Gauhati High Court
Tara Kanta Saikia & 22 Ors vs The State Of Assam And Ors on 10 August, 2017
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM : NAGALAND : MIZORAM & ARUNACHAL PRADESH)
WP(C) 5157/2012
Tara Kanta Saikia & 2 Ors.,
........Petitioner
- VER SUS -
State of Assam & 7 Ors.
.........Respondents
BEFORE
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Advocate for the petitioners :-Mr. M.U. Mandal
Advocate for the state respondents:- Mr. S.S. Roy
Date of Hearing & Judgment : 10.08.2017
JUDGMENT & ORDER (ORAL)
Heard Mr. M.U. Mandal, learned counsel for the petitioners. Also heard Mr. S.S. Roy, learned counsel for the state respondents.
2. The petitioner Nos. 1 and 2 namely, Sri Tara Kanta Saikia and Sri Pratap Gogoi claim to be in possession of a plot of land measuring 20 bighas since the year 1979, which is located within the Uriamghat Forest Range. The petitioner relies upon a certificate dated 15.04.2007 of the Forest Range Officer, Uriamghat range.
3. The petitioners also rely upon a certificate dated 12.10.2003 of the Asstt. Commissioner and Executive Magistrate (Border) 'C' Sector Uriamghat, Dhansiri, Sarupathar, wherein, it is certified that the petitioner No.1 has been in possession of another plot of land measuring 90 bighas since the year 1994, wherein, it is also stated that no objection has been raised from any corner in this respect. The petitioners also claim to have submitted a representation dated 12.11.2010 before the Minister of Food, Page 1 of 5 Civil Supplies & Consumer Affairs, Minority Development and Haj Committee wherein it was requested to direct the respondent authorities not to disturb the possession and also not to evict them from the land in question.
4. The petitioners have also mentioned about certain Forest Rights Committee being constituted wherein in a general meeting held on 19.12.2009, a resolution was adopted indicating that the petitioners have a legal right to remain in the forest area under the Schedule Tribes and other Traditional Dwellers (Recognition of Forest Rights) Act, 2006 as well as under the Schedule Tribes and other Traditional Dwellers (Recognition of Forest Rights) Rules, 2007.
5. Accordingly, the Forest Committee indicated that the respondent authorities in seeking to evict the petitioners from the forest land have violated the statutory provision of the aforesaid Schedule Tribes and other Traditional Dwellers (Recognition of Forest Rights) Act, 2006 and Schedule Tribes and other Traditional Dwellers (Recognition of Forest Rights) Rules, 2007.
6. This petition has been preferred for setting aside the eviction notice issued by the respondent authorities requiring the petitioners to vacate their occupation from the concerned forest land and also for a further direction to the respondent authorities to complete the process of recognition and verification of the forest right that may be accrued to the petitioners under the Act of 2006 and Rules 2007.
7. The respondent authorities have relied upon an affidavit-in-opposition dated 13.06.203 of the concerned DFO, wherein, it is stated that the seal and signature of the certificate dated 15.04.2007 and 15.06.2017 appears to be false. It is further stated that on spot verification through the Additional Deputy Commissioner, Golaghat, it was Page 2 of 5 revealed that the petitioner No.1 had leased out the land under his occupation in favour of the petitioner Nos. 3, 9, 10 & 11 of the present petitioner.
8. A stand has also been taken that the Forest Right Committee referred by the petitioner is an entity without any sanction of law and not in confirmity of the provision of rule of 3(1) of the Forest Dwellers Rules 2007. The respondent also referred to the enquiry report of the Additional Deputy Commissioner, wherein there is a finding that the petitioner No.1 is illegally occupying nearly 2 bighas of forest land.
9. In the aforesaid premises, the question for determination before this Court is as to whether the writ petitioners have any right under the aforesaid Forest Dwellers Act 2006 or under the Forest Dwellers Rules 2007 and further as to whether the respondents have followed the due procedure of law in requiring the petitioners to vacate the occupation of the forest land.
From the affidavit filed by the respondent DFO which is not controverted by the petitioner, it appears to this court that the petitioner Nos. 3 to 23 are occupying the concerned forest land on the basis of certain lease arrangement with the petitioner Nos. 1 and 2.
10. It is also noticed that in respect of petitioner No.3 to 23, no specific stand has been taken by the petitioners that they are schedule tribes or other traditional dwellers.
11. In such view of the matter, no discernible legal right can be seen in respect of petitioner Nos. 3 to 23 to further continue their occupation of forest land and that their case of occupation of the forest land is not covered under the purview of the Forest Dwellers Act 2006. In respect of petitioner Nos. 1 and 2, it is noticed that they are making a claim that they are in occupation of the concerned forest land from the year Page 3 of 5 1979 and 1994 in respect of different plots of land. Therefore, in order to arrive at a conclusion as to whether the petitioner Nos. 1 and 2 are also to protection under the Forest Dwellers Act 2006 and Forest Dwellers Rules 2007, a factual determination is required to be made as to whether the petitioner Nos. 1 and 2 are schedule tribes or any other forest dwellers in order to enable them to avail the right under the Forest Dwellers Act 2006.
12. Section 2(c) of the Forest Dwellers Act, 2006 defines forest dwellers to mean the members of the Scheduled Tribes Community who primarily reside in forest areas and who depend on the forests or forest lands for bona fide livelihood and includes the Scheduled Tribe pastoralist communities.
13. On the other hand, Section 2(o) of the Forest Dweller Act 2006 defines Schedule Tribes to mean any member or community who has for at least three generations prior to the 13th day of December, 2005 primarily resided in forest areas and who depend on the forest or forests land for their bona fide livelihood needs."
14. In view of such provision of Forest Dwellers Act 2006, the right claimed by the petitioner Nos. 1 and 2 can be adjudicated in a better manner, if the respondent authorities undertake an exercise to arrive at a conclusion as to whether the petitioner Nos. 1 and 2 satisfy any of the requirements of either section 2(c) or section 2(o) of the Forest Dwellers Act 2006.
15. If the respondent authorities after undertaking the exercise arrives at a conclusion that the petitioner Nos. 1 and 2 do satisfy the requirements of either section 2(c) and 2(o) of the Forest Dwellers Act 2006, they shall also give a due consideration to the claim of the petitioners of their right to live within the forest land. In the event, upon the consideration being given, the respondent authorities find that the writ petitioner Page 4 of 5 Nos. 1 and 2 do not satisfy the requirement of either Section 2(c) and 2(o) or that they do not have any right to live in a forest land, the respondent authorities would be at liberty to take any appropriate measure against the petitioners as may be available under the law.
The aforesaid exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.
16. The aforesaid determination be made by the respondent No.1 being the Chief Secretary to the Govt. of Assam on the strength that the Chief Secretary is the Chairman of the State Level Managing Committee, which has been constituted under Rule 9 of the Forest Dwellers Rules 2007.
17. In undertaking the exercise, the petitioner Nos. 1 and 2 shall also be given an opportunity of hearing and also be allowed to produce any materials that they may desire to produce to substantiate their case.
In terms of the above, this petition stands closed.
18. Till the aforesaid period of three months within which the exercise is to be completed, the occupation of the petitioners land in question inside the Urimanghat Reserve Forest shall not be disturbed by providing that the restrain order shall not remain in effect after 20.11.2017.
The petitioner shall produce a certified copy of this order within seven days and the Chief Secretary shall complete the proceedings within a period of three months thereafter.
JUDGE Anamika Page 5 of 5