JUDGMENT :

Ranjan Gogoi, J.

1. The petitioners and the Respondent Nos. 3 and 4 are residents of New Shena village located in the Zunheboto District of the State of Nagaland. In the proceedings before the customary courts as well as the courts constituted under the Rules for Administration of Justice and Police in Nagaland, 1937 (as amended), out of which the present writ petition has arisen, while the petitioners contended that the office of the Gaon Bura in the Sema Naga tribe is a hereditary office and therefore the respondent Nos. 3 and 4 are not entitled to be appointed to the said office, the respondent Nos. 3 and 4 contended to the contrary. The dispute between the parties was sought to be resolved by the learned Additional Deputy Commissioner (J), Zunheboto, by his order dated 29.7.1996 holding that as the claim of the respondent Nos. 3 and 4 to the office of Gaon Bura was in respect of new offices, not previously held by any person on hereditary basis. The respondent Nos. 3 and 4 would be entitled to the said office on account of necessity.

2. Aggrieved, the petitioners had instituted the present writ proceeding, primarily, contending that under the Sema Naga customary law the office of Gaon Bura is hereditary and no claim to the said office on any other basis would be authorized under the customary practices and usages which have been in vogue since time immemorial. At the hearing of the writ petition, reliance was placed on behalf of the petitioners on a published book titled 'Sema Nagas' by J.L. Hutton. In the said published work the acknowledged claim of hereditary succession being with reference to the office of Chieftain and not specifically to the office of the Gaon Bura, the Division Bench had made a reference of the above point at issue to a larger Bench particularly in view of the categorical stand taken in the counter-affidavit of the respondent Nos. 3 and 4 that the two offices i.e. that of Gaon Bura and Chieftain are different and distinct. That is how the present Bench is in seisin of the matter.

3. The published books and known works on Sema customary law being few and the celebrated work of Hutton being the primary authoritative text on the subject it had become necessary for the Court to determine the precise customary practice in question on the basis of the available opinions of the elders of the Tribe or of duly constituted and recognized bodies representing the Sema Tribe. Accordingly, the Court by order dated 15.2.2007 had directed the Chief Secretary of the State to ascertain the correct position and inform the Court the prevailing customary practices in the Sema Tribe with regard to appointment of Chief/Gaon Bura and whether the post of Chief and Gaon Bura is one and the same.

4. The learned Advocate General of the State who was requested by the Court to assist it in the matter, in the course of several hearings of the case, had placed an initial report of the Chief Secretary which is to the effect that the office of the Chief and Gaon Bura in Sema Tribe is essentially the same though as a matter of practice the Chief is known as the 'Akukau'. On behalf of the Chief Secretary a report dated 4.11.2006 submitted by the President of the Western Sumi Kukami Hoho was also submitted to the effect that in the Sema Tribe a Chief is also known as a Gaon Bura. In the said report it has been stated that the fundamental distinction between a Chief/Gaon Bura of a Sema village and the similar office in other tribes is that in so far as Sema villages are concerned, the Chiefs/Gaon Buras "are not selected or elected by the villagers but are the descendants of the Chiefs/Gaon Buras who rule over the village on hereditary basis." In the said report it has also been stated that the above customary practice has been in vogue amongst the Sema Nagas till date and since time immemorial and further that though Chiefs/Gaon Buras receive their appointment orders from the Government, such appointment orders are in reality reco