No. 4 in the writ proceeding) Mr. HS Th angkhiew v. No . 3

06. The appellant/respondent No. 4 with reference to the orders date d 10.12.2010 and 28.03.2011 and 24.06.2011 passed by this Court in WP(C) No. (SH ) 417/2010, WP(C) No. (SH) 283/2010 and MC No.(SH) 220/2011, arising out of WP(C ) No. No. (SH) 283/2010, permitting the Jaintia District Council to hold the ele ctions concerned, contended that those having been passed in the proceedings, mo re particularly, WP(C) No. (SH) 283/2010, instituted by the Durbar of the respon dent No.3/writ petitioner, were binding on him as the same had remained unassail ed in any higher forum. He contended as well that with the enlarged size of the electorate of 2600 plus, the customary method of elections by head count or show of hands was neither practicable nor feasible and that therefore secret ballot was the appropriate substitute to ensure free and fair process. That, having reg ard to the significance of the post of Pator, incumbent whereof, essentially, ou ght to command respect and confidence of the villagers concerned and that with t he method of head count and raising of hands the proceedings are often hijacked by vociferous and minatory strategies was underlined. The possibility of the Dol loi as an interested party to steer the process of election with a slant and thu s render it farcical was hinted at as well. According to the appellant/responden t No. 4, the steps taken by the Jaintia District Council was in response to a re presentation before it by the Durbar of Sumer along with 15 villages, requesting it to conduct the elections through secret ballot voicing at the same time thei r lack of confidence in the Dolloi. The appellant/respondent No. 4 asserted, as well that the impugned notifications did not violate either the custom of the El aka or any prevailing statutory provision.

07. The learned Single Judge, by the decision oppugned sustained the plea of the respondent No. 3/writ petitioner adverting to section 3 of the Act, 1959 and a decision dated 01.07.1982 of a Division Bench of this Court rendered in CR No. 199/1980 (Indro Paslein Vs. The Executive Committee, Jaintia Hills Au tonomous District Council, Jowai & Ors.) Qua the orders dated 10.12.2010, 28.03. 2011 and 24.06.2011 hereinbefore mentioned, while declaring the sole authority a nd jurisdiction of the Dolloi of Elaka Raliang to hold the elections to the post of Pator of Sumer Patorship inspite thereof, the impugned notifications were se t aside. The learned Single Judge concluded that these orders could not be inter preted to have bestowed any authority on the Jaintia District Council to conduct elections. While holding that in absence of any adequate material, the Court wa s neither empowered nor could change and/or interfere with the prevailing custom ary practice of the tribal residing in Sixth Schedule area, the authority and co mpetence of the Jaintia District Council to conduct the elections to the post of Pator of Sumer Patorship was emphatically negated. The Deputy Commissioner of J aintia Hills District, however, was directed to depute a senior officer under hi s jurisdiction to act as an independent observer for ensuring trouble free elect ions in terms of the prevailing customary practice of the Elaka under the author ity of Dolloi. A time frame to undertake the exercise was also fixed.

08. Mr. Dutta, has insistently argued with reference to the provisio ns of the Sixth Schedule to the Constitution of India that as a District Council envisaged therein is endowed with administrative and legislative jurisdictions, the finding of everlasting permanence of the custom authorizing the Dolloi of a n Elaka exclusively to hold the elections of Pator is extinctive of such constit utional empowerment and is, thus, per se, unsustainable in law. According to the learned Senior Counsel, the mandate contained in the judgment authorizing the D olloi along with his Durbar to adopt or follow a procedure ensuring free and fai r election infringes upon the legislative domain of the Jaintia District Council outlined in the Sixth Schedule. As the authority to enact a law in terms of the General Clauses Act 1897 signifies the power to amend and/or repeal it and/or r e-enact on the same legislative theme, such a curial mandamus to the Council not only undermines its sovereignty but also is incomprehensible in law. Adverting to the amendments to the Sixth Schedule of the Constitution of India occasioni ng changes in the tribal areas under Para 20 thereof, evincing, at the first ins tance, the creation of a new autonomous district, named Jowai District by exclud ing the Jowai Subdivision of the United Khasi Jaintia Hills District and eventua lly designating it to be Jaintia Hills District, the learned Senior Counsel main tained that in face of Section 3 of the Act, 1959 and Jowai Autonomous District (Administration) Act, 1967 (for short hereafter referred to as the Act, 1967) th e Acts, Rules and Regulations made by the United Khasi - Jaintia Hills District Council as listed in Appendix-I thereof (Act, 1967) applied to the then Jowai Au tonomous District (now Jaintia Hills District) in so far as they were applicable to it till such time, the Jowai District Council made its own laws. Mr. Dutta, therefore, emphatically urged that in absence of any law made by the Jowai Distr ict Council and for that matter the Jaintia District Council, as on date, Act, 1 959 (included in Appendix - I to Act, 1967) applied to the Jowai Autonomous Dist rict/Jaintia Hills District for all intents and purposes. According to him, sect ion 3 of the Act, 1967 connoted legislation by reference and, therefore, all ame ndments to Act, 1959, in absence of any law made by the then Jowai Autonomous Di strict Council and presently the Jaintia Hills Council were applicable vis-a-vis the related issues pertaining to the Jowai Autonomous District/Jaintia Hills Di strict. The learned Senior Counsel referred to the amendments in particular to s ection 3 of the Act 1959, incorporated by Act, No-I of 1969 and Act No-II of 197 1 to insist that in terms of the amended provision, the Executive Committee of t he concerned District Council was also empowered to issue orders from time to ti me in the matter of elections or nominations and appointments of Chiefs and Head man. That in the contemporaneous context with the enlarged size of the electorat e and in public interest, secret ballot was, even otherwise the call of the hour was underlined by the learned Senior Counsel. Referring to the orders dated 10. 12.2010, 28.03.2011 and 24.06.2011, Mr. Dutta urged that the challenge laid by t he respondent No. 3/writ petitioner ought to have been spurned in limine on the ground of estoppel and acquiescence. The following decisions were cited to reinf orce his assertions, viz, AIR 1961 SC 276, T. Cajee Vs. Jormanik Siem & Anr., (1975) 2 SCC 377, The State of Madhya Pradesh Vs. M.V. Narasimhan, 1982 (1 ) GLR 834, M/s. B.N. Dey & Co. Vs. State of Assam & Ors., (2003) 4 SCC 200, Maha rashtra State Road Transport Corporation Vs. State of Maharashtra & Ors. and (20 05) 8 SCC 504, Rakesh Vij Vs. Dr. Raminder Pal Singh Sethi & Ors.

09. Mr. Thankhiew appearing for the Jaintia District Council, howeve r, argued with reference to unamended section 3 of the Act, 1959 to contend that in exercise of the overriding executive powers of the District Council contempl ated in Rule 28 of the Assam and Meghalaya Autonomous Districts (Constitution of District Councils) Rules, 1951 (for short hereafter referred to as the Rules, 1 951) as recognized by this Court in Ewanlangki-E-rymbai & Ors. Vs. Jaintia Hills District Council, 2003 (3) GLT 66, the Jaintia District Council was within its jurisdiction to issue impugned notifications. He reiterated that secret ballot, having regard to the ground realities and the issues pertaining to law and order was an imperative to ensure free and fair elections. According to him, the step s taken by the Jaintia District Council vis-a-vis the proposed elections were in valid exercise of its executive powers vested in it by law for ensuring proper governance and administration of the district. Mr. Thangkhiew placed reliance on the following decisions, viz, (2006) 4 SCC 748, Ewanlangki-E-Rymbai Vs. Jaintia Hills District Council & Ors., and 2003 (3) GLT 66, Ewanlangki-Erymbai & Ors. V s. Jaintia Hills District Council.

10. Ms. Goyal, per contra, has questioned, to start with, the locus standi of the appellant to pursue the instant appeal. Referring to the definitio n of the Durbar provided in section 2(e) of the unamended Act, 1959, the learned counsel has urged that the appellant lacked in authority to initiate the instan t proceeding and, thus, on that count the appeal ought to be dismissed. Accordin g to her, the orders dated 10.12.2010, 28.03.2011 and 24.06.2011 did not, per se , accouter/empower the Jaintia District Council to conduct the elections of Pato r of the Sumer Patorship as a valid substitute of the Dolloi of the Elaka. She u rged with reference to section 3 of the Act, 1967 to insist that a plain perusal of the language thereof would reveal that no amendment to the Act, 1959, as it originally stood then, was intended to automatically apply to the areas under th e Jowai District Council (presently to the Jaintia District Council). She mainta ined that the decisions on behalf of the appellant on legislation by reference/i ncorporation are inapplicable in the contextual facts as the area was under the Sixth Schedule to the Constitution of India and the enactments being of a Distri ct Council. According to her, having regard to the scheme of the Sixth Schedule and the autonomy granted to the District Councils, the laws framed by them would necessarily be regulated by the respective territorial limits of governance the reby. She, therefore, insisted that the amendments, amongst others, to section 3 of the Act, 1959 having been introduced by the related enactments of the Khasi Hills Autonomous District Council, the same not having been adopted by the Jaint ia District Council were not applicable to the areas administered by the latter. To reinforce this plea, the learned counsel adverted to the Jaintia Hills Autono mous District (Appointment and Succession of Chiefs and Headmen) Amendment Act, 1973 and the Jaintia Hills Autonomous District (Appointment and Succession of Ch iefs and Headmen) 2nd Amendment Act, 1975 to highlight that though these instrum ents incorporated amendments to the Act, 1959, section 3 thereof, as originally framed, was left untouched. Ms. Goyal, therefore, emphatically pleaded that no i nterference with the impugned judgment and order is warranted. She relied on the following decisions to buttress her contentions (1984) 1 SCC 222, Motor General Traders & Anr. Vs. State of Andhra Pradesh & Anr., (1984) 4 SCC 251, Prabodh Ve rma & Ors., Vs. State of Uttar Pradesh & Ors., (2005) 10 SCC 437, State of Jhark hand & Anr. Vs. Govind Singh, (2007) 8 SCC 705, Chairman, Indore Vikas Pradhika ran Vs. Pure Industrial Coke & Chemicals Ltd. & Ors. and 2003 (3) GLT 66, Ewanla ngki-Erymbai & Ors. Vs. Jaintia Hills District Council.

11. The pleadings available, the documents in support thereof and th e legislations referred to in by the parties have been duly attended to. The pre liminary demur against the maintainability of the instant appeal by the responde nt No. 4 in the writ petitioner needs to be addressed at the threshold. The appe llant, as the writ petition would disclose, was essentially not impleaded as a r espondent. It got arrayed as Durbar of Sumer Patorship represented by its Secret ary, Shri Aphrian Paslein, Jowai, Jaintia Hills District, Meghalaya. That none o f the respondents had filed any affidavit-in-opposition has been referred to her einabove. The learned Single Judge, as the impugned judgment and order would rev eal, however, duly recorded their contentions. The appellant/respondent No. 4 di d participate in the adjudication being represented by its learned counsel plead ing for the validity of the impugned notifications of the Jaintia District Counc il.

12. The expression (cid:28)Durbar (cid:29) has been defined in the Act, 1959 (prior to its amendment) vide the UKJHAD (Appointment and Succession of Chiefs and Hea dmen) Act No. I of 1969 (for short hereafter referred to as the Amendment Act of 1969). Section 2 (e):- (cid:28)Durbar (cid:29) means Durbar constituted by the District Council under any law to guide the Chief in running the administration of the Elaka and pendin g the constitution of such Durbar, the existing customary Durbar recognized as s uch by the Executive Committee with the subsequent approval of the District Coun cil shall be deemed to be such a Durbar. Subsequent to the amendment, this expression as adverted hereto 13. before stood defined thus: - (cid:28)Durbar Pyllun (cid:29), means a Durbar Hima or a general D urbar of the Elaka to be convened by the chief within 30 days from the date, a r equisition is made by not less than one-third of the members of the Durbar as de fined in clause (f) above, or by not less than 50 adult male residents of the El aka; provided that the Executive Committee approves the agenda and or the purpos e for which the meeting of the Durbar is sought to be requisitioned. To appropriately evaluate the plea of want of locus of the appel 14. lant, the definition of the expression (cid:28)The Chief and its Durbar (cid:29) provided in se ction 2 (f) of the Act, 1959, as above, need be noticed as quoted hereunder: - (cid:28)2(f) (cid:28)The Chief and his Durbar (cid:29) means an Executive Durbar presided over by the Chief of the Elaka with certain Headmen as members, the number of which shall be determined, and the names of which shall be approved, by the Executive Committe e on the recommendation of the Durbar of the Chief and all the Headmen of the El aka. The function of this Durbar is to run the day-to-day administration of the Elaka. (cid:29)

15. A cumulative reading of the definitions of the expressions (cid:28)Durb ar (cid:29), (cid:28)Durbar Pyllun (cid:29) and the (cid:28)The Chief and his Durbar (cid:29) in our comprehension irr efutably denotes that the Durbar is a body constituted/approved by the District Council to conduct the day-to-day administration of the Elaka and amongst others to guide the Chief (which includes a Dolloi as defined in section 2(a) of Act, 1959) of the Elaka. Not only, the definition of Durbar connotes an element of pe rmanence in the entity, attention of this Court has not been drawn to any materi al on record that the Durbar of Sumer Patorship is non-existent or that Secretar y, Shri Aphrian Paslein, Jowai, Jaintia Hills District, Meghalaya is no longer a uthorized to represent it as done in the writ proceeding as well as in the prese nt appeal. In the above factual and legal premise, the assailment to the maintai nability of the appeal on the ground of lack of locus standi of the appellant la cks persuasion and is negated.

16. To reiterate, the learned Single Judge had laid great emphasis o n the judgment and order dated 01.07.1982, passed in Indro Paslein (Supra), to r eturn the finding that the Dolloi of the Elaka Raliang was the sole authority to hold elections for appointment of Pator in the Sumer Patorship in accordance wi th the existing laws and customs prevailing in the Elaka. A perusal of this deci sion reveals that the challenge in the related proceeding was against the appoin tment of the respondent No. 5 therein, as the Acting Pator of the Sumer Patorshi p. The writ petitioner’s averment made therein that as per the custom prevalent in the area, the Pator of Sumer was to be appointed and confirmed by the Dolloi and his Durbar had remained unrefuted. This was construed to be an admission of the correctness of such assertion. Referring to section 3 of the Act, 1959, as i t stood prior to its amendments in 1969 and 1971 as adverted to hereinabove, it was held that in terms thereof, the jurisdictional District Council had no autho rity in law to make the appointment of Acting Pator. The background of the evolution of the Jaintia District Council and the concomit ant laws did not figure for scrutiny. The adjudication recorded in the judgment and order dated 01.07.1982 was, thus evidently in a limited context of the facts bearing on the appointment of Acting Pator by the Jaintia District Council. Hav ing regard to the expanded anvil of legal and factual projections in this appeal , the decision in Indro Paslein (Supra), in our view, is not of any decisive sig nificance.

17. A plain perusal of the orders dated 10.12.2010, 28.03.2011 and 2 4.06.2011 passed in WP(C) No. (SH) 417/2010 and MC No.(SH)220/2011 in WP(C) No. (SH) 283/2010 also do not deal with the issues bearing on the applicability or o therwise of section 3 of the Act, 1959 as amended by Amendment Acts of 1969 and 1971. The impact of the Act, 1967 as well, did not fall for judicial scrutiny. N oticeably, these orders permitted the Jaintia District Council to conduct the el ection of Pator of Sumer Patorship by secret ballot in presence of the Chief of the Elaka and also did on its prayer grant extension of time therefor. In WP(C) No. (SH) 283/2010, as well as, in MC No. 220/2010, the Dolloi, Elaka Raliang was a party and logically the orders dated 28.03.2011 and 24.06.2011 were passed in his presence without any remonstrance. The impugned notifications dated 12.07.2 011 and 19.07.2011, as the same would divulge, were issued pursuant to the order s dated 10.12.2010 and 24.06.2011 referred to hereinabove. These orders as well to reiterate though, had permitted the Jaintia District Council to conduct the e lections to the office of the Pator at Sumer Patorship under Elaka Raliang, ther e was no occasion to examine the applicability or otherwise of section 3 of the Act, 1959 as amended vide the Amendment Acts of 1969 and 1971 to such exercise. A brief preface of the constitutional perspective qua the autono 18. my, dominion and the jurisdiction of the District Council envisaged under the Si xth Schedule to the Constitution of India would be an apt initiation to the pith of the debate encountered by the adjudicative pursuit in hand.

19. Article 244 (2) of the Constitution of India (as it stands today ) enjoins that the provision of the Sixth Schedule would apply to the administra tion of the tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram. Para 1 of the Sixth Schedule predicates that the tribal areas, in each item amo ngst others of Part-II of the Table appended to paragraph 20 thereof would be au tonomous districts. In terms of sub-paragraph 3 of para 1, the jurisdictional Go vernor, may, by public notification, amongst others, include/exclude any area in any of the part of the said table, create a new autonomous district, unite two or more autonomous districts or parts thereof, so as to form one autonomous dist rict, alter the name of any autonomous district and define the boundaries of any such district. Paragraph 20 elucidates that the tribal areas catalogued under Part-II thereof p ertains to the State of Meghalaya and are designated as Khasi Hills District, Ja intia Hills District and Garo Hills District. These areas under Part-II of the T able appended to para 20 of the Sixth Schedule as originally framed were compose d of the United Khasi - Jaintia Hills District and the Garo Hills District. The North-Eastern Areas (Re-Organization) Act, 1971 enforced w.e.f. 30.12.1971 was a n enactment to provide for the establishment of the States of Manipur and Tripur a and to provide for the formation of the State of Meghalaya and of the Union Te rritories of Mizoram and Arunachal Pradesh by reorganization of the existing Sta te of Assam and for matters connected therewith. Thereby, inter alia, by way of amendment to the Sixth Schedule to the Constitution, the tribal areas under Part -II of the Table appended to paragraph 20 thereof were shown to be comprised of the United Khasi-Jaintia Hills District, the Jowai District and the Garo Hills D istrict.

20. The insertion of the Jowai District as above, in Part-II of the Table appended to paragraph 20 of the Sixth Schedule is traceable to the notific ation No. TAD/R/50/64, dated 23.11.1964 notifying the creation of a new autonomo us district christened as Jowai District by excluding the Jowai Subdivision of t he United Khasi Jaintia Hills District w.e.f. 01.12.1964 by the Governor of Assa m in the exercise of his powers under Clauses (c), (e) and (g) of paragraph (1) (3) of the Sixth Schedule. The notification, amongst others, disclosed that the creation of the new autonomous district was on a consideration of the report of the Commission appointed for the purpose and further that the boundaries of the Jowai District would be those of the Jowai Subdivision of the United Khasi-Jaint ia Hills District. Subsequent thereto, by notification No. DCA.31/72/11, dated 14.0 21. 6.1973, the United Khasi-Jaintia Hills District and the Jowai District were re-d esignated as the Khasi Hills District and the Jaintia Hills District respectivel y. The notification mentioned that the renaming of the autonomous districts was in exercise of the power conferred by Clause (ff) of sub-paragraph (3) of paragr aph 1 of the Sixth Schedule to the Constitution of India by the Government of Me ghalaya. Vide the said notification corresponding amendments in paragraph 20 of the Sixth Schedule to the Constitution were incorporated. The configuration of t he tribal areas in Part-II of the Table of paragraph 20 of the Sixth Schedule at present is as already indicated i.e. Khasi Hills District, Jaintia Hills Distri ct and the Garo Hills District.

22. This recital of the metamorphosis of the tribal areas of the Sta te of Meghalaya, notwithstanding, a few provisions of the Sixth Schedule to the Constitution of India bearing on the statutes involved and the powers of a Distr ict Council deserve allusion. Paragraph 2 thereof enjoins a District Council for each autonomous district with the composition as prescribed. Such District Council would be a body corporate by the name respectively of the district concerned with perpetual succession and a common seal capable to sue and of being sued in that name. Sub-para (4) of pa ra 2 mandates that the administration of an autonomous district, if not vested i n any Regional Council, would rest with the District Council. Para 3 confers pow ers on the District Councils for autonomous districts to make laws with respect, amongst others, to the appointment or succession of Chiefs or Headmen. Sub-para graph 3 thereof, ordains that all laws so made shall be submitted forthwith to t he Governor and until assented to would have no effect. Paragraph 4 confers judi cial powers to the District Council to the extent as indicated therein. In terms of paragraph 11, all laws, rules and regulations made by a District Council or a Regional Council, as the case may be, have to be published forthwith in the Of ficial Gazette of the State and on such publication would have the force of law. Paragraph 12 A vis-a-vis the State of Meghalaya predicates the application of A cts of Parliament and of the Legislature of the State to Autonomous Districts an d Autonomous Regions thereof.

23. A survey of the provisions of the Sixth Schedule as above, would demonstrate in unequivocal terms the independence and paramountcy of a District Council in the matter of overall administration of tribal area(s) within its ju risdictional limits. The Sixth Schedule comprehends executive legislative and ju dicial roles of a District Council being appropriately attired therefor. The Six th Schedule to the Constitution of India is a self-contained code, in which, the District Councils and the Regional Councils with their jurisdictions outlined h ave been assigned sovereign status with powers and the dominion commensurate the reto. The plea against the permissibility of impingement upon such constitutiona lly conferred powers, thus, cannot be discounted. With the creation of the Jowai Autonomous District, to join the course of events consequent upon the creation of the Jowai Autonomous District in 1964, in exerc ise of its powers under the Sixth Schedule, the District Council of Jowai Autono mous District enacted the Act, 1967 and the same was published on receiving the assent of the Governor concerned. The preamble to this Act, which set out the ex igency therefor, revealed the following features: - 1) It was felt expedient to make provision for the administration of the Jowai A utonomous District. 2) The Jowai District Council had no Law, Rules and Regulations till then. 3) All laws, Rules and Regulations made by the United Khasi-Jaintia Hills Distri ct Council had applied in this district in the past. 4) It was necessary to make arrangements for the application of certain Acts, Ru les and Regulations made by the United Khasi-Jaintia Hills District Council. The Act provided that it would come into force w.e.f. 11.04.1967 and extend to t he whole autonomous district hitherto known as Jowai Sub-Division. The words (cid:28)the District (cid:29), (cid:28)The District Council (cid:29), (cid:28)The Executive Committee (cid:29) appe aring in the Acts, Rules and Regulations made by the United Khasi-Jaintia Hills District Council as mentioned in Schedule I to the Act were construed to mean (cid:28)T he Jowai Autonomous District (cid:29), (cid:28)The Jowai District Council (cid:29) and (cid:28)The Executive C ommittee (cid:29) of the District Council of the Jowai Autonomous District (cid:29). In Appendix -I, amongst others, the Act, 1959 was listed to be one of the enactments contemp lated to apply to the Jowai Autonomous District.

24. By the operation of section 3 of Act, 1967, with its inclusion i n appendix I, the Act, 1959, was legislatively ordained to apply to the whole of Jowai Autonomous District (cid:28)for the time being (cid:29), till such time the Jowai Distri ct Council made its own law.

25. The march of events next witnessed amendments to the Act, 1959 b y the Amendment Acts of 1969 and 1971, recasting more importantly section 3 of t he Act, 1959 dealing with the election or nomination and appointment of Chief an d Headmen. Though, not in the thick of the dissensus, it would be appropriate to notice the definition of the words (cid:28)Chief (cid:29) and (cid:28)Headman (cid:29) under the Act, 1959 as originally enacted and following its aforementioned amendments as extracted her eunder: - Section 2(a)_ (cid:28)Chief (cid:29) means a Syiem, a Lyngdoh, a Dolloi, a Sirdar or a Wahadada r as the case may be of any Elaka. This definition remained unaltered on the above amendments.

26. a Lyngdoh Raid, a matabor, Elector, a Pator, a Sangot and village elder. With the amendments as above, a Sirdar, Shnong, Sirdar Raid and Rangbah Shnong h ave been brought within the purview of the expression (cid:28)Headmen (cid:29). Section 2(k)_ (cid:28)Headmen (cid:29), means a Myntri, a Syiem Raid, a Basan,

27. hereinbelow in succession :- The original and the amended section 3 of Act, 1959, are also extracted (cid:28)3. Elections and Appointment of Chief’s and Headmen :- Subject to the provisio n of this Act and the Rules made thereunder all elections and appointments of Ch iefs or Headmen shall be in accordance with the existing customs prevailing in t he Elaka concerned (cid:29). Amended: (cid:28)3. Election or Nomination and Appointment of Chief and Headmen:- Subject to the provisions of this Act and the Rules made thereunder, all elections or nominati ons and appointment of Chiefs and Headmen shall be in accordance with the existi ng custom or prevailing in the Elaka concerned and or in accordance with the ord ers as the Executive Committee may issue from time to time. The Secretary of the Executive Committee or any Officer appointed by the Executive Committee in this behalf shall be the Returning Officer for all nominations or elections under th is section (cid:29).

28. While there is no dispute that the election of Pator is envisage d by section 3, the polemic is qua the applicability of the amended section 3 of Act, 1959 to the Jowai Autonomous District (now renamed as Jaintia Hills Distri ct). Whereas, it has been insisted on behalf of the appellant that in the face o f 1967 Act, with particular reference to section 3 thereof, the Act, 1959 with a ll its amendments, in absence of laws to the contrary made by the Jowai/Khasi Hi lls District Council on the same theme would be wholly applicable to the Jaintia Hills District for all matters provided thereby, the plea of the respondent No. 3/writ petitioner is opposed thereto. Reference to the Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Amendment Act, 1973 (for short hereafter referred to as the Act, 1973 and the Jaintia Hills Autonomo us District (Appointment and Succession of Chiefs and Headmen) (2nd amendment) A ct, 1975 (hereafter for short referred to as the Act, 1975) has been strenuously made to contend that as section 3 of Act, 1959, as originally framed, was not a mended by these two legal instruments, vis-a-vis the Khasi Hills District, the s ame, in the original complexion applied in the matter of elections or nomination s and appointment of Chief and Headmen thereof.

29. A bare perusal of Act 1973 and Act 1975 exhibits that those are the enactments of the Jaintia District Council in exercise of power under paragr aph 2 of the Sixth Schedule to the Constitution of India introducing amendments to the Act 1959 in its application to the Jaintia Hills Autonomous District. The se amendments visibly have not touch upon section 3 of Act 1959, as it stood on the dates of these legislations i.e. 10.11.1973 and 13.12.1975 respectively.

30. A close scrutiny of original and amended section 3 of Act, 1959 would demonstrate that whereas, in the former, all elections and appointments of Chiefs and Headmen were to be conducted in accordance with the existing customs prevailing in the Elaka concerned as per the new provision in the alternative, it is permissible to administer the same in accordance with the orders of the Ex ecutive Committee of the concerned District Council. The Secretary of the Execut ive Committee thereof or any Officer appointed by the Executive Committee is to be the Returning Officer for all nominations or elections thereunder. These two provisions when placed in juxtaposition, however, do not spell extinction of the role of the existing custom prevailing in the Elaka in the elections or nominat ions and appointments of Chiefs and Headmen thereof by the amendment.

31. Be that as it may, the issue of moment is the underlying purport of Act, 1967 vis-a-vis the Act, 1959 in particular in its applicability to the Jaintia Hills District with all its amendments as on date. This assumes signific ance, in absence of any specific law and independent legislation made by the Jai ntia District Council on the aspects covered by Act, 1959 and in total substitut ion thereof. To reiterate, the Act, 1973 and the Act, 1975 are by way of amendme nts of Act, 1959 to the extent as indicated therein, but do not have the potenti al or efficacy of replacing the same as a whole. These two enactments, though, h ave not referred to section 3 of Act, 1959, the form and essence of this legal p rovision, vis-a-vis, the Jaintia Hills District would be contingent on the inter pretation of section 3 of Act, 1967 and the import thereof. Does section 3 of Ac t, 1967 signify legislation by reference or incorporation is thus the quaere.

32. Section 3 of the Act, 1967, enacted by the then Jowai Autonomous District Council in exercise of its powers conferred by paragraph 11 of the Six th Schedule to the Constitution of India strutting the centre stage of the debat e demands its extraction as a prefatory imperative to the survey of the judicial pronouncements bearing on the legal conundrum: - (cid:28)3. Application of Acts, Rules and Regulations made by the United Khasi-Jaintia Hills District Council. The Acts, Rules and Regulations made by the United Khasi-Jaintia Hills District Council as listed in appendix I and such other reference thereon in respect of t he Officers, etc., shall apply to the Jowai Autonomous District in so far as the y are applicable to it for the time being till such time when the Jowai District Council makes its own laws. (cid:29) The preamble to this Act, as adverted to hereinabove, exudes that on the date of the enactment thereof, the Jowai District Council had no Laws, Rules and Regula tions of its own and the said legislation was felt necessary to effectuate an ar rangement for the application of certain Acts, Rules and Regulations made by the United Khasi-Jaintia Hills District council for the administration of the Jowai Autonomous District. Admittedly, the Act, 1959, was one of the legislations lis ted in appendix I. Section 3 on a dialectical analysis yields the following three salient attribute s: - i) The Acts, Rules and Regulations made by the United Khasi-Jaintia Hills Distri ct Council as listed in appendix I and such other reference thereon in respect o f Officers, etc., would apply to the Jowai Autonomous District. ii) Such application would be for the time being. iii) The duration of such application would be till such time the Jowai District Council made its own laws. There is no dissension at the Bar that till date neither the Jow 33. ai Hills Autonomous District Council nor the Jaintia District Council had made l aws either replacing the Act, 1959 as a whole or legislating an independent enac tment on the aspects enfolded in the Act 1959 barring Act 1973 and Act 1975 addr essed to hereinabove.

34. In The State of Madhya Pradesh Vs. M.V. Narasimhan (Supra), thei r Lordships, while dwelling on the subtle features of legislations by reference and incorporation, laid the following proposition: - (cid:28)14. On a consideration of these authorities, therefore, it seems that the follo wing proposition emerges: Where a subsequent Act incorporates provisions of a pr evious Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in t he previous Act. This principle, however, will not apply in the following cases: (a) where the subsequent Act and the previous Act are supplement to each other; (b) where the two Acts in pari materia; (c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and (d) where the amendment of the previo us Act, either expressly or by necessarily intendment, applies the said provisio ns to the subsequent Act. (cid:29)

35. Dilating on the same view their Lordship in Maharashtra State Ro ad Transport Corporation (Supra), while observing that the legislative practice to borrow the provisions of an earlier Act on a particular subject by making a b road reference to an earlier enactment or some or most of its provisions is a co nvenient measure to avoid verbatim repetition of the said provisions, affirmed t hat any modification in the said provisions of the earlier Act would apply mutat is mutandis to the matters governed by the latter legislation. Their Lordships e lucidated that if there is a definite indication in the latter enactment as to t he applicability or otherwise of subsequent amendments in the prior Act, no diff iculty would surface, but the problem would emerge in absence of such indication . It was enounced with reference to the two distinct devices of legislation i.e. incorporation by reference and mere reference or citation of earlier statute in the latter Act, that in the former case, any change in the incorporated statute by way of amendment or repeal would have no effect on the incorporating statute . However, in the latter case, any modification in the earlier statute from time to time would have its impact on the statute in which it is referred to. In suc h a situation, the provisions in the earlier statute with their amendments would have to be read into the latter enactment in which they are referred to unless any such subsequent amendment is inconsistent with a specific provision already in existence. That the pursuit to decipher the true visage of the enactment invo lves a probe into the legislative intention and/or an insight into the working t hereof was underlined. One of the indices, their Lordships fathomed with referen ce to the decision in Privy Council in Secy. of State Vs Hindustan Coop. Insuran ce Society Ltd., AIR 1931 PC 149, was whether the extent of modifications made i n the provisions of the earlier Act, while broadly adopting the same in the latt er enactment are (cid:28)numerous and substantial (cid:29), so much so to indicate that the int ention on the part of the legislature was not to travel beyond the provisions of the borrowed Act as they existed at the time of framing of the subsequent enact ment. In a later decision, the Hon’ble Apex Court in Rakesh Vij Vs. Dr 36. . Raminder Pal Singh Sethi & Ors. (Supra), enunciated that the determination whe ther a legislation was by way of incorporation or reference is more a matter of construction by the courts keeping in view the language employed by the statute, the purpose of referring or incorporating provisions of an existing Act and the effect of it on the day-to-day working. That the prime duty of the courts is to assume that any law had been made by the legislature to serve public purpose wa s emphasized. It quoted with approval its earlier observation in UP Avas Evam Vi kas Parishad Vs. Jainul Islam, 1998 2 SCC 487, that to determine as to whether a particular legislation falls in the category of referential legislation or legi slation by incorporation depends upon the language used in the statute in which reference is made to the earlier legislation and other relevant circumstances. This Court in reiteration of the above recognized distinctive tr 37. aits of the two types of legislative tools clarified in M/s. B.N. Dey & Co. Vs. State of Assam & Ors., (Supra) that legislation by incorporation is a common leg islative measure employed by the legislature, where it for convenience of drafti ng incorporates the provisions from an existing statute by reference to that sta tute instead of setting out for itself at length the provisions which it desires to adopt and once the incorporation is made, the provision incorporated becomes an integral part of the statue in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute. Thei r Lordships observed further that when there is no actual incorporation, but the intention is only to refer to another statute for the purpose of implementing t he referring statute, section 8(1) of the General Clauses Act, 1897 would apply and consequently any modification in the provisions of the enactment referred to in the incorporating Act would have to be read therein unless a different inten tion appears.

38. Applying the above judicially adumbrated norms distinguishing th e two legislative measures adverted to hereinabove, we are of the unhesitant opi nion, having regard to the language applied in section 3 of the Act, 1967 and th e factual backdrop thereof that it signified legislation by reference, vis-a-vis , the enactments catalogued in appendix I thereof, till, however, the then Jowai Autonomous District Council (presently Jaintia District Council) made its own l aws in substitution thereof. The expressions (cid:28)for the time being (cid:29), (cid:28)till such ti me (cid:29) and (cid:28)makes its own laws (cid:29) are precisely obvious determinants in support of th is conclusion. In other words, in absence of any law made by the then Jowai Auto nomous District Counsel followed by the Jaintia District Council in abrogation o f Act, 1959 as a whole, the touch ups effected by the Acts, 1973 and 1975, in ou r comprehension, do not, ipso facto, signify that the other amendments, meanwhil e occasioned in the Act, 1959, amongst others, remodeling section 3 thereof woul d be inapplicable to the Jaintia Hills District. None of the factors indicated i n the above referred decisions at the Bar attest against recognition of the Act, 1967 in general and section 3 thereof in particular to be a legislation by refe rence and not one by incorporation.

39. The decision in Prabodh Verma & Ors., Vs. State of Uttar Pradesh & Ors. (Supra), defining a distinction between a section of an Act and the enac tment as a whole is not of decisive relevance. That, an infinite extension of ap plication of unequal laws militate against their character as temporary measure and that the decision to withdraw the application of unequal laws to equals cann ot be delayed unreasonably was observed by the Apex Court in HH Shri Swamiji of Shri admar mutt. vs. Commissioner, hindu religious & charitable endowments depar tment, (1980) 1 SCR 368. This decision is not only founded on existence and invo cation of unequal laws to equals, a feature which the legislations involved here in do not bear in our estimate, this observation in the attendant facts and circ umstances is of no avail to the respondent No. 3/writ petitioner. In State of Jharkhand & Anr. Vs. Govind Singh (Supra), the Hon’b 40. le Apex Court while recalling the oft quoted fundamental principles of statutory interpretation reiterated that when the words applied in a statute are clear an d there is neither any obscurity nor ambiguity and the intention of the legislat ure is thereby clearly conveyed, there is no scope for the court to innovate or take upon itself a task of amending or altering the statutory provisions. While emphasising that the line which separates adjudication from legislation, though thin, ought not to be crossed or erased, their Lordships underlined that a const ruction which requires, for its support, addition or substitution of words or wh ich results in rejection of words, has to be avoided, unless it is covered by th e rule of exception, including that of necessity. It was enunciated that where t he language of a statute is clear, the intention of the legislature is to be gat hered therefrom and the judges should not assume the role of a lawmaker for exhi bition of judicial valour. 40.A. The following invaluable excerpts from pages 28,29,36,45 & 199 the hallowed treatise (cid:28)The Interpretation of Statutes (cid:29) by Maxwell (12th E dn.) are convincingly clinching:- (cid:28)The rule of construction is (cid:28)to intend the Legislature to have meant what they have actually expressed. (cid:29) The object of all interpretation is to discover the in tention of Parliament, (cid:28)but the intention of Parliament must be deduced from the language used, (cid:29) for (cid:28)it is well accepted that the beliefs and assumptions of th ose who frame Acts of Parliament cannot make the law. (cid:29) & & & & & & & & & & & & & & & & & & & & & & &. (cid:28)Where, by the use of clear and unequivocal language capable of only one meaning , anything is enacted by the legislature, it must be enforced however harsh or a bsurd or contrary to common sense the result may be. The interpretation of a sta tute is not to be collected from any notions which may be entertained by the cou rt as to what is just and expedient: words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason app ears why they should not be embraced or excluded. The duty of the court is to ex pound the law as it stands, and to (cid:28)leave the remedy (if one be resolved upon) t o others (cid:29). & & & & & & & & & & & & & & & & & & & & & & & & & (cid:28)A construction which would leave without effect any part of the language of a s tatute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated. (cid:29) & & & & & & & & & & & & & & & & & & & & & & & & & (cid:28)If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a constructi on which would reduce the legislation to futility and should rather accept the b older construction based on the view that Parliament would legislate only for th e purpose of bringing about an effective result. (cid:29) & & & & & & & & & & & & & & & & & & & & & & & & & (cid:28)In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which a ppears to be most in accord with convenience, reason, justice and legal principl es should, in all cases of doubtful significance, be presumed to be the true one . (cid:29)

41. In the wake of the genre of the Act, 1967, attributed as above, we are of the unhesitant opinion that section 3 of Act, 1959, as amended by Act, 1969 and Act, 1971 continues to apply to the present Jaintia District Council a nd, thus, the elections or nominations and appointment of Chiefs and Headmen as contemplated therein would essentially be guided thereby. The deduction to the c ontrary would signify total disregard to the progression of events as on date si nce the enactment of this statute and in particular of Act, 1967. A plain readin g of section 3, however, does not signify the substitution or exclusion of the c ustom prevailing in the Elaka or denudation of its relevance in the matter of el ections or nominations and appointment of Chiefs and Headmen. The amended sectio n 3 only prescribes two alternatives to undertake the election, nomination or ap pointment of Chiefs and Headmen i.e. either by resorting to the existing custom prevailing in the Elaka or in accordance with the order(s) of the Executive Comm ittee of the Jaintia District Council. Be that as it may, in view of the determination made hereinabove 42. , the impugned judgment and order is unsustainable in law and on facts and is, t hus, interfered with. The plea that the authorities cited at the Bar dwelling on the legal nuances of legislation by reference and incorporation have no applica tion to the laws framed under the Sixth Schedule to the Constitution of India la cks in persuasion.

43. The decision of the Apex Court in Ewanlangki-E-rymbai & Ors. Vs. Jaintia Hills District Council (Supra), in affirmation of the verdict of this C ourt dealt with contextual facts different from those as obtained herein and in particular negated the challenge to the notification of the Jaintia Hills Autono mous District Council announcing the programme for election of Dolloi in the Ela ka Jowai on the ground of discrimination as the process was sought to be limited only to non-Christians. The aspect, amongst others, of the impact of the Act, 1 967 on Act, 1959 and section 3 thereof did not arise for scrutiny. Having regard to the determination as above, the plea of supervening authority of the Jaintia Hills District Council in the exercise of its executive powers under Rule 28 of the Assam and Meghalaya Autonomous District (Constitution of District Council) Rules, 1951, does not call for any scrutiny. The appeal is, thus, allowed. The impugned judgment and order da 44. ted 19.08.2011, passed in WP(C)No.(SH)183/2011is set aside. The election to the post of Pator in Sumer Patorship under the Elaka Raliang would now be expeditiou sly held in accordance with the amended section 3 of Act, 1959 referred to herei nabove. No costs.