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IN THE HIGH COURT OF GAUHATI
N. Kotiswar Singh, J.
Shri Mangyang Lima - Appellant
Vs.
State Of Nagaland And Others - Respondent
Writ Petition (C) No. 83 (K) of 2018
Decided On : 09-01-2019
Nagaland Village and Area Councils Act, 1978 – Section 12 –Constitution of India – Articles 12, 21, 19(1)(d) –Issue on Banishment – Learned senior counsel for the petitioner has submitted that the aforesaid impugned orders are illegal in as much as the same are unconstitutional –It has been submitted that respondent Nos.4 & 5 who were acting under the capacity of Village Council being public authorities, are under obligation to abide by the law and Constitution – Merely because the petitioner had opted to exercise his legal and constitutional right of contesting the Assembly Election, he and his supporters could not have been subjected to aforesaid penalties and other forms of restrictions which are not permissible under the law –It is also submitted that by the aforesaid penalty of banishment, his fundamental right to move freely throughout the territory of India as granted as well as his right to reside in any part of the country as guaranteed has been violated –Held, It has been stated under Rule 46 (1) that a Village Court shall not be competent to pass a sentence of imprisonment in any criminal case –It shall have power to impose a fine for any offence it is competence to try, up to a limit of Rs. 500 (Rupees Five hundred) – It may also award payment in restitution or compensation to the aggrieved or injured party in accordance with the customary law – From the above, it is very clear that the Village Court which has the authority to decide on the basis of customary laws does not have the power of banishment or ex-communication as the case may be –Thus, as evident from above, statutory laws do not recognize any form of punishment of excommunication or banishment even for offences involving customary laws – The issue raised in this petition is whether such mode of punishment will be permissible by anybody or entity in purported exercise of enforcing customary laws –The answer of this Court is in the negative in the light of the discussions above referred – In the result, for the reasons discussed above, the impugned orders are set aside as void, being violative of fundamental rights as guaranteed of the Constitution –Writ Petition allowed
JUDGMENT :
1. Heard Mr. S. Dutta, learned senior counsel assisted by Mr. B. Devnath, Ms. Priyanka, Advocates. Also heard Mr. R. Iralu, learned senior counsel assisted by Mr. L. Iralu, learned counsel for respondent Nos. 4 and 5 and Mr. K. Wotsa, learned Sr. Government Advocate for the State.
2. In this petition, the petitioner is challenging certain orders passed by the respondent Nos. 4 and 5 alleged to be acting in the capacity of the Village Council, by which the petitioner has been banished and excommunicated from his own village for 11 years with other restrictions placed on him; and some other villagers have been also penalized by imposing fines and banishment for supporting the petitioner.
3. Only a few facts as may be relevant may be stated herein.
4. The petitioner hails from Mejongenshi Aso clan of Chuchuyimlang village of Mokokchung District, Nagaland and a permanent resident of the said village. In the last State Assembly election held in 2018, the petitioner intended to contest the election. However, as per the decision of the executive committee of Chuchuyimlang Senso Mungdang or Chuchuyimlang Citizens Forum (Respondent no.5), another person namely, Shri Nuklutoshi Longkumer was selected to be the sole candidate from the village to contest the State Assembly election under the banner of Nagaland Peoples Front (NPF) from 22 Arkakong Assembly Constituency. As per the decision of the Village Council only the person nominated by the Village Council could contest the election. The petitioner was not selected by the Village Council for contesting the assembly.
5. According to the petitioner, the aforesaid decision of the Chuchuyimlang Citizens Forum was illegal as they had no such authority to select a candidate to the exclusion of the petitioner or any other person, in as much as contesting an election is not only a legal right but also a constitutional right of any citizen of this country, so long as he fulfils the criteria and requirements under the Constitution and laws framed there- under. Accordingly, in defiance of the decision of the Village Council, the petitioner opted to contest the last Nagaland Legislative Assembly election from 22 Arkakong Assembly Constituency as a candidate of the Nationalist Democratic Progressive Party (NDPP). Though the petitioner was unsuccessful in the said election, the petitioner has been subjected to various injunctions and penalties for alleged defiance of the decision of the Village Council as mentioned above by the respondent Nos. 4 and 5, who according to the petitioner, were discharging the role of Village Council.
6. By the impugned order dated 5/3/2018 (Annexure 3) challenged in this petition, the petitioner has been barred from taking part in any social set up under Chuchuyimlang Citizens Forum, the Respondent no.5, and it was further notified that no recommendation will be provided to him for 11 (eleven) years beginning from 1/1/2018 to 31/1/2030 on the ground that he had breached the earlier resolution of the Chuchuyimlang Citizens Forum that he would abide by the decision of the Forum and accordingly, the petitioner has been banned from entering the village area for 11 years. It was further notified that there will be social boycott of the petitioner and no individual would be permitted to entertain the petitioner as one of the citizens of Chuchuyimlang village with the warning that the Chuchuyimlang Citizens Forum (Respondent No.5) and the Riosanger Putu Menden will not be responsible for any untoward incident that may happen if any person/group entertains him.
The aforesaid impugned Notification dated 5.3.2018 as recorded in paragraph no.10 of the petition is reproduced as follows:
"Since Mr. Meyimangyang (alias Mangyang Lima), Son of Late Limakumzuk has breached the solemn resolution of the Chuchuyimlang Senso Mungdang {(CSM)/ Chuchuyimlang Citizens Forum} made in the name of God to live in unity and dignity, the CSM and the Riongsanger Putu Menden of Chuchuyimlang has res
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