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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO.  13939    OF 2015 [ARISING OUT OF S.L.P. (C) NO. 2407 OF 2014]

NUNEY TAYANG    ....APPELLANT

VERSUS

KODELUM TAYANG & OTHERS   …..RESPONDENTS

JUDGMENT

AMITAVA ROY,J.  

1.         Leave granted.

2.  A seemingly irresoluble discord amongst a section of  

the tribal populace of the State of Arunachal Pradesh, over the  

compensation for the acquisition of land for setting up of Key  

Location Points (KLP) of the Army in the District of Lohit, has  

propelled the parties  before  this  Court  seeking its  remedial  

intervention.

3. We have heard Mr. J.P. Cama, learned senior counsel  

for  the  appellant,  Mr.  Manish  Goswami  and  Mr.  Anil  

Shrivastav, learned counsel for the respondent Nos. 1 to 16,  

17 to 19 respectively.

4. A  brief  factual  background  is  indispensable.   The

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genesis of the lis is traceable to the proceedings initiated by  

the  appellant  herein  registered  as  W.P.  (C)  No.  489(A.P)  of  

2009  before  the  High  Court  of  Gauhati,  Itanagar  Bench  

questioning  the  notification  dated  16.2.1973  proposing  to  

constitute  “Denning Reserve Forest”  under Section 5 of  the  

Assam  Forest  Regulation,1891  (for  short,  hereinafter  to  be  

referred  to  as  ”the  Regulation”)  and  the   subsequent  

notification  dated 23.9.1077 issued under Section 17 thereof  

declaring approximately 25641 hectares of land as such forest  

encompassing,  according  to  him,  275  hectares  of  their  

ancestral  land.   In  challenge  was  also  the  validity  of  the  

Tripartite  Memorandum  of  Understanding  (MOU)  dated  

22.3.2005 by which the villagers of the Denning Forest Area  

were  made  to  agree  and  part  with  their  ancestral  land  in  

question.  It  was  averred  that  the  land  spanned  over  two  

villages, Bodaru and Chittangam, inhabited by the members  

of Mishmi Tribe of Lohit District, who sustained themselves on  

the cultivation grown thereon. The representation submitted  

by  the  appellant  for  de-reservation  of  275  hectares  of  

ancestral  land  of  villages  Bodaru  and  Chittangam  for  

exclusion from the limits of Denning Reserve Forest (hereafter  

referred  to  as  “DRF”)  was  rejected  by  the  Deputy

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Commissioner, Tezu ( for short, hereinafter to be referred to as  

”the Deputy Commissioner”) on 27.1.2009 mentioning, inter  

alia,  that  an  area  of  248.60  hectares  therefrom  had  been  

acquired by the Army for which it had already deposited an  

amount of Rs. 2,48,60,000/- as compensation.

5. Skipping over the avoidable details, suffice it to state  

that  by  judgment  and  order  dated  29.3.2011,  the    writ  

petition was disposed of by upholding the impugnment of the  

notifications dated 16.2.1973 and 23.9.1977, proposing and  

constituting the Denning Reserve Forest covering the area of  

villages  Bodaru  and  Chittangam,  to  be  in  violation  of  

provisions  of  the  Regulation  and  other  laws  as  mentioned  

therein.  While recording the stand of the appellant and the  

other  land  owners  that  they  were  agreeable  to  waive  their  

rights over their ancestral land, as the same, was sought to be  

utilized in the services of the nation, the High Court directed  

the  respondent  authority  to  make  an  effort  to  settle  the  

dispute with the tribal villagers by way of amicable settlement,  

by  making  payment  of  adequate  land  compensation  to  the  

individual  land  owners  or  by  relocating  the  tribal  villages  

Bodaru and Chittangam to a suitable site to enable them  at  

rehabilitate  themselves.    A  time limit  of  four  months  was

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granted to  complete  the  entire  process  as  desired.   It  is  a  

matter  of  record  that  this  determination  remained  un-

interfered, though appeals were preferred before the Division  

Bench of the High Court followed by a special leave petition  

before this Court.

6. As  following  this  adjudication,  the  Deputy  

Commissioner  by  letter  dated  10.6.2011  addressed  to  the  

Commander, 82 Mtn. Brigade, Lohitpur forwarded the names  

of only nine persons for payment of compensation, computed  

it at Rs. 18,69,47,200/- for  248.60 hectares of land involved  

by excluding the private respondents herein, they approached  

the  High Court  with Writ  Petition (C)  No.  263(AP)  of  2011,  

assailing the same.  They pleaded to be the members of the  

local  Mishmi Tribe of  Tafragam Village of  the Lohit  District  

who had shifted there, from the land in between the Chepo,  

Machishee  and  Ohikabom Nallah  in  the  year  1970-71 and  

were the actual owners of the land ‘Machishee’ in between the  

land  of  ‘Chitangam’  and  ‘Bodaru’  Villages  since  time  

immemorial.  That they used to sustain themselves by growing  

cultivation over this ancestral land even after their migration  

to the Tafragam Village was underlined.

7. They referred to the W.P.(C) No. 489(AP) of 2009 filed

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by  the  appellant  and  also  the  decision  dated  29.3.2011.  

According to them, being aggrieved by notification including  

275  hectares  of  ancestral  land  of  Bodaru  and  Chittangam  

Villages in the DRF without following the due process of law,  

the appellant herein representing 42 persons had approached  

the High Court with the writ petition.  They claimed that the  

appellant  herein  was  authorized  by  the  villagers  of  Bodaru  

and Chittangam Villages to challenge the inclusion of  their  

land in the DRF in violation of law.  It is in this perspective  

that they impeached the validity of the  letter dated 10.6.2011,  

whereby  the names of  only nine persons excluding them,  

were  forwarded by  the  Deputy  Commissioner  for  release  of  

compensation deposited by the Army.

8. The pleaded averments seem to suggest that W.P. (C)  

No. 489(AP) of 2009 filed by the appellant was, as authorized  

by the villagers of Bodaru and Chittangam Villages, with the  

impression  that  their  claim  and  cause  would  be  espoused  

thereby.  They, therefore expressed strong resentment in the  

exclusion of their names from the list of persons entitled to  

compensation as forwarded by the Deputy Commissioner on  

10.6.2011 and sought the annulment thereof.

9. The  High  Court  on  20.1.2012,  noticing  that  the

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petitioners  therein  (private  respondents  in  this  appeal)  had  

submitted  a  representation  ventilating  their  grievances  as  

above  which  had  remained  unattended,  disposed  of  the  

petition  with  a  direction  to  the  respondents  authorities  to  

make  an  enquiry  with  regard  to  their  claim  and  pass  

appropriate orders in accordance with law within a period of  

three months.

10. The  Deputy  Commissioner,  having  regard  to  the  

afore-stated adjudication by the High Court in the two Writ  

Petitions,  by  order  dated  1.6.2012  notified  all  the  

claimants/affected  persons  to  lodge  their  claims  and  

objections, if any, with respect to the land in question within a  

period  of  15  days  and,  inter  alia,  also  set-out  the  steps  

proposed to enquire into the matter including physical/spot  

verification  of  the  land,  indicating  as  well  that  on  the  

completion  of  the  process,  a  fresh  demand  would  be  

submitted to the Army for necessary action.  As the records  

would  reveal,  this  order  was  published  in  the  local  dailies  

whereafter  a  Circular  dated  15.6.2012  was  also  issued  

informing those, who had meanwhile submitted their claims,  

that the land measuring 248.60 hectares  in Denning Reserve  

Forest would be physically verified and surveyed on 18.6.2012

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at  10  A.M.   Thereby,  a  Committee  was  constituted  to  

supervise  and  conduct  the  survey  and  verification.   The  

noticees were required to be present at the spot at the time of  

survey/notification.

11. On  the  very  same  date  i.e.  18.6.2012,  the  

respondents  herein,  in  writing  apprised  the  Deputy  

Commissioner that the appellant Nuney Tayang had, in the  

meantime, arranged a mediator to amicably settle the claim  

and that on his (mediator) advice, they would not attend the  

spot survey/identification, acting on the assurance that the  

matter  would  be  resolved  amiably.   Thus,  the  private  

respondents  herein  did  not  attend  the  spot  

survey/identification.  As the documents laid in the affidavit-

in-opposition, before this Court  would reveal, they followed  

up with a letter  dated 19.6.2012 to the Deputy Commissioner  

conveying that in view of the assurance given by the mediator  

to settle the claim amongst themselves, they were withdrawing  

the representation to the said effect.

12. The  Deputy  Commissioner,  by  order  dated  

22.6.2012, while recording that  a physical verification of land  

at  Bodru  and  Chittangam  was  conducted  on  18.6.2012,  

observed that there as was no land records pertaining to the

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said area,  being a community land,  constituted a Board to  

enquire  into  the   claims   and  the  apportionment  of  

compensation.  The  concerned  claimants,  were,  thereby  

notified  to  appear  before  the  Board  on  26.6.2012 so  as  to  

enable  it  to  conduct  the  necessary  enquiry  and  record  a  

decision on their ownership of the land.

13. On  the  eve  of  the  date  of  the  enquiry  as  fixed  

hereinabove, on 25.6.2012, a group of claimants including the  

appellant  herein,  submitted a  representation to  the  Deputy  

Commissioner  claiming themselves to  be  the  owners of  the  

land  involved.  They  stated  in  clear  terms,  that  as  per  the  

census record for the period 1961-71 as available, the land of  

villages Bodaru and Chittangam was community land where  

the members of  the Tayang clan, Tailu Clan,  Drai,   Tindva  

clan and Chiba clan had been residing. They elaborated, that  

they  were  the  land  owners  and  were  growing  cultivation  

thereon and were totally  dependent on agriculture for  their  

livelihood. It was disclosed in the said representation, that the  

owners and the claimants were willing to apportion the land in  

question  among  themselves  and  that  the  decision  to  that  

effect would be conveyed to the Deputy Commissioner.

14. The respondents allege that thereafter on 6.7.2012, a

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meeting  was  unilaterally  convened  at  the  residence  of  the  

appellant, in which they were not called, for which they could  

not participate.  In the same meeting, the respondents impute,  

that in a self-serving manner, the persons assembled under  

the  chairmanship  of  the  appellant,  finalized  a  list  of  83  

persons identified to be the owners/claimants, among whom  

the amount of compensation was to be apportioned.  In the  

said list, name of none of the respondents was included.

15. The  respondents,  having  come  to  learn  of  this  

development and being  under the impression that they had  

been deluded and misled by the offer of amicable settlement of  

their claims through the mediator, addressed a representation  

on 17.9.2012 to the Deputy Commissioner withdrawing  the  

revocation  of  their  claim  for  compensation  as  earlier  

communicated by their correspondence dated 19.6.2012.  In  

the said representation, not only did they accuse the appellant  

and his group to be involved in a wrongful endeavour to deny  

them their  legitimate dues vis-à-vis  the land to which they  

were entitled as per the customary law, they also questioned  

the claim of the appellant alleging that he was not an owner of  

the land in question and in fact did hail from Malogam Village  

and was residing at Tezu.  They reiterated, that the land at

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villages Bodaru and Chittangam is a community land, owned  

by  Mishmi  tribe  and  emphatically  staked  their  share  of  

compensation for the land acquired.

16. On  the  receipt  of  this  representation,  the  Deputy  

Commissioner  by  order  dated  22.10.2012,  constituted  a  

Board,  as  referred  to  therein,  to  re-examine  the  issue  of  

apportionment of land.  In deciding thus, the said authority  

not  only  did take  note  of  the  factum of  the  apportionment  

made in the meeting dated 6.7.2012 referred to hereinabove,  

but  also  recorded  that  many  new  claimants  had  also  

registered their claims in connection therewith, for which it  

was deemed necessary to re-enact the exercise.

17. Pursuant  to  this  order,  the  Deputy  Commissioner  

issued  a  notice  on  10.12.2012,  directing  the  appellant  to  

appear before the Board on 14.12.2012.  Situated thus, the  

appellant again approached the High Court with W.P (C) No.  

419  (AP)  of  2012  seeking  annulment  of  this  notice  dated  

10.12.2012  and  a  writ  of  mandamus  to  the  Deputy  

Commissioner   to  act  on  the  list  of  83  beneficiaries,  as  

finalized in the meeting dated 6.7.2012 and, to accordingly,  

release the amount of compensation.

18. The  respondents  as  well,  instituted  W.P.  (C)  No.

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63(AP)  of  2013,  with  the  cavil  that  the  representation  

submitted by them on 17.9.2012 seeking the inclusion of their  

names in the list of beneficiaries had remained unattended.  

Whereas  in  W.P.  (C)  No.  419  (AP)  of  2012   filed  by  the  

appellant, the High Court by order dated 17.12.2012  stayed  

the process as contemplated by notice dated 10.12.2012,  by  

order dated 2.3.2013 W.P. (C) No. 63(AP) of 2013 filed by the  

respondents was disposed of with a direction to the Deputy  

Commissioner  to  examine  their  representation  dated  

17.9.2012 and to dispose of the same on the basis of the facts  

on  record  and  in  accordance  with  the  existing  rules  and  

procedure.

19. The Deputy Commissioner, however,  in view of the  

interim  restraint  orders  dated  17.12.2012  and  19.12.2012  

passed in W.P.(C) No. 419(AP) of 2012 felt it inadvisable  to  

undertake  a  fresh  process  of  re-examining  the  issue  of  

ascertainment  of  ownership  and  apportionment  of  the  

compensation and accordingly, disposed of the representation  

dated  17.9.2012  of  the  respondents-claimants  by  recording  

these observations.

20. It is in this backdrop that the W.P.C. No.419(AP) of  

2011 fled by the appellant along with two other writ petitions

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were  finally  disposed  of  by  the  High  Court  on  31.7.2013  

directing the Deputy  Commissioner to disburse the amount of  

compensation of Rs. 20,78,49,600/- to the aforementioned 83  

beneficiaries after proper identification and on obtaining due  

receipts.   As  the  High  Court  did  also  note  that  20  more  

persons were claiming compensation, it required the Deputy  

Commissioner  to  obtain  an  undertaking  from  the  said  83  

beneficiaries  that  they  would  refund  the  excess  amount  of  

compensation paid, in the event the claims of these persons  

(20) were found to be genuine.

21. Being  aggrieved  by  this  determination,  the  

respondents preferred Writ Appeal No. 230 of 2013, which by  

the  decision  impugned  herein,  stood  disposed  of  by  the  

Itanagar  Bench  of  the  High  Court,  directing  the  State  of  

Arunachal Pradesh to issue appropriate notification under the  

Land  Acquisition  Act,  1894  (for  short,  hereinafter  to  be  

referred to as “1894 Act”)  for acquiring the land in accordance  

therewith within one month from the date of the receipt of the  

order,  if  the  land  is  needed  for  public  purpose.   It  was  

mentioned as well, that if no such notification was issued, the  

parties would be at liberty to seek their remedy for return of  

the land.  However, if a notification was issued, it directed the

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Collector  to  determine  the  claim  of  compensation  in  

accordance with the provisions of 1894 Act and allowed any  

party aggrieved by the award, to seek  remedy in accordance  

with law.

22. Mr.  J.P.  Cama,  learned  senior  counsel  for  the  

appellant  has  emphatically  asserted  that  the  respondents-

claimants are not the owners of and/or in possession of the  

land in the two villages involved i.e. Bodaru and Chittangam  

as is apparent from the averments made in their Writ Petition  

i.e.  W.P.(C)  No.  263(AP)  of  2011  and  thus  their  claim  for  

compensation  is  wholly  misplaced.  According  to  him,  the  

appellant and other 82 beneficiaries identified and short-listed  

and also approved by the State Government are only entitled  

to  the   compensation  deposited  by  the  Army  for  the  

acquisition of land measuring 248.60 hectares.  The learned  

senior counsel maintained that these 83 beneficiaries, being  

the genuine owners in possession of the land involved, have  

been  subjected  to  harassment  and  prejudice  by  the  delay  

caused, as they have been deprived both of their lands and  

compensation, for no fault of theirs.  Mr. Cama, insisted that  

no acquisition of land involved has been effected under the  

1894 Act and if at this belated stage, the same is applied, it

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would  further  delay  the  completion  of  the  process  to  the  

irreparable loss and detriment of the 83 beneficiaries already  

identified.  According to him, the respondents-claimants have  

no semblance of right in the land in question and that their  

claims ought to be rejected in limine.

23. Mr.  Goswami,  learned  counsel  for  the  respondents  

Nos.  1  to  16,  per  contra,  has  urged  that  it  being  

overwhelmingly apparent on the face of the records, that the  

land  in  question  is  a  community  land  and  that  the  

respondents-claimants are also the owners thereof along with  

the other members of Mismi Tribe inhabiting the same from  

the time immemorial, the 83 persons, arbitrarily short-listed,  

cannot  be  permitted  to  exclusively  avail  the  amount  of  

compensation deposited.  Contending that the respondents-

claimants, at the initial stage, had been misled to believe that  

their claim for compensation would be amicably settled, the  

learned  counsel  has  insisted  that  as  the  developments  

subsequent  thereto  demonstrated  that  were  sought  to  be  

unfairly  sidelined  and  deprived  of  their  right  in  law,  the  

Deputy  Commissioner  was  perfectly  justified  in  initiating  a  

fresh exercise to re-visit  the issue of  ownership of  the land  

involved  and  the  apportionment  of  the  amount  of

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compensation  in  connection  therewith.   As  the  purported  

exercise to short-list 83 beneficiaries had been undertaken to  

the exclusion of  the respondents-claimants,  and is  patently  

sham in nature, the list forwarded to the Government is non  

est  in  law  and,  thus  does  not  confer  any  right  on  these  

persons to claim compensation, he maintained.

24. Mr.  Anil  Shrivastav,  learned  counsel  for  the  

respondent Nos. 17 and 18, in essence, submitted that the  

Deputy  Commissioner  in  order  to  resolve  the  controversy  

emerging from the contesting claims of the parties, did decide  

to undertake the process de novo to fairly and conclusively  

decide on the aspect of ownership of land and apportionment  

of  compensation  and,  thereby  constituted  a  Board  for  the  

purpose  and  notified  all  concerned  to  participate  in  the  

impending  process.   According  to  Mr.  Shrivastav,  had  this  

exercise been allowed to be undertaken and concluded,  the  

issue  would  have  been,  by  now,  finally  resolved  to  the  

satisfaction of all concerned.

25. Mr.   Cama,  in  his  reply,  without  prejudice  to  the  

challenge  laid,  submitted  on  instructions  that  if  in  the  

attendant facts and circumstances, this Court feels inclined to  

require a fresh process to be undertaken to put a quietus to

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the  protracted  dissension,  then  a  rigid  time  frame may  be  

fixed for completion of the same without, however, insisting on  

the initiation thereof in terms of the provisions of the 1894  

Act.   He,  however,  persistently   implored for  a direction to  

release some amount of the compensation deposited, to the 83  

beneficiaries,  if  necessary,  after  obtaining  an  undertaking  

from them to refund anything received by them in excess in  

the event the respondents-claimants and/or others are found  

to be entitled thereto.

26. The  pleadings  of  the  parties,  the  documents  on  

record and the rival arguments have been duly noted.  The  

parties have filed additional affidavits to the effect that in view  

of the delay that has occurred and the stage at which, the  

process lies, they do not insist on the  initiation of a drill as  

contemplated by the 1894 Act and that a denovo enquiry from  

this  stage  to  ascertain  the  ownership  of  the  land  and  to  

determine  the  apportionment  of  compensation,  would  meet  

the ends of justice to the satisfaction of all concerned.

27. To be specific, the appellant in his affidavit has on  

his behalf and for all  the 82 short-listed claimants affirmed  

that they would not in future, raise any dispute regarding the  

applicability of the 1894 Act (old or new) qua the procedure to

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be  carried  out  by  the  authorities  concerned  as  would  be  

directed by this Court.

28. Whereas  by  the  affidavit  sworn  by  Ms.  Lalrinpuii  

Hrahsell,  Defence  Estate  Officer,  Ministry  of  Defence,  

Government of India, it has been averred that  initiation of a  

proceeding under the 1894 Act would not be insisted upon,  

respondent Nos. 1 to 16 have in their affidavit pleaded, that  

initiation of  such proceeding  by  issuing  notifications under  

Sections 4 & 6 of the 1894 Act may not be necessary, as the  

land involved has already been acquired and handed over to  

the Army, for which it has deposited the compensation with  

the State Government.  It has, however contended, that the  

exercise  to  be  undertaken  by  the  Reference  Court,  as  

contemplated, ought to be limited to enquire and ascertain the  

interested persons/rightful land owners of the acquired land  

and to apportion the compensation amount amongst them.

29. In their additional affidavit, the respondent Nos. 17  

to  19,  representing  the  State  of  Arunachal  Pradesh,  have  

stated that for the purposes of payment of compensation to  

the affected persons/claimants, initiation of proceeding under  

the 1894 Act would not be insisted upon and that the process  

for identification of the beneficiaries may be pursued from the

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stage of  the  order  dated 22.12.2012 passed by the  Deputy  

Commissioner.   They,  however,  prayed  for  at  least  three  

months’ time to complete the exercise.

30. In  the  overall  conspectus  of  the  facts  narrated  

hereinabove, we are of the considered view  that in order to  

ensure that the compensation amount deposited by the Army  

for  the  land acquired is  defrayed to  the  rightful  claimants,  

they are to be necessarily  identified,  so that  the dispute is  

resolved  for  all  times  to  come.   Admittedly,  no  proceeding  

under the 1894 Act (as amended) had been initiated.  Though  

Section  11  of  the  Regulation  refers  to  a  procedure  of  

acquisition of land in the manner provided under the above  

mentioned statute in the eventualities, as set-out therein, it  

cannot be gainsaid that if such a pursuit is embarked upon at  

this stage, it would considerably delay the resolution of the  

already protracted controversy.  We are, thus, not inclined to  

favour  initiation  of  a  process  under  the  1894  Act  at  this  

distant point of time.

31. Having  regard  to  the  totality  of  the  circumstances  

and also the unambiguous stand taken by the parties before  

us, we construe it to be expedient and in the interest of justice  

to  remit  the  process  to  the  learned  District  Judge,  Lohit

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District, Teju to proceed with the same from the stage of the  

notice/order  dated  10.12.2012  issued  by  the  Deputy  

Commissioner, as referred to hereinabove.  Needless to say the  

learned District Judge, Lohit District would issue fresh notice  

to the parties and to all concerned with adequate circulation  

and  proceed  thereafter  to  identify  the  owners/  persons  

interested in the land acquired and the rightful claimants of  

the compensation therefor and apportion the amount amongst  

them in accordance with law.  To undertake this exercise, the  

learned  District  Judge  would  act  as  a  Reference  Court  as  

under  the  1894  Act  and  invoke  the  powers  necessary  to  

effectively  and  correctly  ascertain  the  owners/persons  

interested  the  rightful  claimants  of  compensation  and  

apportion  the  same  as  per  their  entitlements  in  law.   The  

process, as directed, should be completed within a period of  

three  months  from  the  date  of  this  order  by  which  the  

disbursement of the compensation amount ought to be made  

as  well  by  complying  with  the  necessary  formalities  qua  

identification  of  the  recipients  to  avoid  any  demur  in  this  

regard in future.

32.  The parties would cooperate with the process, so as  

to  enable  the  learned  District  Judge  to  complete  the  same

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within  the  time  frame  fixed.   We  part  with  the  belief  and  

expectation that the long standing dispute would be settled  

without  further  precipitation.  The  Civil  Appeal  stands  

disposed in the above terms.  No costs.      

                ….....…....................................J.          (V. GOPALA GOWDA)

                 …............................................J.           (AMITAVA ROY)

NEW DELHI; DECEMBER 1,  2015.