Gujarat High Court
Sukhabhai Bhagwanbhai Patel vs State Of Gujarat on 7 January, 2020
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/184/2020 ORDER
1IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 184 of 2020
===========================================================
SUKHABHAI BHAGWANBHAI PATEL
Versus
STATE OF GUJARAT
================================================================
Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5
MR.K.M.ANTANI, AGP,(99) for the Respondent(s) No. 1
===============================================================
CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 07/01/2020
ORAL ORDER
[1] This petition under Article 226 of the Constitution of India is filed by the petitioner challenging the order dated 18.11.2019 passed by the District Level Forest Right Committee and Collector, Lunawada, District: Mahisagar. The subject matter is the claim of the petitioner of forest land admeasuring 40 Sq.Mtrs of village Motidenawad, in his capacity as traditional forest dweller.
[2] Learned advocate Ms. Kruti M. Shah appearing for the petitioner submits that the petitioner and his ancestors claiming the forest land mentioned hereinabove as they have been traditionally forest dwellers. The claim of the petitioner was rejected by the Assistant Collector, against which appeal was filed by the petitioner before the District Level Committee. During the pendency of such appeal, in a Writ Petition (PIL) No.100 of 2011, the Division Bench of High Court of Gujarat passed CAV judgment dated 03.05.2013 and laid down the guidelines to reconsider the claim rejected by the authorities. Thereafter also, claim of the petitioner came to be rejected by Page 1 of 6 Downloaded on : Sun Feb 16 10:34:47 IST 2020 C/SCA/184/2020 ORDER the Deputy Collector, against which the petitioner preferred appeal before the District Level Committee and claim of the petitioner was approved by order dated 18.10.2017 on certain terms and conditions. However, on 24.04.2018, the petitioner was called upon to submit certain details which included the pension papers of the petitioner and family members and also revenue record of the ancestor's property. It is submitted that such proceedings were initiated on the basis of one complaint made by Group Gram Panchayat. Thereafter, by order dated 18.11.2019, the earlier order came to be nullified on the ground that the petitioner and his wife were pensioners and son of the petitioner is present employed. It is submitted that therefore, the impugned decision is required to be set aside as it is based on an application made out of personal vendetta. It is submitted that the petitioner has not been given an opportunity of hearing.
[3] Learned Assistant Government Pleader opposes the grant of petition by submitting that when the fact of the petitioner being employee of the Government throughout his life time and as is now drawing pension, he cannot claim the benefit of being a forest dweller whose rights are recognized under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (for short the "the Act, 2006").
[4] The Court has heard the rival submissions of the parties and perused the documents placed on record. The petitioner is claiming the recognition of his right under the Act, 2006. The claim of the petitioner is pertaining to forest land admeasuring 40 Sq.Mrts. Situated at survey No.91, Village Motidenawad, Taluka Lunawada, District Mahisagar.
Page 2 of 6 Downloaded on : Sun Feb 16 10:34:47 IST 2020 C/SCA/184/2020 ORDER[5] While passing the impugned order, the authority has observed in the proceedings as under:-
"(9) The Deputy Forest Conservator, Lunawada of the Forest Department, in his report dated 28/02/2018 and in the hearing of district level committee states that Shri Sukhabhai Bhagwanbhai Patel has retired after serving as a teacher and receives pension. He also holds land having Revenue Survey Number. Therefore, his claim under subsistence cannot be accepted. (10) At the time of hearing an appeal before the District level Forest Rights committee, the Deputy Forest Conservator had also contended that the husband and the wife - both are retired employees and receives pension and also hold land having Revenue Survey Number. Hence, as per the provisions of law, the claimants' rights on forest land cannot be accepted under subsistence.
Likewise, the Sarpanch of Group Gram Panchayat of Moti Denawad had also stated in the hearing of the District level Forest Rights Committee that Shri Sukhabhai Bhagwanbhai Patel, his wife and his son are doing services. Therefore, they cannot hold forest land and the encroachment made by them on the forest land should be removed immediately. At this time, a question was raised by the Chairman as to how many such encroachments exist on the forest land. The Sarpanch replied that there is no other encroachment on the forest land. On being asked, Shri Sukhabhai Bhagwanbhai Patel states that he and his wife are retired government servants and he receives Rs.30,000 and his wife receives Rs.25,000 as pension. His son receives Rs.24,000 as a salary. (The proof of receiving of pension has not been produced though asked for.) We possess this land since 1994, therefore we had filed a claim to get this land under succession (non tribal) alongwith required evidences under the Forest Rights Act. We earn our livelihood by cultivating this land and we have also constructed a residential house thereon. Only agricultural land of 0.40.00 have been assigned to us and we do not have any other land. Moreover, Sukhabhai Bhagwanbhai Patel has submitted to the Chairman that 16 or 17 persons of Patel community have encroached the land of Moti Denawad Gram Panchayat."
[6] The statement of objects and reasons for the Act of 2006 reads as under:-
Page 3 of 6 Downloaded on : Sun Feb 16 10:34:47 IST 2020 C/SCA/184/2020 ORDER"Forest dwelling tribal people and forests are inseparable. One cannot survive without the other. The conservation of ecological resources by forest dwelling tribal communities have been referred to in ancient manuscripts and scriptures. The colonial rule somehow ignored this reality for greater economic gains and probably for good reasons prevalent at that time. After independence, in our enthusiasm to protect natural resources we continued with colonial legislation and adopted more internationally accepted notions of conservation rather than learning from the rich traditions of the country where conservation is imbedded in the ethos of tribal life. The reservation processes for creating wilderness and forest areas for production forestry somehow ignored the bonafide interests of the tribal community from legislative framework in the regions where tribal communities primarily inhabit. The simplicity of tribals and their general ignorance of modern regulatory framework precluded them from asserting their genuine claims to resources in areas where they belong and depended upon. The modern conservation approaches also advocate exclusion rather than integration. It is only recently that forest management regimes have initiated action to recognise the occupation and other right of the forest dwellers and have in their policy processes realised that tribal communities who depend primarily on the forest resource cannot but be integrated in their designed management processes. There is a recognition of the fact that forest have the best chance to survive if communities participate in the conservation and regeneration measures. Insecurity of tenure and fear of eviction from these lands where they have lived and thrived for generations are perhaps the biggest reasons why tribal communities feel emotionally as well as physically alienated from forest and forest lands. This historical injustice now needs correction before it is too late to save our forests from becoming abode of undesirable elements...."
[7] Section 2(c) of the Act, 2006 defines "forest dwelling Scheduled Tribes" which reads 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."Page 4 of 6 Downloaded on : Sun Feb 16 10:34:47 IST 2020 C/SCA/184/2020 ORDER
[8] Section 2(o) of the Act, 2006 defines "other traditional forest dweller" which reads 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.
Explanation - For the purpose of this clause, "generation"
means a period comprising of twenty-five years."
[9] The definition itself requires a person to be dependent on the forests or forest lands for bonafide livelihood needs, which means that the petitioner to claim his right as traditional forest dweller needs to be dependent on the forests or forest lands for eking his livelihood needs. It is a matter beyond dispute that the petitioner as well as his wife were employed under the Government and after the retirement are receiving pension. Moreover, their son is also at present employed. In this fact situation, it cannot be said that the petitioner can be held entitled to the benefits under the provisions of Act, 2006.
[10] The submission of learned advocate with regards to the decision taken earlier giving approval of occupation to the petitioner and thereafter on the basis of compliant made by the Sarpanch of the Group Gram Panchayat, the respondent No.5 was not within his jurisdiction to reverse the decision taken earlier. With the petitioner and his family members taking up the Government/non-Government service had shed their as forest dwellers' dependent of forest produces, thereby taking them out of the definition of Section 2(c) and 2(o) of the Act, 2006. Prima-facie, when the Act, 2006 would not apply to the petitioner, there is no question of adhering the guidelines Page 5 of 6 Downloaded on : Sun Feb 16 10:34:47 IST 2020 C/SCA/184/2020 ORDER of this Court in PIL No.100 of 2011. This Court is of the view that when the claim of the petitioner to recognize his right under the Act of 2006 itself cannot be upheld, the Court is not inclined to reverse the decision of respondent No.5 on technical reason as the claim to recognize the right of the petitioner under the Act, 2006 is the root of the matter, which the petitioner failed to establish.
[11] In view of the aforesaid, no interference under Article 226 of the Constitution of India is called for. The petition deserves to be and is hereby dismissed.
(A.Y. KOGJE, J) SIDDHARTH Page 6 of 6 Downloaded on : Sun Feb 16 10:34:47 IST 2020