Dr. E. Renphamo Lotha
Former Law Officer to the
Govt. of India and Nagaland, Advocate
INTRODUCTION
Land is of vital importance for survival of human existence. Keeping in mind the importance of the land, in almost all the States in India there are many problems of land. Such conflicts are becoming acute especially in West Bengal, Maharashtra and Haryana these days. Nagaland, one of the smallest States in India is not an exception for various conflicts leading to land cases in all parts of the State. Conflicts in land matters has been compounded owing to the peculiar land tenure system in the State. For instance, in other States, land belong to the Government. But fortunately and unfortunately, in Nagaland, land belongs to private individual, clans, community and tribe. Hence, development cannot be carried out unless the Government acquire land by paying land compensation under the Nagaland Land Acquisition and Requisition Act enforced in the State. '
In the recent years, the State Government out of the desire to develop the State has committed mistake by passing unconstitutional and illegal resolutions on 26th July, 2010 and 22nd Sept. 2012 which require re-examination and repeal thereof in the interest of the people as democracy is the Government of the people for the people and by the people.
1. Basic function of law makers
In a Welfare State, the basic function of the law makers is to make good laws for the protection of the rights of the people, adopt welfare measures and to develop the people and the land. Accordingly, the Parliament of India has legislated and provided a special provision for the State of Nagaland in 1960 under Article 371A of the Constitution almost equivalent of Naga independence as follows:
371A (1) Notwithstanding anything in the Constitution-
(a) no Act of parliament in respect of –
(i) religious or social practices of the Nagas,
(ii) Naga customary law and procedure,
(iii) Administration of civil and Criminal justice involving decisions according to Naga Customary law,
(iv) Ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly by a resolution so decides,
2. Basic function of the State Legislative Assembly
The aforesaid provision of the Constitution has laid enormous responsibility on the Nagaland State Legislative Assembly to enact good laws, acts and resolutions to protect the rights of the people, adopt welfare measures for the people and develop the people and the land as patriots. If that be the case, it is considered absolutely necessary to say that the honourable members of the Nagaland Assembly to keep the core principle of the Constitution under which they have taken oath upon their election in the august house. So that such a vision will enable them to enact good laws and resolutions for the protection of the rights of the people adopt necessary welfare measures and develop the people and the land as good law makers, patriots and statesmen. But if they enact bad laws, such laws will crash the rights of the people, their welfare and development of the people and the land.
Unfortunately, in the recent years, the honourable members of the Nagaland Legislative Assembly have adopted bad resolutions both in 2012 and 2012 against the aspirations of the people who have voted them to power. This particular resolutions has become a stumbling block toward peace and development for which the Government came into being. The members have gone directly against the people who have high esteem of their high office to deliver goods to them. Hence, they have lost the confidence of their subjects unless the bad laws are repealed in the interest of the people for whom they have taken oath to deliver goods to them during their tenure. They are well aware of the saying, “to err is human” subject to proper correction at the right time before the fire engulf the house they have built.
3. Peculiar Constitution and Legal interpretation of land and its resources in respect of Minerals including Petroleum and Natural Gas.
It is considered necessary to say that in other States of the Country, land belongs to the Government. For example, in West Bengal, Maharashtra and Haryana etc, State is the owner of the land and its resources including petroleum and natural gas. But in Nagaland, as envisaged under Article 371A (iv)-land, transfer and its resources belong to the people individuals, families, clans, community and the tribe as the case may be. The State is not the owner unless the land is acquired under land acquisition act enforced in the State. Land cannot be transferred to outside agents. At the most, land can be leased out for a certain period of time. Hence, the State cannot become one of the land owners as envisaged under the resolutions, namely, The Nagaland Ownership and Transfer of Land and its resources in respect of Minerals including Petroleum and Natural Gas Resolution, 2010 and Draft Nagaland Petroleum and Natural Gas Regulations, 2012 which is 50% of the share of land owners. Further, she cannot claim certain percentage such as 8% (50%) royalty of revenue as the case may be in a private land in the name of land owners. The State is simply the guardian of the people. But the guardian cannot take away the share of the children unconstitutionally and illegally. If she does, so, she will be termed as dictator, suppressor and exploiter and not a guardian in the real sense of the term.
Of course, the State has the right to levy tax and has a share in revenue in mineral exploration even without becoming a land owner as Jesus advised the Jews to give Caesar what belongs to Caesar and to God what belongs to God. The Government can generate revenue to sustain the expenses of the State by Constitutional and legal sanctions but not unconstitutionally and illegally.
4. Conclusion
Considering the merit of the aforesaid facts and circumstances of the case, it has been proved beyond all reasonable doubt that the State has infringed the rights of the land owners by becoming one of the land owners for royalty or revenue by the aforesaid resolutions of 2010 and 2012. It is therefore considered appropriate to repeal the two resolutions in the interest of justice and fair play in the interest of the people. So that peace will be reported followed by development of the people and the land for which the Government has taken an oath ever since ten years.
