Madhya Pradesh High Court
Jagrit Adivasi Dalit Sangasthan Thru. ... vs Water Resource Department on 21 July, 2015
1
W.P. No.3435/2015
21/07/2015
Ms. Madhuri Krishnaswami, representative of the petitioner
Sangathan is present in person.
Shri Pushyamitra Bhargava, learned Dy. Govt. Advocate for
the respondent Nos.1 to 6.
They are heard.
2. By this writ petition, the petitioner - Sangathan i.e. Jagrit Adivasi Dalit Sangathan, who is a voluntary membership based organisation of Bhil and Barela Adivasis (Tribes) active in Barwani district for the past two decades. The main object of the petitioner Sangathan is to campaign for the Constitutional and legal rights of Adivasis and the rural poor.
3. The allegation against the respondent Nos.1 to 6 is that no efforts have been made by them for resettlement/rehabilitation of the effected persons / oustees of the 'Kharak Reservoir Project' under the Madhya Pradesh Adarsh Punarvas Niti 2002, Punarvas Niti 2008(NVDA) and other policies used by the NVDA for 2 resettlement of displaced persons.
4. It is also prayed that benefits under "The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 be granted to the persons who have been effected by the Project and who have not been awarded compensation under the Land Acquisition Act of 1894 till date.
5. The petitioner submits that as per Policy of Punarvas Niti of the NVDA, families losing more than 75% of their land should be compensated for their entire holdings. It is also submitted that the land of some persons will become inaccessible due to being surrounded by water or due to fact that the only access paths to the lands are submerged. The respondents have not considered the claims for compensation and rehabilitation of these persons.
6. By order dated 4/06/2015, this Court considering the fact that this is a case where the Tribals are being displaced without granting them any compensation and without rehabilitating them, directed the respondents to carry out a proper survey in 3 respect of tribals who are likely to be dispossessed / displaced from the land in question and the petitioner shall also be permitted to participate in the survey.
7. In compliance to order dated 4/06/2015, Survey was conducted between 7th and 12th June 2015, a total number of 229 persons from Khargone district and 108 persons of Barwani district, who are being displaced due to loss of livelihood, gave their particulars to the survey team, which duly recorded the same. These included landholders, landless agricultural workers and the adult sons of these families, who are also eligible for rehabilitation as separate families as per the Punarvas Nitis.
8. Petitioner - Ms. Madhuri Krishnaswani, submit sthat Annexures R-16 and R-17 are reports of the Survey, but no valid reasons has been given for denial of the claims to rehabilitation of these persons. She also submits that during this Survey, several persons were found to be in possession of land i.e. is either in submergence zone or has been dug up or plied with boulders. The respondents have contended that these persons are not 4 eligible for being considered project affected since they were not able to provide 'proof of occupation'. However, the relevant revenue records were not consulted and nor were these records made available to the oustees or petitioners, despite being duly requested from the authorities(Annexure-P/23). As per earlier survey conducted on 15/08/2013, panchanamas were made the basis for recognition of claims of non-bhumiswamis for payment of "Anudan", similar pancahanamas have now not been considered for comparable claims of cultivators who were overlooked or erroneously excluded from the earlier survey. Several families =of village Chaukhand were found by the recent survey team to have legitimate claims. As per Annexure-R/16, while recording these claims, the respondents have wrongfully denied their legitmacy.
9. It is also pointed out that several displaced persons in the forest area have not been considered project-affected since the regularization process for which they have filed claims for regularization of forest holdings under the provisions of the 5 Scheduled Tribes and Traditional Forest Dwellers(Recognition of Forest Rights) Act, 2006. These persons have been unjustly denied their rights due to failure and delay on the part of the administration. She also submits that the basic objective of the Punarvas Policies is that displaced families should recover at least the standard of living that they enjoyed before displacement and, as soon as possible, improve their standard of living. However, the rate of compensation through award as swell as "Anudan" has been so low that not a single persons has been able to purchase any land in lieu of what has been lost. They have been forced to either only procure land on short term lease or, in most cases, they have been reduced to wage labour. In fact, several families have already left the area in search of work, some have been forced to go as far as Maharashtra.
10. It is also pointed out that the compensation has not been assessed as per the Collector's Guideline and those given "Anudan" were further denied solatium and interest payment.
11. An additional rejoinder has been filed by the respondent 6 Nos.1 to 6. As per reply and additional reply filed by the respondents, they have denied the allegation made in the writ petition. It is submitted that Madhya Pradesh Adarsh Punarvas Niti 2002, Punarvas Niti 2008(NVDA) are not applicable in the present facts and circumstances of the case. The contesting respondents have also admitted that re-survey for submergence affected persons, land and properties were made for both District Khargone and Barwani from 7th June to 13th June, 2015 in presence of petitioners and affected persons by official of Revenue, Forest and Water Resources Deptt. During survey, claims are received from Government land encroachers, forest land Pattadhari and non-Pattadhari persons, landless persons of which no land was submergence affected.
12. In para - 9 and 10 of the reply, they gave details of the persons, but neither name and other details have been given nor any report to this effect have been filed.
13. As per para 8 of the reply of the respondents, a detailed survey was conducted in the village Choukhand in the presence 7 of sarpanch and patwari to verify the encroachment on the Government land and in the process physical verification was done on 15/08/13 and panchanamas were prepared to verify the possession of the encroachers. In the process, 49 persons were found in possession of government land on 37 survey numbers as encroachers were dependent on the same for their livelihood. The Gram Panchayat Dhulkot within which these affected village fall also passed a resolution on 15/08/2013 proposing to grant the encroachers the compensation. They also submits that compensation to the 49 encroachers as per Guidelines of the year 2012-13 prescribed by the Collector for the respective land was paid without any solatium or interest.
14. Learned Dy. Govt. Advocate for the respondent submits that the Survey was conducted somewhere in February, 2014 to verify the details of persons who were holding possession of forest land under the licence(Van Adhikar Patta) issued under the provisions of the Scheduled Tribes and Traditional Forest Dwellers(Recognition of Forest Rights) Act, 2006.. In the process, 8 the persons residing in the area were called upon to produce their licenses but they could not do so, thus the answering respondents with the help of the Forest Department and its GPS System found that there are 28 such persons holding land in the forest area. The physical verification of such persons could be completed in September, 2014 as the respective persons were not available for assisting the answering respondents and therefore, compensation could not be awarded to number of persons.
15. Learned petitioner Ms. Madhuri Krishnaswami further drawn our attention to the letter dated 21/03/2011 of Ministry of Environment and Forests of Govt. of India and submitted that if a project involve use of forest land as well as non-forest land, the work should not be started on non-forest land till the approval of the Central Government for release of the forest lands under the Act has been given. Para 4.4 of the Guideline on Forest (Conservation) Act, 1980 is reproduced as under:-
"4.4 Project involving Forest as well as Non-forest Lands.
Some projects involve use of forest land as well as non-forest land. State Government / 9 project authorities sometimes start work on non- forest lands in anticipation of the approval of the Central Government for release of the forest lands requried for the projects. Though the provisions of the Act may not have technically been violated by starting of work on non-forest lands, expenditure incurred on works on non-forest lands may prove to be infructuous if diversion of forest land involved is not approved. It has, therefore, been decided that if a project involves forest as well as non-forest land, work should not be started on non-forest land till approval of the Central Government for release of forest land under the Act has been given."
16. She further submits that the work of the Kharak Reservoir Project has been started contrary to the guidelines of the Ministry of Environment and Forests and, therefore, appropriate action be taken against the persons concerned for violating the provisions of Ministry of Environment and Forests which amounts to disobedience of the order passed by the Apex Court in the case of T.N. Godavarman vs. Union of India & Ors., decided 1on 4/03/1997.
17. The details of the Kharak Reservoir Project of both the Khargone and Barwani districts are as follows:- 10
[kkjd ifj;kstuk rglhy Hkxokuiqjk ftyk&[kjxksu ¼e-iz-½ ¼1½ iz'kkldh; Lohd`fr vkns'k dza- ,oa fnukad e-iz- 'kklu ty lalk/ku foHkkx ea=ky;
Hkksiky dk i= dza-
22@03@2011&12@y?kq
@31@1444@Hkksiky
fn% 23-08-2011
¼2½ iz'kkldh; Lohd`fr dh jkf'k ,oa :- 4913-59 yk[k
¼3½ ty x`g.k {ks= 142-00 oaxZ dh eh
¼4½ ty Hk.Mkj.k {kerk 21-67 fe-?k-eh
¼5½ :ikafdr flapkbZ {kerk 2640 gsDVj
¼6½ ykHkkfUor xzke 07 xzke
ykHkkfUor d`"kdksa dh la[;k 1315
¼7½ cka/k fuekZ.k gsrq vuqca/k dza- ,oa odZ vkMZj fnukad 39@2011&12 2968@o-ys-fy-@fn%
06-06-12
¼8½ vuqca/k dh jkf'k :- 2154-63 yk[k
¼9½ cka/k ls Mwc izHkkfor Hkwfe dk fooj.k
¼10½ [kjxksu ftyk
¼i½ futh Hkwfe xzke pkS[k.M 55-108 gsDVs;j
izHkkfor d`"kd la[;k 40
¼ii½ 'kkldh; Hkwfe 93-357 gsDVs;j
¼iii½ 'kkldh; Hkwfe ftl ij vfrdze.k gSA 55-298
57
¼iv½ d`"kdksa dh la[;k
¼v½ vfrdze.k eqDr 'kkldh; Hkwfe ¼unh ukys 38-059 gsDVs;j
igkM+h jkLrk pjuksbZ½
¼11½ futh Hkwfe dk vokMZ fnukad 15-07-2012
¼12½ vokMZ jkf'k 15641394-00
¼13½ dCtsnkj 'kkldh; Hkwfe ds vuqnku dh jkf'k 9124127-00
¼14½ dCtsnkj d`"kdksa dh la[;k 57
cM+okuh ftyk
¼15½ ou Hkwfe Mwc {ks= 65-144 gsDVs;j
¼16½ futh Hkwfe 4-405 gsDVs;j
¼17½ futh Hkwfe vtZu gsrq vkilh lgefr ls dz; 18 ebZ 2015
uhfr vuqlkj izdj.k vuqfoHkkxh; vf/kdkjh ¼jktLo½ lsa/kok dks izLrqfr fnukad ¼18½ ou Hkwfe izFke pj.k Lohd`fr 07-12-2010 ¼19½ ouHkwfe vkSipkfjd Lohd`fr ¼Hkkjr ljdkj 18-12-2013 ou ,oa Ik;kZoj.k ea=ky; ubZ fnYyh½ ¼20½ ouHkwfe O;iorZu dh jkT; ljdkj }kjk vuqefr 31-01-2014 ¼21½ ou Hkwfe dk dkfct oukf/kdkj ¼rg- lsa/kok ftyk&cM+okuh½ 11 ¼22½ i= izkIr d`"kdksa dh la[;k daz- xzke fljosy la[;k Hkwfe ¼i½ fljosy 9 15-729 ¼ii½ tqyokfu;k 6 15-056 ¼iii½ dkeksn 11 15-568 ;ksx %& 29 46-353 ¼23½ ouHkwfe ij dkfct oukf/kdkj i= ds vf/kdkjksa Rkglhynkj lsa/kok ,oa Hkw&vtZu vf/kdkjh ds vf/kxzg.k gsrq vokMZ izLrko dh fLFkfr ,oa vuqfoHkkxh; vf/kdkjh ¼jktLo½ las/kok }kjk dysDVj cM+okuh vokMZ i-d- fnukad 01-05-15 dks izLrqr ,oa ijh{k.kk/khu laHkkfor vokMZ ikfjr frfFk fnukad 30-06-15 ds iwoZ ¼24½ jktLo Hkwfe ij vfrdze.k gksus ls jktLo foHkkx ¼iVokjh vkj-vk;- ls rglhynkj }kjk dk losZ{k.k Mwc {ks= vuqlkj fnukad vizsy 2013 esa losZ{k.k fd;k x;k½ ¼25½ vuqnku Lohd`r djus dh frfFk d`"kd la[;k d`"kd 49 fnukad 12-09-2013 8 d`"kd] fnukad 30-04-2014
18. Those who are in settled possession of land for last about more than three years, they are entitled for compensation. With a view to ensure that no bonafide beneficiary is left from consideration, identity of each individual enumerated in Annexure P-22 will be ascertained on the basis of information furnished by them as fas as possible on the format normally used for census purposes. Dispute regarding details of the oustees/landowners and encroachers, who were / are in possession of the land from last 2-3 decades should be highlighted specifically. We, therefore, direct the respondents No.3 and 5 -
(i) to constitute a team including Sarpanch, Patwari, two members from the petitioner Sangathan, Forest Guard/Deputy Ranger to 12 enlist the persons reflected on Annexure P-22 of the rejoinder, also other such persons, in respect of specific mention of land in terms of Khasra number for which claim is based, on the basis of information furnished by them, Panchanama containing his/her latest photograph prepared by office bearers of the village so that disputes regarding identity may be reduced/avoided.
(ii) the encroachers who are cultivating the forest land and were in possession of the revenue land or forest land since 1981, will be entitled for compensation as per rehabilitation scheme framed by respondent No.2 from time to time and to the oustees of both the District namely - Khargone and Barwani as per prevailing Collector's guidelines of the respective district. A detailed affidavit of the Collector of both the Districts namely -
Barwani and Khargone be filed regarding the compliance of Forest (Conservation) Act, 1980 and guidelines issued by the Ministry of Environment and Forests and dictum of Apex Court.
(iii) So far as violation of Forest (Conservation) Act, 1980 is concerned, the District Forest Officer and Conservator of Forest are directed to verify the land in question and submit a report supported with 13 their affidavit as to whether there is violation of guidelines issued by the Ministry of Environment and Forest and dictum of Apex Court.
19. The whole exercise be completed within a period of 10 weeks from today and a detailed report be submitted to the Court for its perusal.
20. List after 10 weeks.
21. Cc as per rules.
(P.K. Jaiswal) (T.K. Kaushal)
Judge Judge
pn/