Bombay High Court
Lalba Nana Bethekar vs The Sub Divisional Officer And Forest ... on 10 April, 2017
Author: Z.A.Haq
Bench: Z.A.Haq
1 wp1233.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1233/2016
Lalba Nana Bethekar,
aged 55 Yrs., R/o Bhandora,
Post Churni, Tq. Chikhaldara,
Distt. Amravati. ..Petitioner.
..Vs..
1. The Sub-Divisional Officer and
Forest Rights Coordinator, Amravati
Camp, Amravati.
2. The Sub-Divisional Level Committee
Dharni, Tq. Dharni, Distt. Amravati.
3. The Collector - District Level Forest Rights Committee
Coordinator, Amravati. ..Respondents.
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Shri Y.P. Kaslikar, Advocate for the petitioner.
Ms. Tajwar H. Khan, A.G.P. for the respondents.
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CORAM : Z.A.HAQ, J.
DATE : 10.4.2017.
ORAL JUDGMENT
Oral leave to implead the Collector - District Level Forest Rights Committee Coordinator, Amravati as respondent No.3 is granted at the request of learned Advocate for the petitioner. The amendment be carried out forthwith.
1. Heard Shri Y.P. Kaslikar, Advocate for the petitioner and Ms. ::: Uploaded on - 24/04/2017 ::: Downloaded on - 27/08/2017 22:43:02 ::: 2 wp1233.16 Tajwar H. Khan, A.G.P. for the respondents.
2. Rule. Rule made returnable forthwith.
3. The petitioner claiming to be "Korku", which is recognized as Scheduled Tribe in the State of Maharashtra, applied for recognition of forest rights as per Section 3 of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (for short "Forest Rights Act, 2006"). This application is rejected by the impugned order.
The impugned order is cryptic and no reason is recorded for rejection of application of the petitioner except that the petitioner (applicant) is not eligible as per the provisions of law.
4. In response to the notice issued by this Court, the respondents have filed their reply. In paragraph No.7 of the reply, it is stated that the petitioner has failed to produce birth certificates and death certificates of his forefathers for establishing the rights claimed as per Forest Rights Act, 2006. In view of the stand taken in submissions filed before this Court, the learned A.G.P. was asked to make the record available at the time of hearing. Accordingly, the record is made available.
5. The Forest Rights Act, 2006 is enacted with the object of recognizing ::: Uploaded on - 24/04/2017 ::: Downloaded on - 27/08/2017 22:43:02 ::: 3 wp1233.16 and vesting the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in forests for generations but whose rights could not be recorded. The Act provides for the framework for recording of forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land. The Forest Rights Act, 2006 is enacted by the Parliament after it was felt necessary to address long standing insecurity of tenurial and access rights of forest dwelling Scheduled Tribes and other traditional forest dwellers including those who were forced to relocate their dwelling due to State development interventions.
Section 2(c) and Section 2(o) of the Forest Rights Act, 2006 define the "forest dwelling Scheduled Tribes" and "other traditional forest dweller" as follows:
"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 Tribes pastoralist communities."
"2(o) "other traditional forest dweller" means any member or community who has for at least three generations prior to the 13 th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs. Explanation - For the purposes of this clause, "generation" means a period comprising of twenty-five years.
Looking to the background of the forest dwelling Scheduled Tribes and other traditional forest dwellers, Chapter IV is introduced in the Forest ::: Uploaded on - 24/04/2017 ::: Downloaded on - 27/08/2017 22:43:02 :::
4 wp1233.16 Rights Act, 2006 which provides for the Authorities and procedure for vesting of forest rights. Section 6(1) which falls in Chapter IV of the Forest Rights Act, 2006 provides that the Gramsabha shall be the Authority to initiate the process for determining the nature and extent of individual or community forest rights or both, that may be given to the forest dwelling Scheduled Tribes and other traditional forest dwellers. It is provided that after receiving the claim, the Gramsabha has to verify the claim and prepare a map delineating the area of each recommended claim in such manner as may be prescribed and then pass a resolution and forward a copy to the Sub-Divisional Level Committee. Sub-section (2) of the Forest Rights Act, 2006 provides that any person aggrieved by the resolution of Gramsabha may prefer a petition to the Sub-Divisional Level Committee constituted under Sub-section (3) and Sub-Divisional Level Committee shall consider and dispose such petition. The first proviso below sub-section (2) of Section 6 provides limitation of 60 days from the date of passing of the resolution by Gramsabha for filing the petition to the Sub-Divisional Level Committee and the second proviso below Sub-section (2) of Section 6 lays down that the petition shall not be disposed against the aggrieved person unless he is given an opportunity to present his case. Sub-section (4) of Section 6 lays down that any person aggrieved by the decision of the Sub-Divisional Level Committee may prefer a petition to the District Level Committee within 60 days from the date of decision of the Sub-Divisional Level Committee. The first proviso below Sub-section (4) of ::: Uploaded on - 24/04/2017 ::: Downloaded on - 27/08/2017 22:43:02 ::: 5 wp1233.16 Section 6 lays down that no petition shall be preferred directly before the District Level Committee against the resolution of Gramsabha unless the same has been preferred before and considered by the Sub-Divisional Level Committee. The second proviso below Sub-section (4) of Section 6 provides that the petition shall not be disposed against the aggrieved person unless he has a reasonable opportunity to present his case. Sub-section (6) of Section 6 lays down that the decision of the District Level Committee on the record of forest rights shall be final and binding.
6. The Scheduled Tribes and other Traditional Forests Dwellers (Recognition of Forest Rights) Rules, 2008 (for short "Forest Rights Rules, 2008") are made in exercise of the powers conferred by Section 14(1) of the Forest Rights Act, 2006. Rule 3 of the Forest Rights Rules, 2008 provides for procedure to be followed for convening Gramsabhas and election of Forest Rights Committee. Rule 4 provides for the functions of the Gramsabhas. Rule 5 provides for the constitution of Sub-Divisional Level Committee. Rule 6 provides for the functions of the Sub-Divisional Level Committee. Rule 7 provides for the constitution of District Level Committee. Rule 8 provides for the functions of District Level Committee.
Rule 11 of the Forest Rights Rules, 2008 lays down the procedure for filing, determination and verification of claims by Gramsabha. Rule 12 of the Forest Rights Rules, 2008 provides for the process of verifying claims by ::: Uploaded on - 24/04/2017 ::: Downloaded on - 27/08/2017 22:43:02 ::: 6 wp1233.16 Forest Rights Committee. Rule 13(1) and Rule 13(2) refer to the evidence which can be considered for determination of various rights. Sub-rule (3) of Rule 13 lays down that the Gramsabha, the Sub-Divisional Level Committee and the District Level Committee shall consider the evidence / evidences referred in Sub-rules (1) and (2) of Rule 13 for determining the forest rights.
7. Under the scheme of the Act and the Rules, burden to substantiate the claim is not placed on the member of forest dwelling Scheduled Tribe or other traditional forest dweller. A duty is cast on the Gramsabha to initiate the process of determining the nature and extent of forest rights and to prepare a list of claims and to maintain a register containing such details of the claimants and their claims.
The Gramsabha initiated the process and passed a resolution on the recommendation of Forest Rights Committee recognizing the right of the petitioner. The proposal was forwarded to the Sub-Divisional Level Committee which approved the proposal of the Gramsabha and referred it to District Level Committee. Surprisingly, the District Level Committee rejected the claim of the petitioner without recording any reasons and without recording that the resolution of the Gramsabha or the decision of the Sub-Divisional Level Committee is improper or unsustainable.
Sub-section (2) of Section 6 of the Forest Rights Act, 2006 provides that any person aggrieved by the resolution of Gramsabha may prefer a petition ::: Uploaded on - 24/04/2017 ::: Downloaded on - 27/08/2017 22:43:02 ::: 7 wp1233.16 to the Sub-Divisional Level Committee. In the present case there is nothing on the record to show that the resolution of Gramsabha was challenged by anybody before the Sub-Divisional Level Committee. The resolution passed by the Gramsabha was perhaps forwarded to the Sub-Divisional Level Committee as required by Sub-section (1) of Section 6 of the Forest Rights Act, 2006. Again there is nothing on the record to show that the decision of Sub-Divisional Level Committee was challenged before the District Level Committee as per Sub-section (4) of Section 6 of the Forest Rights Act, 2006, however, the claim of the petitioner is rejected by the District Level Committee without recording any reasons and giving a complete go-bye to the provisions of the Forest Rights Act, 2006 and the Forest Rights Rules, 2008. Rule 8 provides that the District Level Committee shall ensure that the requisite information under clause (b) of Rule 6 has been provided to Gramsabha or Forest Rights Committee to examine whether all claims specially those of primitive tribal groups, pastoralists and Nomadic Tribes have been approved keeping in mind the objectives of the Act and to consider and finally approve the claims and record of forest rights prepared by the Sub-Divisional Level Committee. The provisions of the Act and the Rules show that a duty is cast on the Gramsabha, the Sub-Divisional Level Committee and the District Level Committee to ensure that the claims of the claimants are approved keeping in mind the objectives of the Act, however, attitude of the District Level Committee is like an adjudicatory authority. The Forest Rights Committee, the Gramsabha and the ::: Uploaded on - 24/04/2017 ::: Downloaded on - 27/08/2017 22:43:02 ::: 8 wp1233.16 Sub-Divisional Level Committee having concluded in favour of the petitioner recording his claim of forest rights under the Act, the District Level Committee could not have rejected the claim of the petitioner without recording reasons and without recording a finding that the report of the Forest Rights Committee and the resolution of the Gramsabha are not acceptable in view of the evidence which is required to be considered as per Rule 13(1) and 13(2) of the Forest Rights Rules, 2008 while determining the forest rights. The District Level Committee has not discharged its functions as required under scheme of the Forest Rights Act, 2006 and the Forest Rights Rules, 2008. The District Level Committee which comprises of very highly placed officials and is entrusted with the work of fulfilling the objectives of the Forest Rights Act, 2006 have acted in a high-handed manner because of which not only the petitioner is put to a serious prejudice but the very object of the Act is frustrated.
8. The hypocrisy of the officials of the respondents is reflected from the stand taken before this Court in paragraph No.7 of the affidavit filed on behalf of the respondent Nos.1 and 2. It is stated that the petitioner has failed to produce birth certificates and death certificates of his forefathers for establishing his rights as per the Forest Rights Act, 2006. The District Level Committee has not only committed a blunder while passing the impugned order but the illegal act is tried to be justified before this Court on the basis of misleading statement and misrepresentation. The learned A.G.P. has not been ::: Uploaded on - 24/04/2017 ::: Downloaded on - 27/08/2017 22:43:02 ::: 9 wp1233.16 able to point out that under the scheme of the Forest Rights Act, 2006 and the scheme of Forest Rights Rules, 2008 the claimant (tribal) is required to produce the birth certificates and death certificates of his forefathers to substantiate his claim. In fact, as recorded above, it is the duty of the various Committees to gather the evidence and verify the rights of the forest dwelling Scheduled Tribes and other traditional forest dwellers.
In the present case, I find that the concerned Authorities have mechanically dealt with the claim of the petitioner. The conclusions of the Range Forest Officer at the end of the report dated 14 th August, 2009 does not make any sense inasmuch as the report does not consider the entitlement of the petitioner in the light of the provisions of Rule 13(1) and Rule 13(2) of the Forest Rights Rules, 2008.
9. In view of the above, the following order is passed:
(i) The decision of the District Level Committee dated 20th April, 2011 communicated to the petitioner by the communication dated 25 th July, 2011 is set aside.
(ii) The matter is remitted to the District Level Committee for considering the matter afresh as per the provisions of the Forest Rights Act, 2006 and the Forest Rights Rules, 2008.
(iii) The District Level Committee shall take decision according to Sub-section (5) of Section 6 of the Forest Rights Act, 2006 and communicate it ::: Uploaded on - 24/04/2017 ::: Downloaded on - 27/08/2017 22:43:02 :::
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(iv) The District Level Committee shall pay costs of Rs.10,000/- (Rs. Ten Thousand Only) to the petitioner within two months by demand draft, after verifying that the petitioner is having an account in a nationalized bank.
Rule is made absolute in the above terms.
JUDGE Tambaskar.
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