# Old Jalukai Village Council v. Kakiho Village & Ors

- **Citation:** 2025 INSC 766
- **Court:** Supreme Court of India
- **Decided:** 2025-05-23
- **Case number:** Civil Appeal No. 7380 of 2025
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/old-jalukai-village-council-v-kakiho-village-ors-38379
- **Pages:** 46

## Headnote

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; 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?
Headnotes†
Nagaland Village and Area Councils Act, 1978 - s.3- In
Nagaland, for 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 - Said custom is recognized in the O.M. dated
22.03.1996 - Government of Nagaland issued another O.M. 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 - Division Bench of the High Court
affirmed the judgment of the Single Judge directing the State
authorities to take steps for the issuance of formal order(s) for
the recognition of the respondent no. 1 village - Whether all the
necessary conditions/criteria for the issuance of formal order(s)
of recognition of the respondent no.1-village as per the O.M.'s
dated 22.03.1996 and 01.10.2005 respectively were fulfilled:
Held: 1.1 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. [Para 49]
* Author
[2025] 5 S.C.R.
2659
Old Jalukai Village Council v. Kakiho Village & Ors.
1.2 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 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. [Para 49]
1.3 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. [Para 49]
1.4 The State of Nagaland has not made a single 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, it cannot 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. [Para 49]
1.5 The procedure envisaged in the two O.M.'s dated 22.03.1996
and 01.10.2005 respectively, was not complied with in the present
case - Furthermor

## Text

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[2025] 5 S.C.R. 2658 : 2025 INSC 766
Old Jalukai Village Council
v.
Kakiho Village & Ors.
(Civil Appeal No. 7380 of 2025)
23 May 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
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; 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?
Headnotes†
Nagaland Village and Area Councils Act, 1978 - s.3- In
Nagaland, for 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 - Said custom is recognized in the O.M. dated
22.03.1996 - Government of Nagaland issued another O.M. 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 - Division Bench of the High Court
affirmed the judgment of the Single Judge directing the State
authorities to take steps for the issuance of formal order(s) for
the recognition of the respondent no. 1 village - Whether all the
necessary conditions/criteria for the issuance of formal order(s)
of recognition of the respondent no.1-village as per the O.M.'s
dated 22.03.1996 and 01.10.2005 respectively were fulfilled:
Held: 1.1 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. [Para 49]
* Author
[2025] 5 S.C.R.
2659
Old Jalukai Village Council v. Kakiho Village & Ors.
1.2 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 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. [Para 49]
1.3 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. [Para 49]
1.4 The State of Nagaland has not made a single 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, it cannot 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. [Para 49]
1.5 The procedure envisaged in the two O.M.'s dated 22.03.1996
and 01.10.2005 respectively, was not complied with in the present
case - Furthermore, the inter-district boundary dispute had no
nexus whatsoever with the issue of recognition of the respondent
no. 1 village - 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. [Para 72]
1.6 State authorities 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,
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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. [Para 73]
Nagaland Village and Area Councils Act, 1978 - 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 - The demarcation of the inter-district boundary
between the districts of Kohima (where the appellant village is
located) and Dimapur (where the respondent village is allegedly
located) and its nexus with the recognition of village(s) was
first brought to the fore by the Ezong Committee Report -
The broad consensus amongst the concerned parties was to
place all the villages affiliated with the 'Sumi' tribe (to which
respondent no. 1 village is affiliated) in the Dimapur District
and those affiliated to the 'Zeliangrong' tribe (to which the
appellant belongs) under the Kohima district (now Peren):
Held: The inter-district boundary dispute had no nexus whatsoever
with the issue of recognition of the respondent no. 1 village - On
a consideration of the recent report of the Cabinet sub-committee,
which comes as a relatively recent development, 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 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 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 - 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. [Paras 63, 69, 72]
Judicial Review - Cabinet decisions - Scope, stated.
[Paras 56-60]
[2025] 5 S.C.R.
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Old Jalukai Village Council v. Kakiho Village & Ors.
Nagaland Village and Area Councils Act, 1978 - s.3 - 'village' -
Conditions to be fulfilled, to be recognised as a village.
[Paras 43, 44]
Case Law Cited
PUCL & Anr. v. State of Nagaland and Ors. (Civil Appeal No. 3607
of 2016); Sachidanand Pandey and Another v. State of West Bengal
and Others [1987] 2 SCR 223 : (1987) 2 SCC 295; Indian Charge
Chrome Ltd. and Another [2006] Supp. 10 SCR 640 : (2006) 12 SCC
331; State of Uttar Pradesh and Others v. Chaudhari Ran Beer Singh
and Another [2008] 4 SCR 610 : (2008) 5 SCC 550 - referred to.
Mangyang Lima v. State of Nagaland and Ors., 2019 SCC OnLine
Gau 3494; Sabeituo Mechulho and Ors v. State of Nagaland and
Ors., 2011 SCC OnLine Gau 592 - referred to.
Books and Periodicals Cited
A. Nshoga, Traditional Naga Village System and its Transformation
87 (Anshah Publishing House 2009); Lanusashi Longkumer et. al.,
Status of Adivasis/Indigenous Peoples Land Series - 6: Nagaland
20 (Aakar Books 2012).
List of Acts
Nagaland Village and Area Councils Act, 1978; Constitutional
Amendment Act of 1962; Constitution of India.
List of Keywords
State of Nagaland; Establishment of a new village; Land ancestrally
belonging to another village; Customs; Prevailing custom; 'No
Objection Certificate'; Parent village; Ancestral village; Kakiho
Village; Old Jalukai Village Council; Village establishment; Village
recognition; Nagas; Naga customary law and procedure; Ownership
and transfer of land; Public Notice; "inter-district boundary dispute";
Kohima; Peren; Dimapur; Ezong Committee Report; Sumi tribe;
Zeliangrong tribe; Village; Cabinet decisions; Boundary dispute;
Customary practices; Environment protection.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7380 of 2025
From the Judgment and Order dated 07.10.2015 of the Gauhati
High Court in WA No. 6 of 2015
2662
[2025] 5 S.C.R.
Supreme Court Reports
Appearances for Parties
Advs. for the Petitioner:
Parthiv K. Goswami, Sr. Adv., Ms. Diksha Rai, Ms. Atiga Singh, Ms.
Apurva Sachdev, Piyush Vyas, Ms. Purvat Wali, Abhishek Jaiswal.
Advs. for the Respondents:
Ms. Renuka Sahu, Vinnoka Achumi, Shivam Singh, Ms. K. Enatoli
Sema, Ms. Limayinla Jamir, Amit Kumar Singh, Ms. Chubalemla
Chang, Prang Newmai.
Judgment / Order of the Supreme Court
Judgment
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
* Ed. Note: Pagination as per the original Judgment.
[2025] 5 S.C.R.
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Old Jalukai Village Council v. Kakiho Village & Ors.
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 inalienable part of their identity and life.1 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 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 or tribes.2 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:
1
A. Nshoga, Traditional Naga Village System and its Transformation 87 (Anshah Publishing House 2009)
2
Lanusashi Longkumer et. al., Status of Adivasis/Indigenous Peoples Land Series - 6: Nagaland 20
(Aakar Books 2012).
2664
[2025] 5 S.C.R.
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"
Government of Nagaland
Home Department
(General Administration Branch)
OFFICE MEMORANDUM
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
[2025] 5 S.C.R.
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Old Jalukai Village Council v. Kakiho Village & Ors.
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.
(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)
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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 out and submit
their recommendations as regards the demarcation of the interdistrict 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 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
[2025] 5 S.C.R.
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Old Jalukai Village Council v. Kakiho Village & Ors.
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
Dated Kohima, the 1st 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.
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 Gaoburacum-Council Chairman of the respondent no. 1 village, had allegedly
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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.
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
[2025] 5 S.C.R.
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Old Jalukai Village Council v. Kakiho Village & Ors.
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 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 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
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"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.
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 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)
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Old Jalukai Village Council v. Kakiho Village & Ors.
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.
(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
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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:
"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
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2673
Old Jalukai Village Council v. Kakiho Village & Ors.
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 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
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it was pleaded that the government was taking necessary steps for
effecting the demarcation 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 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.
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Old Jalukai Village Council v. Kakiho Village & Ors.
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 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.
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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.