IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) (KOHIMA BENCH) WRIT APPEAL NO.25(K)/2010 APPELLANTS 1. Naga United/Inavi Village, Represented by Mr. S. Khehoi, G.B., Naga Unitted/Inavi Village Council, District Peren, Nagaland 2. Mr. Kivito Nekha G.B., Naga United/Inavi Village, District Peren, Nagaland 3. Mr. Honito Yeptho, G.B., Baga United/Inavi Village, District Peren, Nagaland By advocate : Mr I Longjem VERSUS RESPONDENTS 1. The State of Nagaland represented by the Chief Secretary to the Govt of Nagaland, Kohima, Nagaland 2. The Commissioner, Govt of Nagaland, Kohima, Nagaland 3. The Home Commissioner, Govt of Nagaland, Kohima, Nagaland 4. The Commissioner & Secretary, Department of Forest, Ecology, Environment & Wildlife, Govt of Nagaland, Kohima, Nagaland WA No.30(K)/10 Page 1 of 15

2 5. The Deputy Commissioner, District Peren, Nagaland 6. The Deputy Commissioner, District Dimapur, Nagaland 7. The Union of India, represented by the Secretary to the Govt of India, Ministry of Tribal Affairs, Shastri Bhawan, New Delhi By advocates : Mr LS Jamir, Addl A.G. Ms Y Longkumer, G.A. Mr TB Jamir, CGSC APPELLANT Inavi Village represented by Hevito, Head Gaon Bura, S/o- Lt Khazevi, resident of Inavi/Hevito village, Dimapur, Nagaland WRIT APPEAL NO.30(K)/2010 By advocates : Mr P Khataniar Mr A Kukavi Zhimomi Mr Bodo VERSUS RESPONDENTS 1. The State of Nagaland represented by the Chief Secretary to the Govt of Nagaland, Kohima, Nagaland 2. The Home Commissioner, Govt of Nagaland, Mohima, Nagaland 3. The Deputy Commissioner, Dimapur, Nagaland WA No.30(K)/10 Page 2 of 15

3 4. The Deputy Commissioner, Peren, Nagaland 5. The Sub-Divisional Officer, (S.D.O.), Civil, Dhansiripar, Jalukie, Nagaland 6. The Principal Chief Conservator of Forests, Nagaland 7. District Forest Officer (DFO), Peren, Nagaland 8. The Union of India 9. The Secretary, Ministry of Home Affairs, North Block, New Delhi 10.The Secretary, Govt of India, Ministry of Tribal Affairs, Shastri Bhawan, New Delhi By advocates : Mr LS Jamir, Addl A.G. Ms Y Longkumer, G.A. Mr TB Jamir, CGSC BEFORE HON BLE THE CHIEF JUSTICE MR. MADAN B. LOKUR HON BLE MR. JUSTICE A.K. GOSWAMI Date of hearing : Date of judgment and order : JUDGMENT AND ORDER (MADAN B. LOKUR) The question for consideration is whether the appellants are entitled to the benefit of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (for short the Forest Dwellers Act). Since we answer this question in the negative, the WA No.30(K)/10 Page 3 of 15

4 second question - whether the Forest Dwellers Act is applicable to the State of Nagaland in view of the provisions of Article 371A of the Constitution does not arise. 2. The appellants are the Inavi Village and the Naga United/Inavi Village. The residents of the Inavi Village and the Naga United/Inavi Village are hereinafter referred to as the Villagers. They challenge the judgment and order dated passed by a learned Single Judge in WP(C) No.217(K)/2009 and in WP(C) No.111(K)/ Late Mr. Inavi, originally a resident of Iphonumi village in the Pughoboto sub-division of Zunheboto District, seeing the plight of landless persons and also the availability of large tracts of vacant and unoccupied land near Intangki forest, decided to migrate over there with his followers and establish a village in the deforested area with the approval of the State Government. 4. At this stage, it may be stated that we have been told that the distance between Iphonumi village in Zunheboto District and the area where late Mr. Inavi and his followers decided to settle down is about 400 kms. It is also necessary to mention at this stage that the Intangki forest was declared a Reserve Forest by a notification issued on It was thereafter declared a Wild Life Sanctuary by a notification dated Eventually it was declared a National Park by a notification dated Late Mr. Inavi and his followers came to Intangki forest some time in 1987 when it was a National Park. 6. On or about , late Mr. Inavi submitted an application to the Chief Secretary to the Government of Nagaland for permission to WA No.30(K)/10 Page 4 of 15

5 establish a new village. The application was considered and late Mr. Inavi and his followers were allowed to settle down in the Hazatisa area of Intangki National Park by an order dated for developing the land for cultivation peacefully and without disturbing the rightful occupants. We have been told by learned counsel for the parties that the Hazatisa area is about 7/8 kms outside Intangki National Park and is not a part thereof. This is important because permission was not granted to late Mr. Inavi and his followers to settle down within Intangki National Park. 7. According to the Villagers they have settled down in the Hazatisa area of Intangki National Park and have been cultivating the land peacefully but were illegally evicted from the land by the Government of Nagaland as many as 27 times. 8. On the other hand, the stand of the State of Nagaland is that Inavi Village and Naga United/Inavi Village is not a recognized village under the provisions of the Nagaland Village Council Act. That apart, the Villagers have been encroaching into the Intangki National Park and it is for this reason that they have been forcibly evicted as many as 27 times but they keep coming back to encroach upon the Intangki National Park. 9. It is also the contention of the State that Beisumpuikam village was the original owner of the land covering Intangki National Park till it was donated to the Governor-in-Council in 1923 for declaration as a Reserve Forest. The villagers of Beisumpuikam village are, therefore, the actual owners of the Intangki National Park and have been donating acres and hectors of land, from time to time, for the use of the Intangki Reserve Forest, Intangki Wild Life Sanctuary and Intangki National Park. WA No.30(K)/10 Page 5 of 15

6 10. It is the submission of the State that Intangki National Park was free from encroachment but some time in 1984 some encroachment took place by the residents of Beisumpuikam village and this gave an occasion to the residents of other neighbouring areas (including the Villagers) to encroach into Intangki National Park. The State is doing its best to ensure that Intangki National Park remains free of all encroachments and the Villagers who have encroached into Intangki National Park deserve to be evicted, and eviction drives have been carried out from time to time. 11. On these broad facts, the Villagers filed writ petitions in this court contending that they were entitled to the benefit of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 in matters relating to the recognition and protection of their rights. It was prayed that therefore the State of Nagaland be prevented from carrying out any eviction of the Villagers and to compensate them for their illegal eviction from time to time which has resulted in destruction of their properties and means of livelihood. A direction was also sought against the State to enforce the provisions of Nagaland Land and Revenue (Amendment) Act, 1978 and to prevent illegal settlers into Intangki National Park from interfering with the rights of the Villagers. 12. Learned counsel for the parties before us admitted that Wild Life Sanctuary, which is now a National Park, is a great asset to the State of Nagaland and its character as such should be preserved and protected at all costs. 13. According to the Villagers since they belong to a Forest Dwelling Scheduled Tribe within the meaning of Section 2(c) of the Forest Dwellers Act, they are entitled to the protection thereof and are entitled to the various rights given to them under Chapter II of the Forest Dwellers Act. WA No.30(K)/10 Page 6 of 15

7 14. To better appreciate the controversy before us, it is necessary to give the Statement of Objects and Reasons for enacting the Forest Dwellers Act. The Statement of Objects and Reasons reads as follows:- Forest dwelling tribal people and forests are inseparable. One cannot survive without the other. The conservation of ecological resources by forest dwelling tribal communities have been referred to in ancient manuscripts and scriptures. The colonial rule somehow ignored this reality for greater economic gains and probably for good reasons prevalent at that time. After independence, in our enthusiasm to protect natural resources, we continued with colonial legislation and adopted more internationally accepted notions of conservation rather than learning from the rich traditions of the country where conservation is embedded I the ethos of tribal life. The reservation processes for creating wilderness and forest areas for production forestry somehow ignored the bona fide interests of the tribal community from legislative framework in the regions where tribal communities primarily inhabit. The simplicity of tribals and their general ignorance of modern regulatory frameworks precluded them from asserting their genuine claims to resources in areas where they belong and depended upon. The modern conservation approaches also advocate exclusion rather than integration. It is only recently that forest management regimes have initiated action to recognize the occupation and other rights of the forest dwellers and have in their policy processes realized that tribal communities who depend primarily on the forest resource cannot but be integrated in their designed management processes. There is a recognition of the fact that forests have the best chance to survive if communities participate in its conservation and regeneration measures. Insecurity to tenure and fear of eviction from these lands where they have lived and thrived for generations are perhaps the biggest reasons why tribal communities feel emotionally as well as physically alienated from forests and forest lands. This historical injustice now needs correction before it is too late to save our forests from becoming abode of undesirable elements. 2. It is, therefore, proposed to enact a law laying down a procedure for recognition and vesting of forest rights in forest dwelling Scheduled Tribes. This Bill is a logical culmination of the process of recognition of forest rights. The recognition of forest rights enjoyed by the forest WA No.30(K)/10 Page 7 of 15

8 dwelling Scheduled Tribes on all kinds of forest lands for generations which includes forest land for sustenance and usufructs from forest based resources is the fundamental basis on which the proposed legislation stands. 3. The Bill, inter alia, provides for the following matters, namely:- (i) it reinforces and utilizes the rich conservation ethos that tribal communities have traditionally shown and cautions against any form of unsustainable or destructive practices; (ii) it lays down a simple procedure for recognition and vesting of forest rights in the forest dwelling Scheduled Tribes so that rights, which stand vested in forest dwelling tribal communities, become legally enforceable through corrective measures in the formal recording system of the executive machinery; (iii) it provides for adequate safeguards to avoid any further encroachment of forests and seeks to involve the democratic institutions at the grassroots level in the process of recognition and vesting of forest rights; (iv) it addresses the long standing and genuine felt need of granting a secure and inalienable right to those communities whose right to life depends on right to forests and thereby strengthening the entire conservation regime by giving a permanent stake to the Scheduled Tribes dwelling in the forests for generations in symbiotic relationship with the entire ecosystem. 4. The Bill seeks to achieve the above objects. 15. At this stage, it is necessary to place two facts on record: Firstly, even though the Forest Dwellers Act was passed in 2006, it came into force when it was published in the official gazette on Secondly, during the pendency of the writ petitions before the learned Single Judge, an order was passed on in WP(C) No.111(K)/2009 for carrying out a survey of the land occupied by the Villagers. 16. Pursuant to the directions of the learned Single Judge, a report was prepared by the Deputy Commissioner of Peren District, the WA No.30(K)/10 Page 8 of 15

9 Superintendent of Peren District, the Wild Life Warden of Dimapur, the Training Officer, Land Records and Survey of the Government of Nagaland and endorsed by several other persons including the Head Gaon Burah and Gaon Burah of Inavi Village representing the Villagers. It was noted that the encroachment by Inavi Village falls within the tourist zone of Intangki National Park. The tourist zone is inside the National Park and is an area where tourists are allowed for a visit only and to observe the habitat and fauna without disturbing the eco system and raising any other adverse impact on the park. No unauthorized activities, settlement, grazing is allowed in the tourist zone or in the core zone or the buffer zone of Intangki National Park. 17. As mentioned above, according to learned counsel for the Villagers, his clients are Forest Dwelling Scheduled Tribes as defined in Section 2(c) of the Forest Dwellers Act. Alternatively, it is submitted that they are Other Traditional Forest Dwellers as defined in Section 2(o) of the Forest Dwellers Act. For easy reference both these provisions are reproduced hereinbelow:- 2. In this Act, unless the context otherwise requires, - (a) (b) (c) forest dwelling Scheduled Tribes means the members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs and includes the Scheduled Tribe pastoralist communities; (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) WA No.30(K)/10 Page 9 of 15

10 (o) other traditional forest dweller means any member or community who has for at least three generations prior to the 13 th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs. Explanation For the purpose of this clause, generation means a period comprising of twenty-five years. 18. Learned Advocate-General appearing on behalf of the State of Nagaland submitted that the Villagers are not entitled to the benefit of the Forest Dwellers Act since they do not fall within the definitions given in Section 2(c) or Section 2(o) of the Forest Dwellers Act. It is also submitted that Inavi Village or Naga United/Inavi Village is not a recognized village while Beisumpuikam is a recognized village. In support of this, reliance has been placed on a notification dated issued by the Governor of Nagaland. The contents of the notification have not been disputed by learned counsel appearing on behalf of the Villagers. 19. As mentioned above, the principal question before us is whether the Villagers are entitled to the benefit of the Forest Dwellers Act or not. 20. A plain and simple reading of Section 2(c) of the Forest Dwellers Act clearly suggests that the Villagers cannot fall within the category of Forest Dwelling Scheduled Tribes. The Villagers first came to Hazatisa near Intangki National Park as recently as in 1987 from their place of ordinary residence at a distance of about 400 kms. What prompted them to come to Intangki National Park is of no consequence. But it cannot reasonably be stated, by any stretch of imagination that they primarily reside in or depend on the forest or the forest land of Intangki National Park. WA No.30(K)/10 Page 10 of 15

11 21. The Forest Dwellers Act recognizes and vests various rights on persons who are bona fide forest dwellers. The Villagers cannot reasonably be described as bona fide residents of Intangki National Park. They are only encroachers therein. They were entitled to reside, if at all, only in Hazatisa area which is about 7/8 kms away from Intangki National Park. They were not permitted or entitled to expand their possession and occupation to areas close to Intangki National Park and certainly not in areas within Intangki National Park. Under the circumstances, it is not possible to accept the contention of learned counsel for the Villagers that they primarily reside in and depend on the forests or forest lands for their bona fide livelihood needs, so as to come within the definition of Forest Dwelling Scheduled Tribes. 22. This being the position and in view of the encroachments by the Villagers, the Government of Nagaland had no option but to resort to evicting them from Intangki National Park on as many as 27 occasions. But they were determined to settle in Intangki National Park and despite repeated evictions, they keep coming back to firm up their encroachment within the Intangki National Park. Surely, this is not permissible. 23. It is admitted on all hands that Intangki National Park is an asset which belongs to the entire State of Nagaland and the Villagers are no exception. On the contrary, they would be wise to cooperate with the Government of Nagaland to preserve that asset, rather than to destroy it through uncontrolled encroachment and also destroy the flora and fauna of the area. 24. Learned counsel for the Villagers then submitted that if his clients cannot come within the definition of Forest Dwelling Scheduled Tribes they would certainly come within the definition of other traditional forest dwellers as defined under Section 2(o) of the Forest Dwellers Act. This argument is merely stated to be rejected. WA No.30(K)/10 Page 11 of 15

12 25. To come within the definition of other traditional forest dwellers the Villagers should have, for at least three generations prior to 13 th December, 2005 primarily resided in or depended on the forest land of Intangki National Park for their bona fide livelihood needs. The explanation to Section 2(o) of the Forest Dwellers Act defines generation to mean a period of 25 years. It is nobody s case that the Villagers have been bona fide residents for three generations in Intangki National Park. In fact if their presence in Hazatisa is taken from 1987, not even one generation has gone by. Under no circumstances, therefore, can the Villagers claim the benefit of the definition of other traditional forest dwellers as defined under Section 2(o) of the Forest Dwellers Act. 26. Whichever way we look at the problem, there is no doubt that the Villagers are rank encroachers in Intangki Wild Life Sanctuary and Intangki National Park and the State of Nagaland is fully entitled to evict them therefrom and to ensure that they do not continue with their encroachment in the Intangki Wild Life Sanctuary or the Intangki National Park. 27. Learned counsel for the Villagers placed reliance on Mohd. Noor & Ors v. Mohd. Ibrahim & Ors (1994) 5 SCC 562 in support of his contention that a person can be the owner of a thing only if he has absolute domain over it in all respects and is capable of transferring such ownership. The reason for advancing this contention is that according to learned counsel, the Villagers had no ownership rights over the land under their control and possession in the Intangki National Park and, therefore, it was not necessary for the State Legislature to adopt the Forest Dwellers Act since it was not covered by the provisions of Article 371-A (a) (iv) of the Constitution. We do not see the relevance of this decision insofar as the present case is concerned but even if the decision is relevant, since we are of the WA No.30(K)/10 Page 12 of 15

13 opinion that the Villagers cannot claim the benefit of the Forest Dwellers Act, the question of its applicability to the State of Nagaland does not arise. 28. Reliance was also placed by learned counsel on State Bank s Staff Union (Madras Circle) v. Union of India & Ors, (2005) 7 SCC 584 in support of his contention that the Objects and Reasons of a statute are to be looked into as an extrinsic aid to find out the legislative intent only when the meaning of the statute by its ordinary language is obscure or ambiguous. If the words in a statute are clear and unambiguous then the statute itself makes clear the intention of the Legislature and in such a case it would not be permissible for a Court to interpret the statute by examining its Objects and Reasons. 29. There can be no quarrel with the proposition canvassed by learned counsel. However, we wish to make it clear that in our opinion the plain and ordinary language of the Forest Dwellers Act is quite lucid - the Villagers cannot get the benefit of the Forest Dwellers Act whichever way one looks at their contentions. We have made a reference to the Statement of Objects and Reasons of the Forest Dwellers Act only to highlight the occasion for enacting the Forest Dwellers Act and not for the purposes of understanding its provisions which, as we have already mentioned above, are quite clear and unambiguous. 30. Finally learned counsel for the Villagers relied upon Lalappa Lingappa & Ors v. Laxmi Vishnu Textile Mills Ltd, (19081) 2 SCC 238 to contend that in considering a social welfare legislation the Court should adopt the beneficial rule of construction. If a section is capable of two constructions, that construction should be preferred which fulfills the policy of the Forest Dwellers Act and is more beneficial to the persons in whose interest it has been passed. WA No.30(K)/10 Page 13 of 15

14 31. Insofar as the Forest Dwellers Act is concerned, as we have already noted, the various provisions thereof are not capable of having two meanings. The language of the various provisions is clear and unambiguous and as held by the Supreme Court in the cited judgment when the language is explicit it must be given effect to whatever be the consequences, for the words of the statute speak the intention of the Legislature. We do not see how this decision helps the Villagers. 32. Learned Advocate-General relied upon a decision rendered by the Supreme Court in T.N. Godavarman Thirumulkpad v. Union of India and others, (IA Nos. 276 with IA Nos. 413, 437, 453 and 454 decided on 29/10/2002) in support of his contention that since the Villagers are destroying Intangki National Park or the Wild Life Sanctuary through their encroachment and are depriving Nagaland of a valuable asset, merely dismissing their writ appeal would not be enough. He submitted that the Villagers have admittedly been evicted 27 times, but they keep coming back. Therefore, the equivalent of the polluter must pay principle must be applied to the facts of the case. 33. We are in agreement with the learned Advocate-General. In the cited decision, the Central Empowered Committee had recommended the payment of compensation for encroachment of land for commercial purposes at ` 5 lakhs per hectare. In the present case, the encroachment is not for commercial purposes, but the encroachment is on an admitted asset of the State of Nagaland. We place these on an equal footing and direct that if the Villagers voluntarily vacate the Intangki National Park and peacefully hand over the land in their possession and occupation to the State Government within three months from today and in any case on or before 31 st December, 2011 they will not be liable to pay any compensation. However, if they continue to remain in occupation, then they will have to pay ` 5 lakhs per hectare per month to the State of Nagaland. The amount will be recovered from Mr. S. Khchoi, Mr. Kivito Nekha and Mr. Honito Yeptho (the appellants in Writ Appeal WA No.30(K)/10 Page 14 of 15

15 No. 25(K) of 2010) and from Mr. Hevito, son of Late Khazevi (the appellant in Writ Appeal No.30(K) of 2010). The amounts recovered shall be kept in a separate account and shall be used by the State Government exclusively for forest protection and rehabilitation of the encroached area. 34. Both the writ appeals are dismissed. There will be no order as to costs. All pending Misc Cases also stand disposed of. JUDGE CHIEF JUSTICE Mazumdar/ WA No.30(K)/10 Page 15 of 15