1. In this application under Article 226/227 of the Constitution seeking a writ in the nature of certiorari/quo warranto or any other suitable writ, the petitioner impugns a decision of the Political Assistant to Deputy Commissioner and Dohhasis Customary Court (for short D. B. Court), Mokakchung in case No. 329/76 (Khensa villagers case) dt 23rd April/76.
2. Two villagers of Khensa, namely, Tekayangdang Bara and Imnasucha G. B. submitted a complaint to the D. B. Court D. C.'s office at Mokakchung stating that during the visit of Chungtia elders to their village for discussion of public interest Khensa elders purchased a cow for entertainment for which the seven persons, namely, Atenjenba Chunjangrepa, Merentosni, Tsukjummeren, Senwatiba, Akangsangba and Mapukaba refused to contribute the subscription and so they prayed that the D. B. Court should decide the dispute. The D. B. Court summoned the said seven persons to explain the complaint On 23rd April, 1976 the D. B. Court attended by eleven members, gave decision to the following effect :
'1. Chungtia village authorities sent news to Khensa elders for discussion of
important matters and so the elders prepared curry for the purpose. This is
understood to be correct. Therefore, there should be no misunderstanding about the
purchase of curry, and the Court understood that it should be paid off.
2. According to Ao custom the Court understands that Aksu (pork) should be given between two villages but extra collection of subscription from public by elders is understood to be improper. But the cost of Aksu as well as curry should be collected from public. This is D. B.'s Court decision.'
2A. The seven writ petitioners challenged that decision mainly on the ground that the D. B. Court was nowhere mentioned in the Rules for the Administration of Justice and Police in Nagaland, 1937 and as such the said Court had no jurisdiction to decide the dispute and accordingly the petitioners prayed that a writ of Quo Warranto should be issued on respondents Nos. 3 to 14 who were members of the D. B. Court to disclose the authority under which they were functioning as Dobhasis's Customary Court and for Mandamus restraining them from further functioning as such and also for a Writ of Certiorari quashing the aforesaid decision of D. B. Court dt. 23rd April/76.
3. The State of Nagaland has resisted the petition filing an affidavit-in-opposition stating that D. B. Court had always been administering justice in Nagaland. In para 12 of the affidavit-in-opposition it has been stated that 'the D. B. Courts have been in existence since a long time and have been exercising powers of the tribal customary Court ever since without any interruption. Although no rules have been made in this regard, these Courts have not been barred from exercising their powers and functions by any law in force. These Courts are in the nature of customary tribal Courts which by itself have the customary sanction and are in existence from ancient times'. It has been further stated that the Dobhasis are men of position versed in customary laws in force in Nagaland and the people of Nagaland find the system of D. B. Courts convenient and suitable for them.
4. We have now been shown that the Nagaland Assembly has. since passed the Rules for the Administration of Justice and Police (Second Amendment) Act, 1982 which received the assent of the President of India on 15-11-1983. Sections 2, 3 and 4 of the Act provide as follows :
'2. In Rules 15, 17, 18, 19, 22(d), 23, 24, 25, 26, 27, 28, 29, 31 and 38 of the Rules for Administration of Justice and Police in Nagaland, 1937 the word 'Dobhasis' shall be inserted and shall be deemed to have been inserted with effect from Ist Dec. 1963 after the word 'headmen of khels' wherever the said words appear in the aforesaid Rules.
3. The following shall be inserted after the R. 15-A of the Rules for the Administration of Justice and Police in Nagaland, 1937 as Rule 15-AA.
' 15-AA. The Dobhasis henceforward shall try and decide such criminal cases only as may be referred to them by the Deputy Commissioner, Additional Deputy Commissioner or Assistant to the Deputy Commissioner as the case may be.'
4. The following shall be inserted after Rule 23 of the Rules for Administration of Justice and Police in Nagaland, 1937 as Rule 23A.
23A. The Dobhasis henceforward shall try and decide such civil cases only as may be referred to them by the Deputy Commissioner or Additional Deputy Commissioner or Assistant to the Deputy Commissioner as the case may be:'
5. Mr. J.P. Bhattacharjee, learned Advocate-General Nagaland, submits that this Act, having been given retrospective effect from 1-12-1963 the word 'Dobhasis' must now be deemed to have been inserted with effect from that date and the action taken or decisions rendered by such Courts during the period from Ist Dec. 63 till the passing of the Act must be deemed to have been taken or rendered under the provisions of the Rules for the Administration of Justice and Police in Nagaland as amended, as the word 'Dobhasis' has been inserted in the above Rules in the appropriate provisions. Mr. N. N. Saikia the learned counsel for the petitioners accepts this position in law. Under the above circumstances we are of the view that the question of lack of jurisdiction can no longer arise after the amendment of the Rules. It is for the petitioners to pursue their remedies under those Rules as to the merit of the impugned decision.
6. This petition is accordingly dismissed. The Rule is discharged. We however, make no order as to costs.