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1957 DIGILAW 38 (GAU)

Usuet Khasia v. Range Officer, Jirimukh

1957-06-24

J.N.DATTA

body1957
ORDER This is a petition under Art. 226 of the Constitution of India for a writ of mandamus or other appropriate writ restraining the respondents (1) The Range Officer of Jirimukh Government Forest and (2) The Chief Commissioner of Manipur, from giving effect to the decision of the Government to eject the petitioners from the land in question and which decision was conveyed to the petitioners by Memo dated 26-10-1955 (which was in fact a notice to quit and will be hereafter referred to as such) from the first respondent in these terms : "OFFICE OF THE RANGE OFFICER : JIRIMUKH. Memo No. JF/684/vii-i. Dated, Jirimukh the 26th Oct., 1955 1. Usuet (Khasia) s/o late Manik of Khasia village, Headman, Jirimukh Reserve Forest. 2. Khanlau Khasia, s/o late Bania of Khasia village, Headman, Jirimukh Reserve Forest. 3. Upring Khasia, s/o late Ushai of Khasia village, Headman, Jirimukh Reserve Forest. 4. Usiang Khasia, s/o late Ubang of Khasia village, Headman, Jirimukh Reserve Forest. 5. Niton Khasia, s/o late Lakhon of Khasia village, Headman, Jirimukh Reserve Forest. 6. Usiang Khasia, s/o late Usar of Khasia village, Headman, Jirimukh Reserve Forest. 7. Mohin Khasia of Khasia village, Headman, Jirimukh Reserve Forest. 8. Roni Khasia, s/o late Mon of Khasia village, Headman, Jirimukh Reserve Forest. 9. Ukiang Khasia, s/o late Uron of Khasia village, Headman, Jirimukh Reserve Forest. In suppression of this Office. Memo No. JF/ 373-81/viii-1 dated 30-7-1955, you are hereby informed to vacate the area settled in the Jirimukh Reserve Forest within 31st January, 1956- In case of disobedience, drastic action will be taken up against you. Sd/- Illegible. RANGE OFFICER: JIRIMUKH GOVERNMENT OF MANIPUR". 2 A similar memo (notice) was previously issued on 30-7-1955 asking the petitioners to vacate within one month from 31-7-1955. It does not appear, but it is not unlikely that the second notice of 26-10-55 was issued, because it was thought that the petitioners were entitled under the law to a longer notice. It is significant to note that the total period allowed by these two notices comes to six months, which is necessary for the determination of an agricultural tenancy under section 106 of the Transfer of Property Act. It is significant to note that the total period allowed by these two notices comes to six months, which is necessary for the determination of an agricultural tenancy under section 106 of the Transfer of Property Act. 3 It is not disputed that the land in question is part of the reserved forest of the Government and the petitioners settled on it on or after 25-4-1950, that is soon after the Indian Forest Act (No. XVI of 27) came to be applied to Manipur by the Part C States (Laws) Act, 1950 (Act XXX of 1950) : see section 1 (2) which applies Act XXX of 1950 from 16-4-1950. It was pointed out on behalf of the respondents that the Indian Forest Act had been applied to Manipur since before by a resolution of the then State Government, but that resolution was not produced. It is, however, not necessary to go into that question, as nothing turns on it, in view of) the fact that the Indian Forest Act had, in any case, come into operation before 25-4-1950. 4 The area settled upon by the 9 respondents is more or less 220 bighas, out of which an area of about 20 bighas is used for residential purpose and the rest for cultivation etc. This area either adjoins or is in the vicinity of the village known as Abom Punjee, and the receipts for the Hill House Tax, paid by the petitioners to Government in different years, and to which documents no exception was taken by the respondents, go to show that the area in dispute is recorded in the Government papers as a village bearing No. 15 and the name Abom Punjee Khasia. The tax was paid through the Headman of the village who was allowed his commission at 6 1/4 per cent. The receipts for the tax show the name of petitioner No. 9 Ukyang as the Headman, but it appears that the present Headman is petitioner No. 1 Usuet and the 2 notices referred to above were also served on him as such. 5 The contention of the petitioners is that they being landless persons, Government grant-led settlement to them and allowed them to open a new village on the land in dispute and they have accordingly reclaimed the land, built houses and planted fruit trees etc. 5 The contention of the petitioners is that they being landless persons, Government grant-led settlement to them and allowed them to open a new village on the land in dispute and they have accordingly reclaimed the land, built houses and planted fruit trees etc. after investing a large amount, and have also been paying rent or land revenue in the shape of house tax, which was accepted by the authorities. As regards the grant of settlement reliance is placed upon a memo dated 25-4-1950 from the Range Officer, Jirimukh Range, addressed to petitioner No. 1 Usuet which runs as follows: "Usuet Khasia, Reference: Your application dated 23-4-1950. You are hereby informed that if there is no objection by the Abom Punjee village and in case you are willing to pay land revenue when demanded by the Land Revenue Staff, I have no objection to plant Pan in the Jhuming area of Abom Punjee village. Sd/- Illegible, Range Officer, Jirimukh Range". (6) As regards the alleged grant of settlement the contention of the Government is that the Range Officer had neither authority nor was he competent under the law to permit any settlement in or upon any part of the reserved forest, and in my opinion that contention is well-founded, because under the Indian Forest Act, it is only the State Government which can grant any right in or over any part of the reserved forest. In the present case, admittedly there was no grant by the Government and it is difficult to see how the permission given by the Range Officer can bind the Government. It is neither alleged nor shown that the Government had given the Range Officer any authority to grant settlement upon lands covered by the reserved forest. In the affidavit filed on behalf of the respondents, it was also stated that there were some forest rules in force in Manipur, but they were not made available to me by any of the parties. Again, an examination of the memo of the Range Officer, dated 25-4-1950 will show, that what the Range Officer permitted was only plantation of Pan and not the establishment of a new village. It is thus obvious that the petitioners can get no rights on the basis of this permission given, by the Range Officer. Again, an examination of the memo of the Range Officer, dated 25-4-1950 will show, that what the Range Officer permitted was only plantation of Pan and not the establishment of a new village. It is thus obvious that the petitioners can get no rights on the basis of this permission given, by the Range Officer. 7 The position of the petitioners was thus very much like that of squatters, and if the matter rested here there could be no question of their being entitled to claim anything against the Government. 8. But that was not all. The Government not only stood by and let them build houses, plant fruit trees, start other cultivation, and establish a new village which come to be known as Khasia or Abom Punjee Khasia, but also recovered house-tax from the petitioners. There arises then the necessity of examining the effect of this recovery of house-tax year after year. Before proceeding further it is necessary to state what this house-tax is. The administration of the Hill people of Manipur State has been carried on in such matters since 1947 according to the Manipur State Hill Peoples (Administration) Regulation, 1947 and under that Regulation inhabitants of a village of hill people have to pay nothing except house-tax for land occupied by them for residence and cultivation. Thus the house-tax recovered from the owner of each house is in the nature or in lieu of land-revenue or rent for his occupation of land for residence and cultivation in the village. I have not over-looked the argument of the learned Government Advocate, who appeared on behalf of the respondents, that the land in question is not part of the hill area, but is part of reserved forest. But that makes no difference because the Government has every right or power to grant a tenancy or lease of land forming part of reserved forest and recover land-revenue or rent for the same, and what I want to say is only this, that the house-tax recovered from the petitioners was nothing but rent for the land in question which they have been occupying. 9A tenancy is created not only by an express contract but also by implication by the conduct of parties and acceptance of rent clearly establishes a tenancy. 9A tenancy is created not only by an express contract but also by implication by the conduct of parties and acceptance of rent clearly establishes a tenancy. On the side of the respondents no explanation has been given as to the circumstances under which this rent (house-tax) was accepted or recovered on behalf of the Government and therefore the presumption will be that it was recovered with full knowledge of the facts. In these circumstances Appellant tenancy clearly came into existence in favour of the petitioners and what remains to be seen is what would be the duration or nature of that tenancy. 10. Transfer of Property Act did not apply to Manipur at the relevant time and therefore the presumption under S. 106 of that Act cannot be availed of, nor can the petitioners be deemed to be annual tenants under the provisions of the Assam Land and Revenue Regulation, 1886 (as was the contention of the learned Government Advocate) because the provisions of Chapter II, Part I, of that Regulation do not apply to land included in any reserved forest: see S. 4 of the Regulation. It is needless to say that this Regulation applies to Manipur, having been extended to Manipur since long. 11 As already stated elsewhere, the receipts of house-tax, and also the notices given to the petitioners to vacate the land go to show that there has been a recognition in the Government papers, of this village established by the petitioners and also of the Headman, and neither in the affidavit filed on behalf of the respondents, nor in the arguments advanced before me was it asserted that this recognition was unauthorised. No explanation of any kind was also offered of the circumstances in which this took place, and it was clearly for the Government to have explained the whole situation if it intended to challenge its own records. In these circumstances this Court will be justified in presuming, indeed it will be bound to presume that this area has been validly constituted and recognised as a village under the law and rules in force. Once that is conceded it is not difficult to infer the nature of the tenancy or the settlement. In these circumstances this Court will be justified in presuming, indeed it will be bound to presume that this area has been validly constituted and recognised as a village under the law and rules in force. Once that is conceded it is not difficult to infer the nature of the tenancy or the settlement. The idea of permanency is implicit in the very nature of the act of establishing a village and therefore in the circumstances of this case it must be found that the tenancy or settlement intended was permanent. 12 In this connection attention might also be drawn to the rules in S. II, Chapter I of Part II of the Assam Land Revenue Manual under which leases for special cultivation can be issued by the Government in respect of lands in reserved forest. Under R. 45 in that section, such a lease, subject to any special condition confers upon the lessee a permanent heritable and transferable right. That rule also thus provides some indication of the nature and duration of tenancy in such cases. I have therefore no hesitation in holding that the petitioners have acquired the right as permanent tenants or lessees of the land in dispute. In the premises, it is also clear that the respondents are not entitled to eject the petitioners, as they want to do, and such an act on their part will be an infringement of the fundamental rights or at least the legal rights of the petitioners. 13 By the two notices the petitioners were asked to vacate the land on pain of drastic action being taken against them, which indicates clearly that resort will not be had to any civil remedy and the petitioners will be evicted with the aid of such executive or police force which the Government has at its command. If, therefore, immediate protection is not afforded to the petitioners, then they are bound to suffer irreparable injury and loss. It is not disputed that they have built houses, planted fruit trees and are carrying on cultivation on the land, the cost of all which must be presumed to be considerable taking into consideration the poverty and means of the people in these areas. It is not disputed that they have built houses, planted fruit trees and are carrying on cultivation on the land, the cost of all which must be presumed to be considerable taking into consideration the poverty and means of the people in these areas. In such a case the alternative remedy of suit that the petitioners have, and to which resort can be had only after notice under S 80 of the C. P.C., can by no means be said to be equally convenient, beneficial and effectual. The objection raised on behalf of the respondents on this score cannot, therefore, be sustained. 14 Similarly, it is evident from the terms of the notice that the Government is determined to evict the petitioners and no useful purpose could have been served by a previous demand on the port of the petitioners. A demand is also not an absolute legal necessity before a petition for a writ under Art. 226 can be entertained, and relief to which Appellant petitioner may be justly entitled under Art. 226 cannot be refused merely for want of a previous demand : see Motilal v. U. P. Govt., AIR 1951 All 257 at p. 333 (A), which was a Full Bench case. The objection of the respondents on this point, therefore must also fail. It might be mentioned that the petitioners had applied to the S.D.O., Jiribam after the receipt of the first notice praying that they should not be forced to leave the village. But it is clear from the very terms of that petition that it does not amount to a demand necessary in such cases. 15 Holding therefore that the petitioners are not liable to be ejected, I direct the issue of a writ restraining the respondents from giving effect to the decision to eject the petitioners from the suit land. This will however not mean that the Government will not be entitled to acquire the land on payment of compensation if that course is permissible to them under the provisions of any law. The respondents will pay the petitioners their costs, which I fix at Rs. 50/-. Order accordingly.