Gauhati High Court
Kiri Dini Bogum General Secretary vs The National Hydro Power Corporation ... on 7 April, 2021
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia, Manash Ranjan Pathak
GAHC010044852021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
Case No. : WA/89/2021
KIRI DINI BOGUM GENERAL SECRETARY, 1225
HECTARE COMPENSATION DEMAND ACTION,
COMMITTEE, SON OF TAKIN DINI, PERMANENT
RESIDENT OF LIPU VILLAGE, P.O. AND P.S.
LIKABALI, DIST.- LOWER SIANG, ARUNACHAL
PRADESH.
VERSUS
THE NATIONAL HYDRO POWER CORPORATION LTD.
(NHPC) AND ANR.
A GOVERNMENT OF INDIA UNDERTAKING, REP. BY
THE EXECUTIVE DIRECTOR, LOWER SUBANSIRI
HYDRO SELECTRONIC PROJECT, P.O. AND P.S.
GEREKAMUKH, DIST.- DHEMAJI, ASSAM- 787035.
2:THE NATIONAL COMMISSION FOR SCHEDULE
TRIBES AND ANR REP. BY ITS CHAIRMAN 6TH
FLOOR B- WING LOK-NAYAK BHAWAN
KHAN MARKET NEW DELHI- 110003
Advocate for the Petitioner : MR. T PERTIN
Advocate for the Respondent : MR. A R GOGOI
Page | 1 BEFORE HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE MANASH RANJAN PATHAK 07.04.2021 (Sudhanshu Dhulia, C.J.) Heard Mr. PC Behera, learned counsel for the appellant. Also heard Mr. PK Tiwari, learned senior counsel assisted by Mr. AR Gogoi, learned counsel for respondent No.1.
2. This appeal has been filed by the writ appellant challenging the judgment and order dated 03.02.2021 passed by the learned Single Judge in WP(C) 8588/2019.
3. Under the Hydro Electric Project, a dam was to be constructed on the river Subansiri in Arunachal Pradesh which is a project to generate 2000 Mega Watt electricity. The land which will be so affected by the construction of the dam is 3183 hectares. The project is being executed by the National Hydro Power Corporation ('NHPC' for short). As per the NHPC, the entire land on which the project was to be constructed and as a result of which huge tract of land was to be submerged was in fact a forest area which falls under the category of 'Unclassed State Forest'. Under the Assam Forest Regulation, 1891 and the Rules framed under Regulation 34, an "Unclassed State Forest" means "any land at the disposal of the State and not included in the reserved or village forest". A group of 77 persons from Arunachal Pradesh who claimed certain cultivable and non-cultivable Page | 2 hereditary rights over this forest, claimed compensation and a settlement was arrived at between the NHPC and a group of 77 persons and an amount of Rs.51 Crores was given to this group. While the project was on, another claim was made by 29 individuals and various tribes and sub-tribes of Arunachal Pradesh and assessment in that regard was made by NHPC at Rs.32 Crores out of which Rs.17.46 Crores was paid. The NHPC disputed this amount and agreed to pay only Rs.17.46 Crores which was given to them. For the remaining amount, the NHPC had initially approached this Court and now the matter is pending before the Hon'ble Apex Court in the form of SLP No.6856/2020. Meanwhile, an enhanced claim was again made by people and the State came to the conclusion that various assessment was made by the assessment authorities, firstly of Rs.523 Crores and thereafter of Rs.3000 Crores. Regarding this, another writ petition being WP(C) 5402/2020 has been filed before this Court by NHPC which is pending before this Court and in the said writ petition, the present appellant is a party. He is also a party before the Hon'ble Apex Court. Meanwhile, the writ appellant has approached the State Commission for Scheduled Tribes (hereinafter referred to as 'Commission') with a prayer that a compensation be awarded to them and the Commission passed various directions inter alia directing the NHPC to pay an amount of Rs.523 Crores to the writ appellant, apart from other directions which had been given. This order was challenged by the NHPC before the learned Single Judge. The limited point raised by the writ petitioner before the learned Single Judge was regarding the jurisdiction of the Commission to adjudicate upon the matter and Page | 3 award compensation to the claimant. Not only the aspect of jurisdiction was there before the learned Single Judge, to our mind, there was another important aspect which was that the High Court and the Apex Court were already ceased with this issue and other related issues, how could a determination be made on the very same aspect by the Commission. The learned Single Judge was of the opinion, and in our view rightly so, that the directions of the National Commission for Scheduled Tribes held on 27.09.2019 directing payment of compensation and giving other directions are totally without jurisdiction and therefore, the order itself is void ab initio and consequently, the order was set aside.
4. Aggrieved, the claimants in whose favour this order was passed, have approached this Court by way of the present writ appeal. We have a limited scope to determine, which is, whether the Commission had the jurisdiction to pass a kind of order which it had actually passed.
5. Article 338A of the Constitution1 of India relates to the composition and power of National Commission for Scheduled Tribes.
1338 A. National Commission for Scheduled Tribes.-
(1) There shall be a Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may be rule determine.
(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission --
Page | 4
6. A perusal of Article 338A goes to show that the five powers, which have been given to the Commission nevertheless relates to investigation regarding complaints relating to Schedule Tribes, filing of reports and certain powers of summoning etc. or related to investigation. The Apex Court in the case of All India Indian Overseas Bank SC and ST Employees' Welfare Association & Ors. Vs. Union of India & Ors., reported in (1996) 6 SCC 606 has categorically held that the powers of Civil Court which have been given to the Commission are only for the purposes of investigation and enquiry. It
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
(c) to participate and advise on the planning process of socio-economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations. (7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely: --
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court of office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may, by rule, determine. (9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes.
Page | 5 is not a Court which can determine the rights and liabilities of the parties which are before the Commission.
7. But in the case at hand, this is precisely what has been done by the Commission. Following the aforesaid decision of the Apex Court, a Division Bench of Uttarakhand High Court in the case of Pankaj Kumar Vs. State of Uttarakhand & Ors., reported in 2019 SCC OnLine Utt 929, which relates to the power of the Commission, has held in Paragraph 30 as under:-
"30. We find it disconcerting that the National Commission should continue to pass orders, such as that impugned in this Writ Petition, despite the Supreme Court having clearly held, in All India Overseas Bank SC & ST Employees' Association [(1996) 6 SCC 606], that it lacks the power to pass orders of injunction, temporary or permanent. With the fond hope and trust that the National Commission for the Scheduled Tribes would desist from issuing any such directions, and from making any such requests, in future, we refrain from saying anything more."
8. We are, therefore, of a considered view that the directions of the Commission dated 27.09.2019 are wholly without jurisdiction. The Commission has exercised power given to it under the law, i.e. the power to decide the rights and liabilities of the parties, which are before the Commission. This is the jurisdiction of a Court, more particularly, when all these matters are subject matters pending before this Court as well as before the Apex Court, the Commission in all fairness should have refrained from entertaining the matter. We make Page | 6 it absolutely clear that there is no determination by this Court as to the merits of the claim of the writ appellant as regarding compensation. Their right to compensation or the amount which is to be given by way of compensation is a subject matter of SLP as well as the writ petition referred above. We are only on the point as to the jurisdiction of the Commission. We are in agreement with the findings of the learned Single Judge that the order passed by the Commission is without jurisdiction and while passing such order, the Commission has exceeded its jurisdiction. In view thereof, there is no occasion for us to interfere with the findings of the learned Single Judge and hence, the writ appeal is dismissed.
9. In this case, a cost of Rs.500/- had also been imposed by the learned Single Judge against the Commission. The cost is nominal but symbolic. We are also conscious of the fact that National Human Rights Commission is not before us as an appellant challenging the imposition of this cost. All the same, since the National Human Rights Commission is a constitutional body, imposition of a cost on the Commission perhaps could have been avoided and therefore we must delete that part of our order. Consequently only that part of the order by which cost has been imposed, is set aside.
JUDGE CHIEF JUSTICE
Comparing Assistant
Page | 7