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2025 Supreme(Online)(Gau) 2792
GAUHATI HIGH COURT
MR. JUSTICE SANJAY KUMAR MEDHI, J
Cholingso Kora – Appellant
Versus
The Union of India – Respondent
WP(C)/557/2024
For the Appellants/Petitioners: Keprunda Mena, Sabda R Rabha, Eddie Payeng, Kamal Saxena, Chanya Bangsia, C Tenzin, Tapi Nguki, Reken Ingo, Tado Siga, Ebo Mili, Aruna Rai, Madan Mili, Sonam Tsomo, K N Maling, Sunil Mow
For the Respondents: Marto Kato, SC (Land Management), Dugmar Kamduk, DSGI
The court affirmed the necessity for lawful acquisition and compensation for illegal possession of community land, emphasizing indigenous rights.
Headnote:(A) Constitution of India - Article 226 - Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Mandamus for regularization of land acquisition or compensation for illegal possession - Petitioner claims illegal occupation of community land by ITBP since the 1950s without lawful authority; seeks compensation or vacation of land. (Paras 1-2, 25-26)
(B) Community Rights - The rights of indigenous tribes over USF land and the necessity for adequate compensation for land use and loss of rights are emphasized in the State Rehabilitation and Resettlement Policy, 2008. (Paras 8-10, 20)
(C) Compensation - The court rules that compensation paid by ITBP is for CAMPA and does not constitute lawful acquisition or compensation for the community's land. (Paras 21-22)
Facts of the case:
The petitioner represents villagers claiming illegal occupation of their land by ITBP without lawful authority since the 1950s, seeking either compensation or return of land. Numerous representations have been ignored. (Paras 2-4)
Findings of Court:
ITBP's possession of USF land is illegal, and compensation must be paid for such possession or acquisition must be initiated. (Paras 25-27)
Issues: The main issues include the legality of ITBP's occupation of land and the entitlement of the community for compensation. (Paras 19-20)
Ratio Decidendi: The court held that the possession of ITBP was illegal, emphasizing the need for lawful acquisition processes and compensation for community rights. (Paras 25-27)
Result: Writ petition allowed; ITBP directed to take action regarding land acquisition or compensation.
JUDGMENT & ORDER (CAV)
The instant writ petition has been filed with the following prayers.
“I. A petition under Article 226 of the Constitution of India for issuance of a writ in the nature of Mandamus and/ or Certiorari and/ or any other appropriate order or direction to the official respondents, namely, Union of India through the Department of Defence and Indo Tibetan Border Police (hereinafter referred to as “ITBP through the Commandant 9th Bn ITBP to take appropriate steps and regularize their illegal possession over the petitioner’s land by means of land acquisition under the RFCT Act, 2013 or in the alternative to vacate the land and pay damages/ compensation for illegal occupation of petitioner’s land.
2. The petitioner has been presented by one petitioner in a representative capacity on behalf of the villagers of Lohitpur village in the District of Lohit, Arunachal Pradesh. The members belong to Tindya, Kathak, Tamai and Boo clans and the petitioner has also annexed power of Attorneys to represent themselves in the present petition.
3. As per the projected case of the petitioner, from the time of their ancestors, they were in possession of an area of land out of which 96.97 Hectares was taken over possession by the Assam Rifles Battalion during the 1950’s. It is the specific case of the petitioner that such taking over possession was without any authority of law. Subsequently, the land was taken over by the Indo Tibetan Border Police (ITBP) who is under illegal occupation. It has been stated that though the camp of the ITBP stretches to a total area of 145.41 HA, out of the same, 48.44 Hectare is reserved land and the remaining 96.97 HA is Unclassed State Forest Land (USF) which is the community land of the villagers.
4. The villagers have been representing before the authorities on numerous occasions for payment of adequate compensation but no heed has been paid to. In all such representations, it was specifically prayed that either the adequate compensation be paid to the villagers or the land be vacated and peaceful possession of the same be handed over to the villagers.
5. As the representations were not given any heed to, numerous applications under the RTI Act were submitted seeking specific information. For ready reference, the replies given on various dates are extracted hereinbelow:-
“(i) 12.02.2024:-It was replied that the land under occupation ITBP at Lohitpur is not allotted to the user agency as on date;
(ii) 09.09.2024:-
(a) the land occupied by the 9th ITBP at Lohitpur was diverted in favour of 2nd A/R Vide No.FOR.8-56/99-FC dated 05.03.2022 for an area of 14541 Hectare as per below land breakup;
(b) The 9th BN ITBP is situated in RF for 48.433 Hectare in Udiomajam RF and 96.977 Hectare in US area, i.e. outside RF area;
©Yes, the 145.41 Hectare was diverted in favour of 2nd AR & later on transferred in favour of 9th BN ITBP vide No.8-56/1999-FC (Pt) dated 07.07.2015.
(iii)15.10.2024:-
(a)Notification of Denning RF and Udiomajam are enclosed;
(b)This information may be sought from DFO, Lohit. Hence, RTI application is transferred under Section 6 (3) of RTI Act, 2005 to Divisional Forest Officer, Lohit Forest Division, Tezu for providing information to the applicant.
©No, the USF is not notified.
(d)NIL.
(iv)24.10.2024:-
(a)Notification of Udiomajam a Denning RF enclosed;
(b)Maps of Udiomajam a Denning RF enclosed;
©No USF area has been notified in this division;
(d)No de reservation of Udiomajam RF and Denning RF has been done.
(v)14.11.2024:-
(a) DNA in view of (b);
(b)No”.
6. The matter was also was also raised before the National Commission for Schedule Tribes in the year, 2023, in which notice was issued. It has also been brought on record a letter dated 16.01.2024 issued by the Directorate of Land Management, Govt. of Arunachal Pradesh that there were no records of Government land being allotted to the ITBP at Tezu. The matter was also raised before several other authorities and apart from exchange of certain communications
