IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

   PRESENT:

Mr. Justice Surendra Kumar Sinha

Mr. Justice Md. Abdul Wahhab Miah

Mr. Justice Hasan Foez Siddique

Mr. Justice A.H.M. Shamsuddin Choudhury

CIVIL APPEAL NO.147 OF 2004.

(From  the  judgment  and  order  dated  29.7.2002  passed  by  the  High  Court Division in Writ Petition No.358 of 1997.)

Wagachara Tea Estate Ltd.:  Appellant.

=Versus=

Muhammad Abu Taher and others:       Respondents.

For the Appellant:  Mr.  S.R.  Khoshnabish,  Advocate-on-

Record.

For Respondent Nos.1-4:  Mr. Shafique Ahmed, Senior Advocate

(with Mr. Syed Aminul Islam, Senior Advocate,  Mr.  A.F.M.  Mesbahuddin, Senior Advocate), instructed by Mr. Md.  Tanfique  Hossain,  Advocate-on- Record.

For Respondent Nos.5-17:  Not Represented.

Date of hearing: 12th, 25th November, 2014 and 2nd December, 2014. Date of Judgment: 2nd December, 2014.

J U D G M E N T

Surendra Kumar Sinha,J: This appeal by leave is at the  instance  of  the  writ  respondent  No.2  Wagachara  Tea Estate Limited from a judgment of the High Court Division

in Writ Petition No.358 of 1997 by which the High Court Division made the rule nisi absolute and declared an order

of the Land Appeal Board, the writ respondent No.1, to be illegal and without lawful authority.

Leave was granted to consider the questions which have public importance. The points are whether, the Land Appeal Board constituted under the provisions of the Land Appeal Board Ain, 1989 has jurisdiction to hear disputes arising out of judgment and order passed by the Deputy Commissioner and Divisional Commissioner in civil suits in exercise of powers under the Chittagong Hill Tracts Regulation, 1900 (Regulation of 1900). Secondly, whether the Land Appeal Board has power to decide a review petition filed against an order of the Commissioner arising out of a matter under Regulation of 1900 and finally whether, the views taken in Bikram Kishore Chakma

V.  Member, Land Appeal Board, 6 BLC 436 that the Regulation of 1900 has no manner of application after the passing of the Constitution and that the provisions of Land Appeal Board Ain, 1989 will be applicable to the Chittagong Hill Tracts (CHT).

To resolve the points in controversy, it is relevant at this juncture to consider short facts, which are as under:

Wagachara Tea Estate is located in mouzas Chatamaram and Wagachara under Rangamati Hill district. One Jagat Chandra Mohajan was the owner of the land of the said tea estate, who was succeeded by his three sons Ruhuni Ranjan Das, Mohini Ranjan Das and Nalini Ranjan Das. Ultimately twelve descendents of Jagat Chandra became the owners, who executed a power of attorney on January 5, 1978, in favour of Alhaj Moulana Nurul Huda Quaderi, the Managing Director of the appellant company. The said owners thereupon entered into an agreement on September 19, 1981 with Alhaj Moulana Nurul Huda Quaderi for sale of the land including the tea estate. As per customs, the owners applied to the Deputy Commissioner, Chittagong for clearance certificate for sale. In due course the Deputy Commissioner accorded permission on January 18, 1982. Except Shibu Prosad, other eleven owners executed a sale deed in favour of Alhaj Moulana Nurul Huda Quaderi. Pursuant thereto the Wagachara

Tea Estate Limited instituted Civil Suit No.12 of 1984 before the Deputy Commissioner, Chittagong Hill Tracts under section 7 of the Regulation of 1900 for specific performance of contract. The suit was dismissed by the judgment and order dated February 4, 1992. An appeal was preferred to the Divisional Commissioner from the said judgment which was also dismissed. Thereafter, the company took a revision petition under section 5 of the Land Appeal Board Ain before the Land Appeal Board. The revision petition was also dismissed by order dated January 8, 1994. Thereafter, the appellant company filed a review petition and the Land Appeal Board allowed the review petition by order dated December 26, 1995 and directed Shibu Prosad to execute a sale deed in respect of his share of land. Shibu Prosad thereupon preferred another review petition before the Land Appeal Board against the earlier order of review. Subsequently, Shibu Prosad executed a sale deed on January 1, 1994, with the prior permission of the Deputy Commissioner in favour of writ petitioners who are the respondent Nos.1-4. The writ

petitioners claimed that the order dated December 26, 1995 of the said Board has been passed without lawful authority.

Learned counsel appearing for the appellant has raised a pertinent question as to the enforceability of Chittagong Hill Tracts Regulation, 1900 under the changed circumstances and submits that the High Court Division has erred in law in holding the view that the Land Appeal Board has no jurisdiction to hear revision or review petition in respect of matters arising out of judgments passed by the Deputy Commissioner and Divisional Commissioner in a civil suit. Learned counsel for the appellant has referred two cases, Bikram Kishore Chakma V. Members Land Appeal Board, 6 BLC 436 and Bangladesh Forest Industries Development Corporation V. Shekih Abdul Jabbar, 53 DLR 488 in support of his contention.

In Bikram Kishore Chakma, the latter challenged an order of the Member, Land Appeal Board by which order, the Board set aside an order of the Divisional Commissioner, Chittagong. The dispute was relating to refusal of

settlement of a plot of land by the then Sub-Divisional Officer,  Rangamati.  The  writ  petitioner  challenged  the said  order  of  refusal  to  the  Deputy  Commissioner,

Rangamati,  who  however,  granted  settlement  of  the  said plot  jointly  in  favour  of  the  writ  petitioner  and  writ

respondent No.3 in equal shares. Against the said order, a revision  petition  was  filed  before  the  Divisional

Commissioner  by  the  writ  respondent  No.3,  who  by  order dated  December  23,  1990  rejected  the  revision  petition.

Against the said order the writ respondent No.3 preferred an appeal before the Land Appeal Board. The Member  Land Appeal Board allowed the appeal and set aside the order of

the  Deputy  Commissioner  granting  settlement  of  the  plot jointly.  The  writ  petitioner  then  challenged  the  said

order by a review petition before the Land Appeal Board. The  review  petition  was  also  rejected.  Under  such circumstances, the High Court Division held as under:

“Chittagong  Hill  Tracts  was  such  territory which  constituted  East  Pakistan  immediately before  proclamation  of  independence  and,  as such, it is a part of the Republic of Bangladesh like any other territory of the country. The Constitution nowhere refers to Chittagong Hill Tracts as a special territory and, in fact, there is no mention of Chittagong Hill Tracts by name. It is a territory like any other territory of Bangladesh. That being the constitutional position of the territory comprising Chittagong Hill Tracts it cannot be excluded from application of any law passed by the Parliament. The existence of Chittagong Hill Tracts Regulation, 1900 is like any other law of the country and subject to the law passed by the Parliament. We have seen that section 3 of the land Appeal Board Act, 1989 (Act 24 of 1989) provides that the provisions of the Act and the rules made thereunder will prevail over any existing law. Therefore in case of any conflict between said Act and the provision of Chittagong Hill Tracts Regulation, 1900, the Act being a

latter law will prevail over the provision of the Chittagong Hill Tracts Regulation. It may be mentioned that the Constitution of Bangladesh is of unitary type providing no special status to any particular territory including Chittagong Hill Tracts. Therefore, the law which is made applicable to the Republic must be made applicable to the Chittagong Hill Tracts also. In the present case there is nothing in Act 24 of 1989 and the rules thereunder that the law and the rules will not be applicable to Chiggagong Hill Tracts and that being the case the Act 24 of 1989 and the rules framed thereunder will be applicable to Chittagong Hill Tracts notwithstanding the provision in the Chittagong Hill Tracts Regulation that no notification will be made by the Government in the official Gazette to declare any enactment after commencement of Part III of the Government of India Act, 1935. After emergence of

Bangladesh and the passing of the Constitution this provision of the Chittagong Hill Tracts Regulation has no manner of application. In that view of the matter we do not find anything to accept the contention of the learned Advocate for the petitioner that the respondent No.1 Member, Land Appeal Board has no jurisdiction to hear the appeal against or reverse the judgment and order passed by the Commissioner, Chittagong Division, in respect of settlement of khas land in the Chittagong Hill Tracts. We therefore have no reason to declare that the respondent No.1 acted without jurisdiction in passing the judgment and order by Annexure I and J.”    

The High Court Division was of the view that the Land Appeal Board Ain, 1989 being the latest law on the subject, the same would prevail over the provisions of the Chittagong Hill Tracts Regulation. It has been observed that in the absence of any provision in our Constitution providing special status of the CHT, the Ain of XXIV of

1989 and the Rules framed thereunder will prevail and be applicable to CHT. As regards the applicability of Ain of XXIV of 1989, in CHT, I will express my opinion later on, but the High Court Division has committed a fundamental error in holding the view that the Regulation of 1900 has no force of law. It fails to consider that this Regulation has not been repealed as yet and that the parties to the litigation have also surrendered to the jurisdiction of the Deputy Commissioner and the Commissioner admitted the enforceability of Regulation of 1900. The opinion expressed in that case is devoid of substance.

In the latter case, Abdul Jabbar was appointed as supervisor in the timber extraction project, Kaptai on master roll basis. He was dismissed from the service for defalcation of money. He then filed a suit challenging the legality of his removal before the Deputy Commissioner, Rangamati under Regulation of 1900. The suit was dismissed by the Deputy Commissioner and on an appeal, the Divisional Commissioner remanded the matter to the Deputy Commissioner. This order was challenged before the High

Court Division by filing a revision petition under section 115  of  the  Code  of  the  Civil  Procedure.  The  High  Court Division held that the suit was filed under the Regulation of  1900  and  therefore,  the  High  Court  Division  had  no power to sit on revision under section 115 of the Code of Civil  Procedure  against  the  said  order  and  that  the remedy, if there be any, against the said order was by way of judicial review under Article 102 of the Constitution. I fail to understand why the learned counsel has referred this  case,  which  in  fact  helps  the  case  of  the respondents.

There is no doubt that the Regulation of 1900 is a special  law  that  applied  to  several  parts  of  former British  India  Empire  including  Burma  now  Myanmar  where indigenous  peoples  were  inhabited.  This  piece  of legislation was promulgated in accordance with the  laws, customs and systems prevailing to the people of indigenous peoples of Chittagong Hill Districts. It not only retains the special legal and administrative status of the  three districts, but also safeguards a wide body of customary

laws on land, forest and other natural resources of the indigenous people residing in those districts. It has 20 sections, Chapter II of the Regulation contains under the heading ‘Laws’: Chittagong Hill Tracts: how to be administered.  Section 3 provides that subject to the provisions of the Regulation, the administration of CHT shall be carried on in accordance with the Rules for the time being in force framed in exercise of powers under section 18. Section 18 says, the government may make Rules for carrying into effect the objects and purposes of the Regulation. The objects are provided in sub-section (2) as under:

“(a) to provide for the administration of civil

justice in the Chittagong Hill tracts;

(b)             to prohibit, restrict or regulate the appearance of legal practitioners in cases arising in the said tracts;

(c)              to provide for the registration of documents in the said tracts;

(d)             to regulate or restrict the transfer of land in the said tracts;

(dd) to provide for the control of money lenders

and the regulation and control of money- lending in the said tracts;

(e)              to provide for the sub-division of the said tracts into circles, (and those circles) into mauzas;

(f)               to provide for the collection of the rent and the administration for the revenue generally in the said circles, and mauzas through the Chiefs and Headmen;

(g)             to define the powers and jurisdiction of the Chiefs, and Headmen, and regulate the exercise by them of such powers and jurisdiction;

(h)             to regulate the appointment and dismissal of Headmen;

(i)               to provide for the remuneration of Chiefs, Headmen and Village Officers generally by

the assignment of lands for the purpose or otherwise as may be thought desirable;

(j)               to prohibit, restrict or regulate the migration of cultivating raiyats from one circle to another;

(k)             to regulate the requisition by government of land required for public purposes;

(kk) to provide for compulsory vaccination in

the said tracts;

l) to provide for the levy of taxes in the said    tracts; (ll) to provide for the registration of the     persons who are habitual consumers of 

    opium in the said tracts; and

(m) to regulate the procedure to be observed by officers acting under this Regulation or the Rules for the time being in force thereunder.

Section 19 says, except as provided in the Regulation or in any other enactment for the time being in force, a decision passed, act done or order made under the

Regulation or the Rules framed thereunder, shall not be called  in  question  in  any  Civil  or  Criminal  Court.  The Deputy Commissioner has been given the jurisdiction before

the amendment in 2003, in respect of civil, revenue and all other matters under section 7 of the Regulation. In

the Rules framed by Gazette notification dated May, 1900, no  legal  practitioners  are  permitted  to  appear  in  any

matter except with prior permission of the Commissioner in sessions cases. In appeals and revision cases before the

Commissioner, where the subject matter of such cases is of Tk.2000/- or over a lawyer may appear with the consent of

the  Commissioner.  In  all  cases  where  the  Chiefs  are personally concerned, they are as far as possible to be

personally dealt with. Agents are only to be allowed when the  personal  presence  of  the  Chief  is  inconvenient  or impracticable. The procedure for dealing with civil suits

is upon the viva voce examination of the parties. Witness examination is discarded except in cases where the Officer

is unable to come to a decision on the facts of the case without  them.  There  is  one  provision  for  appeal  to  the Commissioner from all orders of the Deputy Commissioner in Civil suits. However, in criminal matters, it has been provided in Section 9 that the High Court Division shall exercise the powers of the Code of Criminal Procedure for all purposes. This provision enjoins a convicted person to prefer an appeal against the judgment in case of conviction in the High Court Division.

Thus it is apparent that the Regulation of 1900 not only retains the special legal and administrative status of the CHT but also implicitly recognizes a wide body of customary laws on land, forests and other natural resources that are crucial safeguards for the indigenous people and other residents of the area. The administration of the districts includes, in addition to the special local government system, the traditional self-government institutions such as, Rajas or Circle Chiefs, Headmen and Kaarbaries (Village Chiefs). The system of administration of justice in those districts is different from other parts of the country with regard to disputes between indigenous people, except for civil litigation involving

commercial suits and criminal offences of a serious nature, the normal courts of the country are barred from adjudicating them and they are being adjudicated by Circle Chiefs, Mouja Headmen[1]. Secondly, with regard to civil litigation, the complex procedures provided in the Code of Civil Procedure and the Civil Rules and Orders governing the process of summons, discovery, pleadings, relief, execution do not apply. Finally, even after the amendment of the Regulation, as will be discussed later on, the Judges are required to try the cases in accordance with the laws, customs and practices, that is to say, in accordance with customary law. Now question is what is customary law? When is it law; for whom it is law?

Customary laws comprises “customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws”.[2] Customary laws are also defined as consisting of “established patterns of behaviour that can

be objectively verified within a particular social setting. The modern codification of civil law developed out of the customs, or coutumes of the middle ages, expressions of law that developed in particular communities and slowly collected and written down by local jurists. Such customs acquired the force of law when they became the undisputed rule by which certain entitlements (rights) or obligations were regulated between members of a community”[3].

The idea of “customary law” that is under consideration concerns the laws, practices and customs of indigenous people and local communities. It is not, for instance, the same idea as “customary law” in the international context. “Customary international law” has a more precise and technical meaning in the realm of rules governing relations between distinct States. Customary law is, by definition, intrinsic to the life and custom of indigenous peoples and local communities. What has the status of “custom” and what amounts to “customary law” as such well depend very much on how indigenous peoples and

local communities themselves perceive these questions, and on how they function as indigenous peoples and local communities. According to one definition, “custom” is a “rule of conduct, obligatory on those within its scope, established by long usage. Valid customs must be of immemorial antiquity, certain and reasonable, obligatory, not repugnant to Statute Law, though it may derogate from the common law. General customs are those of the whole country, e.g. the general custom of merchants. Particular customs are the usage of particular traits. Local customs are customs of certain parts of the country.”[4] For instance, customary laws are defined by some authorities as “Customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic and part of a social and economic system that they are treated as if they were laws[5], and established patterns of behaviour that can be objectively verified within a particular social setting. The modern codification of civil law developed out of the

customs, or courtumes of the middle ages, expressions of law that developed in particular communities and slowly collected and written down by local jurists. Such customs acquired the force of law when they became the undisputed rule by which certain entitlements (rights) or obligations were regulated between members of a community.

 Customary laws and protocols are central to the very identity of many indigenous peoples and local communities. These laws and protocols concern many aspects of their life. They can define rights and responsibilities of members of indigenous peoples and local communities on important aspects of their life, culture and world view; customary law can relate to use of and access to natural resources, rights and obligations relating to land, inheritance and property, conduct of spiritual life, maintenance of cultural heritage and knowledge systems, and many other matters. Customary law can help to define or characterize the very identity of the community itself. Further, for many indigenous people and local communities, it may be meaningless or inappropriate to differentiate

their laws as “customary”, suggesting it has some lesser status than other law – it simply constitutes their law as such.[6]

Maintaining customary laws and protocols can therefore be crucial for the continuing vitality of the intellectual, cultural and spiritual life and heritage of indigenous peoples and local communities. Customary laws and protocols can define how traditional cultural heritage is shared and developed, and how traditional knowledge systems are appropriately sustained and managed by indigenous peoples and local communities. So maintaining customary laws and protocols even within the original community is an important concern; it is often a key aspect of preserving the cultural and legal identity of indigenous peoples and local communities. But indigenous peoples and local communities have also called for various forms of respect and recognition of their customary laws and protocols – beyond the scope of indigenous peoples and local communities themselves. This can be a complex issue

in  national  constitutional  law,  and  may  arise,  for example, in claims over land and natural resources.[7]

A  sacred  site  that  is  of  importance  to  indigenous peoples  and  local  communities  cannot  be  violated  by  a third party; but a sacred symbol, or sacred knowledge, can be appropriated and used in a remote location, far  from indigenous  peoples  and  local  communities;  a  sacred cultural expression can be replicated in large quantities for commercial purposes. The customary context may  indeed help  clarify  or  define  what  these  terms  actually  mean; what  makes  cultural  expressions  and  knowledge “traditional”  may  be  the  very  fact  that  they  are developed, maintained and disseminated in a customary and intergenerational context; and often that context will be defined  and  shaped  by  customary  law,  protocols  and practices.[8]

As  noted,  customary  laws  and  protocols  are  an intrinsic  part  of  the  life,  values,  world  view  and  the very  identity  of  many  indigenous  peoples  and  local

communities. A major debate arises over as to what makes a customary practice a “law” and gives it binding effect, and when is it “just” practice? And if it is obligatory, who is bound by it, within and beyond the relevant indigenous peoples and local communities? A customary practice may effectively govern or guide many aspects of indigenous peoples and local communities life, but it may be so engrained within indigenous peoples and local communities and embedded in the way it lives and works, that it may not be perceived as stand alone, codified “laws” as such. The binding effect of a customary practice may only be fully perceived when the practice is contravened. This could occur, for example, when think tank is used by third parties in a way that conflicts with the customary laws that determine how it is used and transmitted by indigenous peoples and local communities; this can lead to calls for the customary laws to be respected by such third parties, as either a legal or an ethical obligation[9].

A  decisive factor  in  determining  whether  certain customs  have  status  as  laws  is  whether  they  have  been viewed  by  indigenous  peoples  and  local  communities  as having  binding  effect,  or  whether  they  simply  describe actual practices. A similar concept applies at the  level of  international  law,  where  customary  law  that  binds states develops from the consistent practice of states who both  follow  a  customary  pattern  but  in  doing  so  also accept that it has a binding quality. Thus the World Court is  required  to  apply  (among  other  things)  international custom,  as  evidence  of  a  general  practice  accepted  as law.[10]

The  normative  force  of  customary  law  may  be  felt within a community in particular, but may also create a legal  or  moral  expectation  that  it  will  be  recognized beyond  the  original  community.  The  full  effect  of customary law may only be understood with reference to the social and community context; as one commentator observes, “to understand why customary law rights such as those in folklore  are  binding,  it  is  necessary  to  examine  more

closely the nature and significance of the social and political structure in tribal societies.[11]

Customary laws may also be linked to the specific social structures that apply and transmit law between successive generations. They may also have links to the traditional land and environment associated with indigenous and local communities. By the same token, customary laws and practices may be a factor in establishing tenure over traditional lands, or other rights relating to land and resources. The “local” character of customary law also highlights its potential role in relation to the conservation, sustainable use and equitable benefit sharing relating to in situ genetic resources[12]. The recognition of community rights forms one of the pillars of the African Model Law, which is expected to influence the direction or form the basis of legislation in many countries when they finally get around

to instituting or finalizing the necessary regulatory regimes on access and benefit-sharing.[13]

The options could be considered at several levels:

(a)    the traditional or indigenous legal system

itself, including any customary laws and practices that govern the creation, holding, use and transmission of cultural expressions or knowledge: for the communities concerned, at least, these may be considered as directly binding law;

(b)  recognition of pre-existing customary law as

defining continuing rights within a broader legal context.[14]

(c)   a separate legal system could recognize and

externally apply rights and obligations that already exist within on the customary think tank system, but recognizing them directly as having legal effect

(i.e. extending the legal effect of existing customary law beyond its traditional circle),[15]

(d)         distinctly recognized legal rights and

obligations that correspond to rights and obligations under customary law context, but which have a separate legal basis; by this approach, the prior existence of customary law right or obligation is established as a matter of fact, and helps to determine rights and obligations within a separate legal system; the customary law is not a true source of law in itself,[16]

(e)       separate rights and obligations may be

recognized and granted according to distinct, objective criteria, these would have no direct legal relationship to the customary law context, but would be consistent in practical with the policy goals of recognizing and respecting customary laws and

practices (for example, a number of sui generis law for protection of think tank have exceptions to permit customary practices to continue notwithstanding the distinctly think tank right);

(f)       the substantive norms and principles of

customary law could be documented and codified to provide the basis of newly negotiated or legislated legal mechanisms;

(g)    the procedures established under customary

law and protocols could be applied in broader

contexts, such as consultations on prior informed

consent and benefit-sharing, and dispute settlement.

Customary laws can govern many aspects of community life – dispute settlement, land tenure and other rights, inheritance, family law, and political and social relations generally. Customary law is often described as forming part of a holistic world view of indigenous communities, suggesting that it can only be fully understood and comprehensively applied within the community itself. It is challenging to consider how the

full body of a community’s customary law and practices could be made to apply integrally to third parties beyond that community and the traditional reach of its customary jurisdiction. This may concern constitutional questions or, for those in foreign countries, the field of private international law. In addition, there may be limits to how those outside the community can fully respect and respond to the complex social, political, cultural and spiritual context that shapes and defines customary laws and practices.[17]

Some of these areas of law may be relevant to third parties living and working beyond the community, but much of it may not; for instance, those involving family relations or governing use of ancestral lands. But within the broader sweep of customary law, there may also be very specific, clearly identified obligations relating to how a community’s knowledge or cultural expressions must be handled. It can be possible to recognize these as specific obligations on third parties. One straightforward example is secret sacred material; while such material has much

richer significance for an indigenous community, in ways that an outsider, it is fully possible to be placed under a strict obligation of confidentially, enforceable under external laws that in some way ‘take account’ of the customary law obligation not to disclose this material.[18] Another example is the recognition of the traditional custodial rights and obligations of an indigenous community within national copyright law.

For the protection and preservation of the indigenous peoples, United Nations General Assembly adopted Resolution No.61/295 on September 13, 2007 on ‘United Nations Declaration on the Rights of Indigenous Peoples’ as under:

‘Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,

‘Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,

‘Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States,

‘Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring to an end all forms of discrimination and oppression wherever they occur,

‘Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment,

‘Emphasizing the contribution of the demilitari- zation of the lands and territories of indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world,

‘Recognizing in particular the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child,

‘Considering that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples are, in some situations, matters of international concern, interest, responsibility and character,

‘Considering also that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States,

‘Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous  peoples  under  international  instruments,  in particular those related to human rights, in consultation and cooperation with the peoples concerned,

‘Emphasizing that the United Nations has an important and continuing role to play in promoting and protecting the rights of indigenous peoples,

‘Believing  that  this  Declaration  is  a  further important step forward for the recognition, promotion and protection  of  the  rights  and  freedoms  of  indigenous peoples and in the development of relevant activities of the United Nations system in this field,

‘Recognizing  and  reaffirming  that  indigenous individuals  are  entitled  without  discrimination  to  all human  rights  recognized  in  international  law,  and  that

indigenous  peoples  possess  collective  rights  which  are indispensable for their existence, well-being and integral

development as peoples,

‘Recognizing  also  that  the  situation  of  indigenous peoples varies from region to region and from country to country and that the significance of national and regional

particularities and various historical and cultural backgrounds should be taken into consideration ........................................................’

This Declaration is self explanatory. It has recommended to promote the inherent rights of indigenous peoples from their political, economic and social structures and from their culture, spiritual tradition, history and philosophy, specially their rights to their lands, territories and resources. It has emphasized the contribution of the demilitarization of the lands and territories of the indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world. It has recognized the indigenous peoples right to maintain and strengthen their distinct political, legal, economic, social and cultural institution, while retaining their right to participate fully, if they choose, in the political, economic, social and cultural life of the Estate.

Under the Government of India Act, 1919 the CHT was included within the category of areas called “backward tracts”, a classification resulting from the Montague- Chelmsford Reforms[19]. Section 92 of the Act provided “no Act of Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by Public notification so directs and the Governor in giving such a direction may specify that the Act in its application to the area shall be subject to such exceptions or modifications as he thinks fit’. The Government of India Act, 1935 was supplemented with the Government of India (Excluded Area) Order, 1936, which identified the different areas under this category including the CHT.

In the Provincial Constitution of Pakistan until 1956, the aforesaid status was recognized and the CHT was retained as an ‘excluded area’. In the 1962 Constitution of Pakistan the CHT was retained as a ‘tribal area’, that is to say, the area was re-designated as tribal area from ‘excluded area’. However, in the Constitution (First

Amendment) Act, 1963, the CHT ceased to be a tribal area with effect from January 10, 1964. The similar position continued in the 1972 Constitution. Even then the then government of Pakistan and the government of Bangladesh ever questioned the special status of CHT and those regions are being regulated under the Regulation of 1900 and the Rules framed thereunder.

In Armendra Pratap Singh V. Tej Bahadur Prajapati,[20] it was observed:

“Tribal areas have their own problems. Tribals are historically weaker sections of the society. They need the protection of the laws as they are gullible and fall prey to the tactics of unscrupulous people, and are susceptible to exploitation on account of their innocence, poverty and backwardness extending over centuries. The Constitution of India and the laws made thereunder treat tribals and tribal areas separately wherever needed. The tribals need to be settled, need to be taken care of by

the protective arm of the law, and he saved from falling prey to unscrupulous device so that they may prosper and by an evolutionary process join the mainstream of the society. The process would be  slow,  yet  it  has  to  be  initiated  and  kept moving. The object sought to be achieved by the 1950 Act and the 1956 Regulations is to see that a  member  of  the  aboriginal  tribe  indefeasibly continues to own the property which he acquires and every” process known to law by which title in  immovable  property  is  extinguished  in  one person to vest in another person, should remain so  confined  in  its  operation  in  relation  to tribals  that  the  immovable  property  of  one tribal  may  come  to  vest  in  another  tribal  but the  title  in  immovable  property  vesting  in  any tribal must not come to vest, in a non-tribal. This  is  to  see  and  ensure  that  non-tribals  do not  succeed  in  making  in-roads  amongst  the  tribals by acquiring property and developing roots in the habitat of tribals.”

Our judiciary always play a pivotal role to strengthen and promote social justice, and the protection of indigenous people is one of the basic principle for promoting social justice. To that end in view, it is the duty of this Court to see that the indigenous people enjoy the rights and protections guaranteed to them under the Constitution and the laws. These people are mainly dependent on agriculture because of the location where they usually reside. In this connection the Supreme Court of India observed:

‘Agriculture is that only source of livelihood or scheduled tribes, apart from collection and sale of minor forest produce to supplement their income. Land is their most important natural and valuable asset and imperishable endowment from which the tribals deribe their sustenance social status, economic and social equality and permanent place of abode and work and living. It is a security and source of  economic  empowerment.  Therefore,  the  tribes too  have  great  emotional  attachment  of  their lands.  The  land,  on  which  they  live  and  till, assures  them  equality  of  status  and  dignity  of person and means to economic and social justice and  is  a  potent  weapon  of  economic  empowerment in a social democracy[21].”

We  find  from  the  above  observations,  the  Supreme Court opened another vista for judicial intervention, and ensured that even the tribal communities living in  forest enjoy the rights and protections guaranteed to them under the Indian Constitution. It is not only India which have preserved and protected the rights of these people in its constitution  and  also  by  enacting  laws,  all  countries around the globe where the indigenous people live,  with view to preserve and protect these people enacted laws. In Victoria  the  Human  Rights  and  Responsibilities  of  the aboriginals  are  protected  by  law.  In  its  Charter,  the rights protected include: recognition and equality  before

the law; right to life; protection from torture and cruel, inhuman or degrading treatment or punishment; privacy and protection of reputation; freedom of thought, conscience, religion and belief, protection of families and children; cultural  rights;  property  rights;  right  to  liberty  and security of person etc. In the United States of America it was stated ‘Although the Federal Government has enormous power  over  Native  American  tribes  this  is  tempted  by specific  obligations  toward  Indians.  The  Federal Government’s relationship is classified as a trusteeship or guardianship and it is supposed to act according to the highest fiduciary standards. State Governments do not have jurisdiction  within  the  boundaries  of  reservations  and most  state  laws  do  not  apply  to  Native  Americans  on reservations.’  In  Canada  ‘Self  Governments  agreements allow  for  Aboriginal  law  making  authority  (whether negotiated  within  a  comprehensive  claims  or  specific claims process or as separate agreements) in relation to matters that are internal to their communities; integral to  their  unique  cultures,  identities,  traditions,

languages and institutions; and with respect to their special  relationship  to  their  land  and  their resources.’[22]

Section  4  of  CHT  1900  provides  that  the  enactments specified  in  the  schedule  to  the  extent  and  with  the modifications therein set forth and so far as they are not inconsistent with the Regulation or the Rules for the time being in force, are declared to be in force in the CHT. In the schedule some Acts, amongst others, the Police  Act, 1869, the Court Fees Act, 1870, the Cattle Trespass Act, 1871, the Evidence Act, 1872, The Christen Marriage Act, 1872,  the  Mohamadan  Marriages  and  Divorce  Registration Act, 1876, the Limitation Act, 1877, the Forest Act, 1878, the  Chittagong  Hill  Tracts  Frontier  Police  Regulation 1881; the Explosives Act, 1884; the General Clauses Act, 1897;  the  Code  of  Criminal  Procedure,  1898;  the  Post Office Act, 1898; the Prisoners Act, 1900; the Limitation Act, 1908; the Explosive Substances Act, 1908; the  Penal Code,  1860;  the  Public  Demands  Recovery  Act,  1919;  the

Income Tax Act, 1922; the Forest Act, 1927; the Trade Mark Act, 1940 etc. were included. In column four of the schedule, it was mentioned against some of those Acts “so much as may from time to time, be in force in the district of Chittagong”. In respect of Court Fees Act, it was mentioned “as modified in the application to Bengal and in so far as it is inconsistent with the Chittagong Hill Tracts Regulation 1 of 1900’.

So all prevailing laws in the country are not applicable to these hill districts and only those provisions which are not inconsistent with the Regulation and the Rules for the time being in force are applicable. Though our Constitution does not provide any provision of special status for the indigenous peoples residing in CHT, Clause (2) of Article 19 even been placed in the chapter of the directive principles of the state policy, it is noteworthy that the State has power to adopt effective measures to remove social and economic inequality between man and man and ensured equitable distribution of wealth among citizens and opportunities in order to attain a

uniform  level  of  economic  development  throughout  the country. Article 23 however, states that the State  shall adopt  measures  to  conserve  the  ‘cultural  tradition  and heritage of the people, and so to foster and improve the

national  language,  literature  and  the  arts  that  all sections  of  the  people  are  afforded  the  opportunity  to

contribute towards and to participate in the enrichment of national  culture’.  Under  this  provision  the  culture,

heritage and tradition of the indigenous peoples have been recognized.  Article  42  states  that  “subject  to  any

restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of

property, and no property shall be compulsorily acquired, nationalised or requisitioned save by authority of  law’. Coupled  with  this  provision,  clause  (4)  of  Article  28 enjoins the State from making special provision in  favour of  women  and  children  or  for  the  advancement  of  any

backward section of the citizens.

Though  Article  29  (1)  provides  equality  of opportunity  in  public  employment,  clause  (3)  (a)  of

Article 29 is not in the nature of an exception to clauses

(1)   and (2), but an instance of classification permitted by clause (1). If provides, nothing in Article 29 shall prevent the state from-

(a)  making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic’.

The object of this clause is to bring in line with Articles 19(2), 23 and 28(4) and to make it constitutional for the State to reserve seats for making special provision for backward class of citizens. More so, these provisions assure a concession in favour of backward section which has to be reconciled in such a manner that it does not unreasonably encroach upon the field of equality. It is exhaustive of the concept of reservation in favour of backward classes. It enjoins the State to take positive step to alleviate inequality in economic, social, political and other segment of the State. It is, therefore, not sound argument that under the scheme of the

Constitution there is no scope to provide special status to any particular territory. It is also not correct view that all laws which are applicable to the country to be applicable to the three hill districts. Clause (a) of Article 29 authorises the State from making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of Republic.

 There is no doubt that the citizens of three hill districts are backward people. These provisions embody the concept of making special provisions for the weaker backward section of the citizens by taking such measures as are necessary for removal of economic inequalities and rectifying discriminations resulting from State actions between unequal in society. This may be achieved by special laws or by direct regulation of transactions by forbidding certain transactions. It also means that those who have been deprived to their property by unconstitutional actions should be restored to their property. The State is under obligation to provide the

facilities and opportunities for their economic empowerment as it is their fundamental right.

 The restrictions mentioned in Article 42 will be available in section 97 of the State Acquisition of Tenancy Act, 1950, Rule 34 of the Rules for the administration of the Chittgaong Hill Tracts and section 64 of the Rangamati, Bandarban, Khagrachori Zilla Parishad Ains, 1989. Section 97 of the Act of 1950 provides ‘Restriction of alienation of land by aboriginals’. Under this provision if an aboriginal raiyat desires to transfer holding or any portion thereof by private sale, gift or will to any person who is not such as aboriginal, he may apply to the Revenue Officer for permission in that behalf and the Revenue Officer may pass such order on the application as he thinks fit. There are also restrictions for mortgage of land of aboriginals. Rule 34 of the Rules promulgated in exercise of powers under Chittgaong Hill Tracts Regulation, 1900 which restricts “Settlement and Government khas land, Transfer, Partition and Subletting”. It is provided that no ‘settlement of Government Khas Land

shall be made in the district of Chittagong Hill Tracts except in the manner specified in clauses (a), (b), (c), (d), (e), (f) and (g). Section 64 of the Ains of 1989 prohibits sale, lease, settlement or otherwise transfer of lands of three hill districts without prior permission of the Hill District Parishads.

Now the question is, in the absence of any constitutional safeguards, whether the Regulation of 1900 is still in force or not. If we look at various laws promulgated from time to time, it is difficult to accede to the argument that this Regulation has no force of law. Besides this Regulation, it is pertinent to note that the Bazar fund Manual, 1937, the Chittagong Hill Tracts Land Acquisition Regulation, 1958, the Chittagong Land Khatian Ordinance, 1984 are still hold the field to regulate the political and administration of the people of the Chittgaong Hill districts. There is another Regulation apart from the Regulation of 1900, which was in operation in these three districts. The Chittagong Frontier Police Regulation, 1881 is one of Regulation but this Regulation

is now no longer a valid law. This Regulation provided the manner of discipline of the special Chittgaong Hill Tracts police force, which was promulgated in accordance with the Police Act, 1861. Similar provision has been provided in the three Zilla Parishad Ains, 1989. By the Amending Act, 1903 (Act 1 of 1903) which repealed Act XXII of 1860 (an Act to remove certain tracts on the eastern border of the Chittagong District from the jurisdiction of the tribunal established under General Regulation and Acts), Bangal Act IV of 1863 (an Act to amend Act XXII of 1860) and so much of the second schedule to the Scheduled Districts Act, 1874 (Act XIV of 1874), and of the Repealing and Amending Act, 1891 (Act XII of 1891), as relates to either of the enactments aforesaid.          

The Manual of 1937 was promulgated providing for the administration of the Bazars in the Chittagong Hill districts. The Chittagong Hill Tracts (Land Acquisition) Regulation, 1958 was promulgated just prior to the commissioning of Kaptai Multipurpose Hydro Electric Dam, (1960) enabling the government to acquire privately owned

land on payment of compensation. The Land Khatian (Chittgaong Hill Tracts) Ordinance, 1984 was passed with the aim of resettling landless Bangalee migrants from the plain districts. The object of the Ordinance was to provide for the publication of maps and land records taking in mind that no survey was ever conducted in those areas. The f¡hÑaÉ ®Sm¡ f¢loc BCe, 1989, M¡Ns¡R¢s ®Sm¡ f¢loc BCe, 1989 Hhw h¡¾clhe ®Sm¡ f¢loc BCe, 1989 which were promulgated by providing more autonomy and authority to the Hill District Parishads with the aim of expeditious, cost free justice, accounting for customary law, to deal with instances of land grabbing, land alienation and so forth. Initially the Hill District Council was known as "Local Government Council" and in its place, the Bandarban Parbatya Zilla Parishad, Khagrachori Parbatya Zilla Parishad and the Rangamati Parbatya Zilla Parishad have been substituted.

Under the scheme of the Rangamati Hill District Parishad Ain, one chairman and thirty members with the ethnic composition, such as, ten from the Chakma tribe,

ten from non-tribals and the remaining ten from one

Khyang, one Lushai, four Marma, one Pangkhua and two Tanchangya and one Tripura. This was the first composition of the Parishad. In future elections, provisions were made for induction of three women members, two from hill persons and one non-hill person. The chairperson must be a tribal. In respect of Khagrachori and Bandarban districts, there is some slight variation as regards composition of the Parishads. Khagrachori will have nine non-tribals and Bandarban ten non-tribals to be eligible for the election. Both tribal and non-tribal candidates must obtain a certificate from the concerned Circle Chief or Raja. The voters are restricted to the category of tribals and non- tribal residents[23].

The functions of the Parbatya Zilla Parishads have been provided in section 22, which provide that the said Parishads shall act on 33 different subjects such as, Law and Order, co-ordination of development activities of local authorities, education, health, agriculture and forests, animal husbandry, trade and commerce, social

welfare, culture, local police, tribal custom, land management, environment and ecology, local tourism and swidden (jum) cultivation, etc. etc. Administrative

authority over some district level fields i.e., health, agriculture extension and primary education have been

given to the Parishads. Law and order, local police, secondary education and land administration have not been

transferred to the Parishads. Under section 64 of the Ains, the alienation of any property whether by way of

lease, acquisition or sale have been totally restricted, which can only be done with the prior approval of the

Parishads. The Parishads are authorized to collect local rates, tolls and fees on certain matters including on land, transport, cattle, entertainment etc[24]. Any act or

omission in violation of the Parishads’ functions is criminal offence. The Parishads are statutory bodies having perpetual succession and common seals.

Under the scheme of our Constitution, the composition of the ‘Local Government’ has been provided in Chapter III, which contains Articles 59 and 60. Article 59(1) says

the local government in every administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with law. Clause (2) of Article 59 is relevant for our consideration which provides "Everybody such as is referred to in clause (1) shall, subject to this Constitution and any other law, (emphasis supplied) perform within the appropriate administrative unit such functions as shall be prescribed by Act of Parliament, which may include functions relating to -