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1996 Supreme(Gau) 141
GAUHATI HIGH COURT
M.Sharma, J.
Taben Myitan and Ors. -Appellant
Versus
State of Arunachal Pradesh and Ors. -Respondent
Civil Rule No. 312 of 1996
Decided On : 03-07-1996
C.Barua, S.Kejriwal, R.P.Sharma, S.K.Kejriwal
The government cannot acquire Jhum land for public purposes without giving the affected individuals a proper opportunity to show cause against the acquisition and claim compensation.
Headnote:
FRONTIER TRACT JHUM LAND REGULATION - ACQUISITION OF LAND - PUBLIC PURPOSE - OPPORTUNITY OF HEARING - COMPENSATION - INDIVIDUAL RIGHT OVER LAND - INHERITANCE - SECTION 10 OF THE FRONTIER TRACT JHUM LAND REGULATION, 1947.
Fact of the Case:
Petitioners claimed ownership of Nirle area of Pareng Village in East Siang district, alleging uninterrupted individual possession and ownership. They challenged the government's notice to acquire the land for public purposes under the Frontier Tract Jhum Land Regulation, 1947, arguing that the land was not Jhum land and they had individual rights over it.
Finding of the Court:
The court held that the land in question was Jhum land, but the petitioners had not been given a proper opportunity to show cause against the acquisition and claim compensation under section 10 of the Regulation. The court directed the petitioners to file a representation before the concerned authority, which was to dispose of the representation by a proper proceeding giving all opportunities of hearing to the petitioners.
Issues: 1. Whether the land in question was Jhum land? 2. Whether the petitioners had individual rights over the land? 3. Whether the petitioners were given a proper opportunity to show cause against the acquisition and claim compensation?
Ratio Decidendi: 1. The court held that the land in question was Jhum land based on the definition provided in section 2(b) of the Regulation, which includes all lands that any member or members of a village or community have customary rights to cultivate by means of shifting cultivation or to utilize by clearing jungle or grazing livestock. 2. The court held that the petitioners had not established their individual rights over the land as they had not provided any evidence to support their claim of inheritance under section 4(2)(a) of the Regulation. 3. The court held that the petitioners were not given a proper opportunity to show cause against the acquisition and claim compensation as required under section 10 of the Regulation. The court noted that the respondent authority had not conducted a full-fledged enquiry to satisfy the petitioners' concerns and that the letter inviting them to a hearing was not sufficient.
Final Decision: The court allowed the writ petition and directed the petitioners to file a representation before the concerned authority within four weeks of receipt of the order. The authority was directed to dispose of the representation by a proper proceeding giving all opportunities of hearing to the petitioners within two weeks by a speaking order.
2. Petitioners claim to be the owners of Nirle area of Pareng Village in the district of East Siang owning and possessing the said land though their forefathers and have been possessing the said land in their individual capacity. That the said land of Nirle area is irrigated land and the family members of the petitioners are dependent on the said land for their livelihood. Further claim of the petitioners is that the land of Nirle area entirely individually owned land and do not belong to village community and they have their separate community land at Tangkor Area, Girjan Area, Singgeng Area. They claim their uninterrupted individual possession and ownership over the said land in question; that due to the impugned notice petitioners apprehend eviction without compensation. Hence invokes Court's writ jurisdiction for a direction.
3. Petitioner deprecated the stand and conduct of the concerned Government respondent who, it is alleged, have been attempting to take away the land in question since 1986. In the year 1986, the Extra Assistant Commissioner of Boleng verbally requested the petitioners to donate their aforesaid land in favour of the Government for establishment of Circle Officer Post and Middle School and as the petitioners objected the proposal was not proceeded with. But again vide letter dated 30th October, 1991 (Annexure A to the writ petition) the respondent Government rendered the proposal for acquiring the land in question claiming the said land as Jhum land and requiring for public purpose under the provisions of section 10 of the Frontier Tract Jhum Regulations, 1947 (Rgulation III, IV and V of 1947) (in short Regulation 1947). Further by this letter petitioners were asked to arrange a meeting on 31.10.91 to discuss about the acquisition of land.
4. Mr. C. Baruah, learned counsel for the petitioners submitted that, the provisions of the Regulation, 1947 are not applicable in the case of the petitioners as the land in question is individual privately owned land and the Regulation, 1947 is not applicable in the East Siang District which is a part of erstwhile Siang Frontier Division (Abar Hills District) and not a Balipara or Tirap or Sadiya Frontier Tract; that the land in question has been used by the petitioner
for permanent cultivation, unlike Jhum cultivation land, by means of irrigation. Further Mr. Baruah submitted that the Regulation, namely, the Balipara/Tirap/ Sadiya Frontier Tract Jhum land Regulation, 1947, is in force to safeguard and regulate the rights of the Tribes indigenous to the Balipara, Tirap, Sadia Frontier Tract to Jhum Land in the said Tract. The rights over the land is regarded as customary right of the community to cultivate by means of shifting cultivation or to utilise by clearing jungle or grazzing live stock, but does not include any land which has been under process of being terraced for the purpose of permanent or semi permanent cultivation with or without irrigation; that the Jhum land can be acquired by the Government for public purpose after following proper procedure and by paying compensation.
5. The Circle Officer, Boleng Sub Division filed affidavit-in-opposition on behalf of the respondents. The averments made therein are that as the writ petitioners failed to establish that the land in question has been acquired in terms of section 4 (1) of the Regulation, 1947, they cannot claim individual right over the same and that the land is proposed to be acquired for public purpose which has been endorsed by Kebang of the concerned villages. Further, it is averred, the land is required for public purpose and as the public interest is involved, the claim of the individual petitioners are not sustainable.
6. The question for decision is that whether the land in question is a community land and, whether the petitioners have any indi
