Bombay High Court
Motiram S/O Kashinath Atram vs The Collector And Chair Person District ... on 16 November, 2022
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
1 2.WP.4782-2021 & ORS.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 4782 OF 2021
( Motiram S/o Kashinath Atram
Vs.
The Collector and Chair Person District Level Committee, Yavatmal & Ors. )
WITH
WRIT PETITION NO. 4783 OF 2021
( Pandurang S/o Tulsiram Atram
Vs.
The Collector and Chair Person District Level Committee, Yavatmal & Ors. )
WITH
WRIT PETITION NO. 4784 OF 2021
( Daulat S/o Rama Talande
Vs.
The Collector and Chair Person District Level Committee, Yavatmal & Ors. )
WITH
WRIT PETITION NO. 4786 OF 2021
( Shri Wasudev S/o Deva Meshram
Vs.
The Collector and Chair Person District Level Committee, Yavatmal & Ors. )
WITH
WRIT PETITION NO. 4787 OF 2021
( Vinod S/o Bapurao Ghodam
Vs.
The Collector and Chair Person District Level Committee, Yavatmal & Ors. )
WITH
2 2.WP.4782-2021 & ORS.odt
WRIT PETITION NO. 4789 OF 2021
( Shri Laxman S/o Limba Atram
Vs.
The Collector and Chair Person District Level Committee, Yavatmal & Ors. )
WITH
WRIT PETITION NO. 3088 OF 2021
( Waghuji S/o Somaji Meshram
Vs.
The Collector and Chair Person District Level Committee, Yavatmal & Ors. )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. A.J. Thakkar, Advocate for the Petitioner/s in all the matters.
Ms. Hemlata Jaipurkar, AGP for the Respondent Nos. 1, 2 & 4/State in
WP. No. 4782/2021.
Ms. Mrunal Barabde, AGP for the Respondent Nos. 1, 2 & 4/State in
WP. No. 4783/2021.
Mr. Indranil J. Damle, AGP for the Respondent Nos. 1, 2 & 4/State in
WP. No. 4784/2021.
Mr. A.A. Madiwale, A.G.P. for the Respondent Nos. 1, 2 & 4/State in
WP. No. 4786/2021.
Mr. N.R. Patil, A.G.P. for the Respondent Nos. 1, 2 & 4/State in
WP. No. 4787/2021.
Ms. Hemlata Jaipurkar, AGP for the Respondent Nos. 1, 2 & 4/State in
WP. No. 4789/2021.
Mr. Indranil J. Damle, AGP for the Respondent Nos. 1, 2 & 4/State in
WP. No. 3088/2021.
CORAM: AVINASH G. GHAROTE, J.
DATED : 16th NOVEMBER, 2022.
Heard Mr. Thakkar, learned counsel for the petitioner/s.
2. The petition challenges the order dated 07.06.2021 (page 21), passed by the respondent No.1 rejecting the claim of the petitioner, of being covered under the provisions of the Scheduled Tribes and Other 3 2.WP.4782-2021 & ORS.odt Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter to be referred as the "Act of 2006" for the sake of brevity), on the ground that all the requirements of the Act of 2006, as well as the circular dated 12.07.2012 (page 31) have been complied with as is indicated from the recommendation letter by the Forest Rights Committee (page 22), the resolution of the Gram Panchayat dated 30.04.2018 (page 25) and the communication dated 02.06.2018 (page 28) by the Gat Gram Panchayat Ardhavan. He therefore submits, that since the requirement of the Act of 2006 and the Government circular dated 12.07.2012 stands satisfied as all the petitioners are encroaching Forest land since prior to 31.12.2007, they are entitled to protection under the Statute and the impugned order, is therefore liable to be quashed and set aside and the applications of the petitioners need to be allowed.
3. All the learned A.G.Ps for the respondent Nos. 1, 2 & 4/State, vehemently oppose the submission and support the impugned orders by contending that the petitioners, are not residing at Ardhavan which is within the Forest area, but are permanent resident of Khapri, Taluqa Zari Jamni, District Yavatmal, and therefore, do not satisfy the requirement of the Act of 2006, as a result of which, the circular dated 12.07.2012, is clearly not attracted.
4. To appreciate the rival contentions, it is necessary to see the language of the Act of 2006 and to whom it is applicable. Section 2 (c) of the Act of 2006 4 2.WP.4782-2021 & ORS.odt defines 'forest dwelling Scheduled Tribe' as under:
"2(c) - "forest dwelling Scheduled Tribes"
means the members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs and includes the Scheduled Tribe pastoralist communities; "
5. So also Section 2(o) of the Act of 2006 defines other traditions forest dweller to mean as under:
"2(o) "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 bona fide livelihood needs."
6. Considering that in the instant case, the plea is not based upon the forefathers of the petitioners having resided in and dependent on the forest and forest land for at least three generations prior to 13.12.2005, the provisions of Section 2(o) of the Act of 2006 would not be applicable.
7. One has therefore, to look at the requirement of Section 2(c) of the Act of 2006, to consider whether the applicability of the Act of 2006 is available. A perusal of the language of Section 2(c) of the Act of 2006 would indicate, that the Act is applicable to a member of the Scheduled Tribe, who primarily resides in and depends upon the forest land for his livelihood.
8. Mr. Thakkar, learned counsel for the petitioners, does not dispute the factual position, that all 5 2.WP.4782-2021 & ORS.odt the petitioners in these petitions are resident of Village Khapri, Post Marki, Taluqa Zari Jamni, District Yavatmal, which is not situated within the forest. The lands in question of which are alleged to be encroached are admittedly situated at Ardhavan, which is inside the Forest area and the petitioners, are not the residents of that area. The expression "to dwell" as per the Concise Oxford English Dictionary Indian Edition, means to live in or at a place which would indicate that to satisfy the requirement of the provisions it has to be found that the petitioners actually reside at the place in respect of which encroachment is been claimed. Admittedly, this is not the position, as the residences of the petitioners is at Village Khapri, which is around 8.9 Kms., away from Ardhavan as per Mr. Patil, learned AGP for the respondent Nos. 1, 2 & 4/State. The residence of the petitioners at Village Khapri is also demonstrated by the documents submitted by them on record, which unequivocally states, that all the petitioners are residents of Village Khapri and not Ardhavan. Thus, when the Act of 2006 contemplates its applicability to one who primarily resides in the Forest, in view of the admitted position, that the petitioners do not reside in the Forest at all, the same would clearly make the provisions of the Act of 2006 in applicable to them. Since, the basic requirement of applicability of the Act of 2006 itself is not attracted, there is no necessity to go into the facts of the matter.
9. Thus, since the basic requirement of Section 2(c) of the Act of 2006 itself is not satisfied on the basis 6 2.WP.4782-2021 & ORS.odt of the documents submitted by the petitioners themselves, I do not see any reason to interfere in the impugned orders.
10. The Petitions are therefore without any merits and the same are dismissed. No costs.
JUDGE SD. Bhimte Signed By:SHRIKANT DAMODHAR BHIMTE Signing Date:18.11.2022 14:26