BALI LOYI Vs. DEPUTY COMMISSIONER AALO

JUDGEMENT

(1.) HEARD Mr. K. Jini, learned counsel for the petitioners, Ms. G. Deka, learned Addl. Senior Govt. Advocate, for respondent Deputy Commissioner, Aalo, Mr. K. Ete, learned counsel appearing for private respondent No. 2 and Mr. M. Pertin, learned counsel appearing for private respondent No. 3.

(2.) THE dispute, in the present case, is simple but the facts are as under. The present writ-petitioners are farmers residing in the remote area of Arunachal Pradesh and they solely depend upon cultivation for their livelihood and for cultivation of their agricultural fields, since the days of their father, have been drawing water from Ropi Stream for the last 49 years for irrigation without any disturbance from any corner. In the year 1979, the respondent No. 2 attempted to draw water from the said Ropi Stream for irrigation of his Wet Rice Cultivation (WRC) fields whereupon the petitioners' father lodged a complaint with the village authority against the respondent No. 2. The Village Level Keba (meeting) held on 23. 06. 1979 decided that the said Ropi Stream would be used by the petitioners' father and barred the respondent No. 2 from using the said stream. The Ropi Stream flows through the land of respondent No. 2 and taking advantage of this, the respondent No. 2 again created trouble to the petitioners in the year 1985 on the pretext of erosion caused to his land whereupon the petitioners again lodged a complaint with the village elders and the Village Level Keba held on 06. 03. 1985 decided that the eroded portion of respondent No. 2's land should be corrected/ protected by drawing straight canal over the Ropi Stream as well as by providing flood control by both the parties which could be used as a boundary line between the parties. In the said Keba meeting, the respondent No. 2 was barred from collecting boulders from the said stream bed flowing towards the petitioners' side or path. The said meeting (Keba) affirmed the earlier decision of 23. 06. 1979 holding that the Ropi Stream belonged to the petitioners. In the said meeting, the respondent No. 2 was present and accepted the decision of the said meeting but he, again, without preferring any appeal, if he was so aggrieved by the aforesaid decisions/ orders of the Keba, tried to create obstruction to the petitioners over the peaceful use of the said stream. The petitioners had to lodge a complaint with the Gaon Burah and village elders against the respondent No. 2 A Village Level Keba was then conducted on 04. 05. 2004 wherein it was again decided that the respondent No. 2 would be allowed to draw scanty amount of water from the Ropi Stream to cultivate his small portion of WRC field only for the year 2004 till he gets water from an alternative source. The respondent No. 2 was present in the said Keba meeting and he did not prefer any appeal against the said Keba decisions dated 23. 06. 1979, 06. 03. 1985 and 04. 05. 2004 and as such, the aforesaid orders have attained finality. However, the respondent No. 2 again started obstructing the petitioners from using the water from the said Ropi Stream. This time, the petitioners made a complaint before the Deputy Commissioner, Aalo, on 17. 04. 2007, who on receipt of the same, ordered for conducting a meeting in the village level to resolve the dispute. Accordingly, a Village Level Keba was held on 12. 05. 2007 which was attended by all the parties concerned. The Keba reaffirmed its earlier decisions made in favour of the petitioners and directed the respondent No. 2 not to disturb the petitioners. The decision of the Keba meeting dated 12. 05. 2007 was forwarded to the Deputy Commissioner, Aalo, for approval and execution of the same but no action has been taken by the concerned authorities and due to delay in execution of the said decision, the petitioners could not cultivate their WRC fields. The petitioners, thereafter, verbally approached the Deputy Commissioner, Aalo, on several occasions for immediate execution of the aforesaid Keba decision dated 12. 05. 2007 but to no effect. The petitioners then submitted a formal representation dated 04. 07. 2007 before the Deputy Commissioner, Aalo, and on receipt of the same, the petitioners were told that an order dated 31. 05. 2006 was passed by the Gauhati High Court and as such, the said respondent Deputy Commissioner could not take any step for execution of the said Keba decision.

(3.) IN the return filed, the respondent No. 2 categorically stated that he was neither a party to the Keba meeting held on 23. 06. 1979 nor had he any knowledge about the same. The said decision was taken without affording any opportunity of being heard and the same was taken behind his back. The document purported to be the proceedings/ resolutions of the Keba being unsigned, cannot be relied upon and accepted. Regarding Keba decision dated 06. 03. 1985, the respondent No. 2 stated that it was convened to decide the dispute regarding collection of boulders by both the parties for repair and construction of embankment for flood damage control of their respective banks alongside the Ropi Stream and the said Keba never affirmed or held that the Ropi Stream belonged to the petitioners. The subject-matter of the said Keba had nothing to do with the right of use of water of Ropi Stream and as such, the statements made by the petitioners are totally misleading. Regarding Keba decision dated 04. 05. 2004, the respondent No. 2 denying the correctness of the same stated that the petitioners are trying to mislead this Court by wrongly translating the Keba decision 04. 05. 2004. There was no mention in the said Keba decision dated 04. 05. 2004 that respondent No. 2 was allowed to use the water of the Ropi Stream for the year 2004 only. The respondent No. 2 further stated that he used to draw water for irrigation purpose partly from Ropi Stream and partly from Mebbu River due to varying ground levels at different portion of his WRC fields and the respondent No. 3, sometimes, completely blocked the irrigation canal of Mebbu River for which he filed a case against the respondent No. 3 and the same is pending before this Court. The further plea of the respondent No. 2 is that no question of preferring an appeal against the Keba decision dated 23. 06. 1979 arise as he was not a party to the said Keba meeting. The respondent No. 2 further contends that he also did not prefer an appeal against the Keba decisions dated 06. 03. 1985 and 04. 05. 2004 inasmuch as the said Keba decisions never decided on the right over the Ropi Stream against him.