National Green Tribunal
Hiteshbhai Uttambhai Dhodi vs Ministry Of Environment Forest And ... on 24 May, 2023
Item No. 7 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Appeal No. 41/2020(WZ)
Hiteshbhai Uttambhai Dhodi & Ors.
.....Appellant(s)
Versus
Ministry of Environment, Forest & Climate Change & Ors.
....Respondent(s)
Date of hearing: 24.05.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Appellant : Ms. Shilpa Chohan, Advocate
Respondent(s) : Ms. Manvi Damle, Advocate h/f Mr. Maulik Nanavati,
Advocate for R-2/State of Gujarat & R-3/GPCB
Mr. Saurabh Kulkarni, Advocate for R-4/PP
ORDER
1. From the side of Appellants, learned Counsel Ms. Shilpa Chohan has appeared, who has filed additional written submissions, the same is taken on record.
2. Heard the argument of learned Counsel for the Appellants partly.
During argument, it has emerged that Survey Nos. 3705, 3708, 3719, 3725, 3738, 4108, 4110, 4318, Village Fansa (Karajgam), Taluka:
Umbergaon, District: Valsad (Gujarat) where the project in question is lying, is falling in Tribal Area. The learned Counsel for the Appellants says that the said area has been notified as Scheduled Area because in para no. 10 of the appeal, it is mentioned that as per the Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) order, 1977 (Constitution Order, 109) dated 31.12.1977 areas of Bansda, Dharampur, Chikhali, Pardi and Umbergon Talukas in Valsad District, is stated to be Page 1 of 4 Scheduled Areas in Gujarat. We direct her to file Notification issued in this regard to be brought on record.
3. Much emphasis has been laid by the learned Counsel for the Appellants that NA permission in the present case has been granted by the District Collector but he did not have such power and that the said power vested with the District Panchayat. In this regard, the learned Counsel for the Appellants has drawn our attention to page nos. 46 to 49 of the paper book, where-in following is contained:
" PART C (SCHEDULED AREAS)
6. Scheduled Areas. -- (1) In this Constitution, the expression "Scheduled Areas" means such areas as the President may by order3 declare to be Scheduled Areas.
(2) The President may at any time by order--
(a) Direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area;
5[(aa) increase the area of any Scheduled Area in a State after consultation with the Governor of that State;]
(b) alter, but only by way of rectification of boundaries, any Scheduled Area;
(c) on any alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a Scheduled Area;
(d) rescind, in relation to any State or States, any order or orders made under this paragraph, and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be Scheduled Areas;
and any such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub-paragraph (1) of this paragraph shall not be varied by any subsequent order."
The Village Karanj being scheduled area the constitutional provisions of Fifth schedule apply to the area and to the land where the proposed Carbon Black manufacturing unit is proposed. Panchayat Extension to Scheduled Areas Act, 1996 (PESA) extends to scheduled areas of Gujarat including Village Karanj/Karajgam. PESA legally recognizes the right of tribal communities to govern themselves through their own systems of self-government and also acknowledges their traditional rights over natural resources. PESA Page 2 of 4 aims at enabling the Panchayats at appropriate levels and Gram Sabhas to implement a system of self-governance with respect to a number of issues such as customary resources, minor forest produce, minor minerals, minor water bodies, selection of beneficiaries, sanction of projects, and control over local institutions. PESA is an Act to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats and the Scheduled Areas with modifications and exceptions. PESA provides for devolution of power to the Panchayat and Gram Sabha to prevent land alienation. The relevant portion of section 4 of PESA is as follows:
"(m) while endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with-(iii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe,"
The State of Gujarat amended various state acts to bring it in line with the constitutional provisions and enactments. The State of Gujarat amended the Gujarat Land Revenue Code, 1879 to incorporate provisions such as section 7344 with respect to land belonging to scheduled tribe thereby preventing tribal land alienation. The State of Gujarat also amended The Gujarat Tenancy and Agricultural Lands Act, 1948 to incorporate provision in Section 63AA (Sale of land for bonafide industrial purpose permitted in certain cases) where the sale of land owned by a person belonging to scheduled tribe was subject to provisions of section 73AA Gujarat Land Revenue Code, 1879. Relevant portion of Section 63 AA of Gujarat Tenancy and Agricultural Lands Act, 1948 is extracted hereinbelow:
"6344. (1) Nothing in section 63 shall prohibit the sale or the agreement for the sale of land for which no permission is required under sub-section (1) of section 655 of the Bombay Land Revenue Code, 1879 in favour of any person for use of such land by such person for a bonafide industrial purpose: Provided that -
(d) where the land proposed to be sold is owned by a person to belonging to the Scheduled Tribe, the sale shall be subject to the provisions of section 7344 of the Bombay Land Revenue Code, 1879."
Section 73M of Gujarat Land Revenue Code, 1879 provides that transfer of land of tribal can only be with the previous permission of District Panchayat. The relevant portion of section 73AA Gujarat Land Revenue Code, 1879 is extracted herein below:
"73AA. (1) Notwithstanding anything contained in section 73, an occupancy of a person belonging to any of the Schedule Tribes (hereafter In this section and in section 73AA referred to as "(the tribal)" shall not be transferred to any person without the previous sanction of the District Panchayat.Page 3 of 4
(2) The previous sanction of the District Panchayat under sub¬section (1) may be given in such circumstances and subject to such conditions as may be prescribed."
4. Having drawn our attention to these paragraphs, it is vehemently argued by the learned Counsel for the Appellants that the previous sanction was required from the concerned District Panchayat before alienation of land in the present case. We made a pointed query that for applying the provisions of Section 73AA, the provisions under Section 63AA would be necessary to be satisfied, which says that the land proposed to be sold, has to be owned by a person belonging to the Scheduled Tribe. Therefore, in this case, it has to be clarified by the learned Counsel for the Appellants whether the persons, who have alienated the land to the Respondent No. 4/Project Proponent, belonged to Scheduled Tribe or not.
5. The learned Counsel for the Appellants prays that she may be provided some time to bring on record all the relevant provisions, which she has relied upon. Accordingly, we allow her time till the next date.
6. Registry is directed to put up this matter for further consideration on 31.08.2023
7. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM May 24, 2023 Appeal No. 41/2020(WZ) P.Kr Page 4 of 4