WP(C) 5866/2006 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR HON’BLE MR JUSTICE BP KATAKEY (MADAN B. LOKUR, CJ) The question for our consideration is whether the position of Syiem of N ongstoin Syiemship could be a descendant from the womb of Ka Phansep or is the p osition of Syiem confined only to a descendant from the womb of Ka Ksan Synniew or Ka Synniewsep. In our opinion, the question has been rendered academic in vie w of the provisions of the Khasi Hills Autonomous District (Nomination and Elect ion of the Syiem, Deputy Syiem and Electors of Nongstoin Syiemship) Act, 2003 re ad with the Nongstoin Syiemship Rules, 2003. As a result of the statutory enactm ents, the Syiem of Nongstoin Syiemship can only be a descendant from the womb of Ka Ksan Synniew or Ka Synniewsep. 2. The Nongstoin Syiemship consists of two Syiem clans, namely, the Nongrum Syiem clan and the Nongneng Syiem clan. 3. The Nongrum clan traces its origin to the womb of Ka Ksan Synniew or Ka Synniewsep, while the Nongneng clan traces its origin to the womb of Ka Phansep. Admittedly, Ka Phansep is the elder sister of Ka Synniewsep. They are both from the womb of Ka Sepsakma, who in turn is believed to be from the womb of the gr and ancestress Ka Matabai, or the founder of the Syiem clans of Nongstoin. 4. On 24th July, 1997 an election was held for the position of Syiem of Non gstoin Syiemship. The Respondent (Phylla Singh Syiem) lost the election to the Writ Petitioner (Fairly Syiem). Thereupon, he challenged the election of the suc cessful candidate before the Election Tribunal constituted by the Khasi Hills Au tonomous District Council under the provisions of Section 5-A of the United Khas i-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and He admen) Act, 1959. 5. Briefly, the case of Phylla Singh was that the position of Syiem of Nong stoin Syiemship can be held only by a person from the Nongrum clan of Ka Ksan Sy nniew or Ka Synniewsep, that is, the ruling clan to which he belongs. On the oth er hand, the case of Fairly Syiem was that the Syiemship can be held even by a p erson from the Nongneng clan of Ka Phansep, to which he belongs. According to Fa irly Syiem, since both Ka Synniewsep and Ka Phansep belong to the womb of Ka Mat abai (the grand ancestress) the position of Syiem could be held by a person desc ending from the womb of Ka Phansep. In other words, the original womb (that of Ka Matabai) is determinative of the eligibility for the position of Syiem, rath er than the subsequent womb of Ka Synniewsep or even the subsequent womb of Ka Phansep. 6. The Election Tribunal, by its judgment and order dated 23rd February, 20 06 concluded that the position of Syiem could be held only by a person from the Nongrum clan of Ka Synniewsep. Since Fairly Syiem could not trace his ancestry t o the womb of Ka Synniewsep, he was not entitled to contest the election for the position of Syiem of Nongstoin Syiemship. On this basis, his election was set a side. It is for this reason that Fairly Syiem has challenged the judgment and or der of the Election Tribunal before us. 7. Undoubtedly, very informative, learned and elaborate submissions were ma de by learned counsel for Fairly Syiem. The submissions commenced with the genea logy of both Phylla Singh and Fairly Syiem (starting from Ka Matabai) and includ ed the traditional history and sequence of Syiems as contained in perhaps the fi rst document on the subject, namely, the Report on Succession to Siemships in th e Khasi States by Captain D. Herbert, Deputy Commissioner, Khasi and Jaintia Hil ls (1903). 8. However, in our opinion, in view of the Khasi Hills Autonomous District (Nomination and Election of the Syiem, Deputy Syiem and Electors of Nongstoin Sy iemship) Act, 2003 [for short the Nongstoin Syiemship Act] read with the Nongsto in Syiemship Rules, 2003 (both of which were unfortunately overlooked by the Ele ction Tribunal) the dispute raised has become entirely academic and there is no option but to dismiss the writ petition and uphold the judgment and order of the Election Tribunal, though for entirely different reasons. 9. For the record, we may mention that the first contention of learned coun sel for Fairly Syiem was that in view of Section 3 of the United Khasi-Jaintia H ills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 the election of Syiem of Nongstoin Syiemship has to be in accordance with the existing custom prevailing in the Elaka . It was submitted that Phylla Sing h was not able to establish any custom to the effect that only a person belongin g to the Nongrum clan of Ka Synniewsep could be elected Syiem of Nongstoin Syiem ship. In the absence of any such custom having been established, it was contende d that Fairly Syiem was entitled to contest the election. For convenience, Secti on 3 of the United Khasi-Jaintia Hills Autonomous District (Appointment and Succ ession of Chiefs and Headmen) Act, 1959 is reproduced below:- 3. Election or nomination and Appointment of Chief and Headmen.- Subject to th e provisions of this Act and the Rules made thereunder, all elections or nominat ions and appointment of Chiefs and Headmen shall be in accordance with the exist ing custom prevailing in the Elaka concerned and/or in accordance with the order s as the Executive Committee may issue from time to time. The Secretary of the E xecutive Committee or any Officer appointed by the Executive Committee in this b ehalf shall be the Returning Officer for all nominations or elections under this section. Custom has been defined in Section 2(b) of the United Khasi-Jaintia Hills Auto nomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 as follows:- Custom with reference to any Elaka means any rule regarding the appointment of a Chief or Headmen for the Elaka which having been continuously and uniformly o bserved for a long time, has obtained the force of law in that Elaka. Elaka has been defined in Section 2(i) of the United Khasi-Jaintia Hills Auton omous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 in t he following words:- Elaka means any administrative unit in the District specified in Appendix I, I I and III or any other administrative unit to be constituted and declared as suc h by the Executive Committee. 10. Nongstoin Syiemship is one of the Districts mentioned in Appendix I to t he United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959. 11. There is, therefore, no doubt that in accordance with the provisions abo vementioned, for Phylla Singh to succeed in his contention (that the Syiem of No ngstoin Syiemship must be a person of the Nongrum clan of Ka Synniewsep), he mus t establish such an existing custom prevailing in Nongstoin Syiemship. According to learned counsel, such a custom was not established by Phylla Singh. 12. The second contention of learned counsel for Fairly Syiem was that Nongs toin Syiemship was founded by Ka Matabai. Therefore, any descendant of her wom b, otherwise eligible to hold the position of a Syiem, could be so elected. Ther e is no restriction that only the descendants of the womb of Ka Synniewsep could hold the position of Syiem to the exclusion of the descendants of the womb of K a Phansep, since both of them (Ka Synniewsep and Ka Phansep) were descendants fr om the womb of Ka Matabai. According to learned counsel for Fairly Syiem, even i f throughout the available history of Nongstoin Syiemship, only the descendants from the womb of Ka Synniewsep were Syiems, it was a mere coincidence. It was su bmitted that it is quite possible that no one from the womb of Ka Phansep may ha ve contested the election for the position of Syiem or nominated for that positi on. Merely for this reason it could not be said that a custom had prevailed ex cluding anyone from the Nongneng clan from contesting the election. 13. As mentioned above, the entire issue is academic in view the provisions of the Nongstoin Syiemship Act and the Rules framed thereunder. We give below th e reasons for our conclusion. 14. In exercise of powers conferred by Section 13 of the Nongstoin Syiemship Act, the Executive Committee of the Khasi Hills Autonomous District Council app roved the Nongstoin Syiemship Rules, 2003. The Preamble to the Nongstoin Syiemsh ip Rules states, inter alia, that [I]t is considered expedient to safeguard and preserve the customary practices of Nongstoin Syiemship which have been in practice since time immemorial and to make such provisions for the smooth functioning of Nongstoin Syiemship. 15. Rule 2(84) of the Nongstoin Syiemship Rules defines Syiem as follows: Syiem means the administrative head of Nongstoin Syiemship who belongs to the Syiem clan of Nongstoin from the rightful womb to become the Syiem and who is el ected and confirmed according to prevailing custom and tradition of the Syiemshi p . (Emphasis given). Rule 3(1) of the Nongstoin Syiemship Rules provides: The Syiem clan which is eligible to be the Syiem, Deputy Syiem or Acting Syiem of Nongstoin Syiemship according to prevailing custom and tradition followed fro m ancient time who are the descendants from the rightful womb of Ka Ksan Syiem a s per the report of Capt. D. Herbert, The Deputy Commissioner, Khasi Jaintia Hil ls in 1903 (The list of the Syiems as per record is shown at Appendix-A of these Rules) . (Emphasis given). Appendix-A referred to above, lists out the Syiems of Nongstoin Syiemship in the following manner: The Syiem of Nongstoin based on available record who belonged to the rightful w omb eligible to be the Syiem of Nongstoin Syiemship, the heirship of which accor ding to the Report of Capt. D. Herbert, the Deputy Commissioner, Khasi Jaintia H ills in 1903 (Undisputed Syiems) 16. The list of Syiems starting from U Mut Singh Syiem (1829 to 1863) till U Hodington Syiem (1966 till 1991) is then given. All of them, presumably, are de scended from the womb of Ka Synniewsep. In any event, there is nothing to sugges t that any one descended from the womb of Ka Phansep. 17. Rule 21 of the Nongstoin Syiemship Rules concerns itself with the tradit ional custom for nomination and succession of Syiem and Deputy Syiem. Rule 21(1) which is relevant for our purpose reads as follows: The Syiem of Nongstoin Syiemship shall be elected from the most eligible womb o f the Syiem clan and it is the duty of the Syiem clan’s Durbar through the Syiem Seng to nominate the name of the most suitable candidate to be Syiem to be conf irmed/approved by a simple majority of the Electors present according to the tra ditional custom of heirship which shall forward to the higher authorities for is suing appointment Sanad. The Deputy Syiem of the Hima is the person most eligibl e from the rightful womb to be Syiem, pending confirmation of a regular Syiem, u nless for any reason he is disqualified of such right . (Emphasis given). 18. The distinction between the rightful womb and the most eligible womb is only this: the rightful womb is that of Ka Ksan Synniew or Ka Synniewsep while t he most eligible womb refers to the rule of succession given by Capt. D. Herbert in his Report. This Rule of succession to the Siemship is as follows: A Siem is succeeded by the eldest of his uterine brothers; failing such brother s, by the eldest of the sons of his sisters, failing such nephews, by the eldest of the sons of sisters of his mother; failing such first cousins by the eldest of the sons of daughters of his sisters and failing such grand nephews by the el dest of other cousins on the female side. Failing all such male heirs, a Siem wo uld be succeeded by the eldest of his uterine sisters, failing such sisters by the eldest of the daughters of his sister, failing such .......etc. etc... 19. It is quite clear from the Report of Capt. Herbert read with the Nongsto in Syiemship Act and the Nongstoin Syiemship Rules that only a person descended from the womb of Ka Ksan Synniew or Ka Synniewsep can make a claim to the positi on of Syiem of Nongstoin Syiemship. In view of the statutory recognition given t o the customary practices of Nongstoin Syiemship which have been in practice si nce time immemorial and the expediency of safeguarding and preserving them, it must be held that Phylla Singh is right in his contention that Fairly Syiem was not entitled to contest the election for the position of Syiem of Nongstoin Syie mship. 20. Under the circumstances, the writ petition filed by Fairly Syiem is dism issed and the election petition filed by Phylla Singh is allowed. 21. There will be no order as to costs.