Gauhati High Court
On The Death Of Birendra Das His Legal ... vs The State Of Assam And Ors on 4 December, 2018
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/5
GAHC010219872012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4569/2012
1:ON THE DEATH OF BIRENDRA DAS HIS LEGAL REPRESENTATIVE SRI
RAJ DEEP DAS and 15 ORS
S/O- LATE BIRENDRA DAS. R/O- VILL- CHOURRALA, P.S.-
BAZARICHERRA, DIST- KARIMGANJ, ASSAM.
2: BARINDRA DAS
S/O- LT. BROJENDRA RAM DAS.
3: DEBENDRA DAS
S/O- LT. BROJENDRA RAM DAS.
4: JITENDRA DAS
S/O- LT. BROJENDRA RAM DAS.
5: LITON DAS
S/O- LT. ANANTA DAS.
6: REBATI MALAKAR
S/O- LT. BANKA MALAKAR.
7: ANANDA DAS
S/O- LT. SARAT RAM DAS.
8: NIPUL DAS
S/O- MANINDRA DAS.
9: KANCHAN MALAKAR
S/O- REBATI MALAKAR.
10: GIRINDRA DAS
S/O- LT. BROJENDRA RAM DAS.
11: BISWAJIT DAS
S/O- ANANDA DAS.
Page No.# 2/5
12: KATULAL DAS
S/O- SAJAN DAS.
13: ASHULAL DAS
S/O- ANANDA DAS.
14: MINTU DAS
S/O- LT. MANORAJAN DAS.
15: GITESH RANJAN DAS
S/O- LT. NIRAD DAS.
16: BABUL DAS
S/O- SAJAN DAS
ALL ARE R/O VILL.- CHOURALA
P.S.- BAZARICHERRA
DIST.- KARIMGANJ
ASSAM
VERSUS
1:THE STATE OF ASSAM AND ORS
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM,
DEPTT. OF FOREST, DISPUR, GHY- 6.
2:THE CHIEF CONSERVATOR OF FOREST
PANBAZAR
GHY- 1.
3:THE CHIEF CONSERVATOR OF FOREST T
LOWER ASSAM ZONE
GHY- 1.
4:THE DY. COMMISSIONER OF FORESTS
O/O- THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS
REHABARI
GHY- 8.
5:THE DIVISIONAL FOREST OFFICER
KARIMGANJ
DIST.- KARIMGANJ
ASSAM.
6:THE FOREST RANGER
LOWAIRPOA RANGE
UNDER THE DIVISIONAL FOREST OFFICE
KARIMGANJ
Page No.# 3/5
ASSAM.
7:THE BEAT OFFICER
LONGAI BEAT UNDER FOREST RANGER
LOWAIRPOA RANGE AND UNDER THE DIVISIONAL FOREST OFFICE
KARIMGANJ
ASSAM.
8:THE DY. COMMISSIONER
KARIMGANJ
DIST.- KARIMGANJ
ASSAM.
9:THE SUPERINTENDENT OF POLICE
KARIMGANJ
DIST.- KARIMGANJ
ASSAM
Advocate for the Petitioner : MRC BARUAH
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 04-12-2018 Heard Mr. C Baruah, learned counsel for the petitioners. Also heard Mr. A Das, learned standing counsel, Forest Department, appearing for respondent Nos.1 to 7.
The petitioners claim themselves to be the traditional forest dwellers residing since long at Churala village, under Longai Beat, Lowairpoa forest Range, under the jurisdiction of the Divisional Forest Officer (DFO), Karimganj, Assam.
The petitioners have challenged the direction issued by the Deputy Conservator of Forest (DCF), Assam on 14.06.2012 for eviction of the petitioners and the consequential directions issued thereafter, whereby, the eviction of the petitioners, as encroachers, under Section 72(c) of Assam Forest Regulation, 1891 was ordered.
Page No.# 4/5 The petitioners counsel submits that the petitioners had earlier filed WP(C) No.7663/2001 with respect to the earlier attempt of the State respondents to evict the petitioners. WP(C) No.7663/2001 was thereafter disposed of vide order dated 02.02.2007, by directing the respondents not to disturb the petitioners occupation of forest land without following the due process of law. He submits that the due process of law was not followed by the respondents, prior to issuance of the letter dated 14.06.2012 issued by the DCF, Assam and the consequential directions passed thereon. The petitioners counsel also submits that the earlier order of this Court passed in WP(C) No.7663/2001, requires the respondents to follow the due process of law prior to the respondents taking a decision to evict the petitioners. The petitioners should have been given notice and also should have been given an opportunity of being heard, prior to any decision being taken by the State respondents.
Mr. A Das, learned counsel for respondent Nos.1 to 7 submits that though the petitioners are encroachers, no prior notice was issued to the petitioners, prior to the direction passed by the DCF in his letter dated 14.06.2012 and the consequential directions passed thereon. He submits that the petitioners shall not be evicted from the land they are occupying, until a decision is taken by the State respondents with regard to whether they are traditional forest dwellers or encroachers. He submits that the State respondents shall issue prior notice to the petitioners and give them an opportunity of being heard, prior to a decision being taken by the State respondents.
I have heard the learned cousnels for the parties.
The petitioners case is that they have been living in the forest land for more than 80 (eighty) years and they are protected by the Scheduled Tribes & other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, (hereinafter referred to as '2006 Act'). Under Section 2(c) of the 2006 Act, a member of the Schedule Tribe community is required to be primarily residing in a forest village and has to be dependent on the forest land for his bonafide livelihood. Under section 2(o) of the 2006 Act, a person has to be residing in and be dependent on the forest Page No.# 5/5 and forest land for bonafide livelihood needs, for at least three generations prior to 13.12.2005.
Having stated the above, as the State respondents counsel has submitted that a decision will be taken by the State respondent with regard to whether the petitioners are to be evicted from the land that they are occupying after notice is issued to the petitioners, this Court directs the State respondents not to evict the petitioners from the occupied land till a decision is taken by them, as to whether, the petitioners are encroachers or not. A decision should be taken by the State respondents after issuing notice to the petitioners and giving them an opportunity of being heard prior to a decision being taken by them.
The writ petition is accordingly disposed of.
JUDGE Smita Comparing Assistant