ON THE DEATH OF SURENDRA MARAK, HIS HEIRS SHRI ENESH SANGMA AND ORS. Vs. DIVISIONAL FOREST OFFICER, WEST DIVISION

JUDGEMENT

(1.) THE Petitioners are human "shuttlecocks". They belong to "Garo Scheduled tribe". They lived merrily. Came the partition of India and they had to pay dearly. They had to flee from their 'home sweet home', their 'native' land overnight became a 'foreign country'. We won our freedom, self government and the shackles of slavery were broken. We gained, profited , thrived and prospered but millions of Indians left out in the partitioned India lost everything, life, home, liberty and even human dignity. We shed tears for the refugees of the world but totally, completely and conveniently let slip from the memory the plights, agonies, miseries and sufferances of our Indian Refugees The petitions belong to that wretched class of people, They came for safety, shelter -they were termed as 'refugees' but in reality they continue to remain as 'the refuse' in our Democ(sic) Socialist India, that is, Bharat. They somehow could reach Assam. The Government of the country accepted them, us Justice -social and economic and insurances of the dignity to the individual are imprinted in our "Constitution". They were accepted by the Government of Assam and allotted lands at Kharikona. They came in a batch consisting of 500 families. As it happens more often than not the allotmen of lands are made at places which are most unsuitable. The Petitioners are cultivators but the land allotted was not arable, farmable of ploughable. Naturally,, they migrated and infiltrated into a nearby Forest Reserve styled us "Luthurmiri". But the Government considered it unsaid to keep them in that forest and asked them whether they would accept resettlement in Rongkhong Reserve forest". The Government was up and doing and the hapless families, agreed to accept, whatsoever was offered to them, as they had not oven "a straw to catch hold" The promise of the Government finds expression in Annexure 'A' where their leader Sashi Saugma was asked whether those 300 Garo families would accept allotment of lands in Rongkhong Reserve". It was in 1959. Thereafter, the picture emerges' in Annexure 'B'. We find, vide Government order No. FOR/SETT/427/57/161 dated 13.1.60 and Conservator of Forest order No. FG. 40(4) dated 23.2.69, 120 families had bees accommodated in Rongkhong Reserve Forest after allotting plots to them. It appears clear from Annexure 'B' that on allotment of plots, 120 families were allowed to live in a portion of "Rongkhong Reserve". The Government, it appears, were anxious to stabilise and settle more families in the Reserve, lit; appears from Annexure 'B' that 200 plots of land were demur -Cited and earmarked for another 200 families. Annexure 'B' clearly indicates that 120 families had been settled in that area and that the Forest Department, as far back in 1969, took all possible steps to settle another 200 families in 200 plots. All arrangement for their rehabilitation were nude and even the forest officials were considering the case of settlement of further (sic) families. However, we do not find anything in Annexure as to what happened with those 180 families. We also do find the precise area that had been allotted' to each family there residential -cum -agricultural purposes. However, those records are surely with the Government and with the slightest (sic) the authorities could have found out the records referred in Annexure 'A' and '13'. There is no doubt that settlement of most of these 500 families had been done in 'hat area. Unfortunately, nothing bus been produced before us co show the precise area allotted to those who were settled with lands. Further it does not appear at all from the coords placed at our disposal whether out of those 500 families any family was deprived of the right of allotment, Similarly, we also do not have the list of the allottees and/or Registers of the allottees before us. We also do not find the exact area allotted to each, family and/or the members of the households. We also do not find whether there was any notification declaring the area as a forest village, When the allotments were made in the manner? disclosed in Aunexure 'A' and 'B', the crucial question arises as to whether, by virtue of the allotments or settlements made with the Petitioners, the reserved area became automatically dereserved. It appears, therefore, in the present case, after the settlements were made the area in which the allotments or settlements were made no longer remained a part of the Reserved Forest. A thin endeavour has been made before us to show that the allottees' Were Taungya villagers. However, there is no document produced before us that there was any such agreement between the Government on the one side and the Petitioners on the other, to show that they were accepted as Tauagya villagers or which, is called as "Jhumias" under the Rules for the Establishment and Control' of Forest villages, made under Section 72 of the Assam Forest Regulation 1891, for short "The Regulation". There is no notification to snow that the area in which the allotment had been made was declared to be a forest village. It follows, therefore, that it was a, direct settlement by the government to the Petitioners and they are not forest villagers as contemplated under the Rules for The Establishment and Control of Forest Villages, framed by the government vide notification No. 4631 R dated 6th December, 1980, under Sections 72(e), 74 and 75 of "the Regulation". One thing is for sure that Taungya villagers have no right of residence in the forest village. We mean to say that 'jhumias' are admitted in a forest reserve on condition that they would do certain acts as provided in Rule 12 of the "Rules", the jhumias are to execute agreement in the form prescribed by the government in letter No. FOR 1367/3276 -C.J. dated 27/10/41.

(2.) WHO are those allottees? What is their status? The Petitioners were all agriculturists. So, they were given settlement in the deep "Reserved Forest" for carrying on their avocations and agriculture is their sole occupation. They have categorically stated that were settled In that area and have no 'paper, apart from Annexure to support their rights, It is admitted by the Respondents' in the notices as well us in their affidavits that allotments had been made in favour of the Petitioners except the Petitioners in Civil Rule Nos. 600 to 614, 652 to 654, 657, 659, 660. 662 to 664, 667, 723 to 727, 729, to 738, 740, 766, 772 to 774, '776 to 779, 783 to 789 of 1982, Therefore, even the Respondents admitted that the Petitioners, barring those 40 Petitioners referred above, were allotted land as Taungya Villagers. However, we do not find any record to show that there was any such agreement with them. On establishment of a forest village, for the purpose of providing a source of suitable local labour or for farming and maintaining plantation, Taungyas are allowed to enter in Forest Villages by the Conservator of Forest. Taungyas are not allottees of land in the forest village. At best, they can be local labour force who live outside the villages and their help and, resources are taken to maintain plantations in the Reserved forest: licences or permits are granted by the Divisional Forest officer to the entrants in accordance with the executive order of the Conservator of Forest. An allottee cannot be styled as Taungya. Taungyas or Jhumias are granted licences; ordinarily they live near the forest. If there was no forest village the question. of Taungya agreement cannot arise in these cases,. If it was declared to be a forest village the register or document or papers must be there to show the persons allowed to live in village, in the Forest Department and/or with the Government, In the instant cases, the Petitioners state clearly and specifically that they were allottees. The Respondents have also admitted in the notices as well as in the affidavits that allotments of the land were made to them. Under the circumstances it is very difficult for us to accept that the Petitioners were merely member of the labour force allowed to work for the plantations and/or for the purpose referred in Rule 2 of "the Rule", Further there is no record to show what was the area of land actually allotted to them. Under these circumstances the Petitioners cannot be branded as trespassers and evicted. The Petitioner had applied for appropriate relief to1the High Court Under Article 226 of the Constitution of India and the High Court accepted their applications in Civil Rule No. 499 of 1974 and it connected Civil Rules in Harendra Chiran and Ors. v. Divisional Forest Officer West Division, Mikir Hills Dist. A Ors, disposed on 5.1.1981, when there were attempts to evict them. It is true that in the said portions, some of the Petitioners claimed that they were allottees and a few claimed that they were occupying the land under Taungya system, however, their case was that they were occupying the land. The common case of the Petitioners was that they were not unauthorised occupiers liable to be evicted under "Section 12(c) of "the Regulation" and the rules framed thereunder. The Petitioners claimed that they bad the right to occupy and cultivate the land which the Respondents had allotted and settled with them, for household and cultivation, The Petitioners contended that they were not given any opportunity to show cause that they were not unauthorised occupiers. It appears from the decisions that the Respondents could not produce any document to show that they were not allottees. It was at the initance of Counsel for the Respondents the matter was remitted to the Divisional Forest Officer, Mikir Hills district West division, Dipbu to go into the entire matter and to decide whether the Petitioners were unauthorised occupiers or not and specific directions were given to the Divisional Forest Officer to find out the records which show the names of the allottees and the area of lands allotted to each of them. The Court also directed that in the notices of eviction specific and clear areas should be described in respect of which the Petitioners were unauthorised occupiers, the Divisional Forest Officer was directed to call for the relevant records and on perusal of the records to decide (i) who were allotted settlement of lands; (ii) what was the precise area of land allotted to each allottee. It was, inter -alia, ordered that

(3.) DURING the course of bearing it transpired that these are not simple cases in which the Respondents or any one of them can evict the Petitioners at their sweet will, without the authority of law. There must be some provision of law on the basis of which the Respondents can take action against the Petitioners. We are of the opinion that before taking any such action, the following relevant questions shall have to be resolved by the Respondents: