Gujarat High Court
Sukhabhai Bhagwanbhai Patel vs State Of Gujarat on 24 February, 2020
Author: Ashutosh J. Shastri
Bench: Vikram Nath, Ashutosh J. Shastri
C/LPA/186/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 186 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 184 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/LETTERS PATENT APPEAL NO. 186 of 2020
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SUKHABHAI BHAGWANBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3,4,5
MS MANISHA LAVKUMAR SHAH GP with MR DM DEVNANI AGP for
the Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI
Date : 24/02/2020
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI) The appellant - original petitioner has filed this Letters Patent Appeal under Clause 15 of the Letters Patent for assailing the correctness of the order passed by the learned Single Judge dated 07.01.2020 in Special Civil Application No. 184 of 2020.
The background of present appeal is that the appellant is traditional forest dweller and is in possession of the forest land Page 1 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER admeasuring 00.4.00 sq.mtrs., situated at Survey No. 91, Village Motidenawad, Taluka Lunawada, District Mahisagar since about 80 years. The appellant made an application in the year 2008, under the provisions of The Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter referred to as the "Act"), for raising claim over the land bearing Survey No. 91 to the aforesaid extent. Along with the said application, the appellant also presented the necessary documents to substantiate his claim.
It is the case of the appellant that Gramsabha has rejected the claim of the appellant along with other persons way back on 28.05.2010. Later the office of the Assistant Collector, vide communication dated 14.02.2011, communicated to the appellant regarding the rejection of his claim on account of want of proper evidence. To this decision, the appellant has preferred appeal before the District Collector on 11.04.2011. During the pendency of the said appeal, one Writ Petition (PIL) No. 100 of 2011 along with other matters were being dealt with by the Division Bench of this Court, in which, in a CAV judgment, on 03.05.2013, directions have been issued to reconsider the claim of the claimants, in view of the directions, and till then status Page 2 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER quo was ordered to be maintained. In the meantime, according to the appellant, again the Deputy Collector rejected the claim vide order dated 04.03.2016 which has given rise to the further appeal before the District Level Committee on 29.04.2016. During the said proceedings, respondent no.4 communicated the Collector to consider certain evidence under the Act and then on 18.10.2017, respondent no. 5 approved the claim of the appellant on the basis of the adduced material. Later on, on 24.04.2018, the appellant was directed to remain present with his service pension papers and other revenue record of ancestral property. It is the case of the appellant that these proceedings have been initiated on account of one complaint which was made by Group of Gram Panchayat signed by Sarpanch dated 01.12.2017. In response thereto, the Deputy Conservator of Forest Mahisagar Van Vibhag had submitted one report 22.02.2018 and suggested that earlier order requires reconsideration. A copy of the said communication dated 28.02.2018 is attached to the appeal compilation and then has submitted that on 18.11.2019, respondent no. 5 had cancelled the earlier order passed by the same authority on the ground that the appellant and his wife are getting pension and his son is also doing job. As such they are not dependant upon the forest Page 3 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER or forests land. It is this order dated 18.11.2019, was challenged in the aforementioned petition, by way of relief to set aside the impugned order.
The said writ petition came up for consideration before the learned Single Judge and after hearing both the sides, the learned Single Judge has dismissed the petition by a reasoned order dated 07.01.2020, which is made the subject matter of the present Letters Patent Appeal before us.
We have heard Ms. Kruti Shah, learned counsel for the appellant and Ms. Manisha Lavkumar Shah, learned Government Pleader assisted by Shri D.M. Devnani, learned Assistant Government Pleader for the State - respondents.
Ms. Kruti Shah, learned counsel has vehemently contended that the order impugned in the appeal, suffers from clear non application of mind. On the contrary, they are the fourth generation occupying the place in the forest and as such simply because they were in government service, they cannot be deprived of the benefit of the Act. It has been further submitted that once the District Level Committee has taken a decision, the Page 4 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER Collector, who passed the order has no jurisdiction. As a result of this, for want of the authority as well, the impugned order requires to be corrected. It has been vehemently contended that the object of the Act is to preserve occupation and to maintain forest area and ecological resources are to be maintained. By passing such order against the appellant, the very object would get frustrated. As such, since the learned Single Judge has not considered the same, such error deserves to be corrected. It has further been contended that there are large number of persons in the area in which though they are in the job, still are getting the benefit of Act of 2006. The authority has taken a pick and choose policy and has assumed the jurisdiction which is otherwise not available. Since, the District Level Committee is the final authority, respondent no. 5 could not have passed the order by assuming the jurisdiction. It has been further contended that there is no power of review available with the authority under the Act. As a result of this, once having passed the order, the same could not have been reopened. By referring to the relevant provisions of the Act of 2006, a request is reiterated that the learned Single Judge has committed error in misconstruing the provisions and has not passed the order in true perspective. Resultantly, the order being erroneous deserves Page 5 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER to be set aside, by granting relief as prayed for in the appeal. No other submissions have been made.
To counter to this submissions made by the learned counsel for the appellant, Ms. Manisha Lavkumar Shah, learned Government Pleader has vehemently opposed the appeal mainly on the ground that the order passed by the learned Single Judge is practically in consonance with the provisions of the Act and in consonance with the object for which, the Act is enacted. It has been further contended that here is a case in which this appellant, his wife, as well as son are having an independent earning and were in government service. As such, they were not solely depending upon the forest or forest produce. On the contrary, the appellant is getting pension of approximately Rs.30,000/ per month, his wife is getting pension of about Rs.25,000/ per month and the son also holds employment, generating an amount of Rs.24,000/ per month by way of salary. As such, they cannot be said to be beneficiaries of this Act, of 2006.
Ms. Manisha Shah, learned Government Pleader has vociferously submitted that the object of the Act is to protect the Page 6 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER forest dwellers tribal people who are surviving on the forest or forest produce. The forest dwellers tribal people and forest are inseparable and one cannot survive without each other and for that purpose as well as for the purpose of conservation of ecological resources by forest dwellers tribal communities, this Act is enacted and as such, according to the learned Government Pleader, benefit of this Act must be given to the true beneficiaries rather than this kind of appellant. The learned Single Judge has not committed any error in passing the order. Resultantly, the appeal lacks merit.
To strengthen the submission, Ms. Manisha Lavkumar Shah, learned Government Pleader has taken us to the object and the reasons of the Act as well as the relevant provisions contained in the definition clause and then has submitted that since this appellant and the family is not depending solely upon forest, they have rightly not been given the benefit under the Act. Resultantly, no case is made out.
So far as the authority part is concerned, it has been submitted that under the Rules of 2008, framed in exercise of power under Section 14 of the Parent Act, the District Level Page 7 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER Committee, is headed by the District Collector himself being a Chairperson and to contend that she has invited our attention to Rule 7, of Rules 2008, which deals with the constitution of the District Level Committee. As such the impugned order is passed by the appropriate authority, and cannot be said to be passed by the incompetent authority. In addition to this, it is always open for the authority to reconsider the issue and cannot allow serious mistake to be perpetuated. On the contrary, before passing the impugned order, appropriate process has been undertaken, i.e. the report from the Deputy Conservator of Forest, Mahisagar, Van Vibhag has been taken into consideration and there was a compliant submitted by the Group of Gram Panchayat on 01.12.2017 and it is based upon such complaint, the truth has unearthed that the appellant is not falling within the definition of other traditional forest dwellers as defined under Section 2(o) of the Act. As a result of this, no error is committed either by the authority or by the learned Single Judge in any manner, instead the learned Single Judge has maintained the spirit of the object for which, the Act has been enacted. When that be so, the appellant cannot raise his claim on the basis of the any hyper technicality. Here is a case, where a fabulous income, permanent in nature from the Page 8 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER government exchequer is receivable in regular form with the appellant and the entire family, namely, wife as well as his son. Hence, the element of being dependent on the forest or forests land for their livelihood needs is completely missing. When that be so, the order cannot be said to be erroneous in any form.
Having heard the learned counsel appearing for the respective parties and having gone through the material on record, few circumstances are not possible to be unnoticed by us before coming to the ultimate conclusion in the present proceedings.
It appears that at the outset, the appellant - petitioner has relied upon the definition contained in Clause 2 of the Act and has submitted that the definition of "Other Traditional Forest Dwellers" 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. For the purpose of this definition, the explanation of word 'Generation' means, a period comprising of twentyfive years.
Page 9 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER
Here, is the case in which undisputedly, the appellant, his wife and his son are not dependent on the forest or forests land for bona fide livelihood needs. The appellant is getting Rs.30,000/ per month by way of pension from the government service, whereas wife of the appellant is getting approximately Rs.25,000/ as stated by the authority during the course of hearing of the present proceedings and even the son is also drawing salary of approximately Rs.24,000/ per month. So undisputedly, this appellant and the family cannot be said to be dependent on the forest or forests land for bona fide livelihood needs. So a direct interpretation of this definition clause indicates that the appellant has rightly not been treated as other traditional forest dwellers by the learned Single Judge. The definition clause 2(o) 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 need.
ExplanationFor the purpose of this clause, "generation" means a period comprising of twentyfive years;"
Additionally, much emphasis has been placed on the object of the Act by the appellant and a close reading of this entire Page 10 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER object is just to see that the forest dwelling tribal people who cannot survive without the forests land for their bona fide livelihood and to protect substantially their interest as well, the Act is enacted. Even for conservation of ecological resources by forest dwelling tribal communities have been also taken care of. As such, possibly the view which has been taken by the learned Single Judge cannot be said to be so perverse which may call for any interference. Undisputedly a claim is made on the definition clause 2(o) of the Act by the appellant. As such looking to the basic object as referred above, it is not possible to be construed that the learned Single Judge has taken any erroneous view. On the contrary, para 9 and 10 are sufficient enough to substitute the conclusion. Hence, in extraordinary jurisdiction if no interference is made, we are not inclined to substitute the view which can be said to be docible view.
Apart from that these observations which have been made in the petition on oath are also indicating that the appellant is a traditional forest dweller and has based upon his case. On the contrary, looking to the report which has been submitted by the Deputy Conservator of Forest, Mahisagar, Van Vibhag, it was found by the authority that the status which the appellant is claiming is not possible to be extended. Resultantly, the order Page 11 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER passed by the authority on 18.11.2019 is justified and the learned Government Pleader has rightly submitted that detailed reasons are assigned while passing the impugned order and the same since is in consonance with the relevant record and object for which the Act is enacted, it is not possible for this Court to substitute the findings in absence of any other distinguishable circumstance. We are in complete agreement with the view and the submissions that this Act is essentially made to protect the interest of the generation of forest dwellers tribal people and the said object will have to be achieved to the fullest extent. The learned Single Judge has considered, gone through the detailed report, which has been submitted by the Deputy Forest Conservator, and also has kept in mind, the statement and object of the Act, coupled with the definition, precisely Section 2(c) as well as Section 2(o) of the Act.
In respect of the contention with regard to the order being passed by the Collector lacking authority is absolutely misconceived in view of the fact that that the order is passed by the District Level Forest Rights Commission and the Collector being a Chairperson of the Committee, has passed the order and as such we are not impressed by the submission and the said Page 12 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020 C/LPA/186/2020 ORDER contention has no legs to stand. Accordingly, looking to the overall circumstance, which is visible from the record, we are in complete agreement with the view taken by the learned Single Judge.
While coming to this conclusion, we are also mindful of the observations of the Apex Court about the said scope while dealing with Letters Patent Appeal contained in para 5 of the decision in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company reported in (2016) 3 SCC 340, we see no reason to interfere with the findings of the learned Single Judge. Thus, the appeal lacks merit, and deserves to be dismissed.
Accordingly, the Letters Patent Appeal is dismissed. Consequently, the connected civil application stands disposed of.
(VIKRAM NATH, CJ) (ASHUTOSH J. SHASTRI, J) /phalguni/ Page 13 of 13 Downloaded on : Mon Jun 15 08:54:30 IST 2020