Karnataka High Court
Rama S/O. Subbanna Rathod vs State Of Karnataka on 31 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:12545
WP No. 106862 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 106862 OF 2014 (GM-FOR)
BETWEEN:
RAMA S/O. SUBBANNA RATHOD,
AGED 60 YEARS, OCC: FOREST DWELLER,
R/O. MAINALLI, TQ: MUNDGOD,
DIST: NORTH KANARA.
...PETITIONER
(BY SRI. VISHWANATH HEGDE, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
R/BY UNDER SECRETARY,
DEPARTMENT OF FOREST
ENVIRONMENT AND ECOLOGY,
VIDHANA SOUDHA, BANGALORE.
2. SAHYADRI GIRIJANA DODDAPRAMANADA
VIVIDODDESHA SAHAKARI SANGH LIMITED,
YELLAPUR,
SAROJA
REP. BY IT'S CHIEF EXECUTIVE OFFICER,
HANGARAKI NEAR INSPECTION BUNGLOW, YELLAPUR.
Location: HIGH ...RESPONDENTS
COURT OF
KARANTAKA
DHARWAD (BY SRI. ASHOK T. KATTIMANI, AGA FPR R1;
BENCH
SRI. JAIRAM SIDDI, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI
OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION
QUASHING THE ORDER AT ANNEXURE-A BEARING NO.APAJI 40 FDP
2008 BANGALORE DATED 11.06.2014 PASSED BY 1ST RESPONDENT
AND ETC.
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC-D:12545
WP No. 106862 of 2014
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
1. Heard the learned counsel for the petitioner, learned AGA for respondent No.1 and learned counsel for respondent No.2.
2. The present writ petition is filed praying to issue a writ of certiorari or any other appropriate writ, order or direction quashing the order at Annexure-A dated 11.06.2014 passed by respondent No.1.
3. While seeking a writ of certiorari, the petitioner has contended that the State has enacted the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 conferring certain forest rights to the Scheduled Tribes and other traditional forest dwellers. It is the contention of the petitioner that he filed an application under prescribed form for grant of forest rights on 24.10.2013. Respondent No.1 passed impugned order permitting respondent No.2 society to collect and sell minor forest produce from forests coming under the -3- NC: 2024:KHC-D:12545 WP No. 106862 of 2014 forest sub-division of Yellapur and Mundgod taluks of North Kanara and hence the present writ petition is filed before this Court.
4. The main contention of the petitioner in this petition is that nearly 80% of land in North Kanara district is forest. There is scarcity of cultivable revenue land in the district. The district has considerable population of forest dwelling schedule tribes and traditional forest dwellers who live in forest and have no other source of livelihood other than minor forest produce. It is contended that the forest dwelling schedule tribes and traditional forest dwellers though lived in forests for long time, their rights in forests were completely ignored during British regime. Even after independence, forest dwelling schedule tribes and traditional forest dwellers did not get a recognition which was due to them. It is contended that considering the fact that forest dwelling schedule tribes and traditional forest dwellers are inseparable part of forest, the State vide Act No.2 of 2007 enacted law.
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5. It is further contended that the Act among other things recognizes the right of the Schedules Tribes and other traditional dwellers right to use minor forest products. Chapter II Section 3 deals with various rights available to Schedules Tribes and other traditional dwellers. Section 3[c] and [1] of the Act and Section 6 of the Act deals with the procedure for recognizing rights conferred under Section 3. Under Section 6, the Grama Sabha shall be the authority to initiate the process for determining the nature and extent of individual or community forest rights. Gram Sabha shall pass a resolution in recognition of such right and shall submit it to Sub-Divisional Level committee. The said committee shall examine the resolution and prepare the record of forest right and shall submit the list to District Level Committee. The decision of District Level Committee is final and binding. Thus, the procedure for recognizing the individual as well as community forest right is providing under Section 6 of the Act.
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6. Respondent No.1 vide order at Annexure-B has framed guidelines to collect the minor forest produce and these guidelines are made applicable to 20 Large Scale Adivasi Multipurpose Co-operative Societies (hereinafter referred as LAMPS for brevity). These guidelines are made applicable to 20 LAMPS in 21 districts including North Kanara. Though selection of 20 LAMPS is contrary to the Act, petitioner for the time being does not question the said order at Annexure-B. However, reserves the liberty to question the same in future.
7. The petitioner in his petition contends that he belongs to Schedule Tribe community. In addition, this petitioner is also a traditional forest dweller. Petitioner has right to collect and sell minor forest produce. Petitioner has filed claim in the form prescribed under the Rules as per Annexure-C to recognize and declare his forest right. That being the case, respondent No.1 has recognized respondent No.2 as LAMPS society for forest division of North Kanara district comprising Yellapur and Mundgod -6- NC: 2024:KHC-D:12545 WP No. 106862 of 2014 taluks. Said recognition is arbitrary and illegal and further order permitting respondent No.2 to collect and sell minor forest produce in Yellapur and Mundgod divisions of North Kanara district is contrary to provisions of the Act and also violates the forest right of the petitioner in terms of Section 3 of the Act and hence the same is liable to be quashed.
8. Counsel in support of his argument, contends that Annexure-A is without jurisdiction and also contends that when the application is filed at Annexure-C, the same ought to have been considered and the same has not been considered and instead of that impugned Annexure-A is passed.
9. Per contra, counsel for the respondent No.2 would vehemently contend that the order impugned at Annexure-A is passed exercising the powers under the Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules 2007 and Rule 9 states that there is State Level Monetary Committee and -7- NC: 2024:KHC-D:12545 WP No. 106862 of 2014 Secretary, Forest Department is also a member of the said Monetary Committee and he passed the impugned order at Annexure-A. Counsel also brought to notice of this Court Annexure-B and contends that while passing Annexure-A reference is also made in terms of Annexure-B and brought to notice condition Nos.11 and 12 of Annexure-B, wherein also a provision is made in favour of LAMPS. He also brought to notice of this Court that the said proviso is very clear that a right of Scheduled Tribe Community cannot be taken away and also proviso is very clear to provision to other persons who are having commercial interest and also Clause 12 is very clear that LAMPS societies, social welfare department and co-operative societies are getting fund under the special scheme and hence in keeping the said object and Annexure-B, Annexure-A has been passed. Hence, the very contention of the petitioner's counsel cannot be accepted.
10. He also contends that though Annexure-C application is given and also though he claims in petition -8- NC: 2024:KHC-D:12545 WP No. 106862 of 2014 itself that he belongs to ST community, he has not produced any document before the Court. Counsel brought to notice of this Court Section 3. Counsel also brought to notice of this Court the definition of Section 2(o) of the Act, wherein it is categorically mentioned that "other traditional forest dweller" means any member or community who has for at least three generations prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bonafide livelihood needs. This category is not complied by the petitioner by producing any document that he belongs to other traditional forest dweller for at least three generations prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forest land for bonafide livelihood needs. In the absence of compliance of the same, now he cannot contend that the order impugned at Annexure-A is without jurisdiction.
11. Counsel also relied upon circular dated 18.08.1982 and in the said circular also counsel brought to -9- NC: 2024:KHC-D:12545 WP No. 106862 of 2014 notice of this Court that after considering various aspects the following instructions are issued with regard to grant of Minor Forest Produce leases to LAMP Societies and the very discussion made in the circular is very clear that with regard to strengthening the societies, Deputy Conservator of Forests should write to the LAMP Societies marking a copy to the Project Executive Officer well in advance about the availability of the Minor Forest Produce leases in their respective jurisdictions giving details of the area and the upset prices proposed, obtain their willingness and submit proposals to the Conservators of Forests and Sanction.
12. Counsel also brought to notice of this Court that Conservators of Forest should order granting of the leases to the Minor Forest Produce Societies well in advance or the collection season. He also brought a notice of this Court that the very circular says that in case there is no response from the societies within the prescribed time limit, the concerned Deputy Conservators of Forests should write to the Deputy Commissioners intimating the
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NC: 2024:KHC-D:12545 WP No. 106862 of 2014 action taken and request him to persuade the society to agree to the lease. Action to dispose of the Minor Forest Produce leases in public auction should be taken only after ascertaining that the LAMP Societies are not interested in the leases.
13. Hence, the counsel referring the circular, would contend that priority has to be given to the societies only and accordingly the order impugned at Annexure-A is passed and hence the petitioner has not made out any ground to quash Annexure-A.
14. The learned AGA also brought to notice of this Court that statement of objections is filed and contends that the petitioner has to prove and establish that he is a traditional forest dweller and also he shall prove his eligibility under the Act and Rules has right to collect and sell minor forest produce before the concerned authorities. He also submits that specific contention is taken that Annexure-C is also still pending and writ petition is premature one.
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15. In reply to the arguments of the respondents' counsel, petitioner's counsel vehemently contends that he claims right under the category of '2(o)' and not under ST community and counsel also submits that the circular of the year 1982 is not applicable to the case on hand and again he reiterates Section 6 with regard to the procedure to be followed for consideration of the claim.
16. Having heard the petitioner's counsel and also the counsels appearing for the respondents and also considering the material on record, this Court has to take note of the fact that it is not in dispute that the petitioner has filed an application as per Annexure-C. Having perused this application, nowhere he has stated that he belongs to the ST community, but in the pleadings in the petition in paragraph No.7, he has stated that he belongs to Scheduled Tribe community and apart from that he also makes a claim that, he is also a Traditional Forest Dweller. When he has specifically pleaded that he belongs to the Scheduled Tribe community, he did not place any
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NC: 2024:KHC-D:12545 WP No. 106862 of 2014 document before this Court and also not annexed any document along with the application at Annexure-C and apart from that he also claims that he is also a Traditional Forest Dweller.
17. Counsel appearing for the respondent No.2 has rightly brought to notice of this Court that the definition of Section '2(o)' is very clear that "other traditional forest dweller" means any member or community who has for at least three generations prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bonafide livelihood needs and the explanation is also very clear that 'generation' means a period comprising of twenty-five years and when such definition is very clear, that there must be three generations prior to the 13th day of December, 2005 and explanation is also very clear that 'generation' means a period comprising of twenty-five years, nothing is placed on record before this Court with regard to the petitioner coming within the purview of Section '2(o)' of the Act.
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18. When such being the case, the very contention of the petitioner that Section 6 of the Act ought to have been invoked, cannot be accepted and the counsel appearing for the respondent also brought to notice of this Court that while passing an order and recognizing the rights of the societies, particularly taken note of the Annexure-B and based on the said guidelines, passed an order at Annexure-A and also taken note of the fact that the society consists of 12,275 members and there were 3,044 members and they all belong to Scheduled Tribe and recognize the rights of the respondent No.2.
19. The circular which has been relied upon by the respondent also clearly discloses that priority has to be given to the Scheduled Tribe people and to keep the interest of the Scheduled Tribe people only the said provision is made. It is categorically contended that in terms of the said circular also, as per the powers given under Rule 9 of the said enactment, the Secretary of the Forest Department has passed Annexure-A. The counsel
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NC: 2024:KHC-D:12545 WP No. 106862 of 2014 also brought to notice of this Court that the Secretary to the Forest Department only passed the said order at Annexure-A. When such material is placed before the Court and when the petitioner is unable to place any material before the Court that he belongs to the Scheduled Tribe and also though he claims that he is other forest dwellers and in order to prove the fact that he had resided three generations as defined under section '2(o)' of the Act, nothing is placed on record and hence I do not find any force in the contention of the petitioner's counsel to quash Annexure-A.
20. Hence, there is no any merit in the writ petition and I pass the following:
ORDER The writ petition is dismissed.
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(H.P.SANDESH) JUDGE SH, CT-MCK, List No.: 1 Sl No.: 30