Summary
In a dispute over State recognition of a new 'Sumi' village in Nagaland said to lie on the ancestral land of the appellant 'Zeliangrong' village, the Supreme Court held that the recognition procedure under the Office Memoranda of 22.03.1996 and 01.10.2005 was not shown to have been complied with, because the appellant's timely objection to the public notice was never decided on its merits, and that although the Cabinet's decision to keep recognition in abeyance pending the inter-district boundary dispute was not arbitrary when taken, the 2021 Cabinet Sub-Committee report showed the dispute had no nexus with the village; the State was directed to re-issue the public notice and decide all objections within six months.
Issues
- Whether the respondent village had fulfilled all the conditions for a formal order of recognition under the O.M.s dated 22.03.1996 and 01.10.2005, given that the appellant village had objected to the public notice of 13.10.2009 claiming the land as its ancestral property.
- Whether the pendency of the inter-district boundary dispute between the Peren (formerly Kohima) and Dimapur districts was a valid reason for the State Cabinet to keep the recognition of the respondent village in abeyance, and to what extent courts may interfere with such an executive decision.
- Whether the High Court could direct the State to issue formal orders of recognition without the appellant, which had lodged objections, being heard.
- Whether the customary protections under Article 371A could be examined against the fundamental rights of the respondent villagers under Articles 14, 19 and 21.
Provisions considered
- Article 371A, Constitution of IndiaInserted by the Constitution (Thirteenth Amendment) Act, 1962 as a political settlement to preserve Naga identity, it excludes Acts of Parliament on Naga social practices, customary law and ownership and transfer of land unless adopted by the State Legislature; the Court treated village establishment and recognition as rooted in such customary practice but declined to examine the respondents' plea that Article 371A cannot abridge Articles 14, 19 and 21, since neither the 1978 Act nor the O.M.s had been challenged as unconstitutional. (¶¶ 40, 41, 42, 70)
- Section 3 (Explanation), Nagaland Village and Area Councils Act, 1978A 'village' is an area recognised as such by the Government of Nagaland, which must satisfy two conditions: the land belongs to the population of the area or was given to them by the Government or the lawful owner, and the village is established according to the usage and customary practice of the population; the State may recognise an area only on an application in which the inhabitants show bona fide that they are lawful owners and have followed custom. (¶¶ 42, 43, 44)
- Section 26, Nagaland Village and Area Councils Act, 1978Relied on by the State for the tribal council's role in assisting settlement of disputes involving customary law, as a basis for seeking a further chance to mediate between the two villages. (¶ 38)
Held
- The O.M.s of 22.03.1996 and 01.10.2005 mirror and codify the customary process of village recognition, in which consent of and communication with all stakeholders is cardinal: a new village set up within the ancestral land of a parent village needs a No Objection Certificate from that village's Council Chairman (and its Gaoburas where they administer village land) indicating boundaries, besides a joint survey, clearances from the Forest Department, a Class-I Magistrate and neighbouring villages, and administrative approval; the 2005 O.M. adds a public notice by the Deputy Commissioner giving 30 days for objections. (¶¶ 45, 46, 47)
- The public notice exists to give a last opportunity to interested villages that might be adversely affected and were left out of the earlier process, and to avert later inter-village conflict; the State is therefore duty-bound to adequately consider every objection lodged within time, failing which the object of the notice is vitiated. (¶¶ 48, 49)
- Where the appellant objected within three days of the public notice and promptly furnished the details demanded, yet it was unclear whether the Deputy Commissioner considered them before recommending recognition, and the State never averred that the appellant's claim to the land was baseless, it could not be said that the conditions of the two O.M.s, especially the 2005 O.M., were fulfilled. (¶¶ 49, 71)
- The respondents could not blanketly deny the appellant's right to object, but the State must weed out frivolous objections so that the applicant village is not prejudiced; the State must decide on the merits whether the appellant's No Objection is a prerequisite to recognition. If not, the appellant has no locus to challenge recognition; if so, the respondent village must negotiate a settlement with the appellant. (¶ 50)
- Courts do not interfere with a Cabinet or policy decision reached after considering relevant factors and recommendations, absent patent arbitrariness, caprice, mala fides or illegality, and the mere availability of a better view is no ground; this applies with particular force in Nagaland, whose administration differs from other States and where the executive is better informed of ground realities (Sachidanand Pandey, Indian Charge Chrome and Chaudhari Ran Beer Singh applied). The Cabinet's decision, on the Ezong Committee's advice and the Deputy Commissioner Peren's reservation, to defer recognition pending the boundary dispute was thus not arbitrary when taken. (¶¶ 56, 57, 58, 59, 60)
- The 2021 Cabinet Sub-Committee report, which re-examined the boundary dispute, is silent about any conflict involving the respondent village and its annexed list of villages within the buffer zone does not include it; on the State's own case the village lies about 3.7 km from the buffer zone, so after 2021 it was plain that the inter-district boundary dispute had no nexus whatsoever with the respondent village's recognition. (¶¶ 61, 62, 63, 71)
- The only reasonable ground for further delay was the appellant's objection of 2009, pending for over fifteen years; the Court cannot itself decide such complex disputed questions of tribal land history, which the State authorities are better suited to determine, and the State, while rightly attempting mediation, remains bound to decide both sides' claims objectively on the merits and implement its decision rather than prolong the impasse. (¶¶ 64, 65, 66, 67)
- Although some portable benefits may be shared through the parent or neighbouring villages in the interim, roads, health infrastructure, schools and Village Development Board funding remain denied to an unrecognised village, so the State must take a final call urgently and in strict adherence to the prescribed procedure, and any refusal must rest on reasons within that procedure with a clear plan of further action. (¶¶ 68, 69)
- The High Court's findings on compliance with the two O.M.s were set aside solely because it was not alive to the appellant's case, the appellant not having been impleaded despite its objections. (¶ 72)
Result
High Court's observations on compliance with the O.M.s dated 22.03.1996 and 01.10.2005 set aside; State authorities directed to re-issue a public notice regarding recognition of the respondent village, exhaustively consider all objections including the appellant's, and decide within six months whether recognition should be granted, non-adherence to be viewed strictly; matter treated as part heard and to be listed before the same Bench after six months.