Gauhati High Court
Kabin Ronghang And 5 Ors vs The Union Of India And 11 Ors on 11 September, 2019
Bench: Arup Kumar Goswami, Manish Choudhury
Page No.# 1/22
GAHC010236682015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : PIL 121/2015
1:KABIN RONGHANG and 5 ORS.
33 YRS., S/O SRI KHAGEN RONGHANG, VILL. GARBHANGA, P.O. and P.S.
GORCHUK, DIST- KAMRUP METRO, ASSAM, PIN-781035
2: DHON BONGANG
37 YRS.
S/O LT. SINGA BONGANJ
VILL. ULUBARI
GARBHANGA
P.O. and P.S. GORCHUK
DIST- KAMRUP METRO
ASSAM
PIN-781035
3: DURGA TAMANG
30 YRS.
S/O SRI MOHON SING TAMANG
VILL. ULUBARI
GARBHANGA
P.O. and P.S. GORCHUK
DIST- KAMRUP METRO
ASSAM
PIN-781035
4: ANANDA TERON
36 YRS.
S/O LT. SARUSON TERON
VILL. GARBHANGA
P.O. and P.S. GORCHUK
DIST- KAMRUP METRO
ASSAM
PIN-781035
5: NARESWAR ROHANG
Page No.# 2/22
31 YRS.
S/O SRI DHANESWAR ROHANG
VILL. GARBHANGA
P.O. and P.S. GORCHUK
DIST- KAMRUP METRO
ASSAM
PIN-781035
6: DHIRESWAR TERON
33 YRS.
S/O LT. SARUSON TERON
VILL. GARBHANGA
P.O. and P.S. GORCHUK
DIST- KAMRUP METRO
ASSAM
PIN-78103
VERSUS
1:THE UNION OF INDIA and 11 ORS
REP. BY SECY. TO THE MINISTRY OF DEVEL. OF NORTH EASTERN
REGION, GOVT. OF INDIA, VIGYAN BHAWAN ANNEXE, MAULANA AZAD
ROAD, NEW DELHI-11
2:THE STATE OF ASSAM
REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR
GHY-6
3:THE ASSAM STATE LEGAL SERVICE AUTHORITY
ASSAM
REP. BY THE MEMBER SECY.
ASLSA
GAUHATI HIGH COURT OLD BUILDING
1ST FLOOR
GHY-1
4:THE DEPARTMENT OF ENVIRONMENT and FOREST
REP. BY THE COMMISSIONER and SECY.
GOVT. OF ASSAM
DISPUR
GHY-6
5:THE DEPARTMENT OF HEALTH and F.W.
REP. BY THE COMMISSIONER and SECY.
GOVT. OF ASSAM
DISPUR
GHY-6
Page No.# 3/22
6:THE DEPARTMENT OF PUBLIC WORKS ROAD
REP. BY THE COMMISSIONER and SECY.
GOVT. OF ASSAM
DISPUR
GHY-6
7:THE DEPARTMENT OF EDUCATION
REP. BY THE COMMISSIONER and SECY.
GOVT. OF ASSAM
DISPUR
GHY-6
8:THE MINISTRY OF POWER
REP. BY THE COMMISSIONER and SECY.
GOVT. OF ASSAM
DISPUR
GHY-6
9:THE CHIEF GENERAL MANAGER
BSNL ASSAM CIRCLE
PANBAZAR
GHY-1
10:THE CHIEF ENGINEER
PWD BOARDER ROADS
ASSAM
CHANDMARI
GHY-3
11:THE DY. COMMISSIONER
KAMRUP METRO
ASSAM
12:THE DY. COMMISSIONER
KAMRUP RURAL
ASSA
Advocate for the Petitioner : MR.M K DAS
Advocate for the Respondent : MR.R THADANIR-9
Page No.# 4/22
PRESENT
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE (ACTING)
HON'BLE MR. JUSTICE MANISH CHOUDHURY
For the petitioners : Mr. M.K. Das,
Advocate
For the respondents : Mr. K.K. Parasar,
Central Govt. Counsel
Mr. T.C. Chutia,
Addl. Sr. Govt. Advocate
Assam for Resp. Nos. 2, 6, 8, 10, 11 and 12
Mr. S. Dutta,
Standing Counsel, Environment & Forests, for Resp.
No.4
Ms. S. Sarma,
Standing Counsel, Health & Family Welfare for Resp.
No.5
Mr. S. Biswas,
Standing Counsel, Education for Resp. No. 7.
Dates of hearing : 18.07.2019 & 14.08.2019
Date of Judgment : 11.09.2019
JUDGMENT & ORDER
(CAV)
[Arup Kumar Goswami, CJ (Acting)]
Heard Mr. M.K. Das, learned counsel for the petitioners. Also heard Mr. K.K. Parasar,
learned Central Government Counsel appearing for respondent No.1; Mr. T.C. Chutia, learned
State counsel for respondent Nos.2, 6, 8, 10, 11 and 12; Ms. A. Devi, learned counsel for
respondent No.3; Mr. S. Dutta, learned Standing Counsel, Environment & Forest appearing for
respondent No.4; Ms. S. Sarma, learned Standing Counsel, Health & Family Welfare for
respondent No.5 and Mr. S. Biswas, learned Standing Counsel, Education for respondent No.7.
None appears for respondent No.9, though the name of the counsel is shown in the cause
list.
Page No.# 5/22
2. The six petitioners have approached this Court, essentially, praying for protection as
well as conferment of rights and extension of various facilities to the inhabitants of border
area of Assam and Meghalaya beyond Garbhanga Forest Reserve. The prayer portion of the
petition is extracted herein below:-
"It is therefore prayed that Your Lordships would be pleased to admit this
application, call for the records and issue a Rule upon the respondents to show
cause as to why a writ in the nature of Mandamus should not be issued to the
respondent authorities to protect and provide all the rights and facilities to the
inhabitant of the remote boarder area of Meghalaya and Assam beyond the
Garbhanga Forest Area mentioned in this petition AND/OR as to why a writ in
the nature of Mandamus and/or any other appropriate writ(s), order(s) and/or
direction(s) of the like nature shall not be issued thereby -
(a) directing the respondent authorities, more particularly the respondent no.1
to take initiatives and make all the arrangement to provide with all the
facilities to the remote inhabitants in the disturbed border area of Meghalaya
and Assam beyond the Garbhanga Forest Area.
(b) directing the respondent authorities, more particularly the respondent no.
2,3,4,6 & 10 to sort out all the quarries to start the construction work of the
road (length = 21 km.) as approved under CM's Special Package, special
focus on construction of border area roads and bridge, where an amount of
Rs. 2222.35 lakhs (Rupees Twenty two crore twenty two lakh thirty five
thousand only) has been approved in the annual plan 2012-13, without any
further delay.
(c) directing the respondent authorities, more particularly the respondent no. 2
& 4 to issue the land patta under the Forest Rights Act, 2006 to the
inhabitants of that area.
(d) directing the respondent authorities, more particularly the respondent no.5
to avail all the health facilities to the inhabitants of that area, including all
the emergency services with a permanent 10 bed hospital with all the
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facilities with permanent doctor.
(e) directing the respondent authorities, more particularly the respondent no.7
to establish high schools in that area and further to arrange communication
facilities so that the children of the area got the chance to participate &
compete in the education facilities available in the downstream area of
Kamrup district.
(f) directing the respondent authorities, more particularly the respondent no.8,
to provide with the electricity facilities, till the date of arrangement of the
same provide solar facilities to the inhabitants of the areas, mentioned in the
present petition.
(g) directing the respondent authorities, more particularly the respondent no.9,
to provide with all the telecom facilities to the inhabitants of the areas,
mentioned in the present petition."
3. The petitioners project that this petition is filed in the interest of the people of villages,
namely, Garbhanga, New Garbhanga, Pahamjilla, Jalukpaham, Matang, Numali Pathar, Dumu
Paham, Nung Tari, Kayang Pathar, Deka Pathar, Amring, Ulubare, Utpaham, Barpani,
Bhalulkhuwa, which are situated beyond Garbhanga Forest Area in between border of
Meghalaya and Assam. The area is included in the 54 West Guwahati Legislative Assembly
Constituency and as per the voters' list of 2012, there were 563 numbers of voters.
4. The pleaded case, in essence, is that there is a 23 Km road in between Garbhanga
Reserve Forest and Bhetapara Chariali of Guwahati, which is in such deplorable condition that
during rainy season, the petitioners' area remains totally disconnected from the rest of the
world. Though periodical expenditure is incurred for improvement of the road, in reality, no
improvement has taken place and even when repairing of the road is done, the same is done
upto Umthana only. The area is totally neglected and though there are five L.P. Schools, there
is no M.E. or High School. As there is no rented accommodation available for the teachers to
set up residence in the area, they have to commute to the place of work but because of the
pathetic road condition, they cannot attend to their duties regularly. In the shape of hospital
facilities, there are three Health Sub-Centres but no doctor visits such Sub-Centres. Maternity
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benefits are also not made available to the village women residing there. Institutional delivery
in the area is very low because of travel constraints and most of the deliveries take place at
home thereby increasing the mortality rate of the mother and the infant. There is no
electricity or telecommunication facility in that area though across the border, the villagers in
the State of Meghalaya are enjoying such facilities. For the purpose of getting ration under
the Public Distribution Scheme, one has to travel around 25/30 Kms. as there is no fair price
shop. Though entitled to, not even one single patta has been issued to any of the residents
therein. Old age facilities, pension facilities, facilities under MGNREGA have also not reached
the population residing thereon.
5. In substance, the petitioners have tried to project that the residents of that area have
been deprived of the amenities of life and most of the welfare schemes did not reach them.
6. In an additional affidavit filed, it is pointed out that Garbhanga Reserve Forest was
declared a Reserved Forest in the year 1926 and that the ancestors of the petitioners had
settled in the said area prior to the year 1917 and in the year 1917, some annual kheraj
pattas were issued to some of the villagers therein.
7. Affidavit was filed by respondent No.9 on 7.4.2016, by respondent No. 10 on
8.12.2016, by respondent No.4 on 23.1.2017, by respondent No.5 on 6.2.2017, by
respondent No. 12 on 6.2.2017, by respondent No.7 on 6.12.2017, by respondent No.3 on
5.1.2018. An additional affidavit was filed by the petitioners on 7.5.2018. An additional
affidavit-in-opposition was filed by respondent No.4 on 20.3.2019 and affidavit-in-reply to the
said additional affidavit-in-opposition was filed by the petitioners on 29.5.2019.
8. At this stage, it will be appropriate to take note of the stand taken by the aforesaid
respondents in their respective affidavits.
(A) In the affidavit filed by respondent No.9 i.e. BSNL, it is stated that this is not a Public
Interest Litigation, but a petition filed in private interest of the petitioners hailing from
a particular village. The relief claimed against respondent No.9 in connection with
grant of telecommunication facilities is not specific and they have raised the issue
directly in this petition instead of approaching the authorities seeking extension of
facilities of telecommunication services. The area being either inside forest area or in
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the fringe area of a forest, it would be necessary to obtain permission from, amongst
others, the Forest Department with regard to survey, installation and construction of
Base Trans-receiver Stations.
(B) In the affidavit filed by respondent No. 10, Public Works Department, it is stated that
construction of the road from Garbhanga Forest Office to Jalukpaham, which is 21 kms
in length, was allotted to a contractor vide order dated 17.5.2014 under CM's Special
Package at an estimated cost of Rs. 22,10,42,968.00, but after allotment of the work it
was found that a major portion of the road falls within the Garbhanga Reserved Forest
land and, therefore, prior approval of the Central Government under Section 2 of the
Forest (Conservation) Act, 1980 was necessary and no such approval having been
taken, the work order was cancelled. Though request was made to the Central
Government for grant of approval, the same has not been received. Necessary
certificate from the Chief Secretary to the Government of Assam certifying non-
availability of non-forest land for compensatory afforestation for implementation of the
road project was also not received. It is stated that after obtaining prior approval from
the Central Government and certificate from the Chief Secretary, construction of the
road would be started.
(C) In the affidavit of respondent No.4, it is stated that the ancestors of the petitioners
had settled prior to declaration of the Garbhanga Reserved Forest. However, there is
no record of grant of any residential certificate by the British Forest Authority though
claimed by the petitioners. It is further stated that it is difficult to maintain the road
during the monsoon season, but in the winter the road is motorable up to Garbhanga
Beat Office, which is 15 kms. from Lokhora, a locality near the National Highway at
Guwahati. It is stated that another road, approximately 16 kms. in length, is being
constructed from Garbhanga Beat Office to Ukium Sub Beat Office near Assam-
Meghalaya Border point. As it is a notified reserved forest, non-forest activities are not
permitted. It is further stated that certain rights of way were granted by a Notification
published in the Assam Gazette on 15 th July, 1926. The details of the same are
reproduced. As no other agency is allowed to do any non-forest activity, the road is
being maintained by the Forest Department only.
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(D) In the affidavit of the Health Department (respondent No.5), it is stated that there are
three Health Sub-Centres in the locality, namely, Garbhanga Sub-Centre, Jalukpaham
Sub-Centre and Doleppaham Sub-Centre and these health institutions have been
rendering service in the area and that the Department has also implemented
programmes such as immunization, maternal and child health, malaria and other
health related programmes. Auxiliary Nursing Midwifery (ANM), wrongly referred to as
Auxiliary Mid-Wives and Nurses, and Rural Health Practitioners (RHP) have been
posted in the said Sub-Centres and they are attending to their duties and distributing
medicines with the assistance of Multi Purpose Workers (MPW) and two Surveillance
Workers (SW) inspite of the deplorable road condition. The ANMs do not stay at the
centres due to lack of electricity, lack of water supply and lack of boundary walls, etc.
It is stated that in the absence of bank accounts, maternity benefits could not be
transferred to the women.
(E) In the affidavit of respondent No. 12, District Development Commissioner, Kamrup,
Amingaon, it is stated that the villages are dependent on Jhum cultivation and the total
population of the villages as per 2011 Census is 711. Though no land patta has been
issued to any of the families, 156 Nos. of allotment certificates were issued to the
residents of the villages during the year 2009.
(F) In the affidavit of respondent No.7, Director of Elementary Education, at Paragraph 5,
it is stated as follows:
"5. That with regard to the paragraph 15(III) to (VIII) of the PIL, the answering
deponent begs to state as follows:
a) So far the report received from the BEEO, Rani, presently Rangmali L.P. School
is running on by the teacher named Sri Birendra Rabha, Mid-day meal is being
served. Free Text Books are also distributed among the students. The
construction of urinal and toilet are also completed.
b) As far the report received from the BEEO, Rani, Shri Dinesh Ch. Boro is
working now in Nangtari L.P. School and he is attending the school regularly. In
Dumupaham L.P. School Sri Khagen Ramciary and Sri Rajib Sarma (TET) are
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working and attending school regularly.
c) As reported by the BEEO, Rani, actually the road condition is not good and
irrespective of that the teachers are attending the school ignoring difficulties
obeying the order of the Government.
d) So far the report received from the BEEO, Rani, Sri Bhadra Kanta Orang who
was the Teacher of Jalukpaham L.P. School has already retired and presently in
his place Sri Jatin Das is working as teacher of that school. Sri Dhakeswari
Tumu and Sri Pateswari Taro are not the teachers of L.P. School. Now mid-day
meal is being served. The construction of work of Anganbadi is belonging to
ICDS Project.
e) So far the report received from the BEEO, Rani, the condition of the road is
not good for carrying out any constructional works for the development of
classrooms etc.
f) So far the record received from the BEEO, Rani, in Garbhanga L.P. School
there are two numbers of teachers working and they are Shri Rajat Kather and
Shri Satya Boro who have been engaged in the BLO and NRC duty. These two
teachers attend school and in addition to their normal duty, they are also
performing the BLO and NRC duties. Garbhanga M.E. School was established by
the local people and presently the school is no more continuing."
(G) In the additional affidavit-in-opposition filed by respondent No.4 to the additional
affidavit dated 7.5.2018 filed by the petitioners, it is stated that initiatives under
Section 3 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006, for short, 2006 Act, had been taken for providing forests
rights to the forest dwellers. It is also stated that as the petitioners belong to Karbi
community, they come under 'other traditional forest dwellers' as defined under
Section 2(o) of the 2006 Act. In Paragraphs-7, 8,9 and 10 of the said affidavit, it is
stated as under:
"7. That your deponent begs to state that the petitioners being of Karbi
Community, comes under the "other traditional forest dwellers" as defined under
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Section 2(o) of the Act. Keeping in view of the objective of the Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forests Rights) Act, 2006 forest right
committees namely, Garbhanga Ulubari FRC, Amreng Dekapathar FRC and Pahamjila
FRC had been constituted and 57 & 44 Nos. of claims that had been received against
the aforesaid FRCs were sent to the Sub-Divisional Level Committee vide this office
letter No. B/FRC/13220-23 dated 29.12.2009 and letter No. B/FRC/1171-74 dated
05.02.2010. The subsequent approval was also accorded to subsequently the
Garbhanga Ulubari FRC and Amreng Dekapathar FRC had duly approved by the Deputy
Commissioner, Kamrup (Metro) in the meeting held on 11.03.2010 in the Conference
Hall of the Deputy Commissioner, Kamrup (M) with a decision to issue the Title
Certificate to the claimants. The matter was further reported to the Deputy
Commissioner, Kamrup (M) vide letter No. B/KE/Forest Right Act - 2006/9621 dated
27.04.2018.
8. That your deponent begs to state that the status of claimants of Garbhanga
Ulubari FRC, Amreng Dekapathar FRC also reported to the Sub-Divisional Level
Committee vide this office letter No. B/8005 dated 28.06.2018 responding to her letter
No. SWG/A/FD/1/08/145 dated 23.06.2010.
9. That your deponent begs to state that the Claimants list that had been
forwarded to the Sub-Divisional Level Committee also includes the name of petitioners
against the following Sl. No. Of the claimants list as follows:
Sl. No. of Petitioners of Affidavit Sl. No. of Petitioners of Claimants list
1. Kabin Ronghang 12
2. Dhon Bonjang 4
3. Durga Tamang 33,claims submitted in his father's name
4. Ananda Teron 2
5. Nareswar Rohang 6, claims submitted in his father's name
6. Dhireswar Teron 2,claims submitted in his brother's name
The necessary FRC for the rest of the villages mentioned in the Affidavit also
constituted and verification of claims of the claimants is under process. Status of the
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same is annexed as Annexure VIII.
10. That your deponent submits that the authority to issue the certificate under
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forests Rights)
Act, 2006 is the Deputy Commissioner. After verification and submission of the claim
verification reports now the Deputy Commissioner is the authority to finalise the
process and issue the benefits of the 2006 Act.
(H) In the reply affidavit to the said additional affidavit-in-opposition filed by respondent
No.4, it is stated by the petitioners that villages are only needed to be identified and
given the status of 'revenue villages' as per sub-clause (h) of Section 3 of the 2006
Act.
9. The 2006 Act was enacted to recognize and vest the forest rights and occupation in
forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have
been residing in such forests for generations but whose rights could not be recorded; to
provide for a framework for recording the forest rights so vested and the nature of evidence
required for such recognition and vesting in respect of forest land. It will be appropriate to
take note of some provisions of the 2006 Act for the purpose of this petition:-
" CHAPTER I
PRELIMINARY
2. Definitions.-In this Act, unless the context otherwise requires,-
(a) ...............
.....................
(d) "forest land" means land of any description falling within any forest area and includes unclassified forests, un-demarcated forests, existing or deemed forests, protected forests, reserved forests, Sanctuaries and National Parks;
(e) "forest rights" means the forest rights referred to in section 3;
(f) "forest villages" means the settlements which have been established inside the forests by the forest department of any State Government for forestry operations or which were converted into forest villages through the forest reservation process and includes forest settlement villages, fixed demand holdings, all types of taungya Page No.# 13/22 settlements, by whatever name called, for such villages and includes lands for cultivation and other uses permitted by the Government;
(g) "Gram Sabha" means a village assembly which shall consist of all adult members of a village and in case of States having no Panchayats, Padas, Tolas and other traditional village institutions and elected village committees, with full and unrestricted participation of women;
....................
(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.
(p) "Village" means-
(i) a village referred to in clause (b) of section 4 of the Provisions of the
Panchayats (Extension to the Scheduled Areas) Act, 1996 (40 of 1996); or
(ii) any area referred to as a village in any State law relating to Panchayats other than the Scheduled Areas; or
(iii) forest villages, old habitation or settlements and unsurveyed villages, whether notified as village or not; or
(iv) in the case of States where there are no Panchayats, the traditional village, by whatever name called;
CHAPTER II FOREST RIGHT
3. Forest rights of Forest dwelling Scheduled Tribes and other traditional forest dwellers.- (1) For the purposes of this Act, the following rights, which secure individual or community tenure or both, shall be the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers on all forest lands, namely:-
(a) right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers;
(b) community rights such as nistar, by whatever name called, including those used in erstwhile Princely States, Zamindari or such intermediary regimes;
Page No.# 14/22
(c) right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries;
(d) other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities;
(e) rights including community tenures of habitat and habitation for primitive tribal groups and pre-agricultural communities;
(f) rights in or over disputed lands under any nomenclature in any State where claims are disputed;
(g) rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles;
(h) rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and other villages in forests, whether recorded, notified or not into revenue villages;
(i) right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use;
(j) rights which are recognised under any State law or laws of any Autonomous District Council or Autonomous Regional Council or which are accepted as rights of tribals under any traditional or customary law of the concerned tribes of any State;
(k) right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity;
(l) any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers, as the case may be, which are not mentioned in clauses (a) to (k) but excluding the traditional right of hunting or trapping or extracting a part of the body of any species of wild animal;
(m) right to in situ rehabilitation including alternative land in cases where the Scheduled Tribes and other traditional forest dwellers have been illegally evicted or displaced from forest land of any description without receiving their legal entitlement to rehabilitation prior to the 13th day of December, 2005.
Page No.# 15/22 (2) Notwithstanding anything contained in the Forest (Conservation) Act, 1980 (69 of 1980), the Central Government shall provide for diversion of forest land for the following facilities managed by the Government which involve felling of trees not exceeding seventy-five trees per hectare, namely:-
(a) schools;
(b) dispensary or hospital;
(c) anganwadis;
(d) fair price shops;
(e) electric and telecommunication lines;
(f) tanks and other minor water bodies;
(g) drinking water supply and water pipelines;
(h) water or rain water harvesting structures;
(i) minor irrigation canals;
(j) non-conventional source of energy;
(k) skill upgradation or vocational training centres;
(l) roads; and
(m) community centres:
Provided that such diversion of forest land shall be allowed only if,-
(i) the forest land to be diverted for the purposes mentioned in this sub-section is less than one hectare in each case; and
(ii) the clearance of such developmental projects shall be subject to the condition that the same is recommended by the Gram Sabha.
CHAPTER III RECOGNITION, RESTORATION AND VESTING OF FOREST RIGHTS AND RELATED MATTERS
4. Recognition of, and vesting of, forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers. -(1) Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Act, the Central Government hereby recognises and vests forest rights in-
(a) the forest dwelling Scheduled Tribes in States or areas in States where Page No.# 16/22 they are declared as Scheduled Tribes in respect of all forest rights mentioned in section 3;
(b) the other traditional forest dwellers in respect of all forest rights mentioned in section 3.
..............................
(3) The recognition and vesting of forest rights under this Act to the forest dwelling Scheduled Tribes and to other traditional forest dwellers in relation to any State or Union territory in respect of forest land and their habitat shall be subject to the condition that such Scheduled Tribes or tribal communities or other traditional forest dwellers had occupied forest land before the 13th day of December, 2005. .............................
(5) Save as otherwise provided, no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete. ..............................
CHAPTER IV AUTHORITIES AND PROCEDURE FOR VESTING OF FOREST RIGHTS
6. Authorities to vest forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers and procedure thereof. -(1) The Gram Sabha 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 within the local limits of its jurisdiction under this Act by receiving claims, consolidating and verifying them and preparing a map delineating the area of each recommended claim in such manner as may be prescribed for exercise of such rights and the Gram Sabha shall, then, pass a resolution to that effect and thereafter forward a copy of the same to the Sub- Divisional Level Committee.
(2) Any person aggrieved by the resolution of the Gram Sabha may prefer a petition to the Sub-Divisional Level Committee constituted under sub-section (3) and the Sub-Divisional Level Committee shall consider and dispose of such petition:
Page No.# 17/22 Provided that every such petition shall be preferred within sixty days from the date of passing of the resolution by the Gram Sabha:
Provided further that no such petition shall be disposed of against the aggrieved person, unless he has been given a reasonable opportunity to present his case. (3) The State Government shall constitute a Sub-Divisional Level Committee to examine the resolution passed by the Gram Sabha and prepare the record of forest rights and forward it through the Sub-Divisional Officer to the District Level Committee for a final decision.
(4) Any person aggrieved by the decision of the Sub-Divisional Level Committee may prefer a petition to the District Level Committee within sixty days from the date of decision of the Sub-Divisional Level Committee and the District Level Committee shall consider and dispose of such petition:
Provided that no petition shall be preferred directly before the District Level Committee against the resolution of the Gram Sabha unless the same has been preferred before and considered by the Sub-Divisional Level Committee:
Provided further that no such petition shall be disposed of against the aggrieved person, unless he has been given a reasonable opportunity to present his case. (5) The State Government shall constitute a District Level Committee to consider and finally approve the record of forest rights prepared by the Sub-Divisional Level Committee.
(6) The decision of the District Level Committee on the record of forest rights shall be final and binding.
(7) The State Government shall constitute a State Level Monitoring Committee to monitor the process of recognition and vesting of forest rights and to submit to the nodal agency such returns and reports as may be called for by that agency. (8) The Sub-Divisional Level Committee, the District Level Committee and the State Level Monitoring Committee shall consist of officers of the departments of Revenue, Forest and Tribal Affairs of the State Government and three members of the Panchayati Raj Institutions at the appropriate level, appointed by the respective Panchayati Raj Institutions, of whom two shall be the Scheduled Tribe members and at least one shall be a woman, as may be prescribed.
Page No.# 18/22 (9) The composition and functions of the Sub-DivisionalLevel Committee, the District Level Committee and the State Level Monitoring Committee and the procedure to be followed by them in the discharge of their functions shall be such as may be prescribed."
10. In exercise of powers conferred by Section 14(1) and 14(2) of the 2006 Act, the Central Government had made a set of Rules called Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007, for short, 2007 Rules, for recognising and vesting the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers residing in such forests. It will be relevant to take note of certain provisions of the 2007 Rules.
11. Rule 2(e) defines Forest Rights Committee to mean a Committee constituted by the Gram Sabha under Rule 3. Rule 3 provides, amongst others, that Gram Sabhas shall be convened by the Gram Panchayat and in its first meeting it shall elect from amongst its members, a Committee of not less than 10 but not exceeding 15 persons as members of the Forest Rights Committee, wherein at least 1/3 rd members shall be Scheduled Tribes and not less than 1/3rd of such members shall be women. Under Rule 4, the Gram Sabha shall initiate the process of determining the nature and extent of forest rights; receive and hear the claims relating thereto; prepare a list of claimants of forests rights and maintain a register containing such details of claimants and their claims as the Central Government may by order determine; pass a resolution on claims on forest rights after giving reasonable opportunity to interested persons and authorities concerned and forward the same to the Sub-Divisional Level Committee. Under Rule 5, the State Government shall constitute Sub-Divisional Level Committee with the Sub-Divisional Officer or equivalent officer as Chairperson with members as indicated therein.
12. Under Rule 6, the Sub-Divisional Level Committee (SDLC) shall provide information to each Gram Sabha about their duties and duties of holder of forest rights and others towards protection of wildlife, forest and biodiversity with reference to critical flora and fauna which need to be conserved and protected; provide forest and revenue maps and electoral rolls to the Gram Sabha or the Forest Rights Committee; collate all the resolutions of the concerned Page No.# 19/22 Gram Sabhas; consolidate maps and details provided by the Gram Sabhas; examine the resolutions and the maps of the Gram Sabhas to ascertain the veracity of the claims; hear and adjudicate disputes between Gram Sabhas on the nature and extent of any forest rights; hear petitions from persons, including State agencies, aggrieved by the resolutions of the Gram Sabhas; co-ordinate with other Sub-Divisional Level Committees for inter sub-divisional claims, prepare block or tehsil-wise draft record of proposed forest rights after reconciliation of government records; forward the claims with the draft record of proposed forest rights through the Sub-Divisional Officer to the District Level Committee for final decision; raise awareness among forest dwellers about the objectives and procedures laid down under the Act and in the rules; ensure easy and free availability of proforma of claims to the claimants as provided in Annexure-I (Forms A, B and C) of these rules; ensure that the Gram Sabha meetings are conducted in free, open and fair manner with requisite quorum.
13. Rule 7 provides for constitution of the District Level Committee (DLC) with the District Collector or Deputy Commissioner as Chairperson with members as indicated therein.
14. Rule 8 enumerates the functions of District Level Committee. It shall ensure that the requisite information under clause (b) of rule 6 has been provided to Gram Sabha or Forest Rights Committee; examine whether all claims, especially those of primitive tribal groups, pastoralists and nomadic tribes, have been addressed keeping in mind the objectives of the Act; consider and finally approve the claims and record of forest rights prepared by the Sub- Divisional Level Committee; hear petitions from persons aggrieved by the orders of the Sub- Divisional Level Committee; co-ordinate with other districts regarding inter-district claims; issue directions for incorporation of the forest rights in the relevant government records including record of rights; ensure publication of the record of forest rights as may be finalized; ensure that a certified copy of the record of forest rights and title under the Act, as specified in Annexures II & III to these rules, is provided to the concerned claimant and the Gram Sabha respectively; and ensure that a certified copy of the record of the right to community forest resource and title under the Act, as specified in Annexure IV to these rules, is provided to the concerned Gram Sabha or the community whose rights over community forest resource have been recognized under clause (i) of sub-section (1) of Section 3.
15. Rule 9 provides for constitution of a State Level Monitoring Committee with the Chief Page No.# 20/22 Secretary as Chairperson and members as indicated therein.
16. Rule 10 provides the functions of the State Level Monitoring Committee. It shall devise criteria and indicators for monitoring the process of recognition and vesting of forest rights; monitor the process of recognition, verification and vesting of forest rights in the State; meet at least once in three months to monitor the process of recognition, verification and vesting of forest rights; consider and address the field level problems, and furnish a quarterly report in the format appended as Annexure V to these rules to the Central Government on their assessment regarding the status of claims, the compliance with the steps required under the Act, details of claims approved, reasons for rejection, if any and the status of pending claims, on receipt of a notice as mentioned in Section 8 of the Act; take appropriate actions against the concerned authorities under the Act; monitor resettlement under sub-section (2) of Section 4 of the Act and specifically monitor compliance of the provisions contained in clause
(m) of sub-section (1) of Section 3 and sub-section (8) of Section 4.
17. Rule 11 provides for filing, determination and verification of claims by the Gram Sabha. Rule 12 provides for process of verifying claims by Forest Rights Committee. Rule 13 lays down what will constitute evidence for recognition and vesting of forest rights.
18. Section 2 of the Forest (Conservation) Act, 1980, for short, 1980 Act provides certain restrictions on the de-reservation of forests or use of forest land for non-forest purpose except with the prior approval of the Central Government. However, Section 3(2) of the 2006 Act mandates that Central Government shall provide for diversion of forest land for the facilities as noted in the earlier part of the judgment if it involves felling of trees not exceeding 75 trees per hectare. Diversion of forest land for the aforesaid facilities shall be allowed only if forest land to be diverted is less than 1 hectare in each case and the clearance of such development projects shall be subject to the condition that the same is recommended by the Gram Sabha. It appears that the road which is stated to be 23 KMs in length, falls within non-forest purpose as defined in the 1980 Act. Laying of a road relates and ancillary to conservation, development and management of forest and wild life and the materials on record demonstrate that it is the Forest Department, which is maintaining the road. In any case, the Central Government has to allow diversion of forest land for the facilities managed by the Government indicated in Section 3(2) of the 2006 Act. There is no material on record Page No.# 21/22 to indicate that the Gaon Sabha had recommended for setting up of schools, dispensaries or hospitals, Anganwadis, fair price shops, electric and telecommunication lines, though some schools and health sub-centres are in existence. Statements made in paragraph 15 makes it clear that the 23 KM road is through the Garbhanga Reserve Forest. As per paragraph 3, the petition is filed for the residents of the villages beyond the Garbhanga forest area. However, in paragraph 6 it is stated that the area in question had been declared forest reserve area in the year 1926. The fact that the petitioners are claiming rights under the 2006 Act goes to show that the land under occupation of the villagers in the villages named is forest land.
19. The pleadings in the petition as well as in the affidavits filed do not indicate under which Panchayat the villages referred to by the petitioners fall or as to whether Gaon Sabha had been constituted. As noticed, the Gaon Sabha is 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. Although there is reference to Forest Rights Committee (FRC), the same is stated to have been constituted by the forest office. As per the provisions of the 2007 Rules, FRC is to be constituted by the Gram Sabha under Rule 3. From the additional affidavit-in-opposition filed by the respondent No.4 it is, however, seen that some FRCs had been constituted in some villages and in some cases, status of claimants had been submitted to the Sub-Divisional Level Committee (SDLC). The petitioners had sought for directions to respondent Nos.2 and 4 particularly to issue land patta. However, it is District Level Committee (DLC), who is to consider and finally approve the claims and records of forest rights prepared by the SDLC as also to issue directions for incorporation of the forest rights in the relevant government records including records of rights, to ensure publication of forest rights as may be finalized and also to ensure that a certified copy of the record of forest rights and title under the 2006 Act, as specified in Annexure II and III of the 2007 Rules, is provided to the concerned claimant and the Gram Sabha, respectively. Once there is recognition and vesting of forest rights, it is expected that many ancillary issues can be resolved to benefit the forest dwelling scheduled tribes and other traditional forest dwellers. Picture that has emerged is not very clear and therefore, in the attending facts and circumstances, we direct the concerned Deputy Commissioner, who is the Chairman of the District Level Committee, to look into the matter Page No.# 22/22 and nudge the authorities under the 2006 Act to do what is not done as yet and thereafter to take it forward in accordance with law to ensure that if people residing in that area fall within the category of "other traditional forest dwellers", they are not deprived of the rights envisaged under the 2006 Act. As clearance of development projects such as schools, dispensary, anganwadis, fair price shops, electric and telecommunication lines, roads, etc. by the Central Government, in terms of Section 3(2) of the 2006 Act is subject to recommendation made by the Gram Sabha, the concerned Deputy Commissioner(s) will examine whether any recommendations have been made by the Gram Sabha in that regard and if any such recommendation is made, necessary follow up action will be taken by the State respondents. It has come to light that the road within the forest, which is maintained by the Forest Department, is in deplorable condition and therefore, forest department is directed to improve the condition of the road. The respondents are also directed to ensure that the existing facilities which are available as on today shall be properly maintained and also ensure that appropriates steps are taken by all concerned so that the other traditional forest dwellers are not deprived of the beneficial and welfare measures undertaken by the Government.
20. With the above directions and observations, this Public Interest Litigation is disposed of.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant