Kerala High Court
Pramod K.P vs State Of Kerala on 13 July, 2017
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
THURSDAY, THE 21ST DAY OF DECEMBER 2017/30TH AGRAHAYANA, 1939
WP(C).No. 21051 of 2016 (F)
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PETITIONER(S) :
-------------------------
1. PRAMOD K.P.,
AGED 32 YEARS, S/O.PRABHAKARAN, KANDATHINKARAYIL
HOUSE, HOUSE NO. 340/12(IV/237),
PINAVOORKUDI TRIBAL SETTLEMENT,
KUTTAMPUZHA VILLAGE, KUTTAMPUZHA P.O,
KOTHAMANGALAM TALUK, ERNAKULAM 686 681.
2. MOHANAN,
AGED 48 YEARS, S/O.PANALI, HOUSE NO. 141/12,
PINAVOORKUDI TRIBAL SETTLEMENT,
KUTTAMPUZHA VILLAGE, KUTTAMPUZHA P.O,
KOTHAMANGALAM TALUK, ERNAKULAM 686 681.
3. LAKSHMI,
AGED 41 YEARS, W/O.VASU,
HOUSE NO. 132/12, PINAVOORKUDI TRIBAL SETTLEMENT,
KUTTAMPUZHA VILLAGE, KUTTAMPUZHA P.O,
KOTHAMANGALAM TALUK, ERNAKULAM 686 681.
BY ADV. SRI.MATHEW KURIAKOSE
RESPONDENT(S) :
-----------------------------
1. STATE OF KERALA,
REPRESENTED BY ADDITIONAL CHIEF SECRETARY,
FOREST & WILD LIFE DEPARTMENT,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2. CHIEF CONSERVATOR OF FORESTS
HIGH RANGE CIRCLE, KOTTAYAM,
PARAMPUZHA, PIN 686 004.
3. FOREST RANGE OFFICER,
NERIYAMANGALAM FOREST RANGE,
NERIYAMANGALAM P.O, KOTHAMANGALAM,
ERNAKULAM DISTRICT, PIN 686 693.
..2/-
..2..
WP(C).No. 21051 of 2016 (F)
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* ADDITIONAL R4 IMPLEADED
4. MINISTRY OF TRIBAL AFFAIRS,
ROOM NO. 750, A WING, 7 FLOOR,
SHASTRI BHAWAN, RAJENDRA PRASAD ROAD,
NEAR KRISHI BHAWAN, NEW DELHI, PIN- 110 052.
* ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 13.07.2017
IN I.A.NO .10303 OF 2017.
R1 TO R3 BY SRI.RANJITH THAMPAN, ADDITIONAL ADVOCATE GENERAL
ADDL.R4 BY ADV. SRI.JAGADEESH LAKSHMAN, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 30-11-2017, ALONG WITH W.P(C).NO. 28234 OF 2016 AND
CONNECTED CASES, THE COURT ON 21-12-2017 DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 21051 of 2016 (F)
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APPENDIX
PETITIONER(S)' EXHIBITS :
P1 TRUE COPY OF THE APPLICATION DATED 21.08.2015 SUBMITTED
BY THE 1ST PETITIONER TO THE 3RD RESPONDENT.
P2 TRUE COPY OF THE APPLICATION DATED 21.08.2015 SUBMITTED
BY THE 2ND PETITIONER TO THE 3RD RESPONDENT.
P3 TRUE COPY OF THE APPLICATION DATED 21.08.2015 SUBMITTED
BY THE 3RD PETITIONER TO THE 3RD RESPONDENT
P4 TRUE COPY OF THE G.O(MS)NO. 103/2015/FOREST
DATED 15.12.2015 ISSUED BY THE 1ST RESPONDENT.
P5 TRUE COPY OF THE JUDGMENT DATED 18.03.2016 IN
W.P(C).NO. 10559/2016 OF THIS HONOURABLE COURT.
P6 TRUE COPY OF THE POSTAL RECEIPT EVIDENCING DESPATCH OF
THE CERTIFIED COPY OF EXHIBIT P5 JUDGMENT TO
THE 3RD RESPONDENT.
P7 TRUE COPY OF THE ORDER CUM COMMUNICATION
DATED 11.05.2016 ISSUED BY THE 3RD RESPONDENT TO
THE 1ST PETITIONER.
P8 TRUE COPY OF THE ORDER CUM COMMUNICATION
DATED 11.05.2016 ISSUED BY THE 3RD RESPONDENT TO
THE 2ND PETITIONER.
P9 TRUE COPY OF THE ORDER CUM COMMUNICATION
DATED 11.05.2016 ISSUED BY THE 3RD RESPONDENT TO
THE 3RD PETITIONER.
P10 TRUE COPY OF THE CIRCULAR NO. C2-689/2016 DATED 02.03.2016
ISSUED BY THE 2ND RESPONDENT.
P11 TRUE COPY OF THE ORDER NO. G.O(MS).23/93/FOREST
DATED 15.03.1993.
P12 TRUE COPY OF THE ORDER NO.G.O(MS).36/93/FOREST
DATED 19.05.1993.
P13 TRUE COPY OF THE ORDER NO. G.O(MS).40/2015/FOREST
DATED 27.05.2015.
P14 TRUE COPY OF THE ORDER NO. G.O(MS).49/2015/FOREST
DATED 09.07.2015.
WP(C).No. 21051 of 2016 (F)
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EXHIBITS P13 & P14 IN PRESENTED DATED ON 19.12.2016
P13 TRUE COPY OF THE TITLE FOR FOREST LAND UNDER
OCCUPATION ISSUED TO THE 2ND PETITIONER AND UNDER
THE PROVISIONS OF THE SCHEDULED TRIBES AND OTHER
TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST
RIGHTS) ACT, 2006 AND THE RULES, 2007.
P14 TRUE COPY OF THE TITLE FOR FOREST LAND UNDER
OCCUPATION ISSUED TO THE 3RD PETITIONER AND UNDER
THE PROVISIONS OF THE SCHEDULED TRIBES AND OTHER
TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST
RIGHTS) ACT, 2006 AND THE RULES, 2007.
P15 TRUE COPY OF THE EXTRACT OF RECORD OF RIGHTS
NO.ERR-187/98 ISSUED BY THE TAHSILDAR, KOTHAMANGALAM
AND COUNTERSIGNED BY THE RDO MUVATTUPUZHA AND
THE 3RD RESPONDENT.
P16 TRUE COPY OF THE CERTIFICATE DATED 13.03.2014 ISSUED BY
THE TAHSILDAR, KOTHAMANGALAM REGARDING RESIDENCE OF
THE 1ST PETITIONER.
P17 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 03.06.2016
ISSUED BY THE SECRETARYTO KUTTAMPUZHA GRAMA
PANCHAYAT REGARDING THE RESIDENCE OF
THE 1ST PETITIONER.
P18 TRUE COPY OF THE NOTICE DATED 02.03.2016 ISSUED BY
THE TRIBAL DEVELOPMENT OFFICER, MUVATTUPUZHA TO
THE 1ST PETITIONER.
P19 TRUE COPY OF THE ORDER DATED 17.01.2016 ISSUED TO
SRI. VIDYADHARAN, S/O.KUMARAN, NOORAMKARA, KORANGATTY
BY THE DIVISIONAL FOREST OFFICER, MUNNAR DIVISION.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R1(A): TRUE COPY OF G.O(MS) 42/15/FOREST DATED 06.06.2015.
//TRUE COPY//
P.S.TOJUDGE.
Msd.
'CR'
A.MUHAMED MUSTAQUE, J.
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W.P.(C) Nos.21051-F, 28234-D, 28269-G, 28274-H,
31653-F, 34850-E, 36929 of 2016-M & 181-W, 11475-H,
16367 of 2017 -U
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Dated this the 21st day of December, 2017
JUDGMENT
1. This bunch of writ petitions is filed by tribal/forest dwellers, who were given rights to forest land under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (herein after referred to as the "Act 2/2007"). They approached this Court aggrieved by the denial of permission to cut and remove Anjili trees and Jackfruit trees from the settlement area.
2. The petitioners, trace out their right for cutting and removing trees based on the Act 2/2007 and also with reference to some of the Government Orders. In this context, it is necessary to understand the nature of right devolved upon them in the light of legislative history related to conservation of forest land.
3. Parliament enacted Forest (Conservation) Act, 1980 (herein after referred to as the "Act 69/1980"') with a view to conserve forest 2 W.P.(C) Nos.21051 of 2016 and connected cases land. The Act 69/1980 placed restriction on use of forest land for non-forest purpose; particularity prohibited deforestation, without the permission of the Central Government. Act 69/1980 was enacted, essentially, with the intention of preserving forest and to prevent felling of naturally grown trees.
4. The State of Kerala is having a vast area of forest land and reserve forest. The Government of Kerala, by virtue of the provisions under Section 7 of the Kerala Land Assignment Act 1960, formulated rules for assignment, settlement and regularisation of forest lands which under occupation prior to 01.01.1977. By virtue of the said Rules, forest land can be assigned on registry for the purpose of personal cultivation or for house sites or for shop sites as the case may be, provided assignee or predecessor/successor-in-interest should have been in occupation of the land prior to 01.01.1977. It appears that a list of assignable lands have already been prepared. The assignment is based on payment of lump sum land value. The land assigned under these Rules were also heritable and alienable; but can be used only for the purpose, for which it was assigned. 3 W.P.(C) Nos.21051 of 2016 and connected cases There was a challenge against these Rules before this Court and this Court by judgment reported in: (Natural Lovers Movement v. State of Kerala) [AIR 2000 KER 131] held that Rules are not arbitrary. Ultimately, the Hon'ble Supreme Court also affirmed the above judgment of this Court. It is appropriate to refer para 39 of the judgment of the Hon'ble Supreme Court, reported in (Natural Lovers Movement v. State of Kerala) [2009 (5)SCC 373]which is extracted below.
39. Undisputedly, the object of the 1980 Act is conservation of forest and to prevent depletion thereof. Therefore, the court is bound to interpret the provisions of that Act (sic in a way) which would further the object of the legislation. After enforcement of the 1980 Act, the State Governments were denuded of suo motu power to deal with reserved forest or forest land and permit use thereof for non-forest purposes. They could do so only after obtaining prior approval of the Central Government. However, as large tracts of reserved forests and forest land had been occupied by landless poor, who also undertook cultivation for their sustenance many 4 W.P.(C) Nos.21051 of 2016 and connected cases decades before the enactment of the 1980 Act, and there was demand from several quarters that old occupation of the forest land may be regularised, the Government of India, after taking note of the recommendations made in the Forest Ministers' Conference and the committee appointed by it, issued guidelines for grant of approval to the decision taken by the State Governments before the enforcement of the 1980 Act ie. 25.10.1980 to regularise encroachments made on forest land and/or use thereof for non-forest purpose. This necessarily implies that where the State Government had not taken any policy decision to regularise pre 25.10.1980 occupation/ encroachment of forest land, no order for regularisation of such occupation/encroachment can be passed without obtaining prior approval of the Central Government in terms of Section 2 of the 1980 Act which, as mentioned above, contains a non obstante clause.
5. The Special Rules, 1993 did not contemplate cutting and removing of trees. Therefore, it would depend upon the restriction referred to in the patta or the Government Order issued. The Government, 5 W.P.(C) Nos.21051 of 2016 and connected cases in fact, issued an order in the year 1993, dated 15.03.1993, as G.O (MS) 23/93/Forest, permitting, cutting and removing of certain types of trees mentioned therein. By virtue of that Government Order, the assignee under the Special Rules 1993 are entitled to cut and remove the trees. Thereafter, the Government issued another order vide G.O(M.S)No.36/93/Forest, dated 19.05.1993, whereby it cancelled the permission to cut Anjily and Jackfruit trees from the forest land. Again, the Government issued another order on 27.05.2015 granting permission to cut and remove Anjili and Jackfruit trees from the forest land, assigned under the Special Rules, on obtaining permission from the forest and revenue authorities.
6. Taking note of the practical difficulty in obtaining permission from the revenue and forest authorities, the Government by order, dated 09.07.2015, dispensed with such permission. It is to be noted that the Government in the order dated 27.05.2015 and all subsequent orders, allowed the assignee under the Special Rules, 1993 as well as the occupant under the Act 2/2007 to cut and remove trees. 6 W.P.(C) Nos.21051 of 2016 and connected cases
7. Pending writ petition, the Government issued another order dated 27.05.2017. By the said order, Government placed restriction for felling trees and ordered that it can be felled only for the specified purpose mentioned therein.
8. The Government has filed a counter affidavit in this matter. According to the Government, the petitioners are not having any title over the property. Further, if the petitioners are permitted to cut and remove trees from the protected forest, reserve, sanctuaries and national park, it will have an adverse impact on the entire forest land. But, the Government can permit cutting and removing of trees for the construction of residential house and for other requirement as specified in the latest Government Order dated 27.05.2017.
9. The issue in these writ petitions arise in the context of the Act 2/2007. This enactment was brought in, to recognize the rights of forest dwellers. It appears that the Parliament felt that, for sustainable use and conservation of bio-diversity and maintenance of ecological balance of the forest, the rights of the forest dwellers 7 W.P.(C) Nos.21051 of 2016 and connected cases are to be protected. The said Act recognized traditional forest dwellers as integral to the very survival and sustainability of the forest eco system. The forest dwellers are occupying forest from time immemorial and it is their natural habitat. Their natural right is associated with forest. They cannot be disintegrated from forest eco system. Their life and livelihood are part of forest eco system. Their natural rights have been recognised through the Act 2/2007.
10.The Act 2/2007 defines forest dwelling scheduled tribes and other traditional forest dwellers in Section 2(c) and (o), respectively. The said definition would go to show that the right conferred under the Act 2/2007 is to protect those who are residing in the forest and depend on the forest or forest land for bona fide livelihood. The Act 2/2007 no where contemplates any assignment of land in favour of such class of persons. What is conferred upon such occupants is certain enumerated forest rights, as referred in Section 3 of the Act 2/2007. In order to confer such right, the Forest Right Committee is constituted. The claim of forest dwellers will have to be routed through the Committee referred under the 8 W.P.(C) Nos.21051 of 2016 and connected cases Act and Rules. Thus, what is assigned is not the land but "forest right" in the land. The said fact is also clear from Section 4(1) of the Act 2/2007.
11.As seen from the scheme of the Act 2/2007, it confers two types of rights; community right and individual right. Section 3 of Act 2/2007 delineate forest rights. It is appropriate to refer section 3 of the Act 2/2007, which is extracted hereunder:-
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 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 9 W.P.(C) Nos.21051 of 2016 and connected cases erstwhile Princely States, Zamindari or such intermediary regimes;
(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 conservation of Pattas or leases or grants issued by any local authority or any State Government on forest land 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 10 W.P.(C) Nos.21051 of 2016 and connected cases 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 or any description without receiving their legal 11 W.P.(C) Nos.21051 of 2016 and connected cases entitlement to rehabilitation prior to the 13th day of December, 2005.
(2) Notwithstanding anything contained in the Forest (Conservation Act, 1980 (59 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) anaganwadis;
(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 12 W.P.(C) Nos.21051 of 2016 and connected cases 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 cases; and
(ii) the clearance of such developmental projects shall be subject to the condition that the same is recommended by the Gram Sabha.
12.The claim of the petitioners in these writ petitions is based on individual right. They claim unfettered right to cut and remove trees from the settlement area assigned to them. The question is, whether they can be permitted to cut and remove trees either based on the Act 2/2007 or based on the Government Orders.
13.As already adverted, the assignment of forest right to the forest dwellers is essentially recognizing the occupancy right to occupy the forest land. That transfer does not include transfer of forest land to the forest dwellers. Thus, the State continued to be the holder of the land, having control of such forest land. Ownership and possession to hold the land belongs to the State, even though, the right to hold forest lands perpetually can be claimed as heritable in terms Section 4(4) of the Act 2/2007. Since the forest 13 W.P.(C) Nos.21051 of 2016 and connected cases dwellers do not keep possession or ownership over the land, they can be permitted to cut and remove trees only in accordance with the provisions of the Act 2/2007.
14.The Act 69/1980 is the enactment against deforestation. In the light of the provisions under the said Act, it is not possible to permit the assignees to cut and remove trees from any reserve forest or forest land for any non forest purpose, except with the prior approval of the Central Government. However, the Act 2/2007 permits assignees to cut and remove trees for the specific purpose mentioned therein. Under Section 3(2) of the Act 2/2007, the Central Government can permit diversion of forest land not exceeding 75 trees per hector for certain purposes mentioned therein. Thus, the felling of the trees can be permitted only in accordance with the provisions of the Act 2/2007.
15.It is equally important to note that certain rights are given to individuals under the Act 2/2007 and the Act 69/1980:-
16.. Section 3(a) of Act 2/2007 allows individual to hold forest land for self-cultivation for livelihood. If an occupant of a forest land, to 14 W.P.(C) Nos.21051 of 2016 and connected cases whom a title has been given as a part of self-cultivation, planted tree for livelihood, certainly, he/she can be permitted to cut and remove such trees. Felling of trees, otherwise, is only permitted in accordance with the other provisions of the Act 2/2007. Based on the title to occupy, no forest dwellers are entitled to cut and remove any trees, so long as the restriction under the Act 69/1980 would apply to such areas.
17.It is also to be noted that there is no transfer of interest involved in terms of the Act 2/2007 while giving title of the forest land to the forest dwellers for occupation. What is given is only a right to have occupation. The forest rights conferred upon the dwellers are in the nature of permissions to occupy the forest land and use it for the purpose for which permissions are granted. Therefore, as a matter of right, the forest dwellers or occupants, who are given title cannot be permitted to fell trees, from the land where prohibition of the Act 69/1980 would apply.
18.The Government, in fact, diluted the provisions of the Act 69/1980, by allowing cutting and removing of trees. The Government 15 W.P.(C) Nos.21051 of 2016 and connected cases cannot issue any order without previous approval of the Central Government. Any Government Order issued permitting felling of trees contrary to the Act 69/1980 is legally unsustainable.
19.So far as the issue in these writ petitions are concerned, this Court is of the view that, if the petitioners are given title under the Act 2/2007, they can be permitted to cut and remove any trees, which they have planted as a part of self-cultivation for livelihood. No doubt, if any tree pose danger to the dwellers, that also can be permitted to cut and remove. However, those trees belong to the Government and not to the dwellers. In respect of the trees planted and cultivated by the dwellers, the Government cannot claim any right over it, as it is a part of permitted activity and the dwellers can appropriate it.
20.Therefore, in the light of the discussions made above, these writ petitions are disposed of, directing the Chief Conservator of Forests to take a decision on the claim of the petitioners. The Chief Conservator of Forests can only permit the petitioners to cut and remove trees which were planted as part of self-cultivation. 16 W.P.(C) Nos.21051 of 2016 and connected cases Appropriate decision shall be taken within a period of two months. The Government Orders issued contrary to law declared by this Court shall be withdrawn by the Government.
The writ petitions are disposed of as above. No order as to costs.
Sd/-
A.MUHAMED MUSTAQUE JUDGE SB/21/12/2017 // true copy // P.A to Judge