Shengha Mokok Village and Another vs Chanh Moko Village and Others

T.N. Singh, J.—This is an application under Rule 34 of the Rules for the Administration of Justice and Police in Nagaland, 1937 for short, the Rules. The facts giving rise to this petition may first be stated briefly in order that the pivotal point of statutory construction involved in the case may be properly appreciated.

The Petitioners in this Court represent Shengha Mokok Village. There was a dispute between the Village represented by them and the adjacent village Chanah Moko represented by the opposite parties, as to the boundary between their villages. The matter came up for adjudication before the learned Deputy Commissioner, Mon, who, following the provisions of Rule 30 of the Rules, by his order passed on 24.2.81, after hearing both sides, constituted with their consent a panchayat with seven members, to arbitrate the dispute. By the same order he also directed that the panchayat shall select an umpire from among the members who shall present themselves in Court on 3.3.81. By his order passed on 4.3.81 be recorded the presence of five members of the Panchayat and also the fact that the remaining two members did not appear on that date before him. Nonetheless the learned Deputy Commissioner considering the panchayat to be duly constituted on that date informed the members present that they had to select an umpire from among themselves that they have to submit their report to the Court after the case was decided.

Mr. Angami, the learned Counsel appearing for the opposite parties, has drawn my attention to the proceedings of the panchayat dated 11.5.81 on the basis of which the impugned order in this case was passed on 19.6.81 by the learned Deputy Commissioner. The proceeding is signed by five persons and the first signatory has described himself as the "Chairman" who, according to Mr. Angami, was the umpire. The decision of the panchayat about the line of demarcation between the two villages was: Mokok Nulla, joining the Tella river in the west; and that it will go up along the Nulla to Shengha Mokok village and from there to Tira Nulla and thence to Telem river on the east. On 19.6.81 the learned Deputy Commissioner passed the following order: Some panchayat members present. Angb, G. Bs of Shengha Mokok and Chenmeha appeared on 18.6.81 and 19.6.81. Panchayat decision was explained to them. Shengha Mokok and Chenmaha both expressed resentment over it and stated their respective claims as given earlier. Shengha Mokok further mentioned that the boundary given by Panchayat divides their villages. It was explained to them that if they disagree like this they may have to take oath as per their custom. Chenmeha was prepared to take oath. Shengha Mokok prepared a decision without taking oath.

Under the circumstances, under the Rules of Administration of Justice and Police, the boundary given by the panchayat Committee (with the exception that all the houses and School and compound belonging to Shengha Mokok and lying beyond Mokok Nallah will be under Shengha Mokok land. Land upto 300 ft. from the house will be deemed to belong to that house) will be the boundary.

Judgment pronounced in open Court in presence of some of the Panchayat members and both the villagers. The boundary will show the ownership of land of respective villages and there shall be no question of payment of tax etc. by their side.

The short submission of the learned Counsel appearing for the Petitioners is that Rule 30 contains a mandatory provision and there should be strict compliance therewith and in this case there having been violations in more than one manner of the said rule the impugned decision is not sustainable in law. I may first read Rule 30 before I examine the contentions of the learned Counsel with reference to the facts placed before me. Rule 30 is as follows:

The Deputy Commissioner and his Assistants shall, in all cases in which the parties are indigenous inhabitants of the hills, endeavour to induce them to submit their case to a panchayat. If they agree to this each party shall name an equal number of arbitrators, and shall choose, or leave the arbitrators to choose an umpire. The name and residence of arbitrators and umpire and the matter in dispute must be recorded before the proceedings commence and the Court will direct the mauzadar, gaonbura, chief, headman of a khel or some other recognised authority to assemble the panchayat and witnesses within eight days. When the case has been decided, the umpire shall appear with the parties before the Court, which shall proceed to record the decision and enforce it as its own. From such decision there shall be no appeal.

[Emphasis Added]

Mr. Angami concedes to the position that when the learned Deputy Commissioner passed his order on 4.3.81 re-constituting in effect the panchayat with five members this was done without the consent of the parties. This was apparently in clear violation of the rule because it is unable to predicate from the order passed on 4.3.81 as to whether the re-constituted panchayat which had two members short-listed rejected the consensus of, and the confidence in it, of the parties. The rule postulates that each party has to agree to the constitution of the panchayat and each party shall have the right to name an equal number of arbitrators. It is not possible to predicate from the constitution of the re-nominated panchayat as to whether there was an agreement by the parties to have the panchayat with only the said five members who appeared on 4.3.81 in Court as this was done without their consent, in their absence. It is also difficult to predicate if the re-constituted panchayat had an equal number of arbitrators from both sides. In my opinion in the soul of Rule 30 is reflected the concept of conciliatory procedure, as opposed to an adversarial, in the matter of adjudication of disputes between "indigenous inhabitants of the hills" to whom the rule is applicable. The legislative intent of the rule takes care of the social norms of such people who traditionally have disputes settled consensually so that the social equilibrium is not disturbed. Great importance has, therefore, in my opinion, to be attached to the fact that the arbitration proceedings contemplated under Rule 30 are conducted in strict compliance therewith. Indeed, conclusion is supported by the other provisions of the rule which lay down certain other conditions which have to obtain in the conduct of the said proceeding. The rule postulates that before the proceedings commence the name and residence of the arbitrators and the umpire must be recorded. Responsibility is saddled on the Court to see further that the panchayat is not only constituted but it does assemble within a period of 8 days and necessary steps for the presence of the witnesses as may be necessary for the conduct of the proceedings are also ensured by the Court. There is no doubt, in my opinion, that the rule envisages an effective and meaningful supervision by the Court for proper constitution of the panchayat and for the proper conduct of the proceeding thereof so that the consensual base of the proceeding subsists throughout the life of the lis on which the panchayat has to adjudicate. The further provision of the rule is rather noteworthy in that when the case has been decided by the panchayat "the umpire shall appear with the parties before the Court which shall proceed to record the decision of the panchayat". This requirement in my opinion, is indicative of the further responsibility or duty of the Court to satisfy itself, before it proceeds to "enforce as its own" the decision of the panchayat, about general acceptability thereof by the parties as a nagging grievance may corrode its credibility affecting it finally. For that he may hear the parties and also the umpire is whose presence the judgment has to be pronounced which, significantly has been made non-appeasable. These different requirements of the rule, in my opinion, must be read as mandatory provisions and infraction thereof would vitiate the decision/order.

In the instant case apart from the fact that a panchayat was constituted in violation of the rule it does not appear from the records that the umpire was named before the proceedings commenced. It also does not appear from the impugned order that he was present on the date in the Court when the impugned order was passed. Indeed, the order merely records that "some panchayat members" were present on that date and "Angh and Gaonburas of Shengha Mokok and Chenmeha appeared on 18.6.81 and 19.6.81". It does not appear that the presence of the parties and the umpire as contemplated under the said rule was secured before the decision authorized by Rule 30 was pronounced.

There is another infirmity in the order which cannot also be lightly brushed aside. It appears that although the learned Deputy Commissioner held that the boundary given by the panchayat committee "will be the boundary" he saddled the decision of the panchayat with an exception. It was not within his competence to do so. What Rule 30 authorizes him to do is that when a decision is given by a duly constituted panchayat he has merely to record the decision and to enforce the same as his own decision. He had no jurisdiction to re-adjudicate the matter by re-aligning the boundary as he has done in this case without hearing the parties or applying his mind judicially to the facts and circumstances of the case as it was not he but the panchayat who had heard the evidence in the case and had given a decision on the basis thereof. Judicial process cannot be short-circuited. If he was satisfied, on complaint made or suo moto that the proceeding suffered from any illegality or serious irregularity he could have refused to record the "decision" of the panchayat and instead either reconstituted the panchayat with the consent of the parties or order a reconsideration of the matter by the same panchayat in the light of the objections raised before him by the parties. Because, the final order has to reflect the "decision" of the panchayat, not his "decision".

In this view of the matter this application has to be allowed and the impugned order has to be set aside. The learned Counsel for both sides however submit that even if the case is remanded, until a fresh decision herein is arrived at, it may be meet and proper for the ends of justice not to disturb the status quo as of to day lest problems of law and order may arise. I appreciate this concession of the learned Counsel for the Petitioner which he has made on the submission made by Mr. Angami expressing his genuine apprehension in this regard.

Accordingly, the orders passed on 24.2.81 and 4.3.81 are quashed. The decision of the panchayat dated 11.5.81 as well as the impugned order passed on 19.6.81 are also quashed but it is directed that until a panchayat is constituted afresh and a decision by the said panchayat is rendered in accordance with Rule 30 of the Rules, status quo as regards the boundary as of today shall not be disturbed. Immediately on receipt of the records from this Court, the learned Deputy Commissioner shall issue notice to the parties to appear before him for a de novo adjudication, after constituting a panchayat afresh, in the light of the observations and directions herein contained. Earnest endeavour should be made to expedite disposal of the matter, within three months, if possible.

With this modification the application is allowed and the Rule is made absolute. The case is remanded with the above observations. However, there will be no order as to costs.

Let the records be sent down forthwith for expeditious disposal of the matter by the Court below.