Lalba Nana Bethekar vs The Sub Divisional Officer And ...
2017 Latest Caselaw 1575 Bom

                                                                                  1                                                                wp1233.16

                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 NAGPUR BENCH : NAGPUR


                                                       WRIT PETITION NO.1233/2016

Lalba Nana Bethekar, 
aged 55 Yrs., R/o Bhandora, 
Post Churni, Tq. Chikhaldara, 
Distt. Amravati.                                                                                                                                        ..Petitioner.

           ..Vs..

1.         The Sub-Divisional Officer and
           Forest Rights Coordinator, Amravati
           Camp, Amravati. 

2.         The Sub-Divisional Level Committee
           Dharni, Tq. Dharni, Distt. Amravati.

3.          The Collector - District Level Forest Rights Committee
            Coordinator, Amravati.                                           ..Respondents.
  - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 
            Shri Y.P. Kaslikar, Advocate for the petitioner. 
            Ms. Tajwar H. Khan, A.G.P. for the respondents.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 


                                                                 CORAM :  Z.A.HAQ, J.

                                                                 DATE  :     10.4.2017.




ORAL JUDGMENT

Oral leave to implead the Collector - District Level Forest Rights

Committee Coordinator, Amravati as respondent No.3 is granted at the request

of learned Advocate for the petitioner. The amendment be carried out

forthwith.

1. Heard Shri Y.P. Kaslikar, Advocate for the petitioner and Ms.

2 wp1233.16

Tajwar H. Khan, A.G.P. for the respondents.

2. Rule. Rule made returnable forthwith.

3. The petitioner claiming to be "Korku", which is recognized as

Scheduled Tribe in the State of Maharashtra, applied for recognition of forest

rights as per Section 3 of the Scheduled Tribes and other Traditional Forest

Dwellers (Recognition of Forest Rights) Act, 2006 (for short "Forest Rights Act,

2006"). This application is rejected by the impugned order.

The impugned order is cryptic and no reason is recorded for

rejection of application of the petitioner except that the petitioner (applicant) is

not eligible as per the provisions of law.

4. In response to the notice issued by this Court, the respondents have

filed their reply. In paragraph No.7 of the reply, it is stated that the petitioner

has failed to produce birth certificates and death certificates of his forefathers

for establishing the rights claimed as per Forest Rights Act, 2006. In view of

the stand taken in submissions filed before this Court, the learned A.G.P. was

asked to make the record available at the time of hearing. Accordingly, the

record is made available.

5. The Forest Rights Act, 2006 is enacted with the object of recognizing

3 wp1233.16

and vesting the forest rights and occupation in forest land in forest dwelling

Scheduled Tribes and other traditional forest dwellers who have been residing

in forests for generations but whose rights could not be recorded. The Act

provides for the framework for recording of forest rights so vested and the

nature of evidence required for such recognition and vesting in respect of forest

land. The Forest Rights Act, 2006 is enacted by the Parliament after it was felt

necessary to address long standing insecurity of tenurial and access rights of

forest dwelling Scheduled Tribes and other traditional forest dwellers including

those who were forced to relocate their dwelling due to State development

interventions.

Section 2(c) and Section 2(o) of the Forest Rights Act, 2006 define

the "forest dwelling Scheduled Tribes" and "other traditional forest dweller" as

follows:

"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 bona fide livelihood needs and includes the Scheduled Tribes pastoralist communities."

"2(o) "other traditional forest dweller" means any member or community who has for at least three generations prior to the 13 th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs.

Explanation - For the purposes of this clause, "generation" means a period comprising of twenty-five years.

Looking to the background of the forest dwelling Scheduled Tribes

and other traditional forest dwellers, Chapter IV is introduced in the Forest

4 wp1233.16

Rights Act, 2006 which provides for the Authorities and procedure for vesting

of forest rights. Section 6(1) which falls in Chapter IV of the Forest Rights Act,

2006 provides that the Gramsabha shall be the Authority to initiate the process

for determining the nature and extent of individual or community forest rights

or both, that may be given to the forest dwelling Scheduled Tribes and other

traditional forest dwellers. It is provided that after receiving the claim, the

Gramsabha has to verify the claim and prepare a map delineating the area of

each recommended claim in such manner as may be prescribed and then pass a

resolution and forward a copy to the Sub-Divisional Level Committee.

Sub-section (2) of the Forest Rights Act, 2006 provides that any person

aggrieved by the resolution of Gramsabha may prefer a petition to the

Sub-Divisional Level Committee constituted under Sub-section (3) and

Sub-Divisional Level Committee shall consider and dispose such petition. The

first proviso below sub-section (2) of Section 6 provides limitation of 60 days

from the date of passing of the resolution by Gramsabha for filing the petition

to the Sub-Divisional Level Committee and the second proviso below

Sub-section (2) of Section 6 lays down that the petition shall not be disposed

against the aggrieved person unless he is given an opportunity to present his

case. Sub-section (4) of Section 6 lays down that any person aggrieved by the

decision of the Sub-Divisional Level Committee may prefer a petition to the

District Level Committee within 60 days from the date of decision of the

Sub-Divisional Level Committee. The first proviso below Sub-section (4) of

5 wp1233.16

Section 6 lays down that no petition shall be preferred directly before the

District Level Committee against the resolution of Gramsabha unless the same

has been preferred before and considered by the Sub-Divisional Level

Committee. The second proviso below Sub-section (4) of Section 6 provides

that the petition shall not be disposed against the aggrieved person unless he

has a reasonable opportunity to present his case. Sub-section (6) of Section 6

lays down that the decision of the District Level Committee on the record of

forest rights shall be final and binding.

6. The Scheduled Tribes and other Traditional Forests Dwellers

(Recognition of Forest Rights) Rules, 2008 (for short "Forest Rights Rules,

2008") are made in exercise of the powers conferred by Section 14(1) of the

Forest Rights Act, 2006. Rule 3 of the Forest Rights Rules, 2008 provides for

procedure to be followed for convening Gramsabhas and election of Forest

Rights Committee. Rule 4 provides for the functions of the Gramsabhas. Rule

5 provides for the constitution of Sub-Divisional Level Committee. Rule 6

provides for the functions of the Sub-Divisional Level Committee. Rule 7

provides for the constitution of District Level Committee. Rule 8 provides for

the functions of District Level Committee.

Rule 11 of the Forest Rights Rules, 2008 lays down the procedure

for filing, determination and verification of claims by Gramsabha. Rule 12 of

the Forest Rights Rules, 2008 provides for the process of verifying claims by

6 wp1233.16

Forest Rights Committee. Rule 13(1) and Rule 13(2) refer to the evidence

which can be considered for determination of various rights. Sub-rule (3) of

Rule 13 lays down that the Gramsabha, the Sub-Divisional Level Committee

and the District Level Committee shall consider the evidence / evidences

referred in Sub-rules (1) and (2) of Rule 13 for determining the forest rights.

7. Under the scheme of the Act and the Rules, burden to substantiate

the claim is not placed on the member of forest dwelling Scheduled Tribe or

other traditional forest dweller. A duty is cast on the Gramsabha to initiate the

process of determining the nature and extent of forest rights and to prepare a

list of claims and to maintain a register containing such details of the claimants

and their claims.

The Gramsabha initiated the process and passed a resolution on the

recommendation of Forest Rights Committee recognizing the right of the

petitioner. The proposal was forwarded to the Sub-Divisional Level Committee

which approved the proposal of the Gramsabha and referred it to District Level

Committee. Surprisingly, the District Level Committee rejected the claim of the

petitioner without recording any reasons and without recording that the

resolution of the Gramsabha or the decision of the Sub-Divisional Level

Committee is improper or unsustainable.

Sub-section (2) of Section 6 of the Forest Rights Act, 2006 provides

that any person aggrieved by the resolution of Gramsabha may prefer a petition

7 wp1233.16

to the Sub-Divisional Level Committee. In the present case there is nothing on

the record to show that the resolution of Gramsabha was challenged by

anybody before the Sub-Divisional Level Committee. The resolution passed by

the Gramsabha was perhaps forwarded to the Sub-Divisional Level Committee

as required by Sub-section (1) of Section 6 of the Forest Rights Act, 2006.

Again there is nothing on the record to show that the decision of Sub-Divisional

Level Committee was challenged before the District Level Committee as per

Sub-section (4) of Section 6 of the Forest Rights Act, 2006, however, the claim

of the petitioner is rejected by the District Level Committee without recording

any reasons and giving a complete go-bye to the provisions of the Forest

Rights Act, 2006 and the Forest Rights Rules, 2008. Rule 8 provides that the

District Level Committee shall ensure that the requisite information under

clause (b) of Rule 6 has been provided to Gramsabha or Forest Rights

Committee to examine whether all claims specially those of primitive tribal

groups, pastoralists and Nomadic Tribes have been approved keeping in mind

the objectives of the Act and to consider and finally approve the claims and

record of forest rights prepared by the Sub-Divisional Level Committee. The

provisions of the Act and the Rules show that a duty is cast on the Gramsabha,

the Sub-Divisional Level Committee and the District Level Committee to ensure

that the claims of the claimants are approved keeping in mind the objectives of

the Act, however, attitude of the District Level Committee is like an

adjudicatory authority. The Forest Rights Committee, the Gramsabha and the

8 wp1233.16

Sub-Divisional Level Committee having concluded in favour of the petitioner

recording his claim of forest rights under the Act, the District Level Committee

could not have rejected the claim of the petitioner without recording reasons

and without recording a finding that the report of the Forest Rights Committee

and the resolution of the Gramsabha are not acceptable in view of the evidence

which is required to be considered as per Rule 13(1) and 13(2) of the Forest

Rights Rules, 2008 while determining the forest rights. The District Level

Committee has not discharged its functions as required under scheme of the

Forest Rights Act, 2006 and the Forest Rights Rules, 2008. The District Level

Committee which comprises of very highly placed officials and is entrusted with

the work of fulfilling the objectives of the Forest Rights Act, 2006 have acted in

a high-handed manner because of which not only the petitioner is put to a

serious prejudice but the very object of the Act is frustrated.

8. The hypocrisy of the officials of the respondents is reflected from the

stand taken before this Court in paragraph No.7 of the affidavit filed on behalf

of the respondent Nos.1 and 2. It is stated that the petitioner has failed to

produce birth certificates and death certificates of his forefathers for

establishing his rights as per the Forest Rights Act, 2006. The District Level

Committee has not only committed a blunder while passing the impugned

order but the illegal act is tried to be justified before this Court on the basis of

misleading statement and misrepresentation. The learned A.G.P. has not been

9 wp1233.16

able to point out that under the scheme of the Forest Rights Act, 2006 and the

scheme of Forest Rights Rules, 2008 the claimant (tribal) is required to produce

the birth certificates and death certificates of his forefathers to substantiate his

claim. In fact, as recorded above, it is the duty of the various Committees to

gather the evidence and verify the rights of the forest dwelling Scheduled

Tribes and other traditional forest dwellers.

In the present case, I find that the concerned Authorities have

mechanically dealt with the claim of the petitioner. The conclusions of the

Range Forest Officer at the end of the report dated 14 th August, 2009 does not

make any sense inasmuch as the report does not consider the entitlement of the

petitioner in the light of the provisions of Rule 13(1) and Rule 13(2) of the

Forest Rights Rules, 2008.

9. In view of the above, the following order is passed:

(i) The decision of the District Level Committee dated 20th April, 2011

communicated to the petitioner by the communication dated 25 th July, 2011 is

set aside.

(ii) The matter is remitted to the District Level Committee for

considering the matter afresh as per the provisions of the Forest Rights Act,

2006 and the Forest Rights Rules, 2008.

(iii) The District Level Committee shall take decision according to

Sub-section (5) of Section 6 of the Forest Rights Act, 2006 and communicate it

10 wp1233.16

to the petitioner till 30th June, 2017.

(iv) The District Level Committee shall pay costs of Rs.10,000/- (Rs. Ten

Thousand Only) to the petitioner within two months by demand draft, after

verifying that the petitioner is having an account in a nationalized bank.

Rule is made absolute in the above terms.

JUDGE

Tambaskar.