WP(C) No. 306 of 2014. Case: Sainkur Dewkhaid and Ors. Vs Khasi Hills Autonomous District Council, Shillong and Ors.. Meghalaya High Court

Case NumberWP(C) No. 306 of 2014
Party NameSainkur Dewkhaid and Ors. Vs Khasi Hills Autonomous District Council, Shillong and Ors.
CounselFor Appellant: P. Nongbri, Adv. and For Respondents: P.S. Nongbri and B.M.R. Chyne, Advs.
JudgesS.R. Sen, J.
IssueConstitution of India - Articles 13(b), 226, 372
Judgement DateSeptember 10, 2015
CourtMeghalaya High Court

Judgment:

S.R. Sen, J., (At Shillong)

  1. The petitioner's case in a nutshell is that:

    "This is an application under Article 226 of the Constitution praying for quashing and setting aside the impugned order dated 12.6.2014 issued by the respondent No. 2 and Notification dated 17.6.2014 issued by the respondent No. 4.

    The factual matrix of the case in brief is that Malaisohmad Syiemship as of now comprises of 5 (five) villages having 6 (six) recognized clans which constitute the Electoral College to elect a Syiem/Chief but Dewsawbah Clan became extinct in the past century and left with only 5 (five) clans as per the customary practices prevailing. The 5 (five) clans namely are:-- (i) Dewkhaid, (ii) Dewsaw, (iii) Sohtun (Ruah), (iv) Nohriang and (v) Ronsang. This customary practices has been in existence since time immemorial and has attained a legally enforceable and customary rights in the Syiemship by virtue of its long practice by generations after generations. At one point of time, the then Deputy Commissioner had allowed the male adults to vote and elect the then Chief (Syiem) of Malaisohmad Syiemship in 1893 and declared the results on 23.1.1893. This was vehemently objected by the eligible 5 (five) clans and Captain D. Herbert the then Deputy Commissioner of Khasi and Jaintia Hills after thorough enquiry and examination of the historical evidences had finally settled the controversy by nullifying the earlier order and vide order dated 6.1.1903 held that as per the customary practices prevailing for generations, it is only the 5 (five) Myntris from the respective clans who were the eligible electors to elect a Chief (Syiem) of Malaisohmad Syiemship and the people had no customary right to participate in the election.

    The respondents district council in exercise of powers under paragraph 11 of the Sixth Schedule of the Constitution of India, the respondent District Council has enacted the United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 (for the sake of brevity herein referred to Act of 1959). In the said Act of 1959, Sub Section (b) and (h) of Section 2 of the Act it has laid down amongst others the mode of election, appointment and removal of Chief and Headman. Section 3 of the Act of 1959 provides for Election or Nomination and Appointment of Chief and Headmen. Section 3 of the Act of 1959 also clearly stipulates that the election or nomination and appointment of Chief shall be in accordance with the existing customs prevailing in the Elaka concerned and/or in accordance with the orders as the Executive Committee may issue from time to time.

    The respondents District Council has also all along given recognition and acceptance to the said customary practice. The then Chief Executive Members of the District Council vide order dated 08.12.1969 passed in Political Case No. 9 of 1967 after relying on the previous decision and other documents clearly held that the election/nomination to the post of the Chief/Syiem of Malaisohmad Syiemship can be done by the Myntris. Other instance is also available such as when the Executive Members of the United Khasi and Jaintia District Council, Shillong vide public Notice dated 12.01.1970 informing the general public that the then Chief/Syiem had been elected by the Myntris/Electors of the Hima. In one instance, the then Chief Executive Member after examination of the matter, in its report dated 02.07.1970 clearly reported to the House that according to the prevailing custom, the Syiem/Chief would be only nominated/elected by the Myntris/Electors. Therefore, the above customary practices continue to exist and in force thereafter. The above customary practice was again translated into action by the respondent District Council vide its public notice dated 24.04.1973 whereby, the respondent District Council had invited the five Myntris to meet in the District Council for the purpose of electing the Chief/Syiem as per the Act of the 1959. The respondent district council had on many occasions approved and notified the names of the 5 (five) Myntris as the Electors to elect the Syiem/Chief of the Hima. Due to a complaint/objection raised with regard to the rights of the people in the Hima to elect the Chief/Syiem, the respondent District Council in pursuance to the reference made by the Returning Office under Section 4 of the Act 1959 had considered the said matter amongst others in its entirety and after referring to and relying on the report/decision of the Captain D. Herbert of 1903 along with historical evidences had vide order dated 20.7.2007 came to the conclusion that no election to the post of Chief would be held by the people except by the five Myntries/Electors of the Hima.

    The aforesaid practice of election to the post of the...

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