Meghalaya High Court
Shri. Kressyngkli &Ors. vs . Khasi Hills Autonomous District on 1 July, 2019
Author: H.S. Thangkhiew
Bench: H.S. Thangkhiew
1
Serial No. 12
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 72 of 2017
Date of Decision: 01.07.2019
Shri. KresSyngkli &Ors. Vs. Khasi Hills Autonomous District
Council &Ors.
Coram:
Hon'ble Mr. Justice H.S. Thangkhiew, Judge
Appearance:
For the Petitioner(s)/Appellant(s) : Mr. P. Yobin, Adv.
For the Respondent(s) : Mr. B.B. Narzary, Sr. Adv. with
Mr. H. Abraham, Adv. for R 1-7.
Mr. A. Baruah, Adv. for R 10-12.
Mr. S.K. Roy, Adv. vice Mr. H.L. Shangreiso, Adv. for R 13&16.
None for R 8, 9, 14 &15.
i) Whether approved for reporting in No
Law journals etc.:
ii) Whether approved for publication
in press: No
ORAL
1. The instant writ petition is with regard to the dispute in the election of the Headman of Umsaw-Nongkharai Village, Ri-Bhoi District, Meghalaya under the Nongpoh Sirdarship Elaka which the petitioner asserts was conducted in an irregular and illegal manner.
2. The factual matrix of the case is that the respondent No. 10 was continuing in office as Headman of Umsaw-Nongkharai Village since the year 1999 and allegedly was again elected and approved for appointment by the KHADC/respondents on the basis of irregular and non-existent election. The further case is that the recognition and appointment of the respondent No. 10 as Headman was on the report of the respondent No. 8 dated 2 18.01.2017, whereby the said respondent No. 8, had reported that elections have been conducted and that the respondent No. 10 being the only candidate, accordingly was recommended for appointment. Being aggrieved by the decision and manner of election, the petitioners are before this Court with this application.
3. I have heard learned counsels for the parties.
4. Mr. P. Yobin, learned counsel for the petitioners submits that in the purported election, there was strong objection to the continuance of the respondent No. 10 in office, however due to the illegal act of the respondent No. 8 in collusion with the respondent No. 10, the whole election process was subverted and manipulated. To substantiate this point, he submits that a public notice calling for elections dated 07.01.2017 was never made public and the same was affixed in the village only on 10.01.2017 in the evening when the time for filing the nominations was over. He further submits that based on the report that was thereafter tendered by the respondent No. 8 (Sirdar of Nongpoh) on 18.01.2017, wherein it was reported that only the respondent No. 10 was the sole candidate, the respondent No. 7 in pursuance thereto, issued a letter dated 29.03.2017, instructing the respondent No. 8 to issue the Sanad to the respondent No. 10. He also submits that the entire process being vitiated by illegal and irregular action, inasmuch as, there was no election, the grant of Sanad to the respondent No. 10 to the Office of the Headman of Umsaw-Nongkharai Village, should be set aside and fresh and free elections held. He also submits that a complaint had been filed before the Chief Executive Member, KHADC on 03.04.2017, but the same has evoked no response.
5. Mr. B.B. Narzary, learned Sr. counsel assisted by Mr. H. Abraham, learned counsel appearing on behalf of the respondent No. 1-7 at the outset has questioned the maintainability of the instant writ petition due to the availability of alternative remedy as provided under Section 7 of the United Khasi- Jaintia Hills Autonomous District (Appointment and Succession of 3 Chiefs and Headmen) Acts, 1959. He submits that Section 7 (ii) of the said Act provides for an appeal to be filed before the Executive Committee (Respondent No. 2) in such matters which can be adjudicated by the Respondent No. 2.
He contends that if the petitioner is aggrieved, at the first instance, instead of approaching this Court he should have availed of the remedy as provided under the Act. He however fairly submits that though, the matter pertains to election that had taken place on 12.01.2017; the KHADC/respondents will look into and adjudicate upon the matter should an appropriate application be filed by the petitioners inspite of the lapse of time.
6. Mr. A. Baruah, learned counsel appearing on behalf of the respondent No. 10-12 supports the submission of the learned Sr. counsel and further submits that there were no illegalities whatsoever and the elections were held as per the procedure and further submits that the petitioners have no locus to challenge the said elections.
7. I have given my thoughtful consideration to the submissions made by the learned counsels and also to the materials on record, and would like to address the issue on the two questions of maintainability. Undisputedly, the facts that have placed by the petitioners relating to the election, concern disputed facts, as there are allegations and counter allegations, especially with regard to the attendance in the election and whether the public notice calling for the election, was ever publicized, which to my mind cannot be a matter for determination by a writ court. Though a complaint had been filed on 03.04.2017 by the petitioners, it seems the same has just remained dormant and was never addressed by the Chief Executive Member, KHADC.
8. On the second point of maintainability and availability of alternate remedy, Section 7 (ii) of the said Act provides for an appeal to be filed before the Executive Committee (Respondent No. 2) in any dispute 4 connected with the nomination of headman. Section 7 is reproduced herein below "7. Confirmation of Headmen: - (i) All nomination and /or elections of Headmen shall be reported to or as the case may be, be conducted by the Chief and his Durbar who shall forthwith declare the nomination and/or result of the election and issue appointment letter to the person concern with information to the Executive Committee.
(ii) If any dispute arises regarding any matter relating to or connected with the nomination of headmen, the dispute shall be referred by the party or parties concerned to the Chief and his Durbar on payment of Durbar fee of Rs. 40 (Rupees Forty) for decision. An appeal against such decision shall lie to the Executive Committee whose decision is final.
The appeal to the Executive Committee shall be filed within 30 days from the date the order of the Chief and his Durbar is communicated to the party or parties concerned accompanied by: -
(a) The certified copy of the order appeal against;
(b) a petition fee of Rs. 100 (Rupees one hundred) only.
(iii) Notwithstanding anything contained in sub-section
(i) above, the Executive Committee may, either on application or of its own initiative conduct the nomination and election of headman and issue appointment letter if the Chief and his Durbar fails to do so."
9. A perusal of Section 7 will show an appeal shall lie to the Respondent No. 2 against the decision of a Chief and his Durbar and Section 7 (ii) is all encompassing as regards such disputes. Though the election had taken place as far back as on 12.01.2017 and the term of Respondent No. 10 which is for 3(three) years will expire on 30.01.2020, in the interest of justice and more so, in view of the fact that a complaint has been filed as early as on 03.04.2017, it will be appropriate if the petitioner is permitted to approach the Executive Committee, KHADC by way of regular political appeal as provided under Section 7 (ii) of the Act. On such a political 5 appeal being filed along with all supporting materials, the Executive Committee, KHADC shall take up the same for adjudication by giving opportunity to both sides in accordance with law. The whole exercise shall be completed preferably within period of 3(three) months but not exceeding 4(four) months from the date of presentation of the appeal before the respondent No. 2.
10. With the following directions, the writ petition is allowed to the extent indicated and disposed of accordingly.
Judge Meghalaya 01.07.2019 "D. Nary, PS"