Yeghoto Sumi vs State of Nagaland and Others

H.K. Sema, J.—This petition has been filed under Article 227 of the Constitution of India read with Section 151 of the CPC seeking writ of Certiorari for quashing the following impugned orders:

(a) Order dated 05-07-94 passed by the Political Assistant to Deputy Commissioner, Zunheboto, in Case No. 168/94.

(b) Appointment of Arbitration Bench by the Deputy Commissioner vide No. L/D-2/94 dated 13-10-95 and decision of the Arbitration Bench dated 12-04 - 96.

(c) Order No, L/D-2/95 dated 20-08-96 passed by the Deputy Commissioner, Zunheboto.

I have heard Mr. A. Zhimomi, learned Counsel for the Petitioner as well as Mr. Kakheto Sema, learned Counsel for the Respondent.

This case has chequered history and the facts leading to the filing of the present petition may be briefly recited. The dispute relates to ownership of a plot of land situated at Electrical Colony at Satakha Town has been raised between the parties before the Village Panchayat of Satakha Village. Thereafter, after hearing the parties, the dispute was finally resolved on 22-8-81 by administering customary oath to the Petitioner. It was further ordered that the dispute shall not be re-opened in the future. The settlement order dated 22-8-81 has been annexed as Annexure-A in this petition and it bears the signature of the 4th Respondent on the body of the settlement order showing that the settlement has been arrived at in the presence and hearing of the 4th Respondent. However, sometime in the later part of 1990, after lapse of about 9 years, the 4th Respondent raised the dispute again and the same was registered as Case No. 168/90 in the. Court of D.B. at Satakha. The D.B''s Court by its order dated 3-9-90 affirmed the decision of the Village Council in terms of the following:

The D.B''s Court has found that according to Sema customary Law oath taken by father or son cannot be revoked/denied and accepted the settlement Hopi she and his son Ghosuho (have also signed in the said settlement of the village council therefore the D.B''s Court reaffirm the settlement of the village council and the land is given to Yeghoto and this case is settled today.

Thereafter, again in the year 1994 after lapse of about 4 years, the 4th Respondent again re-agitated the matter in the Court of Political Assistant to Deputy Commissioner at Zunheboto. The learned Political Assistant to Deputy Commissioner by its order dated 5-7-94 divided the land in dispute between the parties into two. Being aggrieved, Petitioner preferred an appeal before the Deputy Commissioner and the same was endorsed to learned Assistant to Deputy Commissioner. The said Appeal was registered as Appeal No. 2/94 and by its judgment and order dated 7-1-95 the learned Assistant to Deputy Commissioner set aside the order dated 5-7-94 passed by the learned Political Assistant to Deputy Commissioner in Case No. 168/94. The judgment order passed by the learned Assistant to Deputy Commissioner by its order dated 7-1 -95 has an important bearing and I shall discuss it the appropriate time. However, the 4th Respondent filed an Appeal before the learned Deputy Commissioner, Zunhuboto against the decision of learned Assistant to Deputy Commissioner rendered on7-l-95 and the learned Deputy Commissioner on receipt of the appeal petition constituted an Arbitration Bench consisting of 5 members by its order dated 13th Oct.'' 1995, Thereafter, the Arbitration Bench submitted its report on 12-4-96 and the learned Deputy Commissioner thereafter accepted the report of the Arbitration Bench by its impugned order dated 20th August 1996 with certain modification. Being aggrieved, this petition has been preferred cm various grounds.

It is contended by Mr. A. Zhimomi learned Counsel for the Petitioner that the dispute in question has been settled between the parties by a competent Court of village Panchayat on 22-8-81 by administering customary oath to the Petitioner and since the settlement was not challenged by the 4th Respondent, it has attained its finality and all the subsequent decision unsettling the settled issues are not warranted in the interest of Justice, equity and fair play. It is further contended by Mr. A. Zhimomi that constituting of Arbitration Bench by the learned Deputy Commissioner by its order dated 13-10-95 when the matter was finally settled by the village panchayat on 22-8-81 is unknown to the existing law and therefore without jurisdiction. It is further argued that consequently the report of the Arbitration Bench by its order dated 12-4-96 and all the proceedings before the Arbitration Bench would be void a initio.

It is well settled principle of law that the custom in order to be a valid custom must be ancient, certain, reasonable and not opposed to public policy or oppose to enactment of legislature. The customary practices and usages of administering customary oath to the parties in dispute to settle the disputed question of facts has been practising from time immemorial and it has recognition of law. The prevailing customary practices and usages amongst the Naga Tribe have been recognised by the Nagaland Village and Area Council Act, 1978. In Section 4 of the Act, it has been provided that the village council shall be chosen by villagers in accordance with the prevailing customary practices and usages. Therefore, there is no doubt that administering customary oath to the parties in dispute (if they are so willing to take) to settle the disputed question of facts has been in practice from time immemorial amongst the Naga Tribe in general and Sema Tribe in particular.

Before I advert further, I must at this stage point out that the Village Panchayat is a recognised grass root level Court under Rule 24 of the Rules for Administration of Justice. Under the said Rules, they are empowered to try any cases sitting in council. The Division Wench of this Court in Vimede Angami, Court system in India. Therefore, they are the competent Court recognised by the law.

Taking a false customary oath has its grave consequences. Customary oaths are always administered to an individual taking his own life or taking the oath of the whole family life and sometime includes the animals belong to the individual, depending on the facts and circumstances of each case, and there is belief that taking a false customary oath, a calamity would be fallen on the oath taker resulting is death or entire family and the perishment of the animals he rears. Therefore, the sanctity of the customary oath and its effects is still prevalent amongst the Sema Tribe. This being the law, any dispute settled by administering customary oath cannot be dealt with lightly by Superior Court. Normally, a man does not take false oath by taking his own life because ultimately, he will not be benefited by taking a false oath.

This apart, settling of dispute by Village Council by administering customary oath in accordance with the customary practices and usages operate as res judicata between the same parties and the same subject matter. The doctrine of res judicata rest on the principle that one should not be vexed twice for the same cause and there should be finality of litigation. It is based on sound public policy. Res judicata debars retrial of the same issue once again in respect of the issues which have been finally and conclusively determined in a previous suit between the same parties.

It is, however, contended by Mr. Kakheto, learned Counsel for the Respondents that the customary oath administered to the Petitioner was not in accordance with the Sema Tribe customary practices and usages. I am unable to accept this contention for the following reasons. Firstly, the customary oath was administered upon the Petitioner on 22-8-81. The 4th Respondent along with his father was very such present there in the proceedings before the village council and as already said, the proceeding has bear the signature has bear the signature of the 4th Respondent which is annexed as Annexure-A to this petition. 4th Respondent also did not deny that he was not present before the village council when the case was settled by administering customary oath to the Petitioner on 22-8-81. If the has any grievances as alleged, he could have immediately raised the dispute before the superior Court. Instead, he has sat over it, allowed the settlement to attain its finality and raising the dispute for the first time on 1990 after lapsed of 9 years alleging that the oath was not properly administered the Petitioner in accordance with the customary practices and usage would itself relied the contention that the customary oath was not properly administered this would show that the 4th Respondent raises a dispute well an after thought and after realising the value of the land. His long silence for almost 9 years would preclude in from raising a dispute that the customary oath was properly administered to the Petitioner on 22-8-81.

11.This apart, when the dispute was raised before the learned Assistant to Deputy Commissioner in Civil Appeal No. 2/94, the learned Assistant to Deputy Commissioner framed the following issued:

Did the Village Council Satakha settled the case as per Sema Customary Law?

Did Yeghoto Sema really took an oath?

Did Ghosuho appended his signature in the original judgment of the village council?

Is the oath the final decision of the Sema Customary law?

After hearing both the parties, the learned Assistant to Deputy Commissioner has decided all the aforesaid issues in the affirmatives. Therefore, there is no scope from raising a dispute that the oath was not administered in accordance with the customary practices and usages of the Sema Tribe.

The next question to be determined is whether the Arbitration Bench constituted by the learned Deputy Commissioner by its order dated 13-10-95 and the submission of the report of the Arbitration Bench is tenable in law.

Purportedly, the learned Deputy Commissioner constituted the Arbitration Bench under Rule 30 of the Rules for Administration of Justice and Police in Nega Hills District Act, 1937 as amended. Rule 30 of the Administration of Justice and Police Rules, 1937 (hereinafter the Rules) reads:

The Deputy Commissioner and his Assistants shall, in all cases in which the parties are indigenous inhabitants of the huts, 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, headmen 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. (Underline is mine)

A cursory reading of the Rules as quoted above it clearly appears that the power can be exercised when the case was first raised. Once the case is settled by a village panchayat this power will not be available. It also clearly appears out before the exercise of power vested in him under Rule 30, the party must agree to (sic) the case to Arbitration. The word "endeavour to induce them to submit their (sic) to a Panchayat" and the word, "If they agree to this" employed in Rule 30 is equate to show that the service of the Deputy Commissioner and his Assistant (sic) to convince the parties to settle the dispute by submitting their case to Panchayat. Therefore, the nature of duty assigned to Deputy Commissioner and his Assistant (sic) in the nature of assisting the disputing parties who are indigenous inhabitants the hills to settle the dispute before the Panchayat. Before this exercise, the learned Deputy Commissioner or his Assistant must ascertain from the parties that they are agreeable to submit their case to the Panchayat. This is a condition (sic)cedent. From the reading of the Rule and interpretation of the Rules as aforesaid learned Deputy Commissioner or his Assistant cannot pass order unilaterally instituting the Arbitration Bench. In other words, the order under Rule 30 cannot imposed on the disputing parties.

From the order dated 13th Oct''95 passed by the learned Deputy Commissioner, Zunheboto constituting the Arbitration Bench clearly appears that the parties the dispute was not at all consented. It is unilateral order imposed on the parties, the learned Deputy Commissioner therefore, has exercised jurisdiction not vested him and therefore, the order dated 13th Oct. ''95 constituting the Arbitration Bench void ab initio and all proceedings consequential to order dated 13th Oct. ''95 would to be void.

At this stage, it would be pertinent to dispose one argument of learned Counsel for the Respondents. Counsel for the Respondents produced a copy of the elements recorded before the Arbitration Bench and contended that the customary (sic) was not administered to the Petitioner in accordance with customary practices (sic) usages. As already said, this cannot be permitted after long lapse of time. Secondly, when it has been held that the constitution of Arbitration Bench is void ab initio all the consequential proceedings under the Board would also void.

For the reasons aforestated, the order dated 5-7-94 passed by the Political Assistant to Deputy Commissioner, Zunheboto in Case No. 168/94, the order dated (sic)-10-95 passed by the learned Deputy Commissioner constituting the Arbitration Bench and the report of the Arbitration Bench dated 12-4-96 and the order dated (sic)*-8-96 passed by the learned Deputy Commissioner, Zunheboto are hereby quashed and set aside. The order dated 22.8.81 passed by the Village Council of Satakha Village is hereby restored.

With the aforesaid direction, this petition is allowed. In the facts and circumstances of the case, parties are asked to bear their own costs.