Gauhati High Court
Page No.# 1/15 vs The State Of Assam And 3 Ors on 19 January, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/15
GAHC010213902015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7263/2015
DASHARATH YADAV and 2 ORS
2: BISWAMITRA YADAV
3: DURJYDHAN YADAV
ALL ARE S/O- LT. RAGHUBAR YADAV
R/O VILL.- KAKI
RAMPUR
P.O.- PURANA KAKI
P.S.- KAKI
DIST.- NAGAON
PIN- 782442
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE SECY. / COMMISSIONER, FOREST DEPTT., DISPUR,
GUWAHATI.
2:THE CHIEF CONSERVATOR OF FORESTS / CONSERVATOR NOTHERN
ASSAM CIRCLE
TEZPUR
DIST.- SONITPUR
ASSAM.
3:THE DIVISIONAL FOREST OFFICER
NAGAON
SOUTH DIVISION
HOJAI
DIST.- NAGAON
ASSAM.
Page No.# 2/15
4:RANGE FOREST OFFICER
KAKI RANGE
KAKI
DIST.- NAGAON
ASSAM
Advocate for the Petitioner : Mr. R. L. Yadav, Adv.
Advocate for Respondents : Mr. D. Gogoi, SC, Forest Department
Date of Hearing & Judgment : 19/01/2022
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT & ORDER (ORAL)
Heard Mr. R. L. Yadav, learned counsel appearing on behalf of the petitioners as Mr. D. Gogoi, learned standing counsel appearing on behalf of the Forest Department.
2. This is an application under Article 226 of Constitution of India whereby the petitioners have sought for setting aside and quashing order 10.09.2014 issued by the Chief Conservator Forest Northern Assam Circle, Tezpur and also for a direction that the land in question be mutated in the name of the petitioners.
3. The facts of the instant case is that the petitioners upon making certain payment to one Regtu Cheru and Lagan Cheru claim to have acquired rights in respect to a plot of land admeasuring 13 ½ Bighas covered by Dag No.171 under Mouza Kaki Kisan, Rampur Forest Village Kaki in the year 1992. No document however has been Page No.# 3/15 placed on record as to on what basis the petitioners claim to have acquired the said land from the said Regtu Cheru and Lagan Cheru.
4. The facts are admitted that since 1992 petitioners are in possession of the land. The petitioners had filed an application on 03.03.2014 before the Divisional Forest Officer, Nagaon, Hojai for mutating the said land of 13 ½ Bighas amongst the three petitioners in equal proportion by recognizing the transfer being made by Late Rengtu Cheru in the year 1992 in favour of the petitioners.
5. To the said application, the Divisional Forest Officer, Nagaon who is respondent no. 3 by the communication dated 13.08.2014 to the respondent no. 2 sought for instructions as to whether the mutation process can be carried out or not. Pursuant thereto 10.09.2014, the Chief Conservator of the Forest (the Respondent no.2) by the communication issued to the respondent no. 3, observed that Act of mortgage of land and the claim of right over the land in question by the petitioners appears to be irregular and legally not permissible. It was also observed that the orders which have been passed by Executive Magistrate, Sankardev Nagar and the Additional Session Judge, Nagaon and in proceedings under Section 145 was without arraying the DFO, Nagaon, South Division, Hojai who is in-charge of the Kaki Reserve Forest as a party to the said litigation. It is also observed that the status of the land in question being a Reserve Forest (Kaki RF) irregular allotment of land to a particular individual would amount to violation of the provisions contained under the Forest (Conservation) Act' 1980 as well as provisions contained in Assam Page No.# 4/15 Forest Regulation 1891. The respondent no. 2 further directed the respondent no. 3 that on the basis of the instructions so provided vide the communication dated 10.09.2014 to submit a detailed report on the follow up action taken by the respondent no. 3 in the said matter. Subsequent thereto various notices were issued to the petitioners to appear before the authorities concerned and produce the records.
6. The petitioners thereafter, approached this Court by way of the instant writ petition. To the said writ petition, the respondent no.3 have filed affidavit-in-opposition. In the said affidavit-in-opposition, it has been mentioned that the land wherein the petitioners are seeking allotment or mutation is a land falling under the Rampur Forest Village in the Kaki Reserve Forest and the said Reserve Forest was notified vide notification no. 3266R dated 06.08.1914 and thereafter, vide no. 1021G-J, 12.02.1941 and vide no. GFR.134/47/68 dated 21.03.1949. It was also mentioned that the Rampur Forest Village was constituted during 1955 with an area of 419.30 hectares for 1912 households. The further stand taken by the respondent authorities in their affidavit-in- opposition was that the occupation of the land of the petitioners since 1992 is in violation to the Rules for Establishment and Control of Forest Villages that was framed under Section 72 (e), 74 and 75 of Assam Forest Regulation Act' 1891. It is also the stand that after the enactment and coming into force of the Schedule Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 w.e.f. 31.12.2007, the granting of allotment to the petitioners cannot be done in view of the bar contained in the said Act.
7. To the affidavit-in-opposition, an affidavit-in-reply was filed by Page No.# 5/15 the petitioners, wherein it was stated that the petitioners have been in possession of land since 1992 and the provisions of the Schedule Tribe and other Traditional Forest Dwellers (Recognition of Forest Rights) Act' 2006 (hereinafter for short referred to as Act' 2006) is not applicable to the case of the petitioners. Further to that it has been alleged in the affidavit-in-reply that irrespective of the said Act of 2006 coming into force the respondent authorities on 02.07.2014, 02.03.2016 and 31.07.2013 have granted allotment as well as mutation in favour of a similarly situated persons like the petitioners.
8. I have heard learned counsel for the parties.
9. Mr. R. L. Yadav, learned counsel appearing on behalf of the petitioners submits that the respondent authorities have been granting allotments to similarly situated persons like the petitioners and as such the petitioners are entitled to allotment of the land in question. He submits that the non-allotment and non-mutation of the land in favour of the petitioners as sought for vide its communication dated 03.03.2014 violates the mandate of Article 14 in as much as the petitioners who are similarly situated with other allottees have been differently treated. He further submits that by virtue of proviso of Section 22 of the Assam Forest Regulation 1891, a right has accrued upon the petitioners over the land on the transfer being made in the year 1992 and said right ought to be recognized by the authorities concerned by granting the allotment as well as the subsequent mutation as have been done to the similarly situated persons. Apart from the above, Mr. R. L. Yadav, learned counsel appearing on behalf Page No.# 6/15 of the petitioners further submits that land in question is a village forest and the same has to be dealt with in terms with the Chapter III of Assam Forest Regulation 1891.
10. On the other hand, Mr. D. Gogoi, learned standing counsel, Forest Department submits that the land in question wherein the petitioners have sought for allotment is a Reserve Forest land and as such, the same has to be dealt with in terms with the provisions of Chapter-II of the Assam Forest Regulation 1891. He submits that a perusal of Section 21 and 22 would show as to when there can be an acquisition of right over reserve forests and in respect to the instant case he submits that the petitioners do not come within the exceptions of Section 21 and 22 of the said Regulation. He also draws the attention of this Court to the provisions of Forest (Conservation) Act' 1980 and more particularly to Section 2 wherein there is bar upon the State Government to assign by way of lease or otherwise to any private persons or to any Authority, Corporation, Agency or any other organization not owned or managed or controlled by the Government without obtaining the prior approval of the Central Government.
11. He also refers to the provisions of the Act of 2006 and submitted that this Act of 2006 has been enacted to recognize and vest the forest rights and occupation in forest land in Forest Dwelling Schedule Tribes & Other Traditional Forest Dwellers who have been residing in such forests for generations but whose rights could not be recorded as well as to provide for a frame work for recording the forest rights so vested and the nature of evidence required for such Page No.# 7/15 recognition and vesting in respect to the forest land. He submits Section 2 of the Act of 2006 contains the various definitions. Section 2
(c) defines Forest Dwelling Scheduled Tribal, and Section 2 (o) defines "Other Traditional Forest Dweller". "Forest Land" is defined in Section 2
(d) and "Forest Rights" is defined in Section 2 (e). The learned counsel therefore submits after the enactment of the said Act of 2006, Forest Rights can be vested and recognized only upon the persons coming within the ambit of Section 2 (c) and 2 (o) and the petitioners admittedly do not come within the ambit of both the Sections and as such, the petitioners do not have a right to claim settlement/ allotment in respect to the land in question which admittedly is a Forest Land. He also referred to the Schedule Tribes & Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules 2007 (for short the Rules of 2007) and refer to Rule 13, which pertains to the evidence of determination of the Forest Rights. He submits that there is a mechanism as per the Rules of 2007 as to how a person can be vested with the rights in respect to Forest Villages.
12. As regards the various documents placed on record by the petitioners through affidavit-in-reply wherein it could be seen that the Divisional Forest Officer have recognized after coming into force of the Act of 2006 have granted mutation. He submits that from a perusal of the said orders it is not know on what basis and considerations the said orders have been passed. But contends that the petitioners cannot claim a right for equal treatment on the basis that some persons have been granted mutation in violation to the provisions of the Regulation of 1891 as well as the provisions of the Act 2006.
Page No.# 8/15
13. I have heard the learned counsels for the parties and also have perused the materials on records.
14. The admitted facts in the instant case is that the petitioners have come into possession of the land in question in the year 1992 and has been possessing the said land thereafter. The petitioner is absolutely silent as regards how the petitioners came in possession of the land in question except mentioning that some documents were executed by one Regtu Cheru and one Lagan Cheru. What the petitioners espouses by way of the instant writ petition is that the respondent authorities should recognize the petitioner's right in respect to the land in question and contends before this Court to issue directions in that regard without placing on record any documents on the basis of which the petitioners claim such relief. In fact, the very edifice of the petitioners' rights has not been stated.
15. Now the question before this Court is as to whether the authorities were justified in not recognizing the rights of the petitioner in respect to the land in question and in that regard it would be relevant to take note of Section 21 and 22 of the Assam Forest Regulation 1891 which is quoted herein below:
"21. Acquisition of right over reserved forests. - No right of any description shall be acquired in or over a reserved forest, except by succession or under grant or contract in writing made by, or with the previous sanction of, the State Government or some person on whom such right, or the power to create such right, was vested when the notification under Section 17 was published.
Page No.# 9/15
22. Alienation of right in reserved forests. -
(1) Notwithstanding anything herein contained no right continued under Section 13 shall be alienated by way of grant, sale, lease, mortgage or otherwise without the previous sanction of the State Government.
Provided that, when any such right is continued for the beneficial enjoyment of any land or building, it may be sold or otherwise alienated with such land or building without such sanction.
(2) The benefit of any right continued under Section 13 shall not be leased, sold or bartered, except to the extent defined by the order recorded under that section."
16. A conjoint reading of above quoted provisions shows that no right of any description shall be acquired in or over a Reserve Forest except by succession or under grant or contract in writing made by or with the previous sanction of the State Government or some person on whom such right or the power to create such right was vested when the notification under Section 17 was published. In this regard, it is relevant to mention that Section 17 of the Regulation has to be read with Section 5 & 6 and thereby every one claiming any right in terms with Section 5 has to file an application before such Officer and within such period as prescribed. Admittedly, the exceptions mentioned in Section 21 of the Regulation is not applicable to the petitioners.
17. Section 22 stipulates that notwithstanding anything contends no right continued under Section 13 shall be alienated by way of grant, sale, lease, mortgage or otherwise without the previous sanction of the State Government. The proviso stipulates that when any such right is continued for the beneficial enjoyment of any land or building it may Page No.# 10/15 be sold or otherwise alienated with such land or building without such sanction. Sub Section (2) of the Section 22 stipulates that the benefit of any right continued on Section 13 shall not be leased, sold or bartered except to the extent defined by the order recorded under that Section. Therefore, a conjoint reading of both the Sections would show that for the purpose of acquisition of any right over the reserve forest the same has to be done either by succession or under grant of contract in writing made by or with the previous sanction of the State Government or on some person on whom such right or power to create such right was vested. Section 22 is in relation to a right under Section 13 which is a provision for the right of pasture or to forest produce and the same also cannot be alienated by way of grant, sale, lease, mortgage or otherwise without the previous sanction of the State Government.
18. Apart from the Forest Regulation, it is also relevant to take note of the provisions of the Act of 2006 Section 2 (c) as aforementioned defines the term "Forest Dwelling Schedule Tribal" and Section 2 (o) defines Other Traditional Forest Dwellers". Both the definitions are quoted herein below:
"Section 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 bonafide livelihood needs and includes the Scheduled Tribe pastoralist communities;
Section 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 Page No.# 11/15 needs."
19. Section 2 (d) defines the 'Forest Land' as any land of any description falling within any forest area and includes any Unclassified Forest, Un-demarcated Forest, Existing or Deemed Forest, Protected Forest, Reserve Forest, Sanctuaries and National Parks. Section 2 (f) defines 'Forest Village' to mean the settlement which have been established inside the forest by way the Forest Department of any State Government for forestry operations or which were converted into forest villages through the forest reservation process and include forest settlement villages, fixed demand holdings, all types of laungya settlements by whatever name called, for such villages and includes land for cultivation and other uses permitted by the Government.
20. Section 2 (e) defines 'Forests Rights' to mean the forest rights referred in Section 3. Section 3 relates to the forest right of Forest Dwelling Schedule Tribes & Other Traditional Forest Dwellers. Amongst the various rights it is relevant to take note of that the Rights of Settlement and Conversion of all forest villages, old habitation un- surveyed villages and other villages in forest whether recorded, notified or not into revenue villages are one amongst many forest rights of the persons defined in Section 2 (c) and 2 (o) of the Act of the 2006.
21. Section 4 of the Act 2006 stipulates the recognition and vesting of forest right upon the persons defined in Section 2 (c) and 2 (o). Section 4 (4) being relevant is quoted herein below:
"Section 4 (4) - A right conferred by sub-section (1) shall be Page No.# 12/15 heritable but not alienable or transferable and shall be registered jointly in the name of both the spouses in case of married persons and in the name of the single head in the case of a household headed by a single person and in the absence of a direct heir, the heritable right shall pass on to the next-of-kin."
22. A perusal of the said sub Section (4) of Section 4 would show that right a conferred by sub Section (1) shall be heritable but not alienable or transferrable and shall be registered jointly in the name of both the spouses in case of the married persons and in the name of single head in the case of household head by a single person and in absence of a direct heir, the heritable right shall pass on to the next of the kin. The manner in which a person can apply and be vested with the forest rights is given in the Rules of 2007, but what is relevant to take note of that it is only the person(s) within the ambit of Section 2
(c) and 2 (o) who can claim a right in respect to a forest land.
23. In the backdrop of the above and taking into consideration the facts as well as the applicable law, it would show that the petitioners claim that he has come into possession of the land in question on the basis of execution of some document. From what the petitioners state in the writ petition and also contended by the learned counsel for the petitioners, it is not clear as to whether the same would come within the ambit of Section 21 or 22 of the Assam Forest Regulation 1891. The land in question though the reserve forest land but the provisions of the Transfer of Property Act 1882 and the Registration Act 1908 duly applies in so far as the instant case is concerned.
24. In view of the provisions of the Section 17 read with Section 49 Page No.# 13/15 of the Registration Act when a right is created in respect to an immovable property, the said document is required to be registered and non-registration of the said document shall not affect the immovable property. The failure on the part of the petitioner to bring on record any document evidencing transfer in terms with the Registration Act, this Court is of the opinion that the petitioners have not acquired any right over the land in question. Under such circumstances, the petitioners cannot claim any right in terms of the Section 21 and 22 of the Assam Forest Regulation 1891.
25. The next question which arises as to whether the petitioner can claim right in view of the provisions of the Act of 2006. Admittedly the petitioners do not come within the definition of Section 2 (c) as the petitioners do not belong the Scheduled Tribe Community.
26. As regards whether the petitioners would come within the ambit of Section 2 (o), the petitioners have to be members of the community who has for at least three generations prior to 13.12.2005 primarily resided in and who depended in on the forest land for bonafide livelihood means. It being the case of the petitioners that the petitioners had purportedly acquired the land in question only in the year 1992, the petitioners also would not come within the ambit of Section 2 (o).
27. Under such circumstances, the petitioners do not have a legal right to seek settlement or allotment of the forest land and the concerned respondent authorities have rightly not granted the Page No.# 14/15 settlement to the petitioners in respect to 13.5 Bighas of land of Dag 171 of Rampur Forest Village under Kaki Range District Nagaon, Assam. The communication dated 10.09.2014 assailed in the instant proceedings is also in consonance with the provisions of law and as such the same is not liable to be interfered with.
28. Further contention of the learned counsel for the petitioners that similarly situated persons have been granted allotment and as such, the petitioners should also be granted a similar treatment by the respondent authorities.
29. In the opinion of this Court, the said contention is misconceived in as much as this Court in exercise of power under Article 226 of the Constitution cannot permit an illegality to be committed on the ground that the respondent authorities have committed certain illegalities in respect to other allottees and consequently, the question for violation of Article 14 of the Constitution does not apply. Further to that, a perusal of the Act of 2006 stipulates who are the persons who can be recognized or vested with forest rights are the person who have been defined in Section 2 (c) and 2 (o) and a direction to the concerned respondent authorities to allot the land in question to the petitioners who admittedly would not come within the definition of Section 2 (c) and 2(o) would infringe the provisions of the said Act of 2006 and consequently the said direction for granting allotment to the petitioners of the land in question cannot also be granted.
Page No.# 15/15
30. Consequently, the instant petition being devoid of any merits is dismissed. No Costs.
JUDGE Comparing Assistant