H.N. Sarma, J.@mdashNature of right of an individual over community land belonging to the community of the State and whether the nature, character and status of such community land so long maintained by the community since time immemorial is to be respected and maintained and/or protected, is the basis of dispute raised in this writ petition.
"Land is the habitation of man, the store house upon which he must depend for all he needs, the material to which his labour must be applied for the supply of all his desires; for even the light of the sun enjoyed, or any of the forces of nature utilized, without the use of land on its products. On the land we are born, from it we live, to it we return againchildren of the soil as truly as is the blade of grass or the flower of the field. Take away from man all that belongs to land, and he is but a disembodied spirit" (Henry George Progress and Poverty New York 1921 P. 211), There are the philosophical Methods to which the Adis of Arunachal Pradesh adhrere to relating to the concept attached to land.
2. Gaon Burah of Remi and Poblung village respectively under Dambuk area of the Lower Dibang Valley District are the petitioners of this writ petition who has taken up the cause of the inhabitants of different villages on Dambuk area. The common grievance highlighted by the petitioners in this writ petition is that they have approached this court for maintaining their traditional right over the community land inherited from their ancestors and is occupying by carrying common cultivation commonly known as Jhum cultivation, since last about one and half century. It is the grievance of the petitioners that over some of the parts of their community land the private respondents with the aid and assistance of the official respondents are trying to obtain Land Possession Certificate (for short "LPC") in their favour, thereby curving out those area as their individual land.
3. The petitioners have pleaded interalia that the various villages under Dambuk area like Poblung, Tapat, Remi Yapgo and new Poblung are inhabited by Adi tribe (comprising Pasi, Padam, Millang, Kimkar and Dalbing). Apart from these Adi villages, the inhabitants of Kapang and Sirang villages belonging to IDU Mishmi tribe, which is also locally known as MIDI, migrated to Dambuk area after the great earthquakeof 1950. Most of the residents of these two villages have migrated during the period 1970 to 1990 and prior to 1997 no IDU Mishmi except late Nyapak Linggj had settled at Dambuk villages.
4. Dambuk village was established in the year 1860 which is about 15x10 Sq. KM and the people of the Dambuk village are occupying the entire land from the date of the settlement of villages till date. A major part of the land is used for the purpose of Jhum cultivation which is a well regulated traditional system of cultivation on rotational basis. The areas under Jhum cultivation are divided into 33 Nos of blocks, which are locally known as "Patats". In these blocks the entire population of the village undertake the Jhum cultivation. It is the system of these Patats that there are specific plots of land clearly demarked by traditional Stone Filler, known as Lisik Stone Piller, Taba, Sbdok, put for the purpose of identifying one plot to avoid any dispute or encroachment.
5. It is also pleaded that in the first Anglo British War of 1894 which was fought after three decades of the settlement of the Dambuk village on 20th January, 1894, the expedition force of the British led by Captain R.M.Maxwell, the Commandant of the Lakhimpur Military Police accompanied by Mr. J.F.Needham as Political Officer advanced to Dambuk but the people of Dambuk strongly resisted and fought against the British force. After the war is over the people erected Stockade near the villages, which is still in existence and this War is popularly known as Mij om Mimak (Needham War). At that period no IDU villages existed near Dambuk and Bomjir area.
6. While the Adi and IDU people of the villages were cultivating their common village land as aforesaid sometime in the year 198889 some outsiders started to encroach part of the community land without any consent or authority of the village head, for the purpose of tea cultivation and other commercial activities, thereby disturbing the possession of the Adi and IDU tribe in continuing their Jhum cultivation. Qn making objections by the villagers of the petitioners a number of Kebangs were conducted but without any fruitful result. By an order No. DR/JUD/90/ 25726825 dated 13190 the Additional Deputy Commissioner, Dibang Valley district, with a view to protect the right of the villagers over the village community land by way of traditional custom ordered that the agricultural land of the villagers should not be garbed by any individual without any lawful authority on getting frustrated on their motives, thereafter the Private Respondent No. 3 to 65 tried to obtain Land Possession certificate (for short LPC) in respect of some portion of the land of the petitioners'' villagers and such applications prayed for LPC in their favour were rewarded by the Extra Assistant Commissioner, Dambuk to Additional Deputy Commissioner, Roing on different dates between 512001 to 1972001 on total misconception of law and fact. The petitioners and other villagers seriously objected to this move and in the applications for such LPC''s the signatures of some of the witnesses were forged. The petitioners also submitted representation before the Extra Assistant Commissioner, Dambuk against the aforesaid move to issue LPC in favour of Private Respondents on 252000, 2952000, 1432001 but without any effect. A representation was also submitted before the Secretary, Land and Management Department on 3172001 wherein various anomalies committed by District Administrative Authorities and illegal recommendation for issuance of LPC and subsequent issue thereof, were pointed out.
7. It is the grievance of the petitioners that those recommendations for issuance of LPC and certificates were illegally issued in violation of the provision contained in the office Memorandum issued by the Govt. vide Order No. LR31/84 dated 191.88 and without taking note of the actual physical verification and without considering the vital fact that the lands in question are community land wherein the petitioners and other villagers are making Jhum cultivation in traditional method wherein individual person has no personal rights. Accordingly, the petitioners have approached this court by this petition praying for issuance of necessary orders to cancel the LPC''s so far issued to the Private Respondents as well as to cancel the recommendation issued for such certificates and to maintain the community rights and traditional system of Jhum cultivation over the community land of the petitioners.
8. An affidavitinopposition has been filed by the State respondents, wherein it is stated that the LPC were issued in compliance of the procedure prescribed for this purpose and those have been issued to the Private Respondents in respect of their own land over which they are cultivating. An affidavitinopposition has also been filed by the Respondent Nos 3 to 56 denying the contentions raised by the petitioners. In the said affidavitinopposition it is further stated that the petitioner No, 2 himself obtained a Provisional LPC in his favour on 4198. It is also stated that the land in question is not disputed Jhum land as claimed by the petitioners, and that the LPCS were issued following necessary procedures as per existing Govt. instruction.
An additional affidavit has also been filed on behalf of the Respondent Nos 3 to 6, wherein a minutes of a meeting held amongst the local persons dated 26499 is enclosed. An affidavit in reply was also filed by the petitioners against the affidavitinopposition filed by the respondents reiterating their contentions made in the writ petition.
9.1 have heard the learned counsel appearing for the parties and also considered the submissions made on their behalf. I have also perused the materials and documents available on record.
10. In view of the allegations and counter allegations made by the petitioners and Private respondents regarding the dispute relating to issuance LPC and recommendation made for issuing such in favour of the Private Respondents visavis the prayer made by the petitioners in this writ petition, It is necessary to decide whether LPC can be issued in respect of a community land which is covered under the Jhum cultivation. 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.
"Jum land" has been defined in the Balipara, Tirap, Sadiya, Frontier tract Jhum Land Regulation, 1947 (for short 1947 Regulation) is as follows:
"(b). "JHUM LANDS" means and includes all lands which 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 provided that such village or community is in a permanent location but does not include (i) any land which has been of is under process of being terraced for the purpose of permanent or semipermanent cultivation whether by means of irrigation or nor,
(ii) Any land attached or appurtenant to a dwelling house and used for the purpose of permanent cultivation, or
(iii) Any land which in the opinion of the Deputy Commissioner is subjected to permanent cultivation.
Explanation "(1) Any land which is otherwise Jhum land according to the above definition shall be deemed to be so notwithstanding the fact that a part or the whole thereof may have been planted with fruit trees, bamboos, or flung or reserved for growing firewood. (2) Any village or community shall be held to be in permanent location of it always remains within a specific area, although part or the whole of such village or community may migrate from time to time to different localities within that area".
Section 4 of the 1947 Regulation provides accrual procedure rights over Jhum and Section 5 of the Act provides for transfer of Jhum land.
Under Section 4( 1) a customary right to Jhum land is established in favour of a community when such community has enjoyed the right to cultivate to such land for not less than 5 years prior to the making of the Regulation.
Under Section 4(2) of the Act, a customary right to Jhum land in favour of an individual cultivator arises
"(a) if he inherited the land in accordance with a local custom:
(b) if he purchased the land prior to the making of this Regulation and such purchase was not contrary to local custom, or
(c) if he has purchased the land at any date subsequent to making of this Regulation, provided such purchase was not contrary to any local custom or any provisions of this Regulation, or
If, being a resident of permanent village, he has brought the land under cultivation, and the land has not been cultivated at any time within 30 years proceeding his bringing the same into cultivation."
Section 5 of the Regulation provides that Jhum land to which a community has a customary right may not be transferred to another community or to any individual except with the permission of the Land Conservator.
The aforesaid provisions were made with a view to safe guard and regulate the rights of the tribes indigenous to the area over the Jhum land. Such community land has also been statutorily recognized by the State which can be seen from the S.9 of the Arunachal Pradesh (Land Settlement and Records) Act 2000 dealing with accrual of rights over land. S.9 of the Act of 2000 is quoted herein below:
"9. (1). All lands, public roads, lands and paths and bridges, ditches, dikes, and fences on or beside the same, the beds of rivers, streams, nallahs, lakes and tanks, and all canals and water courses and all standing and flowing water, and rights in or over the same or appertaining thereto, which are not the property of any person or community are hereby declared to be the property of the Government. (2). Unless it is otherwise expressly provided in the terms of a grant made by the Government, the right to mines, quarries, mineral products including mineral oil, natural gas and petroleum shall vest in the Government, and it shall have all the powers necessary for the proper enjoyment of such rights".
Thus the community land is not declared as Govt. land in view of the special status attached in such land since time immemorial. Under Section 2(j) of the said Act the definition of "Jhum land" is declared to be same as defined in the 1947 Regulation, referred to above.
The issuance of LPC is regulated and guided by set of Executive Instructions issued vide Office Memorandum No. LR31/84 dated 9188 which is quoted herein below ;
"GOVERNMENT OF ARUNACHAL PRADESH
LAND RECORDS DEPARTMENT
OFFICE MEMORANDUM
No. LR31/84 dated 19th December 88.
Sub: Issue of Possession Certificate Procedure thereof.
The Government has been considering to evolve a proper and simple procedure for issue of Possession Certificate to the owners of private land in various places of Arunachal Pradesh. Such certificate is considered most essential by an individual for obtaining financial assistance from various institutions such as nationalized Banks, A.P. State Cooperative Apex Bank, Tea Board, Coffee Board, Rubber Board, Industrial Development Bank of India etc.
In view of the above, the Govt. is decided to adopt the following procedures for issue of Possession Certificate in favour of the land owners, as and when they desire
A. The land owners who desire to obtain possession certificate in support of his land, he/they shall submit an application in the form prescribed at documents to the administrative authority of the area, where the land is located:
(i). Certificate from the Forest Department mentioning the land in question does not fall under reserved forest area,
(ii) Certificate from the village council/ village headmen/vice President Anchal Samity that the land is actually owned by him and it is not a joint property as well as the land is free from all encumbrances.
(iii) Sketch map of the land in triplicate (not to scale) duly countersigned by the Vice President Anchal samity/Village council/village Headman.
B. On receipt of the above application the Administrative Authority of the locality shall arrange to inspect and measure the land in question with survey team for which he shall issue a notice as per form prescribed at Annexure B with a copy to the following persons of the locality :
i)Gaon Burah
ii) Gram Panchayat Member
iii) Anchal Samity member
iv) Applicant
v) Persons holding land in
a) North
b) South
c) East
d) West.
C On completion of above inspection, the Administrative authority shalolo arrange to issue a notice for "no objection from the public of the locality as per form prescribed at Annexure C.
D. On completion of above course of actions, if it is established without any doubt, that the applicant concerned is sole owner of the land, the administrative authority shall recommend the case to the concerned DC as per form prescribed at Annexure D for issue of Possession Certificate.
E The DC on receipt of the recommendation from the administrative authority shall examine the case, and if it is found in order he shall recommend the case to the Government for approval, and after obtaining the approval he shall arrange issue to Possession Certificate as per Annexure E.
A wide circulation of the contents of this office Memorandum shall be made all over the areas falling under his jurisdiction for information of the people. This issues in partial modification of Government''s O.M. No. LR31/84 dated 5187.
SdA J.M.Tangu
Secretary (Revenue & Settlement
Govt. of Arunachal Pradesh, Itanagar".
11. The said Office Memorandum was modified vide Notification No. LR 31/84 Pt. dated 16399 issued by the Secretary, Land Management, Government of Arunachal Pradesh. As per the said notification dated 16399 all cases for issue of LPC up to 5 hectors for any purpose shall be examined and decided by the Deputy Commissioner without forwarding them to the Government and LPC up to 5 hectors shall be issued by the Deputy Commissioner on the strength of No Objection certificate to be issued by the Divisional Forest Officers and the fulfillment of other conditions prescribed as per Office Memorandum dated 19188.
12. Analysis of the aforesaid two documents, clearly shows that such LPC can be issued to the owners of private land for various places of Arunachal Pradesh and the necessity for issuance of such certificate is for obtain financial assistance from various Banking Financial Institutions. The aforesaid memorandum does not authorize the authority to issue LPC in respect of community land. It is applicable so far as private land of an individual is concerned.
13. Without going into the other factual details as to whether the land covered by LPCS issued to the private respondents as well as for which recommendation have also been made fall within the Dambuk area or not, from the aforesaid discussions and provisions of law covering the field, it can safely be held that such LPCS cannot be issued in respect of any community land, more particularly, when it is covered under Jhum cultivation. In a land covered by Jhum cultivation no individual cultivator/villages is entitled to claim specific ownership right over a particular plot of land and a particular plot of land which is in occupation of a particular villager for such cultivator, have to be abandoned after certain period of cultivation and kept fellow at the time of rotation of the area which is the essence of Jhum cultivation.
Accordingly, indiscriminate issue of LPC in favour of the respondents over the community land covered by Jhum cultivation has no sanction of law. The Deputy Commissioner is not authorized under the law to issue LPC in respect of such land in favour of anybody. Such LPC can be issued in respect of private land only.
14. In view of the above noted provisions of law, and the discussions made hereinabove, the matter is remanded to the Deputy Commissioner Lower Dibong Valley, Roing who will scrutinize the LPC''s issued in favour of the private respondents and if on such scrutiny, it is found that the land in respect of which such LPCS were issued/ recommended, are community land and/or land covered under Jhum cultivation, he shall immediately cancel such certificates issued by him and no action shall be taken on the recommendation issued by the Extra Assistant Commissioner or Divisional Forest Officer for issuance of LPC in respect of any community land.
The aforesaid exercise shall be done by the Deputy Commissioner within a period of 3 months from the date of receipt of the certified copy of this order and till such exercise is completed, the interim order passed by this court on 1992002 shall continue.
With the above directions and observations, this writ petition stands disposed of. No costs.
