan who attended the verification process and the letter dated 06.05.2021 containing the verification report which is Annexure-14 series of the Government affidavit makes it abundantly clear and irrefutable that only the head of the household of the clans supporting the membership of the private respondents were allowed to attend the verification proceedings and choose their VCMs. The number of signatories in the attendance sheet 06.05.2021 which is replicated in the letter dated 06.05.2021 by itself explains that only the names of the private respondents chosen by the signatories were forwarded to the Government for approval. 34. Further, a conjoint reading of the circular dated 03.04.2021 (Annexure-F to the writ petition) and the verification attendance sheet (Annexure-14 series to the Government affidavit) demonstrates that the time slot given by the EAC Botsa in the circular dated 03.04.2021 to the different clans of the village for verifying the rival claims of the disputing parties on 06.05.2021 was not adhered to but was randomly fixed at 11:00 A.M and during which only the head of the household of the clan supporting the candidature of the private respondents as VCMs were allowed entry in the Office of the EAC Botsa. The number of persons reflected in the attendance sheet and the verification report makes these findings very obvious. It is therefore evident that there was no deliberation/verification for choosing/selecting the VCM’s of the village with the involvement and participation of all the stakeholder (i.e. the villagers) as mandated by the section-4 of the Act. 35. The number of persons reflected in the attendance sheet and the verification report makes these findings very obvious. It is therefore evident that there was no deliberation/verification for choosing/selecting the VCM’s of the village with the involvement and participation of all the stakeholder (i.e. the villagers) as mandated by the section-4 of the Act. 35. A close reading of section-4 of the Act makes it implicit that if there is no unanimity amongst the head of the household of the clan to choose a person to represent the clan in the village council, a fair, transparent and a democratic process has to be adopted to ascertain as to who in the clan commands the majority support of the head of the household to be chosen as the VCM. In the instant case, barring the Zirrü clan, the 5(five) other clan of the village did not have a consensus candidate to be chosen as the VCM of the clan. It was therefore imperative for the EAC Botsa to have conducted a fair and an impartial verification to ascertain as to which of the rival group had the majority support of the household of the clan to be chosen as the representative of the clan. This process was thrown to the wind and for reasons best known to the EAC Botsa, only the group supporting the candidature of the private respondents were allowed to attend the verification process to choose the private respondents No. 7 to 12 as the VCMs of Botsa village to the complete exclusion of the petitioners group supporting the candidature of the petitioners No. 3, 8, 9, 14 & 15. In support of the verification conducted by the EAC Botsa, the Ld. Addl. A.G, Nagaland, submits that the power to conduct such verification is conferred on the EAC Botsa by section-22 of the Act. There is no dispute that under section-22 of the Act, subject to the general superintendence of the State Government, the administrative authorities prescribed in section-22 shall have control over all the village council within its jurisdiction. Such control by the administrative officer, in the considered view of this Court, shall however be exercised to achieve the object and the intent of the Act but not in derogation of the law. Such control by the administrative officer, in the considered view of this Court, shall however be exercised to achieve the object and the intent of the Act but not in derogation of the law. In the instant case, the private respondents were chosen as the village council member in an unusual manner in contravention of the mandate prescribed by section-4 of the Act. 36. In J. Jayalalithaa & Others -versus-State of Karnataka & Others, reported in (2014) 2 SCC 401 , the Hon’ble Supreme Court has held that; “34. There is yet an uncontroverted legal principle that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. In other words, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim expressio unius est exclusio alterius, meaning thereby that if a statute provides for a thing to be done in a particular way, then it has be done in that manner and in no other manner and following any other course is not permissible.” 37. The procedure adopted to choose/select the private respondents as the village council members of Botsa village being alien to the statutory provisions of the law prescribed under section-4 of the Act, this Court has no hesitation to hold that the letter dated 06.05.2021 written by the EAC Botsa to the ADC Cheiphobozou, Kohima, submitting the verification report for selection of VCMs of Botsa village and the consequential approval/appointment of the private respondents as VCMs of Botsa village is liable to be struck down. 38. Another factors which needs the consideration of this Court for deciding the controversy in issue is the manner in which the respondents in their affidavit have attempted to improve and explain the verification report contained in the letter dated 06.05.2021. The Government respondents as well as the private respondents in their affidavit-in-opposition has categorically averred that the two separate list of VCMs submitted by the two different group for the tenure 2021-2026 was duly verified by the EAC Botsa and ascertained that the private respondents had the majority support of the different clans members. The Government respondents as well as the private respondents in their affidavit-in-opposition has categorically averred that the two separate list of VCMs submitted by the two different group for the tenure 2021-2026 was duly verified by the EAC Botsa and ascertained that the private respondents had the majority support of the different clans members. The EAC Botsa has accordingly resolved the disputed list of VCMs of the petitioner No. 3, 8, 9, 14 & 15 and the private respondents No. 7 to 12 in the presence of all the parties and the Dobashis. The verification conducted by the EAC Botsa on 06.05.2021 only speaks of some head of the household of the different clan present and favouring the private respondents who were the lone VCM candidates from their respective clans. The report nowhere mentions that the two separate list of the VCMs submitted by the two rival groups was duly verified by the EAC Botsa and only thereafter the list of the VCM in support of the petitioners No. 3, 8, 9, 14 & 15 and the private respondent No. 7 to 12 were resolved in the presence of all the parties. It is thus clear that the respondents in their affidavit has only made an effort to unduly justify the verification report by supplementing with grounds and reasons non-existent in the verification report. The State respondents therefore by their affidavit cannot be permitted to traverse beyond the verification report brought out in the letter dated 06.05.2021. 39. The Hon’ble Apex Court in the case of the State of Punjab -versus-Bandeep Singh & Others, reported in (2016) 1 SCC 724 has held that; “4. There can be no gainsaying that every decision of an administrative or executive nature must be composite and self-sustaining one, in that it should contain all the reasons which prevailed on the official taking the decision to arrive at his conclusion. It is beyond cavil that any authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action. If precedent is required for this proposition it can be found in the celebrated decision titled Mohinder Singh Gill v. Chief Election Commr. of which the following paragraph deserves extraction: (SCC p.417, para 8) “8. It is beyond cavil that any authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action. If precedent is required for this proposition it can be found in the celebrated decision titled Mohinder Singh Gill v. Chief Election Commr. of which the following paragraph deserves extraction: (SCC p.417, para 8) “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it come to the court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji) AIR p.18, para 9) ‘9. … public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authority are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.’ Orders are not like old wine becoming better as they grow older.” 40. In view of the discussions above and for the reasons aforesaid, the letter No. BOTSA/VC/2012 dated 06.05.2021 (Annexure-N to the writ petition) containing the verification report of the EAC Botsa is quashed and set aside. Consequently, the approval letter No. HOME/VC/ELECTION/2021/106 dated 08.06.2021 (Annexure-O to the writ petition) in so far as the Botsa village is concerned, the approval letter No. CND-1/VC/ELE/2015 dated 09.06.2021 (Annexure-P to the writ petition) in so far as the Botsa village is concerned, the letter No.DCK/SDR/VC/42/2011 (Pt-1)AK-169 dated 12.06.2021 (Annexure-Q to the writ petition) issued by the Office of the Deputy Commissioner, Kohima in so far as the Botsa village is concerned and the letter No. BOTSA/VC/2012 dated 14.06.2021 (Annexure-R to the writ petition) issued by the EAC Botsa, in so far the Botsa village is concerned are all quashed and set aside. 41. 41. The relief sought for by the petitioners to direct the State respondents to approve and appoint the petitioner No. 3, 8, 9, 14 & 15 as the VCMs of Botsa village as conveyed by the Head G.B of Botsa village vide letter dated 23.03.2021 (Annexure-E to the writ petition) is rejected. 42. The State respondents particularly, the respondents No. 2, 3 & 4 are hereby directed to reconstitute the village council of Botsa village under Kohima district afresh in a fair, impartial and transparent manner with the participation of all the stakeholders (i.e. the Botsa villagers) strictly as mandated by section-4 of the Nagaland Village Council Act, 1978 and in accordance with the prevailing customary practices and usages. The entire exercise for reconstitution of the village council of Botsa village shall be completed at the earliest but not later than a period of 60(sixty) days from the date of receipt of a copy of this order. 43. Writ petition allowed to the extent indicated above. No order as to costs.