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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 394 of 1960. Appeal from the judgment and order dated April 19, 1960, of the Assam High Court in Civil Rule No. 69/1959. C.K. Daphtary, Solicitor-General of India, A. V. Viswanatha Sastri, Narendra Kumar Lahiri and R. Gopalakrishnan, for the appellant.

N.C. Chatterjee and D. N. Mukherjee, for respondent No.

1. Naunit Lal, for respondent No. 2.

1960. September 20. The Judgment of Sinha, C. J., Kapur, Gajendragadkar and Wanchoo, JJ., was delivered by Wanchoo, J. Subba Rao, J., delivered a separate Judgment. WANCHOO J.-This appeal, on a certificate granted under Art. 132 (1) of the Constitution by the Assam High Court, raises questions regarding the interpretation of certain provisions of the Sixth Schedule of the Constitution. A writ petition was filed by U. Jormanik Siem (hereinafter called the respondent) in the Assam High Court against the Chief Executive Member of the District Council (hereinafter called the appellant). United Khasi and Jaintia Hills District (hereinafter called the District). The case of the respondent was that he was Siem of Mylliem siemship in the District and was elected as such by the Myntries and the people according to custom in 1951. After the constitution of the District Council for the District, in June 1952, the siemship was brought under it and the respondent continued to discharge the administrative and judicial functions, for which be was remunerated by a share of the gross income of the siemship. The Siem once appointed could not be removed from his office except through a referendum of the people according to custom until such custom was changed by legislation passed by the District Council with the concurrence of the Governor. No such legislation had however been passed till the writ petition was made on July 8, 1959. But on account of political differences between the respondent and the then Chief Executive Member an attempt was made after the General Elections of 1957 to harm the respondent. In consequence certain charges were levelled against the respondent and a Durbar was called by the appellant for July 6, 1959, and the respondent was asked to be present at the Durbar to defend himself. It is not clear whether the Durbar was held or Dot, but an order was issued on July 7, 1959, by the appellant in which it was said that the charges against the respondent had been forwarded to him and he had been given an opportunity to show cause on or before July 17, 1959, why he should not be removed from his office and that he had failed to appear before the appellant on July 7 as ordered. Therefore, the respondent was suspended from his office from July 8, 1959, and was required to make over charge to the acting Siem on the same day. The respondent however filed the writ petition on July 8, 1959, which was admitted the same day and notice was issued to the appellant to show cause why the writ should not be granted. The High Court also passed an order staying the operation of the order of the appellant dated July 7, 1959. The respondent contended that be could not be removed from his office or suspended by the Executive Committee of the District Council and that the order of the appellant suspending him was illegal and ultra vires being against custom and usage relating to that matter. Further the order of the appellant was without jurisdiction as it was passed without the approval of the District Council and there was no emergency justifying the order. The order was also mala fide and was due to political animosity between the respondent and the Executive Committee.

The High Court did not go into the question whether there was any custom by which the Siem could be removed only by a referendum. It held that after the coming into force of the Constitution, the Khasi States lost all existence as separate entities except in so far as their existence or authority was preserved by the Constitution. It also held that the respondent was appointed to the office of Siem by the Deputy Commissioner on behalf of the Government with due regard to the nomination made by the Myntri-electors and this appointment was subject to confirmation by the District Council when that body was constituted and that in fact the District Council confirmed the appointment on April 9, 1953, on certain terms which were revised in 1955. It also held that the administration of the District vested in the District Council; but it was of the view that the appointment and succession of Sims were never intended to be its administrative function and therefore the District Council could only act in this matter by making law with the assent of the Governor and not by passing orders in exercise of its administrative functions. Therefore the power to appoint, even if it included the power to dismiss, could be exercised by the District Council only by means of proper legislation. In the result, the High Court allowed the petition and directed that the order of July 7, 1959, should not be given effect to as it was not supported by law. Thereupon the appellant applied for and obtained a certificate from the High Court under Art. 132 of the Constitution; and that is how the matter has come up before us.

Before we deal with the main point on the basis of which the writ filed by the respondent in the High Court has succeeded, it will be useful to consider what the position of the Chiefs in the former Khasi States was before 1947 and how that position was affected by the coming into force of the Constitution in 1950. It appears that before 1947 there were twenty-five such Chiefs who had however very limited powers. In some of the States, the succession appears to have been hereditary; but in most of them the Chief by whatever name he was known was elected either by what was equivalent to an electoral college or by the people generally, the election in many cases being confined to members of certain families known as the Chief's families. But whether the succession was hereditary or the Chief was elected by the electoral college or by the people, the recognition of the British Government through the Crown representative was necessary before the Chief could exercise any powers and this was conveyed by means of sands granted to the Chief. It further appears that the British Govern- ment through the Crown representative as paramount power, reserved to itself the right to remove the Chief in case of oppression, misconduct or dereliction of duty, though before taking such action the prevalent custom in the particular State regarding the ascertainment of the wishes of the electoral college or the people was followed. The Chiefs were also under the control of the Deputy Commissioner of the district. This was the position upto the 15th of August, 1947, when India became a Dominion. Thereafter the paramountly of the British Government lapsed and it appears that the twenty-five Chiefs established a Federation. Thereafter a new relationship was established between these twenty-five Chiefs and the Government of India by means of an Instrument of Accession which was accepted by the Governor-General of India on August 17, 1948. By this Instrument, the Chiefs individually as well as collectively as members of the Federation acceded to the Dominion of India by which all existing administrative arrangements between the Government of India and the State of Assam on the one hand and the Khasi States on the other were to continue in force until new or modified arrangements were made subject to certain exceptions as to judicial and administrative powers. It is not necessary to set out these exceptions except that so far as administrative powers were concerned, only excise, forests, land and water rights and the revenue derived therefrom were excepted and all the remaining functions were to be common with the Central or State Government. Further in the matter of legislation, the Dominion Legislature and the Assam Legislature had the power to pass laws concerning subjects of common interest with the proviso that some machinery should be devised for representation in the Assam legislature.

This position continued till the Constitution came into force. There was no merger as such of the twenty-five Khasi States in India before January 26, 1950. But the Constitution, by the First Schedule in which the territories of the State of Assam were defined, merged the Khasi States into the State of Assam, as that State was to consist of the territories which immediately before the commencement of the Constitution were comprised in the Province of Assam, the Khasi States and the Assam Tribal Areas but excluding the territories specified in the Schedule to the Assam (Alteration of Boundaries) Act, 1951. Thus by the Constitution the Khasi States were merged in the State of Assam and any power of the Chiefs so far as administration was concerned came to end. By Art. 244(2) of the Constitution, however, special provisions contained in the Sixth Schedule thereof were to apply to the administration of the Tribal Areas in the State of Assam. The position therefore after the Coming into force of the Constitution was that the Chiefs lost whatever ruling or administrative powers they had by the merger of these twenty-five States in Assam and the governance of these States was to be carried on according to the provisions of the Sixth Schedule. This brings us to the Sixth Schedule, and we may refer briefly to the provisions contained therein with respect to the administration of the tribal areas in Assam. By paras. 1 and 20 the whole tribal area is divided into autonomous districts and two other areas. Autonomous districts can in turn be divided into autonomous regions. Paragraphs 2 to 17 deal with the administration of autonomous districts and autonomous regions, while para. 18 provides for the application by the Governor of the provisions of paras. 2 to 17 to the other two areas specified in para. 20. Paragraph 19 deals with transitional provisions and para. 21 with the amendment of the Schedule. It may be mentioned that the United Khasi and Jaintia Hills District with which we are concerned in this case is to comprise the territories which before the commencement of the Constitution were known as the Khasi States and the Khasi and Jaintia Hills Districts, excluding certain areas within the cantonment and municipality of Shillong. District Councils and Regional Councils are to be constituted under para. 2 and the Governor is given power to make rules for the first constitution of District Councils and Regional Councils in consultation with the existing tribal councils and other representative tribal organisations within the districts or regions concerned and the rules are to provide for the composition of the councils, the delimitation of territorial constituencies, the qualifications for voting at elections and the preparation of electoral rolls, the qualifications for being elected as members of councils, the term of office of the members and any other matter relating to or connected with elections or nominations to such councils, the procedure and conduct of business in the councils, and the appointment of officers and staff of the councils. These very powers were conferred on the District or Regional Council after it came into being along with certain other powers for the formation of local Councils or Boards and their procedure and the conduct of business, and generally all matters relating to the transaction of business pertaining to the administration of the district or region, as the case may be. Further para. 2(4) provides that the administration of autonomous district shall, in so far as it is not vested under this Schedule in any Regional Council within such district, be vested in the District Council for such district and the administration of an autonomous region shall be vested in the Regional Council for such region. Paragraph 3 gives power to the District and Regional Councils to make laws with respect to various matters including the appointment or succession of Chiefs or Headmen, subject to such laws being submitted to the Governor without whose assent they are not to come into force. Paragraphs 4 and 5 deal with administration of justice. Paragraph 6 gives powers to the District Council to establish, construct or manage primary schools, dispensaries, markets, cattle pounds, ferries, fisheries, roads and waterways. Paragraphs 7, 8 and 9 deal with financial matters. Paragraph 10 gives power to the District Councils to make regulations for the control of money lending and trading by nontribals, which are to come into force on the assent of the Governor. Paragraph 11 provides for publication of laws, rules and regulations made under the Schedule. Paragraph 12 deals with the application of Acts of Parliament and the Legislature of the State to autonomous districts and autonomous regions. Paragraph 13 deals with the budget while para. 14 provides for the appointment of a commission by the Governor at any time to inquire into and report on the administration of autonomous districts and autonomous regions. Paragraph 15 gives power to the Governor to annul or suspend any Act or regulation of District and Regional Councils under certain contingencies and also gives him power to suspend the Council and assume all or any of its powers to himself subject to such order being placed before the Assam legislature. Paragraph 16 gives power to the Governor to dissolve a District or Regional Council on the recommendation of the Commission appointed under para. 14 and order a fresh election and in the meantime to assume the administration of the area to himself subject to the previous approval of the Assam legislature. Paragraph 17 deals with the forming of constituencies for the Assam Legislative Assembly. Then we come to para. 19, which deals with transitional provisions and lays down that as soon as possible after the commencement of the Constitution, the Governor shall take steps for the constitution of a District Council for each autonomous district in the State under the Schedule and until a District Council is so constituted for an autonomous district, the administration of such district shall be vested in the Governor. It also provides that no Act of Parliament or of the Assam legislature shall apply to any area unless the Governor by Public notification so directs and the Governor in giving such direction with respect to any Act may direct that the Act shall in its application to the area or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit. The Governor is also given power to make regulations for the peace and good government of any area and any regulation so made may repeal or amend any Act of Parliament or of the Assam legislature or any existing law which is for the time being applicable to such area. The power to make regulations is subject to the assent by the President.