Back
IN THE HIGH COURT OF GAUHATI (ITANAGAR BENCH)
Arun Chandra Upadhyay, J.
Nuney Tayang (Attorney Holder) – Appellants
Vs.
Union of India – Respondent
W.P. (C) No. 489 (AP) of 2009
Decided On: 18.03.2011
WRIT PETITION - DENNING RESERVE FOREST - ASSAM FOREST REGULATION, 1891 - CONSTITUTION OF RESERVE FOREST - TRIBAL VILLAGERS - JHUM CULTIVATION - LAND RIGHTS - NOTIFICATION - PROCLAMATION - INQUIRY - CLAIMS - ACQUISITION OF LAND - APPEAL - DE-RESERVATION OF FOREST LAND - MEMORANDUM OF UNDERSTANDING - DELAY - LACHES - EQUITABLE RELIEF - LAND COMPENSATION - REHABILITATION.
Fact of the Case:
The Petitioners, tribal villagers of Bodaru and Chittangam villages in Lohit District, Arunachal Pradesh, challenged the legality and validity of the Gazette Notifications constituting the Denning Reserve Forest and subsequent de-reservation of 275 hectares of their ancestral land for allotment to the Army. They alleged that the notifications were issued without their knowledge, in violation of the provisions of the Assam Forest Regulation, 1891, the Balipara, Tirap, Sadiya Frontier Tract Jhum Land Regulation, 1947, the Arunachal Pradesh (Land Records and Settlement) Act, 2000, and the Schedule Tribes and other Traditional Dwellers (Recognition of Forest Rights) Act, 2006. The Petitioners also challenged the Tripartite Memorandum of Understanding (MoU) executed between the villagers and the Army authorities, and the consequent order rejecting their representation for land compensation.
Finding of the Court:
The Court found that the State Government had not complied with the mandatory provisions of the Assam Forest Regulation, 1891, while constituting the Denning Reserve Forest. The Court held that the notifications were issued clandestinely, without informing or issuing show-cause notices to the actual land owners, and that the required notifications under Sections 5 and 17 of the Regulation were not issued in accordance with the law. The Court also found that the State Government had failed to follow the due process of law in declaring the Reserve Forest, including the issuance of a proclamation under Section 6, inquiry under Section 8, and treatment of claims relating to Jhum cultivation under Section 10 of the Regulation.
Issues: 1. Whether the State Government complied with the mandatory requirements of the Assam Forest Regulation before constitution of the "Denning Reserve Forest" in respect of the community land belonging to the Tribal villagers of Bodaru and Chittangam? 2. Whether the constitution of the Reserve Forest would include the two villages, namely, Bodaru and Chittangam, if due notice was not served on the residents in compliance of the provisions of law? 3. Whether the Petitioners are entitled to land compensation or rehabilitation for the de-reservation of their ancestral land for allotment to the Army?
Ratio Decidendi: The Court held that the State Government's failure to comply with the mandatory provisions of the Assam Forest Regulation, 1891, rendered the constitution of the Denning Reserve Forest and the subsequent de-reservation of the Petitioners' land illegal and void. The Court also held that the Petitioners were entitled to land compensation or rehabilitation for the loss of their ancestral land, in accordance with the relevant laws and policies.
Final Decision: The Court quashed and set aside the Gazette Notifications constituting the Denning Reserve Forest and the subsequent de-reservation of the Petitioners' land. The Court also directed the Respondent authorities to settle the dispute with the Tribal villagers by way of amicable settlement, by making payment of adequate land compensation to the individual land owners or by relocating the Tribal villages of Bodaru and Chittangam to a suitable location, to enable them to rehabilitate. The Court directed that the entire process shall be completed within a period of four months from the date of receipt of certified copy of the order.
Arun Chandra Upadhyay, J.
1. The writ Petitioner has challenged the legality and validity of the Gazette Notification No. 119/71 dated 16.02.1973, proposing to constitute Denning Reserve Forest, under Section 5 of the Assam Forest Regulation, 1891, and subsequent Gazette Notification No. 118/68 dated 23.09.1977, issued under Section 17 of the Assam Forest Regulation, 1891, declaring approximately 25,641 hectares of land described in the schedule as Denning Reserve Forest, by including thereto 275 hectares of ancestral land belong to the Petitioner, within the reserve forest. The Petitioner alleged that the notification constituting the Denning Reserve Forest was issued by the State Government without the knowledge of the actual land owners, in violation of the provisions of the (i) Assam Forest Regulation, 1891; (ii) the Balipara, Tirap, Sadiya Frontier Tract Jhum Land Regulation, 1947; (iii) the Arunachal Pradesh (Land Records and Settlement) Act, 2000 and the Schedule Tribes and other Traditional Dwellers (Recognition of Forest Rights) Act, 2006.
2. The Petitioner has also challenged the legality and validity of the Tripartite Memorandum of Understanding (MoU) dated 22.03.2005, by which the villagers of the Denning forest area were made to agree and part away with their ancestral land in question, and the consequent order issued vide No. LRE-5723/06 dated 27.01.2009, passed by the Deputy Commissioner, Tezu, Lohit District, rejecting the representation filed by the Petitioner.
3. The facts, leading to the filing of this writ petition, may be stated, in brief, as follows:
The tribal population of Arunachal Pradesh have been engaging in Jhum cultivation from time immemorial on their community land. The private (individual) and community (common) ownership of land is well accepted in the State of Arunachal Pradesh, among the villagers. Accordingly, different clans and tribes in the State have individual, as well as common right of ownership and title over their land.
4. It has been stated in the writ petition that the villagers of Bodaru and Chittangam villages are local Mishmi tribe of Lohit District, and they are living in the aforesaid area and sustaining their livelihood by doing cultivation (including Jhum), over their ancestral land. The Bodaru and Chittangam villages are now spread over more than 300 hectares of land from very long time.
5. Learned Counsel for the Petitioner relied on a decision cited in (2005)3 GLT 306 Bedang Apum and other vs. State of Arunachal Pradesh and other to explain the Jhum land and the rights of the tribal people over such community land, which may be gainfully quoted as follows:
In the areas where the shifting method of Jhum cultivation is followed, all land as a principle belongs to the clan or village. Such land begin with clearing operation of trees along with under grown trees which are cut down and left it on the field to dry. Thereafter fire is set to those tress and cleared and the ashes are left on the ground. Thereafter sowing starts and the cultivation depends upon what is known as Patat. The entire agricultural land of a village is divided into a numbers of blocks which are earmarked for village after a definite number of years of fallow and such blocks are known as Patats. The Patats are demarcated by stone pillars known as LISIK, Taba and Sodak for proper identification. If for a particular period one Patat is used it is kept fellow after some period of time and cultivation is made on the other area in a rotating manner. The individual right of cultivation and possession continues through the cycle of agricultural operation, and remains suspended during fallow periods. Thus there is no specific and absolute individual claim of right of a cultivator over such portion of land which can be claimed for ever by him, on the ground of cultivation for a period.
This system of cultivation is recognized as Jhum cultivation. Jhum land has been defined in the Balipara, Tirap, Sadiya, Frontie
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
