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Tekaba AO and Anr.v. Sakumeren AO and Anr.

Country/Territory
India
Type of court
National - higher court
Date
Apr 29, 2004
Source
UNEP, InforMEA
Court name
Supreme Court of India
Judge
Patil, S.V.
Dharmadhikari, D.M.
Reference number
AIR2004SC3674, 2004(5)SCALE297, (2004)5SCC672
Language
English
Subject
Water, Land & soil
Keyword
Water rights Water desalination Land tenure Inland waters Traditional rights/customary rights Foreign land tenure Freshwater resources management
Abstract
The dispute between the two clans of the two villages in Nagaland is concerning the access to the source of water and the ownership of the suit land which is described as 'Jakoktsuba' by the appellants and 'Mezenteraba' by the respondents, with the governing law being customary law. The civil justice system provides for hierarchy of courts. The lowest original village court is called 'Dobhasis', which can try and decide civil cases referred to it by the Deputy Commissioner. Dobhasis Court comprises of village authorities like Mauzadars Gaonbura, Chiefs and Headman of Khels with other village elders. An appeal is provided to District Customary Court and a further appeal can be filed to the High Court under Rule 2. The court in view of the customary nature of the substantive and procedural law involved decided not to pursue an adversarial mode of dispute settlement but instead opted for a solution in the ‘spirit of accommodation and adjustment’ so as to mutually benefit the two parties. The disputes in villages like the one involved in the present case regarding access to the source of water and right and title to the land in which the source exists, needed a resolution so as to best serve the demands of all members of the two village communities who had raised the dispute. The court went on to observe that so far as natural resources such as land and water were concerned disputes over ownership were not that relevant as the state was the ‘sovereign dominant owner’. the procedure adopted by the High Court in deciding the issue of ownership of the land as the original court was not in accordance with the Rules which provide a less formal procedure and application of customary law. The issue about the ownership of land in which the water source exists, if at all, was found to be important, should have been allowed to be raised in the primary court i.e. the village court and then, if necessary agitated before the District Court through an appeal. Undertaking exercise of deciding the said dispute of ownership of the land by the High Court for the first time in appeal was not in accordance with the letter and spirit of the Rules The court declared the source of water to be a common water sourc. Appeal can be disposed of by declaring that the village communities in two clans of two villages would have a joint and equal right to the water source in the disputed land. None of the members of the two contesting clans or communities in the two villages shall restrict access to any one of the two village communities to the common water source. After setting aside the order of the High Court and its decision on dispute of ownership of the land measuring two acres, the dispute of ownership is left open for being raised by any of the contesting parties, if a cause of action for the same arises in future, in the competent village court for its resolution in accordance with the provisions of the Rules.