Paialast Iawrod vs K.H.A.D.C. & Ors

This instant writ petition has been filed assailing the order dated 17.12.2015 passed by the Executive Committee, KHADC and Notification dated 22.12.2015 issued in pursuance thereto removing the writ petitioner from the post of Syiem of Malaisohmat Syiemship.

The pleaded case of the writ petitioner is that he has been wrongly removed from the Office of the Syiem of Malaisohmat Syiemship without notice or show cause notice, nor any opportunity of hearing being afforded and that the same was done in violation of the order dated 10.09.2015 passed in WP(C) No. 306 of 2014 by the Single Bench of this Court and order dated 18.11.2015 passed in W.A. No. 30 of 2015 by the Division Bench of this Court. The writ petitioner therefore by this writ petition prays that the impugned order not being in consonance with the directions of this court and resulting in his final removal should be set aside and quashed.

I have heard learned counsels for the parties.

Mr. B.M.R. Chyne, learned counsel for the petitioner submits that the writ petitioner was elected as the Syiem of Malaisohmat Syiemship on 17.06.2014, by securing a maximum number of votes and was declared as Chief of Malaisohmat Elaka and thereafter, on the election being approved by the respondents/KHADC was issued a Sanad of appointment on 26th June, 2014. He submits that thereafter, the respondent No. 8-12 assailed the election by approaching the respondents/KHADC on the ground that only five Myntris of five respective clans who constituted the Electoral College, were entitled to select/elect the Chief of the Elaka, to the exclusion of the vast majority of the people of the Elaka. Learned Counsel submits that as the representation was rejected by the respondents/KHADC, the private respondents had approached this Court by way of a writ petition bearing WP(C) No. 306 of 2014 and impugned the orders dated 12.06.2017 and 17.06.2014 which had declared and approved the election of the petitioner. Learned counsel submits that this Court thereafter, vide judgment dated 10.09.2015, while setting aside the orders under challenge therein, i.e. the results of the elections, was pleased to remand the matter back to the respondents/KHADC to have an in-depth relook into the same, and to pass effective orders thereon.

Learned counsel further submits that thereafter the petitioner being aggrieved by the said judgment had preferred an appeal being W.A. No. 30 of 2015 before the Division Bench of this Court which vide order dated 18.11.2015 was pleased to disallow the same and upheld the order passed by the learned Single Judge. Learned counsel then submits that thereafter, the respondents/KHADC instead of re-examining the entire matter as directed by this court instead issued the impugned order dated 17.12.2015, which he submits is in violation of the orders passed by this Court. He therefore submits that the said impugned order be set aside and the matter be remanded back for re-examination on the aspect of the customs and rules prevalent governing the election to the office of the Syiem of Malaisohmat Syiemship, as per the directions contained in the orders passed earlier by this court.

Mr. V.G.K. Kynta, learned Sr. counsel assisted by Ms. V. Mawlieh, learned counsel for the respondents/KHADC at the outset itself submits that the impugned order is in fact of no significance, inasmuch as, the same was passed only in pursuance to the directions of this Court which had nullified the results of the election. As such, he submits, the same was only issued in consonance with the orders passed by this Court which had set aside the order dated 12.06.2014 and Notification dated 17.06.2014 setting aside the elections. He further submits that the order only formally removed the petitioner as his election had been set aside by this Court and an Acting Syiem has been appointed on 22.12.2015 in his place. Learned Sr. counsel goes on further to submit that the matter as directed by this Court could not be re-examined till date due to the pendency of the instant writ petition, whereby challenge had been made to the order which was passed in consonance with the directions passed by this Court. He therefore prays that there being no infirmity with the order, the writ petition can be disposed of at this stage with a direction that the orders as passed by this Court be complied with in letter and spirit and the matter be re-examined by the respondents/KHADC.

I have heard learned counsels for the parties, considered the submissions and also examined the materials on record more specifically the order passed earlier by this Court. It can be seen that this Court in the Single Bench vide order dated 10.09.2015 in Para 5, 6 & 7 which are quoted herein below had held as follows:

"5. After hearing the submissions advanced by Mr. P. Nongbri, learned counsel for the petitioners and Ms. P.S. Nongbri, learned counsel for the respondents No. 1-4, I find that, the respondents No. 1-4 has acted hurriedly without going to the root cause of the matter. Section 6 of Succession to Syiemships in the Khasi States under Chapter MalaisohmadSyiemship written by Captain D. Herbert, it is understood and clear that, under no circumstances should an election by the people be held. For easy reference, Section 6 of Succession to Syiemships in the Khasi States is reproduced herein as under:

Recommendations. - I would recommend that, on a vacancy occurring in the Syiemship, the heads of the five clans Nyrwah, KaJied, Dewkhait, Nohriang, and Ronsang be called upon by name to nominate a new Syiem. Such nomination should be published in the State and a date be fixed before which objections, if any, should be lodged. If no objections are raised, the nominee of the durbar should be reported to the Chief Commissioner for confirmation.

If objection is made, the Deputy Commissioner should proceed to Dewsaw, the capital of the State, after summoning the heads of the five clans, and should record their votes for the new Syiem. The candidate nominated by the majority of the durbar should be appointed Syiem.

Under no circumstances should an election by the people be held.

Camp Nongkuba,

The 7th January, 1903.

Sd/-

D. HERBERT,

Deputy Commissioner,

Khasi and Jaintia Hills".

On bare perusal of Section 6 of Succession to Syiemships in the Khasi States, it is understood and clear that, as and when the office of the Syiemship becomes vacant, the Syiem to be elected by the heads of the five clans and in no circumstances an election by the people to be held and this tradition was in practice from time immemorial. But, for the reason best known to them, practice changed taking into recourse Under Section 3 of The United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Acts, 1959 which is reproduced herein as under:

"3. Election or Nomination and Appointment of Chief and Headmen:-Subject to the provision 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 or 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".

On perusal of Section 3 of The United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Acts, 1959, it is understood that, the Chiefs and Headmen shall be in accordance with the existing custom prevailing in the Elaka or in accordance with the orders as the Executive Committee may issue from time to time.

From record it is not clear what was the change of circumstances which compel the respondents to elect the Syiem by the people? Therefore, I find that, it is a fit case to remand back to the respondents (KHADC) to relook into the matter deeply in consultation with the people of the Elaka and then to pass an effective order. Accordingly, the impugned orders passed hurriedly by the respondents (KHADC) are hereby set aside and the matter is hereby remand back to the respondents (KHADC) to do the needful and they should complete their work within 4(four) months from the date of receipt of a certified copy of this judgment and order."

The directions as contained in the order above quoted, was for the respondents/KHADC to re-examine the matter and pass effective orders, which meant that the entire custom as prevalent was to be re-examined in the backdrop of the contesting claims of the parties involved. It is also noted that the appeal was not entertained and the order of the learned Single Judge was upheld. I find substance in the submissions of the learned Sr. counsel as regards the purport and meaning of the order impugned in this instant writ petition, and I am in agreement that it only speaks of compliance of the orders of this Court, formalizing the removal of the writ petitioner and appointment of the Acting Syiem, which was necessary to be done if the matter was to be relooked at afresh.

Having given my thoughtful consideration to the matter and the facts and circumstances of the case as they appear, I propose to dispose of this instant writ petition with the following directions:

(i) As per directions contained in the order dated 10.09.2015 passed in WP(C) No. 306 of 2014, the Executive Committee, KHADC is directed to re-examine the matter pertaining to the manner and method of election of the Syiem of Malaisohmat Syiemship to determine as to who would constitute the eligible voters/electors.

(ii) While conducting this exercise, the respondents/KHADC shall allow the writ petitioner and other parties to be heard and be given adequate opportunity of hearing and presentation of any documents/evidence to substantiate their respective contentions.

As the matter has been pending for some period, it is also directed that the Executive Committee, KHADC shall dispose of the matter as expeditiously as possible preferably within a period of 6(six) months from the date of presentation of the certified copy of this order.

With the abovenoted directions, the instant writ petition is accordingly disposed of.