APONGO OVUNG Vs. STATE OF NAGALAND

JUDGEMENT

(1.) HEARD Mr. N .Mozhui ,learned counsel for the petitioners and Mrs. Lucy, learned Government Advocate, Nagaland. Also HEARD Mr. C.T.Jamir, learned senior counsel assisted by Mr. N Longkumar, learned counsel for the respondent No.5.

(2.) THE instant writ petition arises out of election /selection of the respondent No.5 as Village Council Member ( in short ,,VCM) of Phiro Village in Wokha District for a tenure of 2011-2015. THE petitioners are the newly elected VCMs and Head Gaonbura ( in short ,,HGB) and Goan Buras (G.B in short) of the said village. In the year 2008, the respondent No.5, while serving as chairman of the said Village Council along with the Secretary of Village Development Board (VDB), allegedly misappropriated/ misused an amount of Rs.1,68,962/- only meant for implementation of National Rural Employment Guarantee Scheme ( in short ,,NREGS). THE alleged act of misappropriation was detected by the Special Audit Committee of the Department and accordingly the Village Council headed by its seasonal Chairman deliberated over the matter and by a resolution adopted in the meeting held on 29.8.2008 removed the respondent No.5 from the office the Chairman of the Village Council. THE Respondent Deputy Commissioner on being intimated took up the matter and by an order dated 22.1.2009 (Annexure-C), convicted the respondent No.5 as well as the then VDB Secretary by way of directing them to deposit the misappropriated/misused amount of Rs.15,000/- each with simple imprisonment of five months. THE Respondent No.5 deposited the misappropriated amount and no further action was initiated against him. On completion of the previous tenure of the Village Council, a process for constitution of new Village Council for the period 2011-2015 was initiated. Accordingly, a new team of VCMs including the petitioners were selected/elected, wherein the respondent No.5 was also selected /elected as VCM. THE names of the newly elected VCMs including the name of the respondent No.5, were forwarded to the Respondent ?Deputy Commissioner on 11.4.2011 for necessary action. THE petitioners simultaneously filed a written complaint dated 21.4.2011 to the Respondent?Deputy Commissioner against respondent No.5 and requested him not to forward the name of respondent No.5 to the Government for approval as the respondent No.5 was convicted under Section 16(4) of the Nagaland Village and Area Councils Act, 1978 (hereinafter in short, referred to as ,,VC Act"). But inspite of such complaint and request the Respondent?Deputy Commissioner forwarded the name of respondent No.5 along with the names of the petitioners and others as newly elected VCMs to the Secretary Home Department (Local Self Government),Government of Nagaland, Kohima vide letter dated 17.5.2011. THE petitioners apprehend that the name of respondent No.5 would be approved along with other legally elected/selected VCMs in violation of the provision under Section 16(4) of the VC Act. THEy have filed the present writ petition to -

(3.) SUBMITS that there was no conviction order passed against the respondent No. 5 by any court of law or competent authority for alleged misappropriation/ misuse of Village Council fund. The impugned order dated 22.1.2009, according to him, is not a conviction order. What is reflected from the aforesaid order dated 22.1.2009 is that the respondent No.5 and the VDB Secretary were granted honorarium @ Rs.15000/- each in recognition of their service rendered for the Village Council and the grant of such honorarium was opposed by some members of the Village Council and on such objection, the respondent No.5 and the VDB Secretary had to refund the amount of Rs.1,5000/- each to the Deputy Commissioner. But the respondent No.5 was not required to undergo imprisonment, rather he was allowed to complete the usual term of Chairmanship of the Village Council without any objection from any corner. Had there been any order of conviction requiring respondent No.5 to undergo imprisonment, he would not have been allowed to continue as Chairman of the Village Council concerned till completion of the normal term on 31.3.2011. In that view of the matter, the disqualification, if any attached to respondent No.5 has been waived with the expiry of the tenure of the Chairman of the VC on 31.3.2011. Moreover, it is argued that there was no order from the Govt. to remove the respondent No.5 from the office of the Chairman of the Village Council which is evident from the Govt. letter dated 20.5.2009, whereby the Deputy Commissioner was directed only to verify the representation submitted by the Phiro Village and submit a detailed report for arriving at appropriate decision regarding removal of the Chairman of Phiro Village Council under the VC Act. The respondent No.5 incurred no disqualification debarring him from being elected/selected as VCM in the new Village Council. The present petition has been filed by the petitioners with malafide intention to debar the respondent No.5 from holding the post of VCM and thereby depriving him of the chance of getting elected as Chairman of the new Village Council Committee. It is further argued that there is a fallacy in the stand of the petitioners inasmuch as the Clan members of the Village have selected/elected the respondent No.5 as VCM and accordingly his name was forwarded by the Village Council to the Respondent Deputy Commissioner along with others for obtaining necessary approval from the Govt. The petitioners are , therefore, estopped by their conduct to oppose approval of the petitioners name as VCM. He has therefore raised the question of locus standi of the petitioners in filing the instant petition. 5. From the pleadings of the parties, it is found that there is no dispute as regards the completion of previous tenure as Chairman of the Village Council by the Respondent No.5 which expired on 31.3.2011. It is an undisputed position that he was not required to undergo any imprisonment for alleged commission of misappropriation or misuse of Village Council Fund. However, the Respondent No.5 admitted refund of Rs.15,000/-which he received as honorarium as directed by the Deputy Commissioner, Wokha District vide order dated 22.1.2009. The said order has a mention of simple imprisonment for five months and to deposit Rs.15,000/- against the Respondent No. 5 but the word convicted has not been used therein. For ready reference and appropriate appreciation, the aforesaid order is quoted below: