MORNIGSTAR KHONTTHIEM Vs. DISTRICT COUNCIL AND ORS.

JUDGEMENT

(1.) KHYRIM Syiemship occupies a place of some importance in the autonomous areas of Khasi Hills. At one point of time Khyrim used to be ruled by a Raja and Mylliem State was also a part of Khyrim. In its southern part covering 25 villages reside members of four different Raids, namely, Shabong, Nawshun, Rangnah and Lyngkhat. One sirder is elected from each Raid. The people of these 25 villages seceded from the parent State of Khyrim at one time. This was in 1880. In 1902, the Chief Commissioner of Assam intervened, and by an agreement of 1902, these villages came back to the fold of the State. One of the terms of the agreement was that the election of Sirdars will be by the people of 4 (four) Raids. The case of the Petitioners in that the 4 (four) Sirdars one each from the 4 Raids, used to be elected jointly by the people of these Raids. A departure from this was, however, desired by a Jo Singh on behalf of the people of Rangnah. This was in 1968. The change pleaded was that Sirdar of each Raid should be elected by the people of that Raid only, Syiem of Khyrim expressed his inability to give any opinion as the election was being done in accordance with the agreement of 1902. U Jo Singh was, therefore, informed by the Deputy Secretary of the District Council that the Executive Committee felt that until a law is made in this regard, the election of the Sirdars has to be in the manner laid down in the agreement of 1902. This communication is of 1963 (Annexure -IV). The matter was further agitated in 1972 and this time by the Chairman of Durbar Raid Rangnah and Durbar Raid Lyngkhat. The proposal was opposed by all the four Sirdars who stated, inter alia, that the change was desired by the selfmade Chairmen of the aforesaid two Raids. The Executive Committees of the District Council however, accepted the change by it. Memo dated 18.3.74 (Annexure IX) which stated, that the Sirdar of each of the four Raids shall be elected by the aside (sic) members of the concerted Raid only. This was said to be in "supersession of any practice or order or of any provision, law or bye - law or rule or regulation" relating to or connected with this matter. It is this order which is under challenge in these petitions. As common questions of law and facts are involved, these petitions were heard together and a common order is being passed.

(2.) THE manner of election of the Chiefs and Headmen was governed by the customs prevailing in the concerned Elaka. These customs varied from place to place No interference with these customs was desired at any point of time when the Britishers had ruled this part of the country. Even the United Khasi -Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 hereinafter the Act -stated when enacted that "all elections or nominations and appointment of Chiefs or Headmen shall be in accordance with the existing custom prevailing in the Elaka concerned" (See Section 3). The need for amendment in the Act, was, however, felt because of a large number of disputes relating to elections of Chiefs or Headmen. The first amendment was by Act No. 1 of 1969 and Section 3 of the Act then spoke of "Nomination and appointment of Chiefs and Headmen", instead of "Elicitors and Appointment of Chiefs and Headmen". Section 4, as substituted in 1969, was also headed as "Nomination and Appointment of Chiefs". It is stated by the learned Advocate Central that this change in nomenclature owes its origin to the contention of the elected Chiefs or Headmen that no interference by the District Council was permissible once they are elected. The authority of the District Council in this matter was sought to be established by recasting Section 4 of the Act by Act No. 1 of 1969 to state "A person nominated as a Chief by the Electoral College shall be appointed by the Executive Committee subject to the approval of the District Counsil". This provision came up for consideration, before a Full Bench of this Court in U.G. Koring Singh v. State, AIR 1971 Gau. 129. We are concerned with only one aspect of that decision and the same is the ovservation in paragraph 8 that although the world "nomination" is used in the Act, it is fact Election by that electoral College" following this decision which was rendered on 12.4.71, the Act underwent second amendment, in 1971 by Act No. II of that year (subsequent amendments to the Act are not material). This Act captioned Section 3 as "Election or Nomination and Appointment of Chiefs and Headmen." Similarly Section 4 was headed as "Procedure in the Nomination or Election of Chief." This amendment substituted, a new Section 3 in the principal Act to read as below: Election or Nomination and Appointment of Chiefs and Headman Subject to the provisions of this Act and the Rules made thereunder, all elections or nominations and appointment of Chiefs and Headmen shall be in accordance with the existing custom prevailing in the Elaka concerned and or in accordance with the orders as the Executive Committee may issue from time to time. The Secretary of the Executive Committee or any officer appointed by the Executive Committee in this behalf shall be the Returning Officer for all nominations or elections under this section.

(3.) IN assailing the order of the District Council passed on 3.4.74, the Petitioners have oven challenged the vires of that part of Section 3 of the Act which has stated that the election or nomination of Chiefs and Headmen shall be "in accordance with the orders as the Executive Committee may issue from time to me", It may be stated that under Section 3 the election of nomination has to be either in accordance with the existing custom prevailing in the Elaka or in accordance with the order of the executive Committee. It is urged that the power conferred on the Executive Committee in this regard is ungulded and arbitrary and, as such, violative of Article 14 of the Constitution. The next point urged is that the Executive Committee had no jurisdiction to change the manner of election of the Sirdars who under the Act fall within the category of Headmen", inasmuch as under Section 8 of the Act, the power relating to the manner of election of a Headman has been vested in the Chief and his Durbar pending snaking of the rules as provided in Section 3 of the Act. It is learned by Sri Bhattacharjee that in the power conferred on the Executive Committee by Section 3 is subject to the provisions of the Act, and as Section 8 is one of the provisions findings place in the Act, the requirement of Section 8 has to over -ride the power conferred on the Executive Committee by Section 3, It is admitted petition that no rule has yet been framed, In this view there can be no two opinions that in case of conflict between the powers conferred on the Executive Committee by Section 3 and (sic) powers made available to the Chief and his Durbar by section (sic) the latter has to prevail. As the impugned order has been passed not by the Syiem of Khyrim and his Durbar, but by the Executive Committee, the order has to be regarded as without Jurisdiction if Section 8 has its application.