EWANLANGKI E RYMBAI Vs. JAINTIA HILLS DISTRICT COUNCIL

JUDGEMENT

(1.) These two petitions are filed by Shri Ewanlanglki-e Rymbai who belongs to Jaintia Scheduled Tribe of Meghalaya and Christian by faith and Elaka Jowai Secular Movement represented by its Vice Chairman Shri J. Jones Syngkon and the Executive Member Shri Jopthraw Lato who have claimed to belong to the clan who are entitled to hold the Offices of Dolloi, Elaka Jowai, challenging the constitutional validity of Section 3 of the United Khasi Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959, the notice No. JHADC/ POL/25/2000-2001/19 dated 28.8.2001 issued by the office of Jaintia Hills Autonomous District Council, Jowai declaring the programme of election of Dolloi in the Elaka Jowai and the notice No. JHADC/ POL/25/2001/25 A dated 4.9.2001 issued by the Secretary, Executive Committee, Jaintia Hills Autonomous District Council, Jowai declaring only certain clans mentioned therein to have the right to stand for the election of the Dolloiship in the Elaka Jowai whereby the Christians have not been permitted to contest the election.

(2.) Before we deal with the contentions raised by the parties, it will be useful to have brief resume of the formation of Autonomous District Councils in United Khasi Jaitia Hills and thereafter Jowai District Council and relevant constitutional provisions and the various Acts and Rules framed thereunder. On the 26th January, 1'950 when the Constitution came into force, the United Khasi Jaitia Hills District was formed as one of the Tribal Areas of Assam, and in this area were merged the Khasi States with the other areas of the Khasi Jaintia Hills. The boundaries of this area are defined by paragraph 20(2) of the Sixth Schedule to the Constitution. Under paragraph 2(4) of the Sixth Schedule the administration of the United Khasi Jaintia Hills District vested in the District Council. The District Council has been clothed with administrative, legislative and judicial powers for the territories of the District by the relevant provisions of the Sixth Schedule. Purporting to act on certain representations received, the Governor of Assam appointed a Commission under paragraph 14(1) of the Sixth Schedule on 26th August, 1963. This Commission was required to examine and report in the matter of (1) creation of anew autonomous District for the people of Jowai Sub-Division of the United Khasi-Jaintia Hills Autonomous District and (2) exclusion of the area from the united Khasi Jaintia Hills Autonomous District. The Commission made its report on the 20th January, 1964 and recommended the creation of a new autonomous District Council for the Jowai Sub-Divisions of the United Khasi Jaintia Hills Autonomous District by excluding the areas comprising the area of the said Sub-Division from the United Khasi Jaitia Hills Autonomous District. This report was placed before the Assam Legislative Assembly and the Assembly approved the action proposed to be taken by the Govt. of Assam. On 23rd November, 1964 a notification was issued by the Governor of Assam in accordance with the memorandum which has been placed before the Assam Legislative Assembly. By this notification the Governor of Assam pleased to create a new Autonomous District to be called the Jowai District by excluding the Jowai Sub Division of the United Khasi-Jaitia Hills District with effect from 1st December, 1964.

(3.) Sixth Schedule to the Constitution of India provides for administration of the tribal areas in Assam. By paragraphs 1 and 20 of the Sixth Schedule the whole tribal area is divided into Autonomous Districts and two other areas. Autonomous District can in turn be divided into Autonomous Regions. Paragraphs 2 to 17 deal with the administration of Autonomous Districts and Autonomous Regions, while in paragraph 18 provides for the application by the Governor of the provision of paragraphs 2 to 17 to the other two areas specified in paragraph 20. The Jaintia Hills Autonomous District Council and thereafter Jowai Autonomous District Council, which was formed out of the area, with which we are concerned in this case, is to comprise the territories which before commencement of the Constitution were known as the Khasi and Jaintia Hills District excluding certain areas within the cantonment and municipality of Shillong District Councils and Regional Councils are to be constituted under paragraph 2 and the Governor is given power to make rules for first constitution of District Councils and Regional Councils in consultation with the existing tribal councils or other representative tribal organisations with the autonomous districts or regions concerned, and the rules shall 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 the 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 formation of Local Council or Boards and their procedure and conduct of business, and generally all matters relating to the administration of the district or region, as the case may be. All matters relating to the transaction of business pertaining to the Autonomous District Council or Regional Council, as the case may be, was given to the District or Regional Councils. Paragraph 3 gives power to the District and Regional Councils to make laws with respect in 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. In exercise of the powers under para 2(6) of the Sixth Schedule the Governor of Assam framed rules in the year 1954 called the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951. The Rules provide, inter alia, for an Executive Committee with the Chief Executive Member as the head and two other members to exercise the executive functions of the District Council.