Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2025
(Arising out of S.L.P. (Civil) No. 9897 of 2016)
OLD JALUKAI VILLAGE COUNCIL …APPELLANT(S)
VERSUS
KAKIHO VILLAGE & ORS. …RESPONDENT(S)
J U D G M E N T
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2025.05.23
17:18:17 IST
Reason:
J.B. PARDIWALA, J. :-
For the convenience of exposition, this judgment is divided into the following
parts:
INDEX
A. FACTUAL MATRIX ............................................................................ 2
B. SUBMISSIONS OF THE PARTIES .................................................... 18
i. Submissions on behalf of the appellant ......................................... 18
ii. Submissions on behalf of the respondent nos. 1 and 2 .................. 23
iii. Submissions on behalf of the State ................................................ 29
C. ISSUES FOR DETERMINATION ...................................................... 32
D. ANALYSIS ......................................................................................... 33
i. Whether all the necessary conditions/criteria for the issuance of formal
order(s) of recognition as per the O.M.’s dated 22.03.1996 and
01.10.2005 respectively were fulfilled? .................................................. 33
ii. Whether the existence of an “inter-district boundary dispute” was a
valid reason to keep the recognition of the respondent no. 1 village in
abeyance?... .............................................................................................. 42
E. CONCLUSION ................................................................................... 60
SLP(C) No. 9897 of 2016 Page 1 of 61
1. Leave granted.
2. This appeal arises from the Judgment and Order passed by the High Court of
Gauhati, Kohima Bench in Writ Appeal No. 6(K) of 2015 dated 07.10.2015
(hereinafter, the “ impugned decision ”), by which the High Court affirmed the
Judgment and Order passed by the Single Judge in Writ Petition (C) No. 65(K)
of 2014 directing the State authorities to take steps for the issuance of formal
order(s) for the recognition of the respondent no. 1 village within a period of three
months. The said period was however, extended by another four months
subsequently.
A. FACTUAL MATRIX
3. Land is one of the priceless assets for the people of Nagaland and forms an
1
inalienable part of their identity and life. The landholding system in Nagaland
differs slightly from the rest of the States and is especially characterized by its
non-cadastral nature. Each district, more or less, is occupied by a predominant
1
A. N SHOGA , T RADITIONAL N AGA V ILLAGE S YSTEM AND ITS T RANSFORMATION 87 (Anshah Publishing House
2009)
SLP(C) No. 9897 of 2016 Page 2 of 61
concentration of one major tribe and other sub-tribes with distinct socio-cultural
and linguistic characteristics, and therefore, the different districts of the State are
demarcated primarily on the basis of the inhabitation patterns of a specific tribe
2
or tribes. Land is either owned communally by a clan or village or, by individuals
and a new village is formed only within the community land which is owned by
its inhabitants. The formation of villages and its recognition is also extensively
rooted in customary traditions and practices. It is the case of the appellant that
since the establishment and recognition of a new village on the ancestral land of
another village results in the transfer of ownership of the said land to the newly
created village, the prevailing custom requires the village ancestrally owning
such land to accord their consent by way of a ‘No Objection Certificate’ to the
new village which is sought to be established on their land.
4. The aforesaid custom is said to have been recognized in the O.M. dated
22.03.1996 issued by the State of Nagaland which lays down several criteria for
the recognition of villages. The relevant portions of the same read as follows:
“ Government of Nagaland
Home Department
(General Administration Branch)
OFFICE MEMORANDUM
2
L ANUSASHI L ONGKUMER ET . AL ., S TATUS OF A DIVASIS /I NDIGENOUS P EOPLES L AND S ERIES – 6: N AGALAND 20
(Aakar Books 2012).
SLP(C) No. 9897 of 2016 Page 3 of 61
Dated, Kohima the 22nd March, 1996
No. GAB-12/13/74 : The existing criteria/conditions for
recognition of villages in Nagaland having found
inconsistent in the present context of administration, the
Cabinet in their sitting on 30-06-1995 decided to modify the
existing criteria/conditions. Therefore, superseding the
Department’s Memorandum No. GAB-13/17/1983 dated 20-
7-1987, the existing criteria/conditions for the recognition of
villages in Nagaland have been modified as follows with
immediate effect:-
(i) A new village should have a minimum of 50(fifty) houses with
a population of not less than 250 (two hundred and fifty)
people.
(ii) A new village should have sufficient land expansion of the
village and also for agriculture purposes.
(iii) A new village should be constituted by indigenous inhabitants
only.
(iv) A new village constituted by members of more than one
village should obtain from the Village Council Chairman a
‘No Objection Certificate’ of the parent village indicating
that the boundaries of the new village.
(v) A new village constituted by members of more than one
village in a different location but within the ancestral land of
the parent village, should obtain from the Village Council
Chairman of the parent village a ‘No Objection Certificate’
indicating the boundaries of the new village. In cases where
exact boundary demarcations cannot be defined due to
scatter of pockets of land, the Village Council Chairman and
all the GBs of the parent village should determine the nature
of boundaries with the new village on any permanent basis
acceptable to both the villages.
(vi) In cases where GBs are appointed and allowed to function as
the constitutional head of the village in matters of
administration of the village land, the GBs concerned should
attest their signatures in the ‘No Objection Certificate’
jointly with the Village Council Chairman.
(vii) The entire area of the newly established village should be
surveyed jointly by competent staff of Land Records & Survey
and civil administration to clearly demarcate and map the
village territory and also record the area in hectares.
SLP(C) No. 9897 of 2016 Page 4 of 61
(viii) A new village on completion of the process of boundary
demarcations with the neighbouring villages/parent village
and also on completion of survey as required under (vii)
given below, should erect pillars at its own expenses in the
presence of competent staff as requisitioned under the same
point.
(ix) The following certificates/documents are required to
accompany the proposal:
(a) Clearance from Forest Department issued by an officer
not below the rank of DFO.
(b) Judicial clearance from a Class-I Magistrate.
(c) ‘No Objection Certificate’ from neighbouring village(s)
duly countersigned by an Administrative Officer.
(x) Administrative approval should be from an officer not below
the rank of SDO(C).
(xi) No approval is required from extra-constitutional body like
students’ union, tribal hoho(s).
Sd/- L. COLNEY
Addl. Chief Secretary to the Govt. of Nagaland”
(Emphasis supplied)
Condition (v) of the aforesaid O.M. clearly lays down that if a new village
is constituted by the members of more than one village, in a different location
which is within the ancestral land of another parent village, then the new village
must obtain a ‘No Objection Certificate’ from the Village Council Chairman of
the said parent village while also indicating the boundaries of the new village.
5. In the meantime, there arose a boundary dispute between the districts of Kohima
(where the appellant village is located) and Dimapur (where the respondent
village is allegedly located). On 26.09.2000, a Committee (hereinafter, called the
“ Ezong Committee ”) was constituted by the Government of Nagaland to work
SLP(C) No. 9897 of 2016 Page 5 of 61
out and submit their recommendations as regards the demarcation of the inter-
district boundary between the aforesaid two districts, with particular reference to
the boundary between the Dhansiripar sub-division of the Dimapur District and
the Jalukai sub-division of the Kohima District. A new district called Peren
District has since been carved out of Kohima District and the Jalukai sub-division
now falls under the Peren District. On 28.05.2002, the Ezong Committee
submitted its report to the Additional Chief Secretary & Commissioner of
Nagaland. The Committee decided to give due consideration in placing the
villages associated with the ‘Sumi’ tribe under the Dimapur District and those
associated with the ‘Zeliangrong’ tribe under the Kohima district as far as
conveniently practicable and wherever the same was not possible, the boundary
was to be demarcated strictly in accordance with administrative convenience. The
Committee also suggested that it would be desirable for the State Government to
consider the issue of recognition of new villages existing in the disputed areas
only after the boundary demarcation between the two districts was finalized.
6. The Government of Nagaland issued one another Office Memorandum dated
01.10.2005 which introduced an additional criteria/condition in the process of
village recognition i.e., the requirement of a public notice providing a 30 day
period to the public to register their objections, if any, regarding the specific
village which is sought to be recognised. This notice which would also indicate
the area of land/boundary of the new village was to be issued by the Deputy
SLP(C) No. 9897 of 2016 Page 6 of 61
Commissioner of the concerned district. The authorities were specifically
implored to strictly abide by and adhere to the cumulative conditions mentioned
in the O.M. dated 22.03.1996 and the O.M. dated 01.10.2005, the failure of which
would result in the rejection of the application of village recognition. The
aforesaid O.M. dated 01.10.2005 is reproduced hereinbelow:
“ Government of Nagaland
Home Department
General Administration Branch-I
No. GAB-1/COM/108/2005
st
Dated Kohima, the 1 October, 2005
OFFICE MEMORANDUM
Subject: Criteria/ conditions for recognition of new villages
in Nagaland
In addition to the instructions contained in this Department's
O.M. No.GA-12-13/74 dtd. 22/03/96 on the above mentioned
subject, all cases relating to recognition of new villages in
Nagaland, shall henceforth, with immediate effect, require a
public notice to be issued by the Deputy Commissioner of the
District concerned. The notice shall indicate the area of
land/boundary of the village proposed for recognition, giving
30(thirty) days’ time for objection, if any, to be filed.
2. All other conditions/ criteria laid down in the O.M. under
reference shall remain unchanged.
3. It is hereby impressed on all concerned that any proposal
for recognition of village in Nagaland which does not comply
with the prescribed conditions shall be rejected. District
Administration shall therefore ensure strict adherence to
these conditions/criteria while recommending cases to the
Government.
SLP(C) No. 9897 of 2016 Page 7 of 61
Sd/-
Banuo Z. Jamir
Principal Secretary to the Government of Nagaland”
(Emphasis supplied)
7. On 01.09.2007, the respondent no. 2, who is the Head Gaobura-cum-Council
Chairman of the respondent no. 1 village, had allegedly established the
respondent no.1 village which is affiliated to the ‘Sumi’ tribe. While it is the case
of the appellant that the said village falls within the bounds of their ancestral land,
the respondent nos. 1 and 2 respectively instead contend that their village falls
within another district altogether i.e., the Dhansiripar sub-division of the
Dimapur District. With a view to initiate the process of recognition, on
24.03.2009, the respondent no. 2 submitted an application requesting the Deputy
Commissioner, Dimapur to depute a Survey Team and conduct a spot verification
of the respondent no. 1 village. On 10.09.2009, the spot verification report was
submitted which revealed that the respondent no. 1 village, admeasuring 1012
Acres, with a population of 300 people and 57 households, falls under the
Dhansiripar sub-division of the Dimapur district. It was said to be bounded by
Ghowoto Village in the North, K. Xekiye Village in the South, the Pathor
river/Ballu Nallah in the East and K. Xekiye Village in the West. The report also
observed that the respondent no. 1 village has no inter-boundary dispute at least
in so far as the neighbouring villages were concerned.
SLP(C) No. 9897 of 2016 Page 8 of 61
8. In order to expedite the recognition of the respondent no. 1 village, on
21.09.2009, the respondent no. 2 submitted yet another representation to the
Deputy Commissioner, Dimapur inter-alia stating that the respondent no. 1
village has been established with his own privately purchased land and that ‘No
Objection Certificates’ were obtained from their parental village i.e. Khumishi
‘A’ Village under the Zunheboto District and from all the villages currently
neighbouring the respondent no. 1 village i.e. Ghowoto Village and K. Xekiye
Village. Having complied with the conditions laid down in the O.M. dated
22.02.1996, it was requested that their application be forwarded to the
appropriate higher authorities with a recommendation that the respondent no. 1
village be recognised. Soon thereafter, on 30.09.2009, the local authorities had
also submitted other relevant documents to the Deputy Commissioner, Dimapur
which included the ‘No Objection Certificates’ from the Judicial Magistrate and
the Forest Department.
9. On 13.10.2009, whilst kickstarting the last leg of the village recognition process
and in accordance with the O.M. dated 01.10.2005, the Deputy Commissioner,
Dimapur published a public notice inviting claims/objections, if any, as regards
the recognition of the respondent no. 1 village within a period of 30 days. The
notice was also published in a local daily, “The Nagaland Post”, on the very next
day. On 16.10.2009, i.e., within two days of the public notice, the appellant raised
an objection to the proposal for granting recognition to the respondent no. 1
SLP(C) No. 9897 of 2016 Page 9 of 61
village with the Deputy Commissioner, Dimapur, predominantly for the reason
that it is sought to be established on the land ancestrally belonging to them. The
objection is also said to have been published in a local daily i.e., “The Morung
Express” on 19.10.2009. Vide communication dated 08.11.2009, the Deputy
Commissioner, Dimapur, directed the appellant to provide additional and
complete information as to how the respondent no. 1 village falls within their
land and the same was to be furnished within a period of 7 days, failing which
their objection would be nullified. Immediately on the ensuing day, i.e., on
09.11.2009, the appellant addressed a letter providing several pertinent
information along with some historical context as to how the respondent no. 1
village indeed fell within their ancestral land.
10. Despite the objections raised by the appellant herein, on 18.11.2009, the Deputy
Commissioner, Dimapur, submitted its recommendation for the recognition of
the respondent no. 1 village under the Dhansiripar sub-division of the Dimapur
District to the Commissioner, Nagaland. Pursuant to the above, a Cabinet
meeting was held on 14.12.2011 to deliberate on the issue of recognition of
villages. The State Cabinet had approved the proposal of the Home Department
for the recognition of a total of 34 villages listed therein. However, in so far as
the recognition of those villages listed between Sl. Nos. 19 to 24 were concerned,
the order of recognition was to be issued only after a joint verification was
conducted by the Deputy Commissioners of Peren and Dimapur respectively. It
SLP(C) No. 9897 of 2016 Page 10 of 61
is pertinent to note that the respondent no. 1 village featured at Sl. No. 23 in the
said list.
11. In compliance with the Cabinet decision aforementioned, a joint verification is
said to have been conducted on 08.03.2012. Thereafter, on 26.07.2012, the
Deputy Commissioner, Dimapur forwarded the joint verification report to the
Commissioner, Nagaland specifically indicating that both the joint verification
report and the map of the Dimapur District reveals that the respondent no. 1
village is situated within the Dhansiripar sub-division of the Dimapur District.
However, on the contrary, vide communication dated 23.08.2012, the Deputy
Commissioner, Peren, had refrained from offering any conclusive opinion as
regards the recognition of the respondent no. 1 stating that “ the office of the D.C.
Peren has no further comments for recognition of the above two villages until the
boundary dispute between the two districts is settled ”. Alluding to the opinion of
the Deputy Commissioner, Peren, the Office of the Commissioner, Nagaland also
addressed a letter dated 05.11.2012 to the Home Commissioner suggesting that
the recognition of two villages, i.e. the A.K. Industrial Village and the respondent
no. 1 village, be kept in abeyance until the inter-district boundary dispute is
resolved since the grant of recognition would motivate other villages in the
disputed areas to also seek recognition and cause serious unrest at the ground
level.
SLP(C) No. 9897 of 2016 Page 11 of 61
12. To address this issue effectively, a consultation meeting was held on 10.06.2013
under the auspices of the Home Ministry which included the Commissioner,
Nagaland, the Deputy Commissioner, Peren and the Deputy Commissioner,
Dimapur, amongst others, regarding the inter-district boundary dispute between
the Peren and Dimapur districts. It was decided that the boundary demarcation
which was recommended by the Ezong Committee in the year 2002 would be
notified for the purpose of inviting claims/objections from the public after due
approval from the Cabinet. It was further reiterated that, notwithstanding the
Cabinet decision to order recognition subject to joint verification having been
completed, the recognition of the respondent no. 1 village would stand deferred.
Consequently, the Cabinet accorded its approval for the publication of the Ezong
Committee report vide O.M. dated 05.09.2013 and the same was published in all
the local dailies on 20.09.2013. It is averred by the State of Nagaland that several
objections were received from different Hohos, Village Councils, Gaobura’s etc.
in response to the publication of the Ezong Committee report and that the issue
had further been referred to the district administration of Dimapur for an update
on the ground reality.
13. Notwithstanding the above Cabinet decision, on 05.03.2014, the Sub-Divisional
Officer (SDO) (Civil) of the Dhansiripar sub-division is said to have issued a
certificate of administrative approval for the recognition of the respondent no. 1
SLP(C) No. 9897 of 2016 Page 12 of 61
village while also recording that there were no objections against the recognition
of the said village from any quarter.
14. However, still having witnessed abysmal progress as regards its recognition, on
21.04.2014, the respondent no. 1 village along with the respondent no. 2 filed a
Writ Petition being W.P.(C) No. 65(K) of 2014 before the High Court of Gauhati,
Kohima Bench inter-alia seeking a writ of mandamus directing the State
government to take necessary steps for its recognition. Vide judgment and order
dated 21.04.2015, the Single Judge of the High Court directed the State to take
appropriate steps for the purpose of issuing formal order(s) for the recognition of
the respondent no. 1 within a period of 3 months. The High Court’s reasoning
was three-fold: –
(i) First , that all the criteria/conditions mentioned in the O.M.’s dated
22.03.1996 and 01.10.2005 respectively, for the recognition of the respondent
no. 1 village, were complied with. ‘No objection certificates’ were also issued
by the neighbouring villages i.e., Ghowoto Village on 16.08.2007 and K.
Xekiye Village on 30.11.2007 respectively. The public notice published in
the newspaper also yielded no objection from any quarter. The Cabinet had
then given its approval for recognition subject to a joint verification being
conducted by the Deputy Commissioners of the Peren and Dimapur districts.
Such a joint verification had also been completed. Therefore, all the steps for
the recognition of the respondent no. 1 as a village were duly undertaken.
SLP(C) No. 9897 of 2016 Page 13 of 61
(ii) Secondly, the main objection which was canvassed by the State was the
existence of an inter-district boundary dispute between the districts of Peren
and Dimapur and that until the same was resolved, recognition of the
respondent no. 1 village must be stalled. The High Court was at a loss to
understand how the inter-district boundary dispute was related to the issue at
hand and stated that it would have no bearing insofar as the issue of
recognition was concerned.
(iii) Thirdly, the High Court interpreted the communication of the Deputy
Commissioner, Peren, dated 23.08.2012 which was issued after the joint
verification was completed, to mean that she had no further comments
whatsoever to offer on the issue of recognition of the respondent no. 1
village. Therefore, it was held that the communication dated 05.11.2012 sent
from the office of the Commissioner, Nagaland to the Home Commissioner
which reflected upon the comments of the Deputy Commissioner, Peren was
done without any application of mind and was considered devoid of the other
circumstances which favoured the case of the respondent no. 1. The High
Court adopted such a view especially since the Cabinet had accorded its
approval subject only to a joint verification by the concerned authorities and
the said joint verification was completed.
15. The relevant observations made by the Single Judge of the High Court are
reproduced hereinbelow:
SLP(C) No. 9897 of 2016 Page 14 of 61
“ 6. As required by the O.M's dated 22.03.1996 and
01.10.2005, the respondents had carried out all formalities
for recognition of the petitioner village and no objection
certificates were also issued by the Ghowoto Village Council
on 16.08.2007 and K. Xekiye Village Council on 30.11.2007.
as there was no objection from any quarter, survey was
conducted and such report was also submitted on
10.09.2009. The Deputy Commissioner, Dimapur had also
issued a public notice on 13.10.2009. Such public notice was
also published in the local newspaper and as there was no
further objection, the Deputy Commissioner, Dimapur by
letter dated 18.11.2009 had written to the Commissioner,
Nagaland, Kohima stating that all formalities has been
completed and as such, the matter regarding recognition of
the petitioner village was recommended. On such
recommendation, the matter was put up before the cabinet
and the cabinet on 14.12.2011 had given its approval for
recognition of the petitioner's village along with 33 others. A
condition was also laid down by the Cabinet that for the
villages appearing at Serial No.19 to 24, a joint verification
has to be done by the Deputy Commissioners of Dimapur and
Peren under the supervision of Commissioner, Nagaland.
The name of the petitioner village appears at Serial No.23
and as required by the cabinet, joint verification was also
conducted by the two Deputy commissioners of Dimapur and
Peren.
7. The main taken by the State respondents is that there is a
boundary dispute between the districts of Dimapur and Peren
and therefore until and unless such boundary dispute is
settled recognition cannot be given to the petitioner village.
This Court is not in a position to understand the ground taken
by the State respondents inasmuch as, the inter-district
boundary dispute would have no bearing insofar as
recognition of the petitioner's village is concerned. Important
point of note is that all steps have been taken insofar as the
recognition of the petitioner's village is concerned.
8. A reading of the communication dated 23.08.2012 written
by the Deputy Commissioner, Peren would indicate that the
Deputy Commissioner, Peren has no further comments for
recognition of the two villages i.e. A.K. Industrial Village and
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Kakiho Village (petitioner villages). The letter dated
23.08.2012 is reproduced herein below […]
9. Further, the letter of the Office of the Commissioner,
Nagaland dated 05.11.2012 would clearly indicate that it has
reflected only the comments of the Deputy Commissioner,
Peren without application of mind. When the cabinet has
given its approval subject to verification by two Deputy
Commissioners of Dimapur and Peren districts and such
verification having been already completed this Court is not
in position to understand as to why the recognition of the
petitioner's village has not been given till date.
10. This being the position, this Court has no hesitation to
direct the State respondents to take steps for issuance of
formal order(s) for recognition of the petitioner's village. Let
such exercise be completed within a period of three months
from the date of receipt of a certified copy of this order.
11. Writ petition is allowed.
12. No costs. ”
(Emphasis supplied)
16. Aggrieved by the aforesaid, the State preferred Writ Appeal No. 6(K) of 2015
against the judgment and order rendered by the Single Judge of the High Court.
Vide judgement and order dated 07.10.2015, the Division Bench of the High
Court acknowledged that the respondent no. 1 village is situated on the boundary
between the Peren and Dimapur districts, which is predominantly inhabited by
different tribes and that this was the foremost reason as to why the issue of
boundary demarcation has become a sensitive one. However, since it was pleaded
that the government was taking necessary steps for effecting the demarcation
SLP(C) No. 9897 of 2016 Page 16 of 61
which would in turn enable the issuance of a formal order of recognition of the
respondent no. 1 village, the Court extended the time granted by the Single Judge
by another four months from the date of the impugned decision. The relevant
observations are reproduced hereinbelow:
“ From the submissions of the learned Addl. A.G, it is quite
clear that State is not contesting the judgment on merit. It
appears from the submissions made that the village of the
respondents/writ petitioners is situated on the boundary
between Dimapur and Peren districts, both districts being
pre-dominantly inhabited by members of different tribes.
Therefore, demarcation of the boundary of the village has
become a sensitive issue. However, the Government is taking
necessary steps for making the demarcation to enable
issuance of formal order of recognition of the respondents
village as directed by learned Single Judge. But considering
the sensitiveness of the matter, some more time may be
required to complete the exercise, he submits.
Learned counsel for the respondents fairly submits that he
would have no objection for grant of time to the State for
issuance of the consequential order of recognition of the
village.
The being the position, we extend the time of 3 months
granted by the learned Single Judge by another period of 4
months effective from today. Appellant State shall issue the
formal order of recognition of respondents village within this
extended period of 4 months.
This disposes of the writ appeal. ”
(Emphasis supplied)
17. It is the case of the appellant that despite being a necessary and proper party to
the writ petition filed before the High Court by the respondent no. 1 village, they
SLP(C) No. 9897 of 2016 Page 17 of 61
were not impleaded in the said proceedings. Having come across the impugned
decision subsequently and also having learnt that effective steps to issue orders
for the recognition of the respondent no. 1 village were being undertaken by the
State, the appellant is before us with the present appeal.
B. SUBMISSIONS OF THE PARTIES
i. Submissions on behalf of the Appellant
18. Mr. Parthiv K. Goswami, the learned Senior Counsel appearing on behalf of
the appellant, submitted that the appellant was a necessary and proper party in
the adjudication of the dispute before the High Court on account of the fact
that the respondent no. 1 village falls within their ancestral land and that they
had also filed objections to the Public Notice dated 13.10.2009. Hence, the
impugned decision, having been passed in the absence of the appellant would
be bad in law, in violation of principles of natural justice and therefore,
deserves to be set aside on this ground alone.
19. He submitted that the issue of granting recognition to a village falls within
the domain of the executive decision making. It is well settled that in exercise
of the power of judicial review, a writ court can only examine the decision-
making process, and not substitute the decision under consideration with its
SLP(C) No. 9897 of 2016 Page 18 of 61
own decision. Therefore, once the state government/cabinet had taken a
decision to keep recognition of the respondent no. 1 village in abeyance upon
a consideration of several relevant factors, the High Court had committed a
serious error by issuing a mandamus and directing the grant of a formal
recognition order, more so, when the question as to whether the respondent
no. 1 village falls within the ancestral land of the appellant is a disputed
question of fact which needs proper examination at the ground level. The
impugned decision, which was passed in the absence of the appellant was
neither alive to the existence of such a dispute nor did it have the assistance of
the material now being placed on record by the appellant.
20. It was further submitted that a new village is generally only established within
the community land which is owned by its inhabitants. The establishment and
recognition of a new village on ancestral land of another village results in
transfer of ownership of the land to the newly created village. It is for this
reason that upon the establishment of a new village on a land which
ancestrally belongs to another village, the prevailing custom requires a ‘No
Objection Certificate’ of the parent/ancestral village. The said custom is
recognized in the O.M. dated 22.03.1996 and also finds codification in the
Nagaland Village and Area Councils Act, 1978 (for short, the “ 1978 Act ”),
more specifically Sections 3 and 4 thereof.
SLP(C) No. 9897 of 2016 Page 19 of 61
21. He vehemently submitted that a bare perusal of the British Survey Map of
1921-1923, shows that the area admeasuring approx. 1000 acres which is said
to be owned by the respondent no. 1 village falls within the larger area
ancestrally owned by the appellant. Furthermore, he submitted that there also
exists an agreement between the appellant and the Dhansiripar sub-division
(within which the respondent no. 1 village is allegedly situated) where the
Dhansiripar Village Council has also explicitly stated that their land falls
within the absolute jurisdiction of the appellant. According to customary law
governing land ownership and transfer in Nagaland, the inhabitants of a newly
established village falling within the land ancestrally owned by another village
are required to seek the consent of the parent village and also pay a nominal
annual token of acknowledgment called ‘rampwa lunget’. Such prior consent
of the parent/ ancestral village is a condition precedent even under the O.M.
dated 22.03.1996. It was submitted that the said policy was backed by a sound
rationale and the non-adherence thereof would result in frustrating the very
purpose behind it i.e., the peaceful co-existence of the neighbouring villages
and/or the predominant tribes inhabiting them, especially considering that
inter-tribal conflicts continue to remain a very sensitive issue in the State.
Hence, no formal order(s) of recognition of the respondent no. 1 village can
be issued in the absence of a ‘No Objection Certificate’ from the appellant.
SLP(C) No. 9897 of 2016 Page 20 of 61
22. With a view to emphasize the importance of the customary practices in the
State of Nagaland governing social practices and ownership and transfer of
land, the counsel placed great emphasis on Article 371A of the Constitution,
which was introduced immediately prior to the creation of the State of
Nagaland in 1963 by the 13th Constitutional Amendment Act of 1962. He
submitted that Article 371A of the Constitution inter alia recognizes the
importance of safeguarding the social practices of the Nagas along with the
customary laws and traditions existing in the region by specifically excluding
any law made by the Parliament in respect of certain matters from application
in the State of Nagaland, unless a resolution to that effect is passed by the
Legislative Assembly. Customary practices that govern land ownership and
transfer would subsume under themselves the issues relating to village
establishment and recognition as well and therefore, would fall within the
protection afforded under Article 371A.
23. The counsel reiterated that the present matter is a clear case of encroachment
which has been committed by the respondent no. 1 and its villagers. The
respondent no. 1 villagers are from the ‘Sumi’ tribe whose ancestral home is
in the district of Zunheboto, Nagaland. The ancestral home of the Respondent
Village is ‘Khumishi A’ Village in sub-division Asuto, falling within the
Zunheboto district. The Counsel also brought our attention to a complaint for
eviction which was filed by the appellant with the Deputy Commissioner,
SLP(C) No. 9897 of 2016 Page 21 of 61
Peren, much prior to the inauguration of the respondent no. 1 village i.e., on
22.01.2005, alleging that the respondent no. 1 village has been illegally
established on their land. Addressing the same, on 07.04.2005, the Office of
the Sub-Divisional Officer (Civil), Jalukie is said to have communicated the
decision of the Deputy Commissioner, Peren and issued an eviction order
directing the villagers belonging to the respondent no. 1 village to vacate the
‘encroached land’ within a period of 15 days, upon failure of which
appropriate legal action would be initiated. In light of the same, the counsel
submitted that it is a well settled principle of law that “ to seek equity, one must
do equity ”. The respondent no.1, having encroached upon the ancestral land
of the appellant without following the conditions precedent for the
establishment of a new village, has no right to seek equity, more so having
approached the court with unclean hands by suppressing the fact that the
appellant had filed objections to the public notice issued on 13.10.2009.
24. In the last, the counsel brought our attention to the fact that since the
respondent no. 1 village is unrecognized, its villagers have the right to obtain
all facilities which are due to them from their parent village, namely, the
‘Khumishi A’ Village of sub-division Asuto falling under the Zunheboto
District till such time the formal order(s) for their recognition is granted.
Therefore, it may not be correct to suggest that the villagers of the respondent
no. 1 would be denied all the benefits that they otherwise may be entitled to,
SLP(C) No. 9897 of 2016 Page 22 of 61
thereby, causing an infringement of their fundamental right to life under
Article 21 of the Constitution.
25. In light of the aforesaid, the counsel prayed that the impugned decision be set
aside and the State authorities be directed to take a final call on the issue of
recognition of the respondent no. 1 village, in a time-bound manner, after
taking into consideration the objections of the appellant. Furthermore, it was
also prayed that in the event that the State authorities arrive at a decision which
goes against the appellants, their right to take recourse to available legal
remedies before the appropriate forum, be protected.
ii. Submissions on behalf of the respondent nos. 1 and 2
26. Ms. Renuka Sahu, learned counsel appearing on behalf of the respondent nos.
1 and 2 respectively submitted that the appellant was not a necessary party
both in the Writ Petition and the Writ Appeal before the High Court.
27. It was submitted what while an objection was raised by the appellant to the
public notice dated 13.10.2009 vide its letter dated 16.10.2009, the Office of
the Deputy Commissioner, Dimapur had replied to the same vide its
communication dated 08.11.2009 and directed the appellant to provide
additional and sufficient details to back their claim that the respondent no. 1
SLP(C) No. 9897 of 2016 Page 23 of 61
village would fall within the boundary of their ancestral land. However, it was
the appellant who has failed to produce any such document. Therefore,
naturally, the objections raised by the appellant were nullified.
28. The counsel further submitted that there exist around 16 recognised and
th
unrecognised villages along with the 18 Assam Rifles Head Quarter between
the boundary of the respondent no. 1 village and the appellant. The respondent
no. 1 village is bound by Ghowoto village in the north, K. Xekiye Village in
the South, the Pathor River/Ballu Nallah in the East and the K. Xekiye Village
in the West. The same is also evident in the map which reveals the boundaries
of the respondent no. 1 village. Therefore, the counsel submitted that the issue
of the inter-district boundary, if any, has nothing to do with the recognition of
the respondent no. 1 and that she was at a loss to understand how the appellant
would be affected in any manner if the respondent no. 1 village is granted
recognition. This was more so because the respondent no. 2 has established
the respondent no. 1 village in a self-acquired land i.e., the Zhuthovi Village,
which is a recognized village under the Dhansiripar Sub-Division, Dimapur
District, had donated land to Ghowoto Village, which in turn had donated land
to the respondent no. 1 village.
29. The counsel submitted that the respondent no. 1 village has duly complied
with all the formalities for the recognition of a new village as required by the
O.M.’s dated 22.03.1996 and 1.10.2005. i.e., - (a) ‘No Objection Certificates’
SLP(C) No. 9897 of 2016 Page 24 of 61
were obtained from the neighbouring villages on 16.08.2007 and 30.11.2007
respectively, (b) a Survey report dated 10.09.2009 was submitted by the local
authorities, (c) A public notice dated 13.10.2009 was issued by the Deputy
Commissioner, Dimapur, (d) The Deputy Commissioner, Dimapur vide its
letter dated 18.11.2009 addressed to the Commissioner of Nagaland, Kohima,
confirmed that all formalities for the recognition of the respondent no. 1
village were completed, (e) On 14.12.2011, the Cabinet given its approval for
the recognition of the respondent no. 1 village subject to a joint verification,
(f) On 23.08.2012, the joint verification was conducted by the Deputy
Commissioners of Dimapur and Peren in compliance with the Cabinet’s
condition and the Deputy Commissioner, Peren stated that he had no further
objections. In light of the aforesaid, it was submitted that, having complied
with all the requirements, recognition must be granted to the respondent no. 1
village.
30. The counsel acknowledged that Article 371A pertains to special provisions
vis-à-vis the State of Nagaland whereby the State is granted immunity in
respect of Parliament made law with respect to certain matters. However, it
was her case that while individual ‘Acts of Parliament’ may not apply, certain
overarching principles under the Constitution, including the Fundamental
Rights guaranteed under Part III would still find application in the State of
Nagaland. The very object and purpose of the enactment of Article 371A was
SLP(C) No. 9897 of 2016 Page 25 of 61
to keep the interest and welfare of people of Nagaland at the forefront.
Therefore, such a provision cannot be utilised to the detriment of its people.
Hence, under the garb of customary and religious practices which are
protected by Article 371A, the fundamental rights, more particularly Articles
14, 19 and 21 respectively, cannot be sought to be abridged. To fortify her
submissions, the counsel placed reliance on the decision of this Court in PUCL
& Anr. Vs. State of Nagaland and Ors., (Civil Appeal No. 3607 of 2016) and
the decision of the Gauhati High Court in Mangyang Lima v. State of
Nagaland and Ors, reported in 2019 SCC OnLine Gau 3494 .
31. The counsel submitted that the rights guaranteed under Articles 14, 19 and 21
respectively, of the villagers belonging to the respondent no. 1 village were
being infringed owing to that fact that their ‘unrecognised’ status deprives
them access to several facilities and schemes provided by the Central and State
governments. This denial of Centrally Sponsored Schemes (CSS) and State
Sponsored Schemes (SSS) hampers their fundamental developmental rights
which are critical to social and economic progress. These would include:
i. Village Development Board (V.D.B.) : The absence of a V.D.B. in the
respondent no. 1 village has stripped them off the power to independently
plan, implement, and oversee infrastructure along with providing services
and amenities using funds from the Rural Development Department. The
essential schemes to which access has been denied as a consequence
SLP(C) No. 9897 of 2016 Page 26 of 61
include the Mahatma Gandhi National Rural Employment Guarantee Act
(MGNREGA), Pradhan Mantri Awas Yojana-Gramin (PMAY-G),
Pradhan Mantri Gram Sadak Yojana (PMGSY), Deen Dayal Upadhyaya
Grameen Kaushalya Yojana (DDU-GKY), National Rural Livelihoods
Mission (NRLM) etc.
ii. Public Works Department (PWD): No roads are constructed, nor is
maintenance work undertaken in the absence of official recognition of the
respondent no. 1 village.
iii. Health Department: The village is denied access to critical health care
infrastructure such as Primary Health Centres or dispensaries.
iv. Education Department: There is no establishment of government
schools for primary or secondary education, depriving children of their
fundamental right to education.
v. Food and Civil Supplies Department: Essential food security schemes
under the National Food Security Act (NFSA) remain inaccessible. These
include (a) Antyodaya Anna Yojana scheme where a household receives
35 kg of food grains per month and (b) Priority House Hold scheme where
up to 5 kg of subsidized food grains per family member, per month, is
granted.
vi. Forest Department: Recognized villages benefit from the grant of free
tree saplings, annually, for environmental protection and improvement.
SLP(C) No. 9897 of 2016 Page 27 of 61
vii. Horticulture and Agriculture Department: Free fruit saplings, free
vegetable saplings, farming machinery, tools, and equipment critical to
agricultural development are all denied to the respondent no. 1 village.
viii. Land Resources Department : Free saplings of cash crops like Arecanut,
Coffee, and local spices such as broom grass, naganeem, lali, kadam etc.
which foster sustainable livelihoods are also denied.
ix. Transport Department : Public transport facilities essential for
connectivity and mobility are also not extended to unrecognized villages,
perpetuating isolation and backwardness.
32. In the last, it was submitted that the fundamental rights and Directive
Principles of State Policy under Parts III and IV of the Constitution
respectively, form the bedrock of our Constitution and cannot be over-
shadowed by Article 371A or any other customary law of the State, since the
rule of law and constitutional supremacy must remain paramount. Having
already complied with the procedural requirements for its recognition, the
objections raised by appellant, cloaked under the guise of special provisions
and customary practices, are clearly legally untenable and morally unjust.
Such opposition seeks to perpetuate inequality and injustice, denying the
residents of the respondent no. 1 village their rightful access to essential
services.
SLP(C) No. 9897 of 2016 Page 28 of 61
33. In light of the aforesaid, it was submitted that the impugned decision not be
interfered with and that the State Government be directed to take immediate
steps for the recognition of the respondent no. 1 village, without any further
delay.
iii. Submissions on behalf of the State
34. Ms. Enatoli Sema, learned counsel appearing on behalf of the State of
Nagaland submitted that the Ezong Committee which was tasked to demarcate
the inter-district boundary between the Dhansiripar Sub-Division of Dimapur
District and Jalukie Sub-Division of Peren, Kohima District had
recommended in its Report dated 28.05.2002 that the Government recognise
villages in the disputed areas only after the boundary demarcation is finalised.
She submitted that the while the appellant belongs to the Jalukie sub-division,
the respondent no. 1 belonged to the Dhansiripar sub-division. The Report had
also recorded that several rounds of meetings were held with the
representatives of both the communities belonging to the disputing villages
but no mutually agreeable decision could be arrived at. Therefore, the attempt
of the Government to amicably settle the issue way back in 2002 was rendered
futile. Subsequently, the Ezong Committee Report of 2002 was placed before
the Cabinet wherein, the recognition of the respondent No.1 village was
recommended to be kept in abeyance. The Report was then published and
SLP(C) No. 9897 of 2016 Page 29 of 61
several objections and counter-claims were filed before the Government
which are being reviewed.
35. It was submitted that after the Single Judge of the High Court had directed
the grant of recognition of the respondent no. 1 village, the State had preferred
an appeal before the High Court since the inter-district boundary demarcation
was pending and on-going. The State, while keeping in mind the past instances
of violence in the disputed areas wished to amicably settle the dispute between
the parties herein, in order to avoid any untoward situation relating to the two
communities in the area.
36. The counsel submitted that pursuant to the order of this Court dated
13.01.2017, a meeting dated 16.03.2017 was held between both the parties in
the presence of the Deputy Commissioners of the concerned districts. In the
aforesaid meeting, while both the parties could not arrive at a logical
conclusion, they agreed to (a) maintain peace and tranquillity between the
villages located in the inter-district boundaries i.e., Peren and Dimapur
Districts; and (b) form a Committee amongst themselves comprising of a
convenor and three representatives each from both sides. However, the
counsel submitted that no report from the aforesaid committee has been
received by the concerned authorities till date.
SLP(C) No. 9897 of 2016 Page 30 of 61
37. It was submitted that since the dispute between the two villages pertain to and
touch upon Inter-District Boundary dispute between the Peren and Dimapur
Districts respectively, the State constituted a Cabinet Sub-Committee vide
Notification No. GAB-1/333/2014 (VOL-I) 309 dated 7.8.2019. The mandate
of the said Sub-Committee was to look into the setting up of new settlement
‘Lamhai Namdi’ and finalise the boundary demarcation between the two
Districts of Peren and Dimapur in order to arrive at a solution to solve the
present impasse. The Sub-Committee physically visited the spot on 14.9.2019
and on 23.10.2019, a consultative meeting with both the Hoho’s/ Tribal
Organisations, in the presence of both the respective Deputy Commissioners
was held whereby the Hoho’s/Tribal organisations were directed to submit
additional documents. Finally, the Report of the Sub-Committee was placed
before the cabinet on 13.7.2021. Pursuant to the Report of the Sub-Committee,
a new District called Chumoukedima was carved out in 2021 and therefore,
the inter-district dispute between the two villages presently falls between the
Peren and Chumoukedima districts.
38. Furthermore, it was submitted that pursuant to the intervention of this Court
vide order dated 3.12.2024 and in the interest of maintaining peace between
the two communities, the State convened two meetings on 21.12.2024 and
3.1.2025 respectively with the disputing villages. The discussions during the
meeting revealed that the outstanding issues between the two villages have
SLP(C) No. 9897 of 2016 Page 31 of 61
narrowed down. There is every chance of a positive negotiation between the
parties which may lead to a final settlement. Therefore, the counsel submitted
that in order to facilitate such a settlement, a final chance be given to the State
so that the two villages can meet under the aegis of the tribal councils,
consisting of tribal elders, as provided under Section 26 of the Nagaland
Village and Tribal Councils Act, 1978. This section enjoins the tribal council
to inter-alia , “ assist settlement of disputes and cases involving breaches of
customary laws and usages. ”.
C. ISSUES FOR DETERMINATION
39. Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the following questions fall for our
consideration:
I. Whether it could be said that the respondent no. 1 village had fulfilled
all the necessary conditions/criteria for the issuance of formal order(s)
of recognition as per the O.M.’s dated 22.03.1996 and 01.10.2005
respectively, especially in light of the fact that the appellant had raised
objections to the Public Notice dated 13.10.2009?
II. Whether the existence of an “inter-district boundary dispute” was a
valid reason to keep the recognition of the respondent no. 1 village in
abeyance?
SLP(C) No. 9897 of 2016 Page 32 of 61
D. ANALYSIS
i. Whether all the necessary conditions/criteria for the issuance of formal
order(s) of recognition as per the O.M.’s dated 22.03.1996 and
01.10.2005 respectively were fulfilled?
40. Article 371A of the Constitution which was inserted by the Constitution
(Thirteenth Amendment) Act, 1962 and which came into effect on 01.12.1963
carves out a special provision as regards the State of Nagaland. It specifically
provides that no Act of Parliament in respect of the religious or social practices
of the Nagas, Naga customary law and procedure, and ownership and transfer
of land and its resources, amongst others, shall apply to the State of Nagaland
unless the Legislative Assembly of the State decides to adopt them through a
specific resolution to that effect. The relevant portion of Article 371A reads
thus:
“371A. Special provision with respect to the State of
Nagaland .—(1) Notwithstanding anything in this
Constitution,—
(a) no Act of Parliament in respect of—
(i) religious or social practices of the Nagas;
(ii) Naga customary law and procedure;
(iii) administration of civil and criminal justice involving
decisions according to Naga customary law;
(iv) ownership and transfer of land and its resources,
shall apply to the State of Nagaland unless the Legislative
Assembly of Nagaland by a resolution so decides;”
(Emphasis supplied)
SLP(C) No. 9897 of 2016 Page 33 of 61
41. The insertion of Article 371A was the outcome of a political settlement which
culminated after a decade-long struggle and is also a reflection of the grant of
3
the right to ‘self-rule’ and political autonomy to the people of Nagaland. The
decision of the Gauhati High Court in Sabeituo Mechulho and Ors v. State
of Nagaland and Ors. reported in 2011 SCC OnLine Gau 592 which held
that Article 371A has no role to play in the matter of provision of reservation
to a woman representative belonging to a society/NGO in the Village Council
or local body, had the occasion to deal with the reason behind the insertion of
a special provision in the nature of Article 371A. The High Court emphasized
the lofty purpose for which such a provision had been included in the
Constitution i.e., the preservation of the distinct identity of the Naga people
by allowing them to live with their distinct religious and social practices,
customs, traditions etc. The relevant observations are thus:
“ 10. This provision has been made to preserve the identity of
Naga People by allowing them to live with their distinct
religious, social practice, customs, tradition, etc. They have
been given opportunity to administer civil and criminal
justice as per their customary law. Article 371A is silent
about the share of participation of Naga men and women in
the local administration. There is no mention about
reservation for Naga Woman representative in the local
administration. In my considered view article 371A has no
role to pay or application in the matter of providing
reservation for woman representative in the Village Council
or local body. This provision is for a mighty and lofty
purpose/aim to preserve the distinct identity of Naga people
for which it has been made incumbent upon the parliament to
3
R AJYA S ABHA D EB ., (Sep. 3, 1962) 4660.
SLP(C) No. 9897 of 2016 Page 34 of 61
have the approval of the Nagaland State Legislature before
any Act is implemented or enforced in the State of Nagaland.
The parliament would not have any say in the matter of
providing reservation for woman in the local body like
Village Council. It is the State Government which is required
to enact law or rules for such purpose .”
(Emphasis supplied)
42. In the debates which ensued in the Rajya Sabha as regards the passing of the
Constitution (Thirteenth Amendment) Bill, 1962 and the State of Nagaland
Bill, 1962, the then Prime Minister of India, Mr. Jawaharlal Nehru, remarked
that “ Anyhow, it is for the people of Nagaland to make their rules about their
4
land ” . It is the case of the appellant that the issue of village establishment and
recognition falls within the larger umbrella of “ ownership and transfer of land
and its resources ” and is rooted in certain unique social and customary
practices and procedures. In this context, it is relevant for us to refer to the
provisions of the 1978 Act, especially Section 3 thereof which reads thus:
“ Section 3 - Constitution: Every recognised Village shall
have a Village Council.
Explanation: Village means and includes an area recognised
as a Village as such by the Government of Nagaland. An area
in order to be a Village under this act shall fulfil the following
conditions namely:
(a) The land in the area belong to the population of that
area or given to them by the Government of Nagaland, if
the land in question is a Government land or is land given
to them by the lawful owner of the land; and
4
Ibid at 4716.
SLP(C) No. 9897 of 2016 Page 35 of 61
(b) The Village is established according to the usage and
customary practice of the population of the area.”
(Emphasis supplied)
43. The Explanation to Section 3, elaborates on the meaning of a ‘Village’. It
states that a village would mean and include “an area which is recognised as
a village by the Government of Nagaland”. Furthermore, an area in order to
be recognised as a village must fulfil certain conditions i.e. – The land/area in
which the village exists must either belong to the population in that area or be
given to such a village/population by the Government of Nagaland/lawful
owner AND , the village must be established according to the usages and
customary practices of the population belonging to that area. The land in
question would be given to the village population by the government if it is a
government land and if otherwise, by the lawful owner of the land.
44. Therefore, a great amount of emphasis is placed primarily on two things –
One , ownership of the land, either communally by the village as a whole or
individually by the members of the village; and two, the adherence to the
existing customary practices in the process of ‘recognition’ of the village. The
State Government is empowered to recognise a particular area as a ‘village’
in accordance with Section 3 of the 1978 Act, upon the fulfilment of the
conditions mentioned therein and only when an application is made to them
in that behalf by a section of people inhabiting the particular area which is
SLP(C) No. 9897 of 2016 Page 36 of 61
sought to be given a recognised status. In such an application, the people
residing in such an area must be able to show in a bona fide and sufficient
manner that they are the lawful owners of the said area/land and that they have
established their village as per the existing customary practices.
45. The two O.M.’s dated 22.03.1996 and 01.10.2005 respectively, elaborates on
the process which is to accompany such a claim for recognition. These O.M.’s
are said to also mirror and codify the existing customs pertaining to village
recognition in the State. A bare reading of the two O.M.’s reveals that the idea
of consent and communication between all the relevant stakeholders is
cardinal and fundamental to the process of village recognition. We say so
because, in the O.M. dated 22.03.1996, apart from the conditions stipulating
that a village must have a minimum of 30 houses with a population of not less
than 150 people, have sufficient land for its expansion and agricultural
purposes and be constituted by indigenous inhabitants, it is also required that
‘No Objection Certificates’ be obtained from several stakeholders. Condition
(v) stands testament to this and states that when a new village is constituted
by members of more than one village, but in a different location and within
the ancestral land of a parent village, the Village Council Chairman of such a
parent village must give a ‘No Objection Certificate’ while indicating the
boundaries of the new village which is sought to be established and later,
recognised. When the exact boundaries of the village cannot be determined, it
SLP(C) No. 9897 of 2016 Page 37 of 61
is required that the Village Council Chairman of the parent village along with
all the Gaobura’s of the parent village decide upon the nature of the boundaries
with the new village, on any permanent basis, which is acceptable to both
parties. Additionally, if the parent village has appointed Gaobura’s who are
allowed to function as the constitutional head of the village in matters of
administration of the village land, then the concerned Gaobura’s must also
attest their signatures to the ‘No Objection Certificate’ along with the Village
Council Chairman.
46. A joint survey of the newly established village is also conducted by competent
personnel and authorities belonging to the Land Records & Survey
Department and other appropriate civil authorities to demarcate, map and
record the area of the village. Apart from the same, clearance in the form of a
‘No Objection Certificate’ is also required from the appropriate officials of the
Forest Department, a Class-I Magistrate and the neighbouring villages.
Finally, after all the clearances and procedures are complied with, an
administrative approval would be given by the Sub-Divisional Officer (SDO)
and the matter of recognition of the said village would be referred to the higher
authorities of the District administration who would place their proposal(s) for
recognition before the government.
SLP(C) No. 9897 of 2016 Page 38 of 61
47. The O.M. dated 01.10.2005, which brought in the requirement of issuance of
a public notice by the Deputy Commissioner of the concerned district also
places the idea of mutual consent from all concerned parties at the forefront.
This notice must mandatorily contain details as regards the area of the land
and the boundary of the village whose recognition is being proposed. A period
of 30 days is provided to the public to file objections, if any. This additional
criterion, again, fortifies the assertion that all the relevant parties/villages must
be apprised of and also be on board with the recognition of the new village.
48. The raison d’être behind the issuance of a public notice is that one last
opportunity be given to those interested parties/villages who might be
adversely affected by the recognition of the new village but who were
otherwise left out from the process preceding the publication of notice and to
also ensure that a transparent platform is provided for them to put forth their
case with reasons so that they can be heard before any further progress is made
in the matter. This would further obviate any possibility of a subsequent
conflict occurring in the area between two or more villages laying claim over
a particular land. On this aspect, the appellant is right in submitting that there
is a sound rationale behind the existence of such a procedure i.e., the peaceful
co-existence of the neighbouring village and/or the predominant tribes
inhabiting the areas, especially considering that inter-tribal conflicts remain a
very sensitive issue in the State.
SLP(C) No. 9897 of 2016 Page 39 of 61
49. However, what we would like to further point out is that it is the bounden duty
of the State and its relevant authorities to adequately and appropriately
consider any and all such objections which may be raised by the interested
parties in response to the public notice issued by them, provided that they are
lodged within the stipulated time-period. Otherwise, the very object of issuing
a public notice would be vitiated. In the present case, the said public notice
was issued on 13.10.2009 and vide communication dated 16.10.2009, the
appellant had raised its objections to the recognition of the respondent no. 1
village by contending that that the respondent no. 1 village is in fact sought to
be established on their land. The objection is said to have also been published
in a local daily on 18.10.2009. The Office of the Deputy Commissioner,
Dimapur vide its letter dated 08.11.2009 had directed the appellant to furnish
more comprehensive details along with the relevant boundaries and records to
incidate as to how the respondent no. 1 village would fall within their land.
The authorities further stipulated that, if the same is not provided within a
period of 7 days, their objection dated 16.10.2009 would stand nullified. On
the ensuing day i.e., on 09.11.2009, the appellant sent a reply providing details
supporting their claim to the Deputy Commissioner, Dimapur. It is unclear as
to what extent the aforesaid communication made by the appellant was
considered by the Deputy Commissioner, Dimapur before additional steps
were taken to forward the proposal for recognition of the respondent no. 1
village to the government. The State of Nagaland has not made a single
SLP(C) No. 9897 of 2016 Page 40 of 61
averment regarding the merits of the claim made by the appellant over the land
in which the respondent no. 1 village is situated. It is not the case of the State
of Nagaland that the claims made by the appellant are absolutely baseless and
devoid of merit as well. Therefore, we are at a loss to understand how it can
be contended, both by the State of Nagaland and by the respondent nos. 1 and
2 respectively, that the conditions/criteria laid down in the two O.M.’s,
especially the latter O.M. dated 01.10.2005, were fulfilled in the present case.
50. With the existing procedure that is prescribed for the recognition of a village
in the State of Nagaland, we are of the view that it would not be open for the
respondent nos. 1 and 2 respectively to blanketly assail the right of the
appellant to raise its objections as regards the recognition of the respondent
no. 1 village. However, what we would like to highlight is that it is the
responsibility of the State to weed out frivolous objections and those devoid
of merit from the process, in such a manner that the rights of the village
seeking recognition are not prejudiced. What would be appropriate at this
juncture is for the State to consider the objections of the appellant on their own
merits and decide whether their ‘No objection’ is a pre-requisite for the grant
of recognition of the respondent no. 1 village or not. If answered in the
negative, the appellant would have no locus to challenge the recognition of the
respondent no. 1 village and the matter would be put to bed at least insofar as
these two parties are concerned. Only in the instance that the said question is
SLP(C) No. 9897 of 2016 Page 41 of 61
answered in the affirmative, would the respondent no. 1 village be required to
initiate conversation with representatives of the appellant, to arrive at a
mutually beneficial settlement and prevent the risk of any adverse measures
being taken against them.
ii. Whether the existence of an “inter-district boundary dispute” was a
valid reason to keep the recognition of the respondent no. 1 village in
abeyance?
51. The demarcation of the inter-district boundary between the districts of
Kohima and Dimapur and its nexus with the recognition of village(s) was first
brought to the fore by the Ezong Committee Report. While undertaking the
task of boundary demarcation and receiving information from all corners, it
was observed that groups belonging to both districts had claims and
counterclaims over pieces of land irrespective of whether they had effective
physical possession of the said land. The broad consensus amongst the
concerned parties was to place all the villages affiliated with the ‘Sumi’ tribe
in the Dimapur District and those affiliated to the ‘Zeliangrong’ tribe under
the Kohima district. This aspect is relevant for us since the appellant belongs
to the ‘Zeliangrong’ tribe, while the respondent no. 1 village is affiliated to the
‘Sumi’ tribe.
SLP(C) No. 9897 of 2016 Page 42 of 61
52. In the course of examining the issue of boundary demarcation, the Committee
was apprised of certain newly established villages which were seeking
recognition. It was in this context that the Committee was of the opinion that
it would be desirable if the government considers the question of recognition
of these newly established villages in the disputed areas after the boundary
demarcation between the two districts was finalised. It is, however,
noteworthy that while suggesting the final boundary which is to run between
the two districts, more particularly the Jalukie sub-division of Peren in the
Kohima District and the Dhansiripar sub-division in the Dimapur District, the
Committee noted that there were some practical difficulties in placing all the
‘Sumi’ villages in Dimapur and all the ‘Zeliangrong’ village in Kohima
respectively. Therefore, from a purely administrative standpoint, it was
decided that ‘Kiyevi A’ which is a ‘Sumi’ village would be placed under the
Kohima District and ‘Mhaikam’ which is a ‘Zeliangrong’ village would be
placed under the Dimapur District. Therefore, in the eventuality that the
respondent no. 1 village, a ‘Sumi’ village, is given recognition but the
boundary demarcation is decided in such a manner that they would be placed
under the Kohima (now Peren) District instead of the Dimapur District, the
same would not be an outlier considering that there exists another ‘Sumi’
village which was also suggested to be placed under the Kohima (now Peren)
District by the aforesaid Committee for administrative reasons.
SLP(C) No. 9897 of 2016 Page 43 of 61
53. In the meantime, the respondent no. 1 had applied for recognition in the year
2009 and their proposal was elevated for a final decision to the Cabinet after
allegedly complying with the requirements under the O.M.’s dated 22.03.1996
and 01.10.2005 respectively. The Cabinet in its meeting dated 14.12.2011 had
directed that out of the 34 villages whose proposal for recognition was being
considered, a set of 6 villages, which included the respondent no. 1 village
herein, would be required to undergo a joint verification conducted by the
Deputy Commissioners of Peren and Dimapur districts respectively. Now,
once the joint verification was complete, the Deputy Commissioner, Dimapur
vide communication dated 26.07.2012 reiterated that the respondent no. 1
village would fall within the Dhansiripar sub-division of the Dimapur District.
However, the Deputy Commissioner, Peren vide communication dated
23.08.2012 seems to have again referred to the issue of the “inter-distrct
boundary dispute” by stating that “ the office of the D.C. peren has no further
comments for recognition…until the boundary dispute between the two
districts is settled ”. Due to the aforesaid observation made by the Deputy
Commissioner, Peren, the Office of the Commissioner, Nagaland vide
communication dated 05.11.2012 addressed to the Home Commissioner had
suggested that the recognition of the respondent no. 1 village and another
village by the name ‘A.K. Industrial village’, be kept in abeyance till such time
the boundary issue is resolve since this would invite more villages in the
disputed area to seek recognition and cause an environment of serious unrest.
SLP(C) No. 9897 of 2016 Page 44 of 61
Additionally, the Commissioner also invited attention to the Ezong Committee
Report which had recorded its detailed recommendations on the issue of the
boundary dispute between the two districts and sought necessary action on the
matter.
54. Despite granting a formal approval to the Ezong Committee Report on
24.10.2003, it was only after the aforesaid development that a decision was
made to notify the Ezong Committee Report for inviting claims and objections
from the public. Such a decision was taken by the Cabinet in its consultation
meeting as late as 10.06.2013 i.e., more than 10 years after the Ezong
Committee Report was submitted for necessary action. The Cabinet had,
again, emphasized that the recognition of the respondent no. 1 village would
be kept in abeyance until such time the recommendations of the Ezong
Committee is finally notified.
55. In the writ proceedings which was initiated by the respondent no. 1 before the
Single Judge of the High Court, the stance taken by the State was that they
could not decide on the recognition of the respondent no. 1 due to the
subsisting inter-district boundary dispute. It was averred that they were in the
midst of examining the multiple objections received after the
recommendations of the Ezong Committee Report was notified for inviting
views from the public. Furthermore, it was also submitted that they were
SLP(C) No. 9897 of 2016 Page 45 of 61
awaiting a ground reality report on the issue. This stance, however, did not
seem to find favour with the Single Judge of the High Court who went on to
observe that “ the inter-district boundary dispute would have no bearing
insofar as the recognition of the petitioner’s village is concerned ”. However,
the State preferred a Writ Appeal and the Division Bench in its impugned
decision had extended the time-limit for the issuance of formal order(s) of
recognition of the respondent no. 1 village by observing as follows:
“ […] It appears from the submissions made that the village
of the respondents/writ petitioners is situated on the
boundary between Dimapur and Peren districts, both
districts being pre-dominantly inhabited by members of
different tribes. Therefore, demarcation of the boundary of
the village has become a sensitive issue. However, the
Government is taking necessary steps for making the
demarcation to enable issuance of formal order of
recognition of the respondents village as directed by learned
Single Judge. But considering the sensitiveness of the matter,
some more time may be required to complete the exercise, he
submits. ”
(Emphasis supplied)
Therefore, the impugned decision while agreeing with the Single Judge
that the inter-district boundary dispute had nothing to do with the recognition
of the respondent no. 1 village appears to have nevertheless been convinced
with the argument canvassed by the State at least for the purpose of allowing
some additional time to the State authorities.
SLP(C) No. 9897 of 2016 Page 46 of 61
56. Under circumstances such as these, i.e., when the State has taken a policy
decision or through its Cabinet has arrived at a certain conclusion, in their
wisdom, after exhaustively considering all the relevant factors and
recommendations, it would not be appropriate for courts to interfere or
supplant the finding arrived at by the government. In the absence of any patent
arbitrariness, capriciousness, mala fides or illegality, courts have always
subscribed to the rule that executive decision-making must not be dissected
and prodded unnecessarily. This is specially true for a State like Nagaland
wherein the system of administration and governance is slightly different from
the other States and where the government might be more familiar and
informed of the ground realities that exist. In such scenarios, yielding to the
executive expertise might be the right call. This judicial policy of non-
interference with the Cabinet decisions made by the government or vis-á-vis
policy matters is no more res integra .
57. This Court in Sachidanand Pandey and Another v. State of West Bengal and
Others reported in (1987) 2 SCC 295 was faced with a question on whether
the court could judicially review the Cabinet decision of the State government
to lease out a part of the zoo land which was used for fodder cultivation, as a
burial ground, hospital etc. for animals for the construction of a five-star hotel.
While answering in the negative, it was held that the decision to lease out the
land was taken openly and after due application of mind to relevant
SLP(C) No. 9897 of 2016 Page 47 of 61
considerations including the ecology and the provision of alternative facilities
to the zoo. Furthermore, it was stated that in a scenario where the decision-
making of the government was alive to the various relevant considerations and
a conscious decision was arrived at after investing sufficient thought and
deliberation, it would not be appropriate for the court to interfere in the
absence of mala fides plaguing the process. However, if the relevant
considerations are proven to have been cast aside without due deliberation and
irrelevant considerations seem to bear significance, there would be every
reason for courts to interfere in public interest. Still, it was cautioned that it
would not be proper for the court to intervene to the extent that it attempts at
a laborious balancing of the relevant considerations. Instead of indulging in
that exercise, it was suggested that courts must rather resign themselves to
accepting the decision of the government/appropriate authority in that regard.
The relevant observations are reproduced thus:
“ 4. […] The question raised in the present case is whether
the Government of West Bengal has shown such lack of
awareness of the problem of environment in making an
allotment of land for the construction of a five star hotel at
the expense of the zoological garden that it warrants
interference by this Court? Obviously, if the government is
alive to the various considerations requiring thought and
deliberation and has arrived at a conscious decision after
taking them into account, it may not be for this Court to
interfere in the absence of mala fides. On the other hand, if
relevant considerations are not borne in mind and irrelevant
considerations influence the decision, the court may interfere
in order to prevent a likelihood of prejudice to the public.
Whenever a problem of ecology is brought before the court,
the court is bound to bear in mind Article 48-A of the
SLP(C) No. 9897 of 2016 Page 48 of 61
Constitution, the Directive Principle which enjoins that “the
State shall endeavour to protect and improve the environment
and to safeguard the forests and wild life of the country”, and
Article 51-A(g) which proclaims it to be the fundamental duty
of every citizen of India “to protect and improve the natural
environment including forests, lakes, rivers and wild life, and
to have compassion for living creatures”. When the court is
called upon to give effect to the Directive Principle and the
fundamental duty, the court is not to shrug its shoulders and
say that priorities are a matter of policy and so it is a matter
for the policy-making authority. The least that the court may
do is to examine whether appropriate considerations are
borne in mind and irrelevancies excluded. In appropriate
cases, the court may go further, but how much further must
depend on the circumstances of the case. The court may
always give necessary directions. However the court will not
attempt to nicely balance relevant considerations. When the
question involves the nice balancing of relevant
considerations, the court may feel justified in resigning itself
to acceptance of the decision of the concerned authority. We
may now proceed to examine the facts of the present case. ”
(Emphasis supplied)
58. In yet another decision of this Court in Indian Charge Chrome Ltd. and
Another reported in (2006) 12 SCC 331 , it was held that in the absence of the
Cabinet decision being tainted or, vitiated for any palpable reason, the role of
the court in scrutinising the said policy decision, was limited. It was observed
thus:
“[…]There is nothing to show that the noting of the Minister
was tainted in any manner or that the subsequent Cabinet
decision was vitiated for any reason that could be gone into
by the Court. In a sense, counsel for OMC and the State of
Orissa are right in submitting that it was really a policy
decision and the role of this Court in respect of such a policy
decision and its scrutiny was limited and within the scope of
that limited scrutiny, there was no justification in interfering
SLP(C) No. 9897 of 2016 Page 49 of 61
with the decision of the Government. Of course, as we have
indicated earlier, it is for the Central Government to give its
approval or not to give its approval to the proposal of the
State Government. The Central Government is yet to take a
decision. Since, we have not reached that stage, we are also
not called upon to pronounce on it at this stage. ”
(Emphasis supplied)
59. Subsequently, in State of Uttar Pradesh and Others v. Chaudhari Ran Beer
Singh and Another reported in (2008) 5 SCC 550 , this Court was concerned
with an issue wherein the State Government decided on the creation of a new
district by the name of ‘Baghpat’ and published a notification in that regard
The same was challenged by way of a writ petition. This Court had reiterated
that the scope of interference is very limited when policy decisions are
concerned since the government is better equipped to weigh and measure all
the relevant aspects that must be taken into consideration. So long as the
infringement of fundamental rights is not shown or evident, courts must
refrain from substituting its own judgment while assessing the propriety of the
government’s decisions which is made in exercise of its discretion or as a
matter of policy. The relevant observations are reproduced hereinbelow:
“ 13. Cabinet's decision was taken nearly eight years back
and appears to be operative. That being so there is no scope
for directing reconsideration as was done in Ram Milan case,
though learned counsel for the respondents prayed that such
a direction should be given. As rightly contended by learned
counsel for the State, in matters of policy decisions, the scope
of interference is extremely limited. The policy decision must
be left to the Government as it alone can decide which policy
should be adopted after considering all relevant aspects from
SLP(C) No. 9897 of 2016 Page 50 of 61
different angles. In matter of policy decisions or exercise of
discretion by the Government so long as the infringement of
fundamental right is not shown, courts will have no occasion
to interfere and the court will not and should not substitute
its own judgment for the judgment of the executive in such
matters. In assessing the propriety of a decision of the
Government the court cannot interfere even if a second view
is possible from that of the Government .”
(Emphasis supplied)
60. A conspectus of the aforementioned decisions would indicate that when an
executive Cabinet decision is the outcome of sound reasoning, an inclusive
consideration of all the relevant factors and based on recommendations, it
cannot be sought to be faulted with, especially through judicial intervention.
Assailing it in the absence of arbitrariness and merely because a ‘better’
alternate view could have been taken or was possible, would not suffice in
order to strike down such a decision or render it inoperative. The Ezong
Committee, while working on its recommendations for a boundary
demarcation between the two districts and while assessing the ground level
realities existing in the disputed areas, witnessed first-hand potential for
conflict if recognition is given to those villages which were situated in the
disputed area and therefore, suggested that recognition of those select villages
be kept in abeyance. The Deputy Commissioner, Peren also refrained from
commenting on the recognition of the respondent no. 1 village in view of the
subsisting boundary dispute. Therefore, on the advice of the Commissioner
and Home Commissioner, the Cabinet sought to keep the recognition of the
SLP(C) No. 9897 of 2016 Page 51 of 61
respondent no. 1 village in abeyance until the inter-district boundary dispute
was solved. The same cannot be faulted for being unreasonable or arbitrary
and based on no materials.
61. However, we have been apprised of the report of yet another Cabinet Sub-
Committee which was submitted before the Cabinet on 13.07.2021, which re-
examined the inter-district boundary dispute between the Peren and Dimapur
districts. The new committee had the occasion to consider or rather, re-
consider the recommendations made by the Ezong Committee back in 2002.
This Report of the Cabinet Sub-Committee came much after the impugned
decision dated 07.10.2015. Therefore, it cannot be said that the authorities
designated by the Cabinet sub-committee would have been unaware of the
unrecognised status of the respondent no. 1 village or their claim for
recognition while undertaking the site visits, assessing the ground realities and
performing their due diligence on the matter. However, what must be noted
with emphasis is that the Report of the Cabinet sub-committee while
mentioning the tussle which had ensued between the ‘Lamhai’ Village and
‘Kiyevi’ village due to their claims in the disputed area, is conspicuously silent
about the respondent no. 1 village and its conflict, if any, with another village
on account of it falling within the disputed boundary area of the two districts.
Therefore, while there may exist a dispute between the appellant and the
respondent no. 1 village regarding the ownership of land, what is evident is
SLP(C) No. 9897 of 2016 Page 52 of 61
that it does not seem to have anything to do with the boundary dispute which
is prevailing in the region.
62. Moreover, the Report of the Cabinet Sub-committee arrived at a conclusion
that the recommendations of the Ezong Committee were largely feasible and
practical albeit with a few exceptions and partial modifications. Under this
Report too, a ‘Sumi’ village was suggested to be placed under the Peren
District and a ‘Zeliangrong’ village was recommended to be kept in the
Dimapur District, purely for administrative convenience. The second
noteworthy aspect of the present Report was that the establishment and
recognition of new villages within a demarcated “buffer-zone/area” between
the Jalukie sub-division of the Peren District and Dhansiripar sub-division of
the Dimapur District was recommended to be considered only after the
boundary dispute was put to rest. The Report provided an Annexure under
which the list of villages, both recognised and unrecognised, falling within
such a “buffer-zone/area”, was detailed. A careful perusal of the same reveals
that the respondent no. 1 village does not fall within the said buffer-zone/area.
63. On a consideration of the recent report of the Cabinet sub-committee, which
comes as a relatively recent development, it can be seen that the stance of the
State blaming the inter-district boundary dispute for the non-recognition of the
respondent no. 1 deserves to be viewed strictly. When the Ezong Committee
SLP(C) No. 9897 of 2016 Page 53 of 61
Report was published in the year 2002, the respondent no. 1 village was not
inaugurated or established yet. Hence, there is every possibility that the State
authorities attributed the persisting inter-district dispute as a bona fide reason
for keeping the recognition of the respondent no. 1 village in abeyance, largely
due to the absence of clarity on the bounds of the respondent no. 1 village and
whether it fell within the disputed area or not. However, post the year 2021,
i.e., it was obvious and plain as day that the boundary dispute had nothing
whatsoever to do with the case of the respondent no. 1 village, especially since
it’s the case of the State themselves that the respondent no. 1 village is situated
approx. 3.7 kms from the buffer-zone/area.
64. The only reasonable ground or basis to further delay the recognition of the
respondent no. 1 was the objection raised by the appellant to the public notice
dated 13.10.2009. Still, this was also more than 15 years ago. We are equally
baffled and frustrated with the enormous reluctance that the State has
exhibited in considering the merits of the objections of the appellants and
putting an end to this issue.
65. Furthermore, the nature of the objections raised by the appellant are such that
they render it impossible for this court, which owing to its systemic
limitations, would not be well-equipped to understand the nuances of the rich
history of the land and the inter-tribal land related interactions which
SLP(C) No. 9897 of 2016 Page 54 of 61
transpired over the years, to authoritatively decide such claims. The State
authorities would be better suited to delve into the accuracy and correctness
of the claims put forth by the appellant and effectively decide the issue once
and for all. The courts face, for the lack of a better word, a real impediment in
deciding such complex disputed questions of fact which are involved in the
present litigation, especially at this stage. It would also be apposite to mention
that courts must also not bear the burden of what is a responsibility cast upon
the State and entrusted to executive decision-making.
66. The learned counsel for the State has also submitted in her counter-affidavit
that there might be objections by other parties, apart from those raised by the
appellants, which are germane to the issue of the respondent no. 1 village’s
recognition. It is clarified that any and all such objections may also be looked
into and decided upon expeditiously.
67. We appreciate that the State has refrained from adopting a completely
adversarial stand on the present issue but it must not be forgotten that the State
is still duty bound to carry out its role as an administrator and ensure that the
proper governance of its districts and villages do not suffer as a result of it
embracing such a non-confrontational role instead. In the face of conflict, the
State must delicately balance its function as a mediator but also as an authority
while seamlessly morphing into either role as per the demands of the situation
SLP(C) No. 9897 of 2016 Page 55 of 61
before itself. Ever since this Court has taken seisin of this matter, the State has
attempted to bring both parties together, at the same table, on multiple
occasions, in the hopes of an amicable settlement being reached. However,
every one of those attempts has remained unsuccessful in view of both parties
refusing to concede or arrive at a middle-ground. In such a scenario, the only
option that remains with the State is to consider the stand taken by both parties,
on merits, from an objective point of view and implement its decision without
hesitation. We say so, because the alternative – protracting the present impasse
and maintaining this limbo - is equally, if not more undesirable.
68. We have been informed by the State that certain basic facilities have been
made available to the respondent no. 1 and the same is tabulated below:
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2025
(Arising out of S.L.P. (Civil) No. 9897 of 2016)
OLD JALUKAI VILLAGE COUNCIL …APPELLANT(S)
VERSUS
KAKIHO VILLAGE & ORS. …RESPONDENT(S)
J U D G M E N T
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2025.05.23
17:18:17 IST
Reason:
J.B. PARDIWALA, J. :-
For the convenience of exposition, this judgment is divided into the following
parts:
INDEX
A. FACTUAL MATRIX ............................................................................ 2
B. SUBMISSIONS OF THE PARTIES .................................................... 18
i. Submissions on behalf of the appellant ......................................... 18
ii. Submissions on behalf of the respondent nos. 1 and 2 .................. 23
iii. Submissions on behalf of the State ................................................ 29
C. ISSUES FOR DETERMINATION ...................................................... 32
D. ANALYSIS ......................................................................................... 33
i. Whether all the necessary conditions/criteria for the issuance of formal
order(s) of recognition as per the O.M.’s dated 22.03.1996 and
01.10.2005 respectively were fulfilled? .................................................. 33
ii. Whether the existence of an “inter-district boundary dispute” was a
valid reason to keep the recognition of the respondent no. 1 village in
abeyance?... .............................................................................................. 42
E. CONCLUSION ................................................................................... 60
SLP(C) No. 9897 of 2016 Page 1 of 61
1. Leave granted.
2. This appeal arises from the Judgment and Order passed by the High Court of
Gauhati, Kohima Bench in Writ Appeal No. 6(K) of 2015 dated 07.10.2015
(hereinafter, the “ impugned decision ”), by which the High Court affirmed the
Judgment and Order passed by the Single Judge in Writ Petition (C) No. 65(K)
of 2014 directing the State authorities to take steps for the issuance of formal
order(s) for the recognition of the respondent no. 1 village within a period of three
months. The said period was however, extended by another four months
subsequently.
A. FACTUAL MATRIX
3. Land is one of the priceless assets for the people of Nagaland and forms an
1
inalienable part of their identity and life. The landholding system in Nagaland
differs slightly from the rest of the States and is especially characterized by its
non-cadastral nature. Each district, more or less, is occupied by a predominant
1
A. N SHOGA , T RADITIONAL N AGA V ILLAGE S YSTEM AND ITS T RANSFORMATION 87 (Anshah Publishing House
2009)
SLP(C) No. 9897 of 2016 Page 2 of 61
concentration of one major tribe and other sub-tribes with distinct socio-cultural
and linguistic characteristics, and therefore, the different districts of the State are
demarcated primarily on the basis of the inhabitation patterns of a specific tribe
2
or tribes. Land is either owned communally by a clan or village or, by individuals
and a new village is formed only within the community land which is owned by
its inhabitants. The formation of villages and its recognition is also extensively
rooted in customary traditions and practices. It is the case of the appellant that
since the establishment and recognition of a new village on the ancestral land of
another village results in the transfer of ownership of the said land to the newly
created village, the prevailing custom requires the village ancestrally owning
such land to accord their consent by way of a ‘No Objection Certificate’ to the
new village which is sought to be established on their land.
4. The aforesaid custom is said to have been recognized in the O.M. dated
22.03.1996 issued by the State of Nagaland which lays down several criteria for
the recognition of villages. The relevant portions of the same read as follows:
“ Government of Nagaland
Home Department
(General Administration Branch)
OFFICE MEMORANDUM
2
L ANUSASHI L ONGKUMER ET . AL ., S TATUS OF A DIVASIS /I NDIGENOUS P EOPLES L AND S ERIES – 6: N AGALAND 20
(Aakar Books 2012).
SLP(C) No. 9897 of 2016 Page 3 of 61
Dated, Kohima the 22nd March, 1996
No. GAB-12/13/74 : The existing criteria/conditions for
recognition of villages in Nagaland having found
inconsistent in the present context of administration, the
Cabinet in their sitting on 30-06-1995 decided to modify the
existing criteria/conditions. Therefore, superseding the
Department’s Memorandum No. GAB-13/17/1983 dated 20-
7-1987, the existing criteria/conditions for the recognition of
villages in Nagaland have been modified as follows with
immediate effect:-
(i) A new village should have a minimum of 50(fifty) houses with
a population of not less than 250 (two hundred and fifty)
people.
(ii) A new village should have sufficient land expansion of the
village and also for agriculture purposes.
(iii) A new village should be constituted by indigenous inhabitants
only.
(iv) A new village constituted by members of more than one
village should obtain from the Village Council Chairman a
‘No Objection Certificate’ of the parent village indicating
that the boundaries of the new village.
(v) A new village constituted by members of more than one
village in a different location but within the ancestral land of
the parent village, should obtain from the Village Council
Chairman of the parent village a ‘No Objection Certificate’
indicating the boundaries of the new village. In cases where
exact boundary demarcations cannot be defined due to
scatter of pockets of land, the Village Council Chairman and
all the GBs of the parent village should determine the nature
of boundaries with the new village on any permanent basis
acceptable to both the villages.
(vi) In cases where GBs are appointed and allowed to function as
the constitutional head of the village in matters of
administration of the village land, the GBs concerned should
attest their signatures in the ‘No Objection Certificate’
jointly with the Village Council Chairman.
(vii) The entire area of the newly established village should be
surveyed jointly by competent staff of Land Records & Survey
and civil administration to clearly demarcate and map the
village territory and also record the area in hectares.
SLP(C) No. 9897 of 2016 Page 4 of 61
(viii) A new village on completion of the process of boundary
demarcations with the neighbouring villages/parent village
and also on completion of survey as required under (vii)
given below, should erect pillars at its own expenses in the
presence of competent staff as requisitioned under the same
point.
(ix) The following certificates/documents are required to
accompany the proposal:
(a) Clearance from Forest Department issued by an officer
not below the rank of DFO.
(b) Judicial clearance from a Class-I Magistrate.
(c) ‘No Objection Certificate’ from neighbouring village(s)
duly countersigned by an Administrative Officer.
(x) Administrative approval should be from an officer not below
the rank of SDO(C).
(xi) No approval is required from extra-constitutional body like
students’ union, tribal hoho(s).
Sd/- L. COLNEY
Addl. Chief Secretary to the Govt. of Nagaland”
(Emphasis supplied)
Condition (v) of the aforesaid O.M. clearly lays down that if a new village
is constituted by the members of more than one village, in a different location
which is within the ancestral land of another parent village, then the new village
must obtain a ‘No Objection Certificate’ from the Village Council Chairman of
the said parent village while also indicating the boundaries of the new village.
5. In the meantime, there arose a boundary dispute between the districts of Kohima
(where the appellant village is located) and Dimapur (where the respondent
village is allegedly located). On 26.09.2000, a Committee (hereinafter, called the
“ Ezong Committee ”) was constituted by the Government of Nagaland to work
SLP(C) No. 9897 of 2016 Page 5 of 61
out and submit their recommendations as regards the demarcation of the inter-
district boundary between the aforesaid two districts, with particular reference to
the boundary between the Dhansiripar sub-division of the Dimapur District and
the Jalukai sub-division of the Kohima District. A new district called Peren
District has since been carved out of Kohima District and the Jalukai sub-division
now falls under the Peren District. On 28.05.2002, the Ezong Committee
submitted its report to the Additional Chief Secretary & Commissioner of
Nagaland. The Committee decided to give due consideration in placing the
villages associated with the ‘Sumi’ tribe under the Dimapur District and those
associated with the ‘Zeliangrong’ tribe under the Kohima district as far as
conveniently practicable and wherever the same was not possible, the boundary
was to be demarcated strictly in accordance with administrative convenience. The
Committee also suggested that it would be desirable for the State Government to
consider the issue of recognition of new villages existing in the disputed areas
only after the boundary demarcation between the two districts was finalized.
6. The Government of Nagaland issued one another Office Memorandum dated
01.10.2005 which introduced an additional criteria/condition in the process of
village recognition i.e., the requirement of a public notice providing a 30 day
period to the public to register their objections, if any, regarding the specific
village which is sought to be recognised. This notice which would also indicate
the area of land/boundary of the new village was to be issued by the Deputy
SLP(C) No. 9897 of 2016 Page 6 of 61
Commissioner of the concerned district. The authorities were specifically
implored to strictly abide by and adhere to the cumulative conditions mentioned
in the O.M. dated 22.03.1996 and the O.M. dated 01.10.2005, the failure of which
would result in the rejection of the application of village recognition. The
aforesaid O.M. dated 01.10.2005 is reproduced hereinbelow:
“ Government of Nagaland
Home Department
General Administration Branch-I
No. GAB-1/COM/108/2005
st
Dated Kohima, the 1 October, 2005
OFFICE MEMORANDUM
Subject: Criteria/ conditions for recognition of new villages
in Nagaland
In addition to the instructions contained in this Department's
O.M. No.GA-12-13/74 dtd. 22/03/96 on the above mentioned
subject, all cases relating to recognition of new villages in
Nagaland, shall henceforth, with immediate effect, require a
public notice to be issued by the Deputy Commissioner of the
District concerned. The notice shall indicate the area of
land/boundary of the village proposed for recognition, giving
30(thirty) days’ time for objection, if any, to be filed.
2. All other conditions/ criteria laid down in the O.M. under
reference shall remain unchanged.
3. It is hereby impressed on all concerned that any proposal
for recognition of village in Nagaland which does not comply
with the prescribed conditions shall be rejected. District
Administration shall therefore ensure strict adherence to
these conditions/criteria while recommending cases to the
Government.
SLP(C) No. 9897 of 2016 Page 7 of 61
Sd/-
Banuo Z. Jamir
Principal Secretary to the Government of Nagaland”
(Emphasis supplied)
7. On 01.09.2007, the respondent no. 2, who is the Head Gaobura-cum-Council
Chairman of the respondent no. 1 village, had allegedly established the
respondent no.1 village which is affiliated to the ‘Sumi’ tribe. While it is the case
of the appellant that the said village falls within the bounds of their ancestral land,
the respondent nos. 1 and 2 respectively instead contend that their village falls
within another district altogether i.e., the Dhansiripar sub-division of the
Dimapur District. With a view to initiate the process of recognition, on
24.03.2009, the respondent no. 2 submitted an application requesting the Deputy
Commissioner, Dimapur to depute a Survey Team and conduct a spot verification
of the respondent no. 1 village. On 10.09.2009, the spot verification report was
submitted which revealed that the respondent no. 1 village, admeasuring 1012
Acres, with a population of 300 people and 57 households, falls under the
Dhansiripar sub-division of the Dimapur district. It was said to be bounded by
Ghowoto Village in the North, K. Xekiye Village in the South, the Pathor
river/Ballu Nallah in the East and K. Xekiye Village in the West. The report also
observed that the respondent no. 1 village has no inter-boundary dispute at least
in so far as the neighbouring villages were concerned.
SLP(C) No. 9897 of 2016 Page 8 of 61
8. In order to expedite the recognition of the respondent no. 1 village, on
21.09.2009, the respondent no. 2 submitted yet another representation to the
Deputy Commissioner, Dimapur inter-alia stating that the respondent no. 1
village has been established with his own privately purchased land and that ‘No
Objection Certificates’ were obtained from their parental village i.e. Khumishi
‘A’ Village under the Zunheboto District and from all the villages currently
neighbouring the respondent no. 1 village i.e. Ghowoto Village and K. Xekiye
Village. Having complied with the conditions laid down in the O.M. dated
22.02.1996, it was requested that their application be forwarded to the
appropriate higher authorities with a recommendation that the respondent no. 1
village be recognised. Soon thereafter, on 30.09.2009, the local authorities had
also submitted other relevant documents to the Deputy Commissioner, Dimapur
which included the ‘No Objection Certificates’ from the Judicial Magistrate and
the Forest Department.
9. On 13.10.2009, whilst kickstarting the last leg of the village recognition process
and in accordance with the O.M. dated 01.10.2005, the Deputy Commissioner,
Dimapur published a public notice inviting claims/objections, if any, as regards
the recognition of the respondent no. 1 village within a period of 30 days. The
notice was also published in a local daily, “The Nagaland Post”, on the very next
day. On 16.10.2009, i.e., within two days of the public notice, the appellant raised
an objection to the proposal for granting recognition to the respondent no. 1
SLP(C) No. 9897 of 2016 Page 9 of 61
village with the Deputy Commissioner, Dimapur, predominantly for the reason
that it is sought to be established on the land ancestrally belonging to them. The
objection is also said to have been published in a local daily i.e., “The Morung
Express” on 19.10.2009. Vide communication dated 08.11.2009, the Deputy
Commissioner, Dimapur, directed the appellant to provide additional and
complete information as to how the respondent no. 1 village falls within their
land and the same was to be furnished within a period of 7 days, failing which
their objection would be nullified. Immediately on the ensuing day, i.e., on
09.11.2009, the appellant addressed a letter providing several pertinent
information along with some historical context as to how the respondent no. 1
village indeed fell within their ancestral land.
10. Despite the objections raised by the appellant herein, on 18.11.2009, the Deputy
Commissioner, Dimapur, submitted its recommendation for the recognition of
the respondent no. 1 village under the Dhansiripar sub-division of the Dimapur
District to the Commissioner, Nagaland. Pursuant to the above, a Cabinet
meeting was held on 14.12.2011 to deliberate on the issue of recognition of
villages. The State Cabinet had approved the proposal of the Home Department
for the recognition of a total of 34 villages listed therein. However, in so far as
the recognition of those villages listed between Sl. Nos. 19 to 24 were concerned,
the order of recognition was to be issued only after a joint verification was
conducted by the Deputy Commissioners of Peren and Dimapur respectively. It
SLP(C) No. 9897 of 2016 Page 10 of 61
is pertinent to note that the respondent no. 1 village featured at Sl. No. 23 in the
said list.
11. In compliance with the Cabinet decision aforementioned, a joint verification is
said to have been conducted on 08.03.2012. Thereafter, on 26.07.2012, the
Deputy Commissioner, Dimapur forwarded the joint verification report to the
Commissioner, Nagaland specifically indicating that both the joint verification
report and the map of the Dimapur District reveals that the respondent no. 1
village is situated within the Dhansiripar sub-division of the Dimapur District.
However, on the contrary, vide communication dated 23.08.2012, the Deputy
Commissioner, Peren, had refrained from offering any conclusive opinion as
regards the recognition of the respondent no. 1 stating that “ the office of the D.C.
Peren has no further comments for recognition of the above two villages until the
boundary dispute between the two districts is settled ”. Alluding to the opinion of
the Deputy Commissioner, Peren, the Office of the Commissioner, Nagaland also
addressed a letter dated 05.11.2012 to the Home Commissioner suggesting that
the recognition of two villages, i.e. the A.K. Industrial Village and the respondent
no. 1 village, be kept in abeyance until the inter-district boundary dispute is
resolved since the grant of recognition would motivate other villages in the
disputed areas to also seek recognition and cause serious unrest at the ground
level.
SLP(C) No. 9897 of 2016 Page 11 of 61
12. To address this issue effectively, a consultation meeting was held on 10.06.2013
under the auspices of the Home Ministry which included the Commissioner,
Nagaland, the Deputy Commissioner, Peren and the Deputy Commissioner,
Dimapur, amongst others, regarding the inter-district boundary dispute between
the Peren and Dimapur districts. It was decided that the boundary demarcation
which was recommended by the Ezong Committee in the year 2002 would be
notified for the purpose of inviting claims/objections from the public after due
approval from the Cabinet. It was further reiterated that, notwithstanding the
Cabinet decision to order recognition subject to joint verification having been
completed, the recognition of the respondent no. 1 village would stand deferred.
Consequently, the Cabinet accorded its approval for the publication of the Ezong
Committee report vide O.M. dated 05.09.2013 and the same was published in all
the local dailies on 20.09.2013. It is averred by the State of Nagaland that several
objections were received from different Hohos, Village Councils, Gaobura’s etc.
in response to the publication of the Ezong Committee report and that the issue
had further been referred to the district administration of Dimapur for an update
on the ground reality.
13. Notwithstanding the above Cabinet decision, on 05.03.2014, the Sub-Divisional
Officer (SDO) (Civil) of the Dhansiripar sub-division is said to have issued a
certificate of administrative approval for the recognition of the respondent no. 1
SLP(C) No. 9897 of 2016 Page 12 of 61
village while also recording that there were no objections against the recognition
of the said village from any quarter.
14. However, still having witnessed abysmal progress as regards its recognition, on
21.04.2014, the respondent no. 1 village along with the respondent no. 2 filed a
Writ Petition being W.P.(C) No. 65(K) of 2014 before the High Court of Gauhati,
Kohima Bench inter-alia seeking a writ of mandamus directing the State
government to take necessary steps for its recognition. Vide judgment and order
dated 21.04.2015, the Single Judge of the High Court directed the State to take
appropriate steps for the purpose of issuing formal order(s) for the recognition of
the respondent no. 1 within a period of 3 months. The High Court’s reasoning
was three-fold: –
(i) First , that all the criteria/conditions mentioned in the O.M.’s dated
22.03.1996 and 01.10.2005 respectively, for the recognition of the respondent
no. 1 village, were complied with. ‘No objection certificates’ were also issued
by the neighbouring villages i.e., Ghowoto Village on 16.08.2007 and K.
Xekiye Village on 30.11.2007 respectively. The public notice published in
the newspaper also yielded no objection from any quarter. The Cabinet had
then given its approval for recognition subject to a joint verification being
conducted by the Deputy Commissioners of the Peren and Dimapur districts.
Such a joint verification had also been completed. Therefore, all the steps for
the recognition of the respondent no. 1 as a village were duly undertaken.
SLP(C) No. 9897 of 2016 Page 13 of 61
(ii) Secondly, the main objection which was canvassed by the State was the
existence of an inter-district boundary dispute between the districts of Peren
and Dimapur and that until the same was resolved, recognition of the
respondent no. 1 village must be stalled. The High Court was at a loss to
understand how the inter-district boundary dispute was related to the issue at
hand and stated that it would have no bearing insofar as the issue of
recognition was concerned.
(iii) Thirdly, the High Court interpreted the communication of the Deputy
Commissioner, Peren, dated 23.08.2012 which was issued after the joint
verification was completed, to mean that she had no further comments
whatsoever to offer on the issue of recognition of the respondent no. 1
village. Therefore, it was held that the communication dated 05.11.2012 sent
from the office of the Commissioner, Nagaland to the Home Commissioner
which reflected upon the comments of the Deputy Commissioner, Peren was
done without any application of mind and was considered devoid of the other
circumstances which favoured the case of the respondent no. 1. The High
Court adopted such a view especially since the Cabinet had accorded its
approval subject only to a joint verification by the concerned authorities and
the said joint verification was completed.
15. The relevant observations made by the Single Judge of the High Court are
reproduced hereinbelow:
SLP(C) No. 9897 of 2016 Page 14 of 61
“ 6. As required by the O.M's dated 22.03.1996 and
01.10.2005, the respondents had carried out all formalities
for recognition of the petitioner village and no objection
certificates were also issued by the Ghowoto Village Council
on 16.08.2007 and K. Xekiye Village Council on 30.11.2007.
as there was no objection from any quarter, survey was
conducted and such report was also submitted on
10.09.2009. The Deputy Commissioner, Dimapur had also
issued a public notice on 13.10.2009. Such public notice was
also published in the local newspaper and as there was no
further objection, the Deputy Commissioner, Dimapur by
letter dated 18.11.2009 had written to the Commissioner,
Nagaland, Kohima stating that all formalities has been
completed and as such, the matter regarding recognition of
the petitioner village was recommended. On such
recommendation, the matter was put up before the cabinet
and the cabinet on 14.12.2011 had given its approval for
recognition of the petitioner's village along with 33 others. A
condition was also laid down by the Cabinet that for the
villages appearing at Serial No.19 to 24, a joint verification
has to be done by the Deputy Commissioners of Dimapur and
Peren under the supervision of Commissioner, Nagaland.
The name of the petitioner village appears at Serial No.23
and as required by the cabinet, joint verification was also
conducted by the two Deputy commissioners of Dimapur and
Peren.
7. The main taken by the State respondents is that there is a
boundary dispute between the districts of Dimapur and Peren
and therefore until and unless such boundary dispute is
settled recognition cannot be given to the petitioner village.
This Court is not in a position to understand the ground taken
by the State respondents inasmuch as, the inter-district
boundary dispute would have no bearing insofar as
recognition of the petitioner's village is concerned. Important
point of note is that all steps have been taken insofar as the
recognition of the petitioner's village is concerned.
8. A reading of the communication dated 23.08.2012 written
by the Deputy Commissioner, Peren would indicate that the
Deputy Commissioner, Peren has no further comments for
recognition of the two villages i.e. A.K. Industrial Village and
SLP(C) No. 9897 of 2016 Page 15 of 61
Kakiho Village (petitioner villages). The letter dated
23.08.2012 is reproduced herein below […]
9. Further, the letter of the Office of the Commissioner,
Nagaland dated 05.11.2012 would clearly indicate that it has
reflected only the comments of the Deputy Commissioner,
Peren without application of mind. When the cabinet has
given its approval subject to verification by two Deputy
Commissioners of Dimapur and Peren districts and such
verification having been already completed this Court is not
in position to understand as to why the recognition of the
petitioner's village has not been given till date.
10. This being the position, this Court has no hesitation to
direct the State respondents to take steps for issuance of
formal order(s) for recognition of the petitioner's village. Let
such exercise be completed within a period of three months
from the date of receipt of a certified copy of this order.
11. Writ petition is allowed.
12. No costs. ”
(Emphasis supplied)
16. Aggrieved by the aforesaid, the State preferred Writ Appeal No. 6(K) of 2015
against the judgment and order rendered by the Single Judge of the High Court.
Vide judgement and order dated 07.10.2015, the Division Bench of the High
Court acknowledged that the respondent no. 1 village is situated on the boundary
between the Peren and Dimapur districts, which is predominantly inhabited by
different tribes and that this was the foremost reason as to why the issue of
boundary demarcation has become a sensitive one. However, since it was pleaded
that the government was taking necessary steps for effecting the demarcation
SLP(C) No. 9897 of 2016 Page 16 of 61
which would in turn enable the issuance of a formal order of recognition of the
respondent no. 1 village, the Court extended the time granted by the Single Judge
by another four months from the date of the impugned decision. The relevant
observations are reproduced hereinbelow:
“ From the submissions of the learned Addl. A.G, it is quite
clear that State is not contesting the judgment on merit. It
appears from the submissions made that the village of the
respondents/writ petitioners is situated on the boundary
between Dimapur and Peren districts, both districts being
pre-dominantly inhabited by members of different tribes.
Therefore, demarcation of the boundary of the village has
become a sensitive issue. However, the Government is taking
necessary steps for making the demarcation to enable
issuance of formal order of recognition of the respondents
village as directed by learned Single Judge. But considering
the sensitiveness of the matter, some more time may be
required to complete the exercise, he submits.
Learned counsel for the respondents fairly submits that he
would have no objection for grant of time to the State for
issuance of the consequential order of recognition of the
village.
The being the position, we extend the time of 3 months
granted by the learned Single Judge by another period of 4
months effective from today. Appellant State shall issue the
formal order of recognition of respondents village within this
extended period of 4 months.
This disposes of the writ appeal. ”
(Emphasis supplied)
17. It is the case of the appellant that despite being a necessary and proper party to
the writ petition filed before the High Court by the respondent no. 1 village, they
SLP(C) No. 9897 of 2016 Page 17 of 61
were not impleaded in the said proceedings. Having come across the impugned
decision subsequently and also having learnt that effective steps to issue orders
for the recognition of the respondent no. 1 village were being undertaken by the
State, the appellant is before us with the present appeal.
B. SUBMISSIONS OF THE PARTIES
i. Submissions on behalf of the Appellant
18. Mr. Parthiv K. Goswami, the learned Senior Counsel appearing on behalf of
the appellant, submitted that the appellant was a necessary and proper party in
the adjudication of the dispute before the High Court on account of the fact
that the respondent no. 1 village falls within their ancestral land and that they
had also filed objections to the Public Notice dated 13.10.2009. Hence, the
impugned decision, having been passed in the absence of the appellant would
be bad in law, in violation of principles of natural justice and therefore,
deserves to be set aside on this ground alone.
19. He submitted that the issue of granting recognition to a village falls within
the domain of the executive decision making. It is well settled that in exercise
of the power of judicial review, a writ court can only examine the decision-
making process, and not substitute the decision under consideration with its
SLP(C) No. 9897 of 2016 Page 18 of 61
own decision. Therefore, once the state government/cabinet had taken a
decision to keep recognition of the respondent no. 1 village in abeyance upon
a consideration of several relevant factors, the High Court had committed a
serious error by issuing a mandamus and directing the grant of a formal
recognition order, more so, when the question as to whether the respondent
no. 1 village falls within the ancestral land of the appellant is a disputed
question of fact which needs proper examination at the ground level. The
impugned decision, which was passed in the absence of the appellant was
neither alive to the existence of such a dispute nor did it have the assistance of
the material now being placed on record by the appellant.
20. It was further submitted that a new village is generally only established within
the community land which is owned by its inhabitants. The establishment and
recognition of a new village on ancestral land of another village results in
transfer of ownership of the land to the newly created village. It is for this
reason that upon the establishment of a new village on a land which
ancestrally belongs to another village, the prevailing custom requires a ‘No
Objection Certificate’ of the parent/ancestral village. The said custom is
recognized in the O.M. dated 22.03.1996 and also finds codification in the
Nagaland Village and Area Councils Act, 1978 (for short, the “ 1978 Act ”),
more specifically Sections 3 and 4 thereof.
SLP(C) No. 9897 of 2016 Page 19 of 61
21. He vehemently submitted that a bare perusal of the British Survey Map of
1921-1923, shows that the area admeasuring approx. 1000 acres which is said
to be owned by the respondent no. 1 village falls within the larger area
ancestrally owned by the appellant. Furthermore, he submitted that there also
exists an agreement between the appellant and the Dhansiripar sub-division
(within which the respondent no. 1 village is allegedly situated) where the
Dhansiripar Village Council has also explicitly stated that their land falls
within the absolute jurisdiction of the appellant. According to customary law
governing land ownership and transfer in Nagaland, the inhabitants of a newly
established village falling within the land ancestrally owned by another village
are required to seek the consent of the parent village and also pay a nominal
annual token of acknowledgment called ‘rampwa lunget’. Such prior consent
of the parent/ ancestral village is a condition precedent even under the O.M.
dated 22.03.1996. It was submitted that the said policy was backed by a sound
rationale and the non-adherence thereof would result in frustrating the very
purpose behind it i.e., the peaceful co-existence of the neighbouring villages
and/or the predominant tribes inhabiting them, especially considering that
inter-tribal conflicts continue to remain a very sensitive issue in the State.
Hence, no formal order(s) of recognition of the respondent no. 1 village can
be issued in the absence of a ‘No Objection Certificate’ from the appellant.
SLP(C) No. 9897 of 2016 Page 20 of 61
22. With a view to emphasize the importance of the customary practices in the
State of Nagaland governing social practices and ownership and transfer of
land, the counsel placed great emphasis on Article 371A of the Constitution,
which was introduced immediately prior to the creation of the State of
Nagaland in 1963 by the 13th Constitutional Amendment Act of 1962. He
submitted that Article 371A of the Constitution inter alia recognizes the
importance of safeguarding the social practices of the Nagas along with the
customary laws and traditions existing in the region by specifically excluding
any law made by the Parliament in respect of certain matters from application
in the State of Nagaland, unless a resolution to that effect is passed by the
Legislative Assembly. Customary practices that govern land ownership and
transfer would subsume under themselves the issues relating to village
establishment and recognition as well and therefore, would fall within the
protection afforded under Article 371A.
23. The counsel reiterated that the present matter is a clear case of encroachment
which has been committed by the respondent no. 1 and its villagers. The
respondent no. 1 villagers are from the ‘Sumi’ tribe whose ancestral home is
in the district of Zunheboto, Nagaland. The ancestral home of the Respondent
Village is ‘Khumishi A’ Village in sub-division Asuto, falling within the
Zunheboto district. The Counsel also brought our attention to a complaint for
eviction which was filed by the appellant with the Deputy Commissioner,
SLP(C) No. 9897 of 2016 Page 21 of 61
Peren, much prior to the inauguration of the respondent no. 1 village i.e., on
22.01.2005, alleging that the respondent no. 1 village has been illegally
established on their land. Addressing the same, on 07.04.2005, the Office of
the Sub-Divisional Officer (Civil), Jalukie is said to have communicated the
decision of the Deputy Commissioner, Peren and issued an eviction order
directing the villagers belonging to the respondent no. 1 village to vacate the
‘encroached land’ within a period of 15 days, upon failure of which
appropriate legal action would be initiated. In light of the same, the counsel
submitted that it is a well settled principle of law that “ to seek equity, one must
do equity ”. The respondent no.1, having encroached upon the ancestral land
of the appellant without following the conditions precedent for the
establishment of a new village, has no right to seek equity, more so having
approached the court with unclean hands by suppressing the fact that the
appellant had filed objections to the public notice issued on 13.10.2009.
24. In the last, the counsel brought our attention to the fact that since the
respondent no. 1 village is unrecognized, its villagers have the right to obtain
all facilities which are due to them from their parent village, namely, the
‘Khumishi A’ Village of sub-division Asuto falling under the Zunheboto
District till such time the formal order(s) for their recognition is granted.
Therefore, it may not be correct to suggest that the villagers of the respondent
no. 1 would be denied all the benefits that they otherwise may be entitled to,
SLP(C) No. 9897 of 2016 Page 22 of 61
thereby, causing an infringement of their fundamental right to life under
Article 21 of the Constitution.
25. In light of the aforesaid, the counsel prayed that the impugned decision be set
aside and the State authorities be directed to take a final call on the issue of
recognition of the respondent no. 1 village, in a time-bound manner, after
taking into consideration the objections of the appellant. Furthermore, it was
also prayed that in the event that the State authorities arrive at a decision which
goes against the appellants, their right to take recourse to available legal
remedies before the appropriate forum, be protected.
ii. Submissions on behalf of the respondent nos. 1 and 2
26. Ms. Renuka Sahu, learned counsel appearing on behalf of the respondent nos.
1 and 2 respectively submitted that the appellant was not a necessary party
both in the Writ Petition and the Writ Appeal before the High Court.
27. It was submitted what while an objection was raised by the appellant to the
public notice dated 13.10.2009 vide its letter dated 16.10.2009, the Office of
the Deputy Commissioner, Dimapur had replied to the same vide its
communication dated 08.11.2009 and directed the appellant to provide
additional and sufficient details to back their claim that the respondent no. 1
SLP(C) No. 9897 of 2016 Page 23 of 61
village would fall within the boundary of their ancestral land. However, it was
the appellant who has failed to produce any such document. Therefore,
naturally, the objections raised by the appellant were nullified.
28. The counsel further submitted that there exist around 16 recognised and
th
unrecognised villages along with the 18 Assam Rifles Head Quarter between
the boundary of the respondent no. 1 village and the appellant. The respondent
no. 1 village is bound by Ghowoto village in the north, K. Xekiye Village in
the South, the Pathor River/Ballu Nallah in the East and the K. Xekiye Village
in the West. The same is also evident in the map which reveals the boundaries
of the respondent no. 1 village. Therefore, the counsel submitted that the issue
of the inter-district boundary, if any, has nothing to do with the recognition of
the respondent no. 1 and that she was at a loss to understand how the appellant
would be affected in any manner if the respondent no. 1 village is granted
recognition. This was more so because the respondent no. 2 has established
the respondent no. 1 village in a self-acquired land i.e., the Zhuthovi Village,
which is a recognized village under the Dhansiripar Sub-Division, Dimapur
District, had donated land to Ghowoto Village, which in turn had donated land
to the respondent no. 1 village.
29. The counsel submitted that the respondent no. 1 village has duly complied
with all the formalities for the recognition of a new village as required by the
O.M.’s dated 22.03.1996 and 1.10.2005. i.e., - (a) ‘No Objection Certificates’
SLP(C) No. 9897 of 2016 Page 24 of 61
were obtained from the neighbouring villages on 16.08.2007 and 30.11.2007
respectively, (b) a Survey report dated 10.09.2009 was submitted by the local
authorities, (c) A public notice dated 13.10.2009 was issued by the Deputy
Commissioner, Dimapur, (d) The Deputy Commissioner, Dimapur vide its
letter dated 18.11.2009 addressed to the Commissioner of Nagaland, Kohima,
confirmed that all formalities for the recognition of the respondent no. 1
village were completed, (e) On 14.12.2011, the Cabinet given its approval for
the recognition of the respondent no. 1 village subject to a joint verification,
(f) On 23.08.2012, the joint verification was conducted by the Deputy
Commissioners of Dimapur and Peren in compliance with the Cabinet’s
condition and the Deputy Commissioner, Peren stated that he had no further
objections. In light of the aforesaid, it was submitted that, having complied
with all the requirements, recognition must be granted to the respondent no. 1
village.
30. The counsel acknowledged that Article 371A pertains to special provisions
vis-à-vis the State of Nagaland whereby the State is granted immunity in
respect of Parliament made law with respect to certain matters. However, it
was her case that while individual ‘Acts of Parliament’ may not apply, certain
overarching principles under the Constitution, including the Fundamental
Rights guaranteed under Part III would still find application in the State of
Nagaland. The very object and purpose of the enactment of Article 371A was
SLP(C) No. 9897 of 2016 Page 25 of 61
to keep the interest and welfare of people of Nagaland at the forefront.
Therefore, such a provision cannot be utilised to the detriment of its people.
Hence, under the garb of customary and religious practices which are
protected by Article 371A, the fundamental rights, more particularly Articles
14, 19 and 21 respectively, cannot be sought to be abridged. To fortify her
submissions, the counsel placed reliance on the decision of this Court in PUCL
& Anr. Vs. State of Nagaland and Ors., (Civil Appeal No. 3607 of 2016) and
the decision of the Gauhati High Court in Mangyang Lima v. State of
Nagaland and Ors, reported in 2019 SCC OnLine Gau 3494 .
31. The counsel submitted that the rights guaranteed under Articles 14, 19 and 21
respectively, of the villagers belonging to the respondent no. 1 village were
being infringed owing to that fact that their ‘unrecognised’ status deprives
them access to several facilities and schemes provided by the Central and State
governments. This denial of Centrally Sponsored Schemes (CSS) and State
Sponsored Schemes (SSS) hampers their fundamental developmental rights
which are critical to social and economic progress. These would include:
i. Village Development Board (V.D.B.) : The absence of a V.D.B. in the
respondent no. 1 village has stripped them off the power to independently
plan, implement, and oversee infrastructure along with providing services
and amenities using funds from the Rural Development Department. The
essential schemes to which access has been denied as a consequence
SLP(C) No. 9897 of 2016 Page 26 of 61
include the Mahatma Gandhi National Rural Employment Guarantee Act
(MGNREGA), Pradhan Mantri Awas Yojana-Gramin (PMAY-G),
Pradhan Mantri Gram Sadak Yojana (PMGSY), Deen Dayal Upadhyaya
Grameen Kaushalya Yojana (DDU-GKY), National Rural Livelihoods
Mission (NRLM) etc.
ii. Public Works Department (PWD): No roads are constructed, nor is
maintenance work undertaken in the absence of official recognition of the
respondent no. 1 village.
iii. Health Department: The village is denied access to critical health care
infrastructure such as Primary Health Centres or dispensaries.
iv. Education Department: There is no establishment of government
schools for primary or secondary education, depriving children of their
fundamental right to education.
v. Food and Civil Supplies Department: Essential food security schemes
under the National Food Security Act (NFSA) remain inaccessible. These
include (a) Antyodaya Anna Yojana scheme where a household receives
35 kg of food grains per month and (b) Priority House Hold scheme where
up to 5 kg of subsidized food grains per family member, per month, is
granted.
vi. Forest Department: Recognized villages benefit from the grant of free
tree saplings, annually, for environmental protection and improvement.
SLP(C) No. 9897 of 2016 Page 27 of 61
vii. Horticulture and Agriculture Department: Free fruit saplings, free
vegetable saplings, farming machinery, tools, and equipment critical to
agricultural development are all denied to the respondent no. 1 village.
viii. Land Resources Department : Free saplings of cash crops like Arecanut,
Coffee, and local spices such as broom grass, naganeem, lali, kadam etc.
which foster sustainable livelihoods are also denied.
ix. Transport Department : Public transport facilities essential for
connectivity and mobility are also not extended to unrecognized villages,
perpetuating isolation and backwardness.
32. In the last, it was submitted that the fundamental rights and Directive
Principles of State Policy under Parts III and IV of the Constitution
respectively, form the bedrock of our Constitution and cannot be over-
shadowed by Article 371A or any other customary law of the State, since the
rule of law and constitutional supremacy must remain paramount. Having
already complied with the procedural requirements for its recognition, the
objections raised by appellant, cloaked under the guise of special provisions
and customary practices, are clearly legally untenable and morally unjust.
Such opposition seeks to perpetuate inequality and injustice, denying the
residents of the respondent no. 1 village their rightful access to essential
services.
SLP(C) No. 9897 of 2016 Page 28 of 61
33. In light of the aforesaid, it was submitted that the impugned decision not be
interfered with and that the State Government be directed to take immediate
steps for the recognition of the respondent no. 1 village, without any further
delay.
iii. Submissions on behalf of the State
34. Ms. Enatoli Sema, learned counsel appearing on behalf of the State of
Nagaland submitted that the Ezong Committee which was tasked to demarcate
the inter-district boundary between the Dhansiripar Sub-Division of Dimapur
District and Jalukie Sub-Division of Peren, Kohima District had
recommended in its Report dated 28.05.2002 that the Government recognise
villages in the disputed areas only after the boundary demarcation is finalised.
She submitted that the while the appellant belongs to the Jalukie sub-division,
the respondent no. 1 belonged to the Dhansiripar sub-division. The Report had
also recorded that several rounds of meetings were held with the
representatives of both the communities belonging to the disputing villages
but no mutually agreeable decision could be arrived at. Therefore, the attempt
of the Government to amicably settle the issue way back in 2002 was rendered
futile. Subsequently, the Ezong Committee Report of 2002 was placed before
the Cabinet wherein, the recognition of the respondent No.1 village was
recommended to be kept in abeyance. The Report was then published and
SLP(C) No. 9897 of 2016 Page 29 of 61
several objections and counter-claims were filed before the Government
which are being reviewed.
35. It was submitted that after the Single Judge of the High Court had directed
the grant of recognition of the respondent no. 1 village, the State had preferred
an appeal before the High Court since the inter-district boundary demarcation
was pending and on-going. The State, while keeping in mind the past instances
of violence in the disputed areas wished to amicably settle the dispute between
the parties herein, in order to avoid any untoward situation relating to the two
communities in the area.
36. The counsel submitted that pursuant to the order of this Court dated
13.01.2017, a meeting dated 16.03.2017 was held between both the parties in
the presence of the Deputy Commissioners of the concerned districts. In the
aforesaid meeting, while both the parties could not arrive at a logical
conclusion, they agreed to (a) maintain peace and tranquillity between the
villages located in the inter-district boundaries i.e., Peren and Dimapur
Districts; and (b) form a Committee amongst themselves comprising of a
convenor and three representatives each from both sides. However, the
counsel submitted that no report from the aforesaid committee has been
received by the concerned authorities till date.
SLP(C) No. 9897 of 2016 Page 30 of 61
37. It was submitted that since the dispute between the two villages pertain to and
touch upon Inter-District Boundary dispute between the Peren and Dimapur
Districts respectively, the State constituted a Cabinet Sub-Committee vide
Notification No. GAB-1/333/2014 (VOL-I) 309 dated 7.8.2019. The mandate
of the said Sub-Committee was to look into the setting up of new settlement
‘Lamhai Namdi’ and finalise the boundary demarcation between the two
Districts of Peren and Dimapur in order to arrive at a solution to solve the
present impasse. The Sub-Committee physically visited the spot on 14.9.2019
and on 23.10.2019, a consultative meeting with both the Hoho’s/ Tribal
Organisations, in the presence of both the respective Deputy Commissioners
was held whereby the Hoho’s/Tribal organisations were directed to submit
additional documents. Finally, the Report of the Sub-Committee was placed
before the cabinet on 13.7.2021. Pursuant to the Report of the Sub-Committee,
a new District called Chumoukedima was carved out in 2021 and therefore,
the inter-district dispute between the two villages presently falls between the
Peren and Chumoukedima districts.
38. Furthermore, it was submitted that pursuant to the intervention of this Court
vide order dated 3.12.2024 and in the interest of maintaining peace between
the two communities, the State convened two meetings on 21.12.2024 and
3.1.2025 respectively with the disputing villages. The discussions during the
meeting revealed that the outstanding issues between the two villages have
SLP(C) No. 9897 of 2016 Page 31 of 61
narrowed down. There is every chance of a positive negotiation between the
parties which may lead to a final settlement. Therefore, the counsel submitted
that in order to facilitate such a settlement, a final chance be given to the State
so that the two villages can meet under the aegis of the tribal councils,
consisting of tribal elders, as provided under Section 26 of the Nagaland
Village and Tribal Councils Act, 1978. This section enjoins the tribal council
to inter-alia , “ assist settlement of disputes and cases involving breaches of
customary laws and usages. ”.
C. ISSUES FOR DETERMINATION
39. Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the following questions fall for our
consideration:
I. Whether it could be said that the respondent no. 1 village had fulfilled
all the necessary conditions/criteria for the issuance of formal order(s)
of recognition as per the O.M.’s dated 22.03.1996 and 01.10.2005
respectively, especially in light of the fact that the appellant had raised
objections to the Public Notice dated 13.10.2009?
II. Whether the existence of an “inter-district boundary dispute” was a
valid reason to keep the recognition of the respondent no. 1 village in
abeyance?
SLP(C) No. 9897 of 2016 Page 32 of 61
D. ANALYSIS
i. Whether all the necessary conditions/criteria for the issuance of formal
order(s) of recognition as per the O.M.’s dated 22.03.1996 and
01.10.2005 respectively were fulfilled?
40. Article 371A of the Constitution which was inserted by the Constitution
(Thirteenth Amendment) Act, 1962 and which came into effect on 01.12.1963
carves out a special provision as regards the State of Nagaland. It specifically
provides that no Act of Parliament in respect of the religious or social practices
of the Nagas, Naga customary law and procedure, and ownership and transfer
of land and its resources, amongst others, shall apply to the State of Nagaland
unless the Legislative Assembly of the State decides to adopt them through a
specific resolution to that effect. The relevant portion of Article 371A reads
thus:
“371A. Special provision with respect to the State of
Nagaland .—(1) Notwithstanding anything in this
Constitution,—
(a) no Act of Parliament in respect of—
(i) religious or social practices of the Nagas;
(ii) Naga customary law and procedure;
(iii) administration of civil and criminal justice involving
decisions according to Naga customary law;
(iv) ownership and transfer of land and its resources,
shall apply to the State of Nagaland unless the Legislative
Assembly of Nagaland by a resolution so decides;”
(Emphasis supplied)
SLP(C) No. 9897 of 2016 Page 33 of 61
41. The insertion of Article 371A was the outcome of a political settlement which
culminated after a decade-long struggle and is also a reflection of the grant of
3
the right to ‘self-rule’ and political autonomy to the people of Nagaland. The
decision of the Gauhati High Court in Sabeituo Mechulho and Ors v. State
of Nagaland and Ors. reported in 2011 SCC OnLine Gau 592 which held
that Article 371A has no role to play in the matter of provision of reservation
to a woman representative belonging to a society/NGO in the Village Council
or local body, had the occasion to deal with the reason behind the insertion of
a special provision in the nature of Article 371A. The High Court emphasized
the lofty purpose for which such a provision had been included in the
Constitution i.e., the preservation of the distinct identity of the Naga people
by allowing them to live with their distinct religious and social practices,
customs, traditions etc. The relevant observations are thus:
“ 10. This provision has been made to preserve the identity of
Naga People by allowing them to live with their distinct
religious, social practice, customs, tradition, etc. They have
been given opportunity to administer civil and criminal
justice as per their customary law. Article 371A is silent
about the share of participation of Naga men and women in
the local administration. There is no mention about
reservation for Naga Woman representative in the local
administration. In my considered view article 371A has no
role to pay or application in the matter of providing
reservation for woman representative in the Village Council
or local body. This provision is for a mighty and lofty
purpose/aim to preserve the distinct identity of Naga people
for which it has been made incumbent upon the parliament to
3
R AJYA S ABHA D EB ., (Sep. 3, 1962) 4660.
SLP(C) No. 9897 of 2016 Page 34 of 61
have the approval of the Nagaland State Legislature before
any Act is implemented or enforced in the State of Nagaland.
The parliament would not have any say in the matter of
providing reservation for woman in the local body like
Village Council. It is the State Government which is required
to enact law or rules for such purpose .”
(Emphasis supplied)
42. In the debates which ensued in the Rajya Sabha as regards the passing of the
Constitution (Thirteenth Amendment) Bill, 1962 and the State of Nagaland
Bill, 1962, the then Prime Minister of India, Mr. Jawaharlal Nehru, remarked
that “ Anyhow, it is for the people of Nagaland to make their rules about their
4
land ” . It is the case of the appellant that the issue of village establishment and
recognition falls within the larger umbrella of “ ownership and transfer of land
and its resources ” and is rooted in certain unique social and customary
practices and procedures. In this context, it is relevant for us to refer to the
provisions of the 1978 Act, especially Section 3 thereof which reads thus:
“ Section 3 - Constitution: Every recognised Village shall
have a Village Council.
Explanation: Village means and includes an area recognised
as a Village as such by the Government of Nagaland. An area
in order to be a Village under this act shall fulfil the following
conditions namely:
(a) The land in the area belong to the population of that
area or given to them by the Government of Nagaland, if
the land in question is a Government land or is land given
to them by the lawful owner of the land; and
4
Ibid at 4716.
SLP(C) No. 9897 of 2016 Page 35 of 61
(b) The Village is established according to the usage and
customary practice of the population of the area.”
(Emphasis supplied)
43. The Explanation to Section 3, elaborates on the meaning of a ‘Village’. It
states that a village would mean and include “an area which is recognised as
a village by the Government of Nagaland”. Furthermore, an area in order to
be recognised as a village must fulfil certain conditions i.e. – The land/area in
which the village exists must either belong to the population in that area or be
given to such a village/population by the Government of Nagaland/lawful
owner AND , the village must be established according to the usages and
customary practices of the population belonging to that area. The land in
question would be given to the village population by the government if it is a
government land and if otherwise, by the lawful owner of the land.
44. Therefore, a great amount of emphasis is placed primarily on two things –
One , ownership of the land, either communally by the village as a whole or
individually by the members of the village; and two, the adherence to the
existing customary practices in the process of ‘recognition’ of the village. The
State Government is empowered to recognise a particular area as a ‘village’
in accordance with Section 3 of the 1978 Act, upon the fulfilment of the
conditions mentioned therein and only when an application is made to them
in that behalf by a section of people inhabiting the particular area which is
SLP(C) No. 9897 of 2016 Page 36 of 61
sought to be given a recognised status. In such an application, the people
residing in such an area must be able to show in a bona fide and sufficient
manner that they are the lawful owners of the said area/land and that they have
established their village as per the existing customary practices.
45. The two O.M.’s dated 22.03.1996 and 01.10.2005 respectively, elaborates on
the process which is to accompany such a claim for recognition. These O.M.’s
are said to also mirror and codify the existing customs pertaining to village
recognition in the State. A bare reading of the two O.M.’s reveals that the idea
of consent and communication between all the relevant stakeholders is
cardinal and fundamental to the process of village recognition. We say so
because, in the O.M. dated 22.03.1996, apart from the conditions stipulating
that a village must have a minimum of 30 houses with a population of not less
than 150 people, have sufficient land for its expansion and agricultural
purposes and be constituted by indigenous inhabitants, it is also required that
‘No Objection Certificates’ be obtained from several stakeholders. Condition
(v) stands testament to this and states that when a new village is constituted
by members of more than one village, but in a different location and within
the ancestral land of a parent village, the Village Council Chairman of such a
parent village must give a ‘No Objection Certificate’ while indicating the
boundaries of the new village which is sought to be established and later,
recognised. When the exact boundaries of the village cannot be determined, it
SLP(C) No. 9897 of 2016 Page 37 of 61
is required that the Village Council Chairman of the parent village along with
all the Gaobura’s of the parent village decide upon the nature of the boundaries
with the new village, on any permanent basis, which is acceptable to both
parties. Additionally, if the parent village has appointed Gaobura’s who are
allowed to function as the constitutional head of the village in matters of
administration of the village land, then the concerned Gaobura’s must also
attest their signatures to the ‘No Objection Certificate’ along with the Village
Council Chairman.
46. A joint survey of the newly established village is also conducted by competent
personnel and authorities belonging to the Land Records & Survey
Department and other appropriate civil authorities to demarcate, map and
record the area of the village. Apart from the same, clearance in the form of a
‘No Objection Certificate’ is also required from the appropriate officials of the
Forest Department, a Class-I Magistrate and the neighbouring villages.
Finally, after all the clearances and procedures are complied with, an
administrative approval would be given by the Sub-Divisional Officer (SDO)
and the matter of recognition of the said village would be referred to the higher
authorities of the District administration who would place their proposal(s) for
recognition before the government.
SLP(C) No. 9897 of 2016 Page 38 of 61
47. The O.M. dated 01.10.2005, which brought in the requirement of issuance of
a public notice by the Deputy Commissioner of the concerned district also
places the idea of mutual consent from all concerned parties at the forefront.
This notice must mandatorily contain details as regards the area of the land
and the boundary of the village whose recognition is being proposed. A period
of 30 days is provided to the public to file objections, if any. This additional
criterion, again, fortifies the assertion that all the relevant parties/villages must
be apprised of and also be on board with the recognition of the new village.
48. The raison d’être behind the issuance of a public notice is that one last
opportunity be given to those interested parties/villages who might be
adversely affected by the recognition of the new village but who were
otherwise left out from the process preceding the publication of notice and to
also ensure that a transparent platform is provided for them to put forth their
case with reasons so that they can be heard before any further progress is made
in the matter. This would further obviate any possibility of a subsequent
conflict occurring in the area between two or more villages laying claim over
a particular land. On this aspect, the appellant is right in submitting that there
is a sound rationale behind the existence of such a procedure i.e., the peaceful
co-existence of the neighbouring village and/or the predominant tribes
inhabiting the areas, especially considering that inter-tribal conflicts remain a
very sensitive issue in the State.
SLP(C) No. 9897 of 2016 Page 39 of 61
49. However, what we would like to further point out is that it is the bounden duty
of the State and its relevant authorities to adequately and appropriately
consider any and all such objections which may be raised by the interested
parties in response to the public notice issued by them, provided that they are
lodged within the stipulated time-period. Otherwise, the very object of issuing
a public notice would be vitiated. In the present case, the said public notice
was issued on 13.10.2009 and vide communication dated 16.10.2009, the
appellant had raised its objections to the recognition of the respondent no. 1
village by contending that that the respondent no. 1 village is in fact sought to
be established on their land. The objection is said to have also been published
in a local daily on 18.10.2009. The Office of the Deputy Commissioner,
Dimapur vide its letter dated 08.11.2009 had directed the appellant to furnish
more comprehensive details along with the relevant boundaries and records to
incidate as to how the respondent no. 1 village would fall within their land.
The authorities further stipulated that, if the same is not provided within a
period of 7 days, their objection dated 16.10.2009 would stand nullified. On
the ensuing day i.e., on 09.11.2009, the appellant sent a reply providing details
supporting their claim to the Deputy Commissioner, Dimapur. It is unclear as
to what extent the aforesaid communication made by the appellant was
considered by the Deputy Commissioner, Dimapur before additional steps
were taken to forward the proposal for recognition of the respondent no. 1
village to the government. The State of Nagaland has not made a single
SLP(C) No. 9897 of 2016 Page 40 of 61
averment regarding the merits of the claim made by the appellant over the land
in which the respondent no. 1 village is situated. It is not the case of the State
of Nagaland that the claims made by the appellant are absolutely baseless and
devoid of merit as well. Therefore, we are at a loss to understand how it can
be contended, both by the State of Nagaland and by the respondent nos. 1 and
2 respectively, that the conditions/criteria laid down in the two O.M.’s,
especially the latter O.M. dated 01.10.2005, were fulfilled in the present case.
50. With the existing procedure that is prescribed for the recognition of a village
in the State of Nagaland, we are of the view that it would not be open for the
respondent nos. 1 and 2 respectively to blanketly assail the right of the
appellant to raise its objections as regards the recognition of the respondent
no. 1 village. However, what we would like to highlight is that it is the
responsibility of the State to weed out frivolous objections and those devoid
of merit from the process, in such a manner that the rights of the village
seeking recognition are not prejudiced. What would be appropriate at this
juncture is for the State to consider the objections of the appellant on their own
merits and decide whether their ‘No objection’ is a pre-requisite for the grant
of recognition of the respondent no. 1 village or not. If answered in the
negative, the appellant would have no locus to challenge the recognition of the
respondent no. 1 village and the matter would be put to bed at least insofar as
these two parties are concerned. Only in the instance that the said question is
SLP(C) No. 9897 of 2016 Page 41 of 61
answered in the affirmative, would the respondent no. 1 village be required to
initiate conversation with representatives of the appellant, to arrive at a
mutually beneficial settlement and prevent the risk of any adverse measures
being taken against them.
ii. Whether the existence of an “inter-district boundary dispute” was a
valid reason to keep the recognition of the respondent no. 1 village in
abeyance?
51. The demarcation of the inter-district boundary between the districts of
Kohima and Dimapur and its nexus with the recognition of village(s) was first
brought to the fore by the Ezong Committee Report. While undertaking the
task of boundary demarcation and receiving information from all corners, it
was observed that groups belonging to both districts had claims and
counterclaims over pieces of land irrespective of whether they had effective
physical possession of the said land. The broad consensus amongst the
concerned parties was to place all the villages affiliated with the ‘Sumi’ tribe
in the Dimapur District and those affiliated to the ‘Zeliangrong’ tribe under
the Kohima district. This aspect is relevant for us since the appellant belongs
to the ‘Zeliangrong’ tribe, while the respondent no. 1 village is affiliated to the
‘Sumi’ tribe.
SLP(C) No. 9897 of 2016 Page 42 of 61
52. In the course of examining the issue of boundary demarcation, the Committee
was apprised of certain newly established villages which were seeking
recognition. It was in this context that the Committee was of the opinion that
it would be desirable if the government considers the question of recognition
of these newly established villages in the disputed areas after the boundary
demarcation between the two districts was finalised. It is, however,
noteworthy that while suggesting the final boundary which is to run between
the two districts, more particularly the Jalukie sub-division of Peren in the
Kohima District and the Dhansiripar sub-division in the Dimapur District, the
Committee noted that there were some practical difficulties in placing all the
‘Sumi’ villages in Dimapur and all the ‘Zeliangrong’ village in Kohima
respectively. Therefore, from a purely administrative standpoint, it was
decided that ‘Kiyevi A’ which is a ‘Sumi’ village would be placed under the
Kohima District and ‘Mhaikam’ which is a ‘Zeliangrong’ village would be
placed under the Dimapur District. Therefore, in the eventuality that the
respondent no. 1 village, a ‘Sumi’ village, is given recognition but the
boundary demarcation is decided in such a manner that they would be placed
under the Kohima (now Peren) District instead of the Dimapur District, the
same would not be an outlier considering that there exists another ‘Sumi’
village which was also suggested to be placed under the Kohima (now Peren)
District by the aforesaid Committee for administrative reasons.
SLP(C) No. 9897 of 2016 Page 43 of 61
53. In the meantime, the respondent no. 1 had applied for recognition in the year
2009 and their proposal was elevated for a final decision to the Cabinet after
allegedly complying with the requirements under the O.M.’s dated 22.03.1996
and 01.10.2005 respectively. The Cabinet in its meeting dated 14.12.2011 had
directed that out of the 34 villages whose proposal for recognition was being
considered, a set of 6 villages, which included the respondent no. 1 village
herein, would be required to undergo a joint verification conducted by the
Deputy Commissioners of Peren and Dimapur districts respectively. Now,
once the joint verification was complete, the Deputy Commissioner, Dimapur
vide communication dated 26.07.2012 reiterated that the respondent no. 1
village would fall within the Dhansiripar sub-division of the Dimapur District.
However, the Deputy Commissioner, Peren vide communication dated
23.08.2012 seems to have again referred to the issue of the “inter-distrct
boundary dispute” by stating that “ the office of the D.C. peren has no further
comments for recognition…until the boundary dispute between the two
districts is settled ”. Due to the aforesaid observation made by the Deputy
Commissioner, Peren, the Office of the Commissioner, Nagaland vide
communication dated 05.11.2012 addressed to the Home Commissioner had
suggested that the recognition of the respondent no. 1 village and another
village by the name ‘A.K. Industrial village’, be kept in abeyance till such time
the boundary issue is resolve since this would invite more villages in the
disputed area to seek recognition and cause an environment of serious unrest.
SLP(C) No. 9897 of 2016 Page 44 of 61
Additionally, the Commissioner also invited attention to the Ezong Committee
Report which had recorded its detailed recommendations on the issue of the
boundary dispute between the two districts and sought necessary action on the
matter.
54. Despite granting a formal approval to the Ezong Committee Report on
24.10.2003, it was only after the aforesaid development that a decision was
made to notify the Ezong Committee Report for inviting claims and objections
from the public. Such a decision was taken by the Cabinet in its consultation
meeting as late as 10.06.2013 i.e., more than 10 years after the Ezong
Committee Report was submitted for necessary action. The Cabinet had,
again, emphasized that the recognition of the respondent no. 1 village would
be kept in abeyance until such time the recommendations of the Ezong
Committee is finally notified.
55. In the writ proceedings which was initiated by the respondent no. 1 before the
Single Judge of the High Court, the stance taken by the State was that they
could not decide on the recognition of the respondent no. 1 due to the
subsisting inter-district boundary dispute. It was averred that they were in the
midst of examining the multiple objections received after the
recommendations of the Ezong Committee Report was notified for inviting
views from the public. Furthermore, it was also submitted that they were
SLP(C) No. 9897 of 2016 Page 45 of 61
awaiting a ground reality report on the issue. This stance, however, did not
seem to find favour with the Single Judge of the High Court who went on to
observe that “ the inter-district boundary dispute would have no bearing
insofar as the recognition of the petitioner’s village is concerned ”. However,
the State preferred a Writ Appeal and the Division Bench in its impugned
decision had extended the time-limit for the issuance of formal order(s) of
recognition of the respondent no. 1 village by observing as follows:
“ […] It appears from the submissions made that the village
of the respondents/writ petitioners is situated on the
boundary between Dimapur and Peren districts, both
districts being pre-dominantly inhabited by members of
different tribes. Therefore, demarcation of the boundary of
the village has become a sensitive issue. However, the
Government is taking necessary steps for making the
demarcation to enable issuance of formal order of
recognition of the respondents village as directed by learned
Single Judge. But considering the sensitiveness of the matter,
some more time may be required to complete the exercise, he
submits. ”
(Emphasis supplied)
Therefore, the impugned decision while agreeing with the Single Judge
that the inter-district boundary dispute had nothing to do with the recognition
of the respondent no. 1 village appears to have nevertheless been convinced
with the argument canvassed by the State at least for the purpose of allowing
some additional time to the State authorities.
SLP(C) No. 9897 of 2016 Page 46 of 61
56. Under circumstances such as these, i.e., when the State has taken a policy
decision or through its Cabinet has arrived at a certain conclusion, in their
wisdom, after exhaustively considering all the relevant factors and
recommendations, it would not be appropriate for courts to interfere or
supplant the finding arrived at by the government. In the absence of any patent
arbitrariness, capriciousness, mala fides or illegality, courts have always
subscribed to the rule that executive decision-making must not be dissected
and prodded unnecessarily. This is specially true for a State like Nagaland
wherein the system of administration and governance is slightly different from
the other States and where the government might be more familiar and
informed of the ground realities that exist. In such scenarios, yielding to the
executive expertise might be the right call. This judicial policy of non-
interference with the Cabinet decisions made by the government or vis-á-vis
policy matters is no more res integra .
57. This Court in Sachidanand Pandey and Another v. State of West Bengal and
Others reported in (1987) 2 SCC 295 was faced with a question on whether
the court could judicially review the Cabinet decision of the State government
to lease out a part of the zoo land which was used for fodder cultivation, as a
burial ground, hospital etc. for animals for the construction of a five-star hotel.
While answering in the negative, it was held that the decision to lease out the
land was taken openly and after due application of mind to relevant
SLP(C) No. 9897 of 2016 Page 47 of 61
considerations including the ecology and the provision of alternative facilities
to the zoo. Furthermore, it was stated that in a scenario where the decision-
making of the government was alive to the various relevant considerations and
a conscious decision was arrived at after investing sufficient thought and
deliberation, it would not be appropriate for the court to interfere in the
absence of mala fides plaguing the process. However, if the relevant
considerations are proven to have been cast aside without due deliberation and
irrelevant considerations seem to bear significance, there would be every
reason for courts to interfere in public interest. Still, it was cautioned that it
would not be proper for the court to intervene to the extent that it attempts at
a laborious balancing of the relevant considerations. Instead of indulging in
that exercise, it was suggested that courts must rather resign themselves to
accepting the decision of the government/appropriate authority in that regard.
The relevant observations are reproduced thus:
“ 4. […] The question raised in the present case is whether
the Government of West Bengal has shown such lack of
awareness of the problem of environment in making an
allotment of land for the construction of a five star hotel at
the expense of the zoological garden that it warrants
interference by this Court? Obviously, if the government is
alive to the various considerations requiring thought and
deliberation and has arrived at a conscious decision after
taking them into account, it may not be for this Court to
interfere in the absence of mala fides. On the other hand, if
relevant considerations are not borne in mind and irrelevant
considerations influence the decision, the court may interfere
in order to prevent a likelihood of prejudice to the public.
Whenever a problem of ecology is brought before the court,
the court is bound to bear in mind Article 48-A of the
SLP(C) No. 9897 of 2016 Page 48 of 61
Constitution, the Directive Principle which enjoins that “the
State shall endeavour to protect and improve the environment
and to safeguard the forests and wild life of the country”, and
Article 51-A(g) which proclaims it to be the fundamental duty
of every citizen of India “to protect and improve the natural
environment including forests, lakes, rivers and wild life, and
to have compassion for living creatures”. When the court is
called upon to give effect to the Directive Principle and the
fundamental duty, the court is not to shrug its shoulders and
say that priorities are a matter of policy and so it is a matter
for the policy-making authority. The least that the court may
do is to examine whether appropriate considerations are
borne in mind and irrelevancies excluded. In appropriate
cases, the court may go further, but how much further must
depend on the circumstances of the case. The court may
always give necessary directions. However the court will not
attempt to nicely balance relevant considerations. When the
question involves the nice balancing of relevant
considerations, the court may feel justified in resigning itself
to acceptance of the decision of the concerned authority. We
may now proceed to examine the facts of the present case. ”
(Emphasis supplied)
58. In yet another decision of this Court in Indian Charge Chrome Ltd. and
Another reported in (2006) 12 SCC 331 , it was held that in the absence of the
Cabinet decision being tainted or, vitiated for any palpable reason, the role of
the court in scrutinising the said policy decision, was limited. It was observed
thus:
“[…]There is nothing to show that the noting of the Minister
was tainted in any manner or that the subsequent Cabinet
decision was vitiated for any reason that could be gone into
by the Court. In a sense, counsel for OMC and the State of
Orissa are right in submitting that it was really a policy
decision and the role of this Court in respect of such a policy
decision and its scrutiny was limited and within the scope of
that limited scrutiny, there was no justification in interfering
SLP(C) No. 9897 of 2016 Page 49 of 61
with the decision of the Government. Of course, as we have
indicated earlier, it is for the Central Government to give its
approval or not to give its approval to the proposal of the
State Government. The Central Government is yet to take a
decision. Since, we have not reached that stage, we are also
not called upon to pronounce on it at this stage. ”
(Emphasis supplied)
59. Subsequently, in State of Uttar Pradesh and Others v. Chaudhari Ran Beer
Singh and Another reported in (2008) 5 SCC 550 , this Court was concerned
with an issue wherein the State Government decided on the creation of a new
district by the name of ‘Baghpat’ and published a notification in that regard
The same was challenged by way of a writ petition. This Court had reiterated
that the scope of interference is very limited when policy decisions are
concerned since the government is better equipped to weigh and measure all
the relevant aspects that must be taken into consideration. So long as the
infringement of fundamental rights is not shown or evident, courts must
refrain from substituting its own judgment while assessing the propriety of the
government’s decisions which is made in exercise of its discretion or as a
matter of policy. The relevant observations are reproduced hereinbelow:
“ 13. Cabinet's decision was taken nearly eight years back
and appears to be operative. That being so there is no scope
for directing reconsideration as was done in Ram Milan case,
though learned counsel for the respondents prayed that such
a direction should be given. As rightly contended by learned
counsel for the State, in matters of policy decisions, the scope
of interference is extremely limited. The policy decision must
be left to the Government as it alone can decide which policy
should be adopted after considering all relevant aspects from
SLP(C) No. 9897 of 2016 Page 50 of 61
different angles. In matter of policy decisions or exercise of
discretion by the Government so long as the infringement of
fundamental right is not shown, courts will have no occasion
to interfere and the court will not and should not substitute
its own judgment for the judgment of the executive in such
matters. In assessing the propriety of a decision of the
Government the court cannot interfere even if a second view
is possible from that of the Government .”
(Emphasis supplied)
60. A conspectus of the aforementioned decisions would indicate that when an
executive Cabinet decision is the outcome of sound reasoning, an inclusive
consideration of all the relevant factors and based on recommendations, it
cannot be sought to be faulted with, especially through judicial intervention.
Assailing it in the absence of arbitrariness and merely because a ‘better’
alternate view could have been taken or was possible, would not suffice in
order to strike down such a decision or render it inoperative. The Ezong
Committee, while working on its recommendations for a boundary
demarcation between the two districts and while assessing the ground level
realities existing in the disputed areas, witnessed first-hand potential for
conflict if recognition is given to those villages which were situated in the
disputed area and therefore, suggested that recognition of those select villages
be kept in abeyance. The Deputy Commissioner, Peren also refrained from
commenting on the recognition of the respondent no. 1 village in view of the
subsisting boundary dispute. Therefore, on the advice of the Commissioner
and Home Commissioner, the Cabinet sought to keep the recognition of the
SLP(C) No. 9897 of 2016 Page 51 of 61
respondent no. 1 village in abeyance until the inter-district boundary dispute
was solved. The same cannot be faulted for being unreasonable or arbitrary
and based on no materials.
61. However, we have been apprised of the report of yet another Cabinet Sub-
Committee which was submitted before the Cabinet on 13.07.2021, which re-
examined the inter-district boundary dispute between the Peren and Dimapur
districts. The new committee had the occasion to consider or rather, re-
consider the recommendations made by the Ezong Committee back in 2002.
This Report of the Cabinet Sub-Committee came much after the impugned
decision dated 07.10.2015. Therefore, it cannot be said that the authorities
designated by the Cabinet sub-committee would have been unaware of the
unrecognised status of the respondent no. 1 village or their claim for
recognition while undertaking the site visits, assessing the ground realities and
performing their due diligence on the matter. However, what must be noted
with emphasis is that the Report of the Cabinet sub-committee while
mentioning the tussle which had ensued between the ‘Lamhai’ Village and
‘Kiyevi’ village due to their claims in the disputed area, is conspicuously silent
about the respondent no. 1 village and its conflict, if any, with another village
on account of it falling within the disputed boundary area of the two districts.
Therefore, while there may exist a dispute between the appellant and the
respondent no. 1 village regarding the ownership of land, what is evident is
SLP(C) No. 9897 of 2016 Page 52 of 61
that it does not seem to have anything to do with the boundary dispute which
is prevailing in the region.
62. Moreover, the Report of the Cabinet Sub-committee arrived at a conclusion
that the recommendations of the Ezong Committee were largely feasible and
practical albeit with a few exceptions and partial modifications. Under this
Report too, a ‘Sumi’ village was suggested to be placed under the Peren
District and a ‘Zeliangrong’ village was recommended to be kept in the
Dimapur District, purely for administrative convenience. The second
noteworthy aspect of the present Report was that the establishment and
recognition of new villages within a demarcated “buffer-zone/area” between
the Jalukie sub-division of the Peren District and Dhansiripar sub-division of
the Dimapur District was recommended to be considered only after the
boundary dispute was put to rest. The Report provided an Annexure under
which the list of villages, both recognised and unrecognised, falling within
such a “buffer-zone/area”, was detailed. A careful perusal of the same reveals
that the respondent no. 1 village does not fall within the said buffer-zone/area.
63. On a consideration of the recent report of the Cabinet sub-committee, which
comes as a relatively recent development, it can be seen that the stance of the
State blaming the inter-district boundary dispute for the non-recognition of the
respondent no. 1 deserves to be viewed strictly. When the Ezong Committee
SLP(C) No. 9897 of 2016 Page 53 of 61
Report was published in the year 2002, the respondent no. 1 village was not
inaugurated or established yet. Hence, there is every possibility that the State
authorities attributed the persisting inter-district dispute as a bona fide reason
for keeping the recognition of the respondent no. 1 village in abeyance, largely
due to the absence of clarity on the bounds of the respondent no. 1 village and
whether it fell within the disputed area or not. However, post the year 2021,
i.e., it was obvious and plain as day that the boundary dispute had nothing
whatsoever to do with the case of the respondent no. 1 village, especially since
it’s the case of the State themselves that the respondent no. 1 village is situated
approx. 3.7 kms from the buffer-zone/area.
64. The only reasonable ground or basis to further delay the recognition of the
respondent no. 1 was the objection raised by the appellant to the public notice
dated 13.10.2009. Still, this was also more than 15 years ago. We are equally
baffled and frustrated with the enormous reluctance that the State has
exhibited in considering the merits of the objections of the appellants and
putting an end to this issue.
65. Furthermore, the nature of the objections raised by the appellant are such that
they render it impossible for this court, which owing to its systemic
limitations, would not be well-equipped to understand the nuances of the rich
history of the land and the inter-tribal land related interactions which
SLP(C) No. 9897 of 2016 Page 54 of 61
transpired over the years, to authoritatively decide such claims. The State
authorities would be better suited to delve into the accuracy and correctness
of the claims put forth by the appellant and effectively decide the issue once
and for all. The courts face, for the lack of a better word, a real impediment in
deciding such complex disputed questions of fact which are involved in the
present litigation, especially at this stage. It would also be apposite to mention
that courts must also not bear the burden of what is a responsibility cast upon
the State and entrusted to executive decision-making.
66. The learned counsel for the State has also submitted in her counter-affidavit
that there might be objections by other parties, apart from those raised by the
appellants, which are germane to the issue of the respondent no. 1 village’s
recognition. It is clarified that any and all such objections may also be looked
into and decided upon expeditiously.
67. We appreciate that the State has refrained from adopting a completely
adversarial stand on the present issue but it must not be forgotten that the State
is still duty bound to carry out its role as an administrator and ensure that the
proper governance of its districts and villages do not suffer as a result of it
embracing such a non-confrontational role instead. In the face of conflict, the
State must delicately balance its function as a mediator but also as an authority
while seamlessly morphing into either role as per the demands of the situation
SLP(C) No. 9897 of 2016 Page 55 of 61
before itself. Ever since this Court has taken seisin of this matter, the State has
attempted to bring both parties together, at the same table, on multiple
occasions, in the hopes of an amicable settlement being reached. However,
every one of those attempts has remained unsuccessful in view of both parties
refusing to concede or arrive at a middle-ground. In such a scenario, the only
option that remains with the State is to consider the stand taken by both parties,
on merits, from an objective point of view and implement its decision without
hesitation. We say so, because the alternative – protracting the present impasse
and maintaining this limbo - is equally, if not more undesirable.
68. We have been informed by the State that certain basic facilities have been
made available to the respondent no. 1 and the same is tabulated below:
| SL. NO | NAME OF DEPT. | SCHEME/FACILITIES | REMARKS | ||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|
| 1. | Rural<br>Development | 77 job card holders<br>are there in Kakiho<br>village | The job holders are<br>registered under K.<br>Xikeye village since<br>2012-13. | ||||||||
| 2. | Education | NIL | There are at present no<br>schools in the village.<br>The nearest schools are:<br>1. GPS Ghowoto which<br>is approx.. 2km<br>away.<br>2. GHS Lhotavi village<br>which is approx..<br>3km away. |
SLP(C) No. 9897 of 2016 Page 56 of 61
| 3. GMS at Amaluma<br>which is approx.. 3-4<br>km away.<br>4. GMS at Doyapur<br>which is approx.. 5<br>km away. | |||
|---|---|---|---|
| 3. | Social Welfare | Anganwadi centre<br>with Anganwadi<br>worker/helper<br>available.<br>PMMVY/IGNPS are<br>availed. | |
| 4. | PHED | The village is<br>connected with water<br>supply under Jal<br>Jeevan Mission since<br>2022-2023. All 35<br>households have<br>functional tap<br>connection.<br>Under SBM<br>(Grameen) one plastic<br>waste management<br>unit has been<br>provided during<br>2022-2023. | |
| 5. | Electrical | Electricity connected | Single Point metering |
| 6. | Food and Civil<br>Supplies | There are 16 priority<br>house hold ration card<br>holders. | |
| 7. | Agriculture | NIL | NIL |
| 8. | Horticulture | NIL | NIL |
| 9. | Medical | NIL | No PHC/CHC/SC In<br>Kakiho (U/R). Nearest<br>Sub Centre is at Pimla<br>which is about 6-7 KM |
SLP(C) No. 9897 of 2016 Page 57 of 61
| from Kakiho (U/R)<br>village. | |||
|---|---|---|---|
| 10. | Water Resource | Balu Nallah MI<br>Project – Surface<br>Minor Irrigation<br>(SMI) project under<br>PMKSY “Har Khet<br>Ko Pani”. | |
| 11. | Forest | NIL | NIL |
| 12. | Fishery | NIL | NIL |
| 13. | Land Resources | NIL | NIL |
| 14. | Industries and<br>Commerce | NIL | NIL |
69. In the aforesaid context, the counsel for the appellant also submitted that the
respondent no. 1 currently being unrecognised, would still be entitled to avail
certain benefits which are due to them from their parent village, namely the
‘Khumishi A’ Village belonging to the Asuto sub-division of the Zunheboto
District. The aforesaid may be true in terms of availing benefits like obtaining
free tree saplings under the schemes of the Forest Department; free fruit
saplings from the Horticulture Department; free vegetable saplings, farming
machinery, tools etc. from the Agricultural Department; free saplings of cash
crops and local spices from the Land Resources Department and; access to
several food security schemes under the Food and Civil Supplies Department.
These benefits, not requiring the existence of permanent structures and being
easily transportable, can be availed by sharing in the proceeds of what is made
available to the parent village/neighbouring village(s) on a mutual consent
SLP(C) No. 9897 of 2016 Page 58 of 61
basis for the interim period. However, other essentials facilities like the
construction of roads, health infrastructure, school and other benefits that
would be made available upon the creation of a Village Development Board,
still remain denied to the respondent no. 1 village since they require a separate
and considerable amount of fund allocation on part of the State along with the
erection of permanent structures. It is keeping this in mind that we urge the
State authorities to take a final call on the issue of recognition of the
respondent no. 1 village with the utmost urgency and with strict adherence to
the procedure which has been contemplated for the said purpose. In the likely
event that a decision is arrived at to deny recognition to the respondent no. 1
village, it must be for reasons falling within the umbrella of the procedure laid
out therein and the State must be ready to clearly indicate what their next plan
of action would be, in that scenario.
70. Another set of arguments were canvassed by the respondent nos. 1 and 2 as
regards the relationship between the fundamental rights, more particularly
Articles 14, 19 and 21 guaranteed under Part III of the Constitution and the
special status assigned to customary practices under Article 371A of the
Constitution. It was argued that customary practices protected under Article
371A cannot be utilised as a tool, rather a weapon, to abridge the fundamental
rights of the people of Nagaland and the villagers of the respondent no. 1
village. However, in the absence of the relevant provisions of the 1978 Act
SLP(C) No. 9897 of 2016 Page 59 of 61
and O.M.’s dated 22.03.1996 and 1.10.2005 respectively, themselves being
challenged as being violative of the fundamental rights guaranteed to the
respondent no. 1 village and its inhabitants, there arises no occasion for us
delve into the said question of law. The grievance of the respondent, as we
understand, is primarily due to the delayed action, nay inaction, of the State
authorities in conclusively deciding their application for recognition and the
assignment of irrelevant reasons that perpetually kept their recognition in
abeyance. We believe the said grievance has been addressed by us,
appropriately and in great detail, in the preceding paragraphs.
E. CONCLUSION
71. In light of the aforesaid discussion, it cannot be said that the procedure
envisaged in the two O.M.’s dated 22.03.1996 and 01.10.2005 respectively,
was complied with in the present case. Furthermore, we are of the view that
the inter-district boundary dispute had no nexus whatsoever with the issue of
recognition of the respondent no. 1 village.
72. The decision of the High Court insofar as the observations made regarding the
compliance with the aforesaid two O.M.’s are concerned, is set aside solely
because the High Court while passing the impugned decision, was not alive to
the case of the appellant herein.
SLP(C) No. 9897 of 2016 Page 60 of 61
73. The State authorities are directed to re-issue a public notice regarding the
recognition of the respondent no. 1 village and exhaustively consider all the
objections which may be raised from every quarter, including that of the
appellant herein. A period of six months is provided to the State to complete
the said process and take a call on whether recognition must be granted to the
respondent no. 1 village or not. Non-adherence to this timeline would be
viewed strictly.
74. We treat this matter as part heard. The Registry shall notify this matter after a
period of six months before this very Bench (J.B. Pardiwala and R.
Mahadevan, JJ.) after obtaining appropriate orders from Honourable the Chief
Justice of India.
…………………………………J.
(J.B. Pardiwala)
…………………………………J.
(R. Mahadevan)
New Delhi.
rd
23 May, 2025.
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