Gram Sabha Maha Sangha Thr. Its ... vs Deputy Conservator Of Forest ...
2022 Latest Caselaw 8665 Bom

                               1



     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH, NAGPUR.

       CRIMINAL WRIT PETITION NO. 520 OF 2022
                       WITH
       CRIMINAL WRIT PETITION NO. 541 OF 2022


       CRIMINAL WRIT PETITION NO. 520 OF 2022

     Shriram     Enterprises    through     its
     authorized     person,     Sandip     s/o
     Shriramsingh Parihar, having its office
     at-po. Chichgarh, Tahsil - Deori, District
     - Gondia.
                                                  ... PETITIONER
                           VERSUS
1.   Deputy Conservator of Forest,
     Gondia Division (Territorial), having
     its office at Van Bhavan, Gondia,
     Near Gayatri Temple, Kudwa,
     Gondia.

2.   The Collector, Gondia, having its
     office at Collector Office, Gondia.

3.   State of Maharashtra, through Range
     Forest Officer, Department of Forest,
     Renj Forest Office, Sadak Arjuni,
     Tahsil - Sadak Arjuni, District
     Gondia.

4.   Assistant Conservator of Forest
     (Tendu & Campa), having its office
     at Van Bhavan, Gondia, Near Gayatri
     Temple, Kudwa Road, Gondia.
                                2

5.   Sub-Divisional Officer, Sadak
     Arjuni / Morgaon Arjuni &
     Chairperson, Sub-Divisional Level
     Forest Rights Committee, having its
     office at Sub-Divisional Office,
     Morgaon, Arjuni.

6.   Gramsabha Mahasangh, Ta. Deori
     through its Secretary, having its
     office at po. Shirpurbandh, Tahsil -
     Deori, District - Gondia.

7.   Community Forest Rights
     Management Committee, Jambhali /
     Dodke, through its Secretary, Tahsil -
     Sadak Arjuni, District - Gondia.

                                   AND

       CRIMINAL WRIT PETITION NO. 541 OF 2022
     Gram Sabha Maha Sangha, through its
     Secretary,    Gajanan   s/o   Jagatram
     Shivankar, Age - 39 years, having its
     office at Shirpurbandh, Tahsil - Deori,
     District - Gondia
                                               ... PETITIONER
                           VERSUS
1.   Deputy Conservator of Forest,
     Gondia Division (Territorial), having
     its office at Van Bhavan, Gondia,
     Near Gayatri Temple, Kudwa,
     Gondia.

2.   The Collector, Gondia, having its
     office at Collector Office, Gondia.

3.   State of Maharashtra, through Range
                                  3

        Forest Officer, Department of Forest,
        Forest Office, Sadak Arjuni, Tahsil -
        Sadak Arjuni, District - Gondia.

   4.   Assistant Conservator of Forest
        (Tendu & Campa), having its office
        at Van Bhavan, Gondia, Near Gayatri
        Temple, Kudwa, Gondia.

   5.   Sub-Divisional Officer, Sadak
        Arjuni / Morgaon Arjuni &
        Chairperson, Sub-Divisional Level
        Forest Rights Committee, having its
        office at Sub-Divisional Office,
        Morgaon, Arjuni.

   6.   Forest Rights Committee, Jambhali /
        Dodke, through its Secretary, Tahsil -
        Sadak Arjuni, District - Gondia.

   7.   Shriram Enterprises through its
        authorized signatory, Sandip s/o
        Shriramsingh Parihar, having its
        office at Chichgarh, Tahsil - Deori,
        District - Gondia.

                                                 ... RESPONDENTS
_____________________________________________________________
       Criminal Writ Petition No.520 of 2022.
       Shri Kaushubh Deogade, Advocate for the petitioner.
       Mrs. M.H. Deshmukh, A.P.P. for respondent nos. 1 to 5.
       Shri Deepanshu Verma, Advocate for respondent no. 6.
       Shri Adarsh Dubey, Advocate for respondent no. 7.

       Criminal Writ Petition No. 541 of 2022.
       Shri Deepanshu Verma, Avocate for the petitioner.
       Mrs. M.H. Deshmukh, A.P.P. for respondent nos. 1 to 5.
       Shri Adarsh Dubey, Advocate for respondent no. 6
______________________________________________________________
                                    4


               CORAM                  : VINAY JOSHI, J.
               CLOSED FOR JUDGMENT ON : 23/08/2022
               JUDGMENT PRONOUNCED ON : 30/08/2022.



JUDGMENT :

RULE. Rule is made returnable forthwith. Both the petitions

are heard finally by consent of learned Counsel appearing for the

respective parties.

2. The common challenge raised in both petitions is to the

order dated 15.06.2022 passed by the learned Additional District

Judge, Gondia by which the order regarding return of seized Tendu

Leaves on Suprutnama has been reversed. Criminal Writ Petition

No.520 of 2022 has been filed by the Private Company, who has

purchased 79 bags of Tendu Leaves in auction conducted by respondent

no. 6 - Gramsabha Mahasangh, Tq. Deori, whilst Criminal Writ Petition

No.541 of 2022 is of Mahasangh, challenging the same order.

3. The facts in brief are that, on 18.05.2022, the respondent

no.3 - Range Forrest Officer, Sadak Arjuni has seized 79 bags

containing Tendu Leaves alleging illegal transportation of forest

produce and thereby registered POR No.04302/107531/2022 for the

offence punishable under Section 41, 42 and 52 of the Indian Forest

Act, 1927. The petitioner-Company has purchased seized goods in

auction held by Gramsabha and while transporting, they have been

seized. The petitioner has initially approached to the Magistrate in

terms of Section 457 of the Code of Criminal Procedure, for release of

Tendu Leaves on Suprutnama. He succeeded in securing the order of

release dated 02.06.2022. Being aggrieved by the order of release,

respondent no. 3 - Range Forest Officer has challenged the said order in

Criminal Revision No.41 of 2022. The Revisional Court has reversed the

said order by stating it to be erroneous, illegal and improper. The

revisional order is subject matter of challenge in both the petitions.

4. There is no dispute that the petitioner - Company has

purchased Tendu Leaves from respondent no.6 - Gramsabha who is a

Mahasangh of several Gramsabha. It is also not in dispute that 79 bags

of Tendu Leaves have been seized for alleged illegal transportation.

Both sides have placed heavy reliance on the provisions of the

Scheduled Tribes and Other Traditional Forests Dwellers (Recognition

of Forest Rights) Act, 2006 (for short 'the Act of 2006). Besides that,

the rules framed thereunder in terms of Section 14 of the Act of 2006,

have been pressed into service. It is the petitioners' contention that

Gramsabha has every authority to collect minor forest produce as has

been permitted under the Act of 2006. It is stated that the Act of 2006

has recognized and vested the forest rights to the Traditional Forest

Dwellers for ensuring their livelihood. It is submitted that Jambhali/

Dodke Community Forest Rights Management Committee had applied

for recognition of Community Forest Rights in the year 2012 itself,

however no decision was taken by the Authority. It is the prime

submission, that the Act of 2006 vests forest rights in the Gramsabha

for which neither permission nor a transit pass is required for

transportation, and therefore, the seizure is illegal.

5. On the other hand, the State has strongy resisted both

petitions by contending that though the forest rights vests in the

Gramsabha for betterment of the Forest Dwellers, however it is

subjected to the procedure as contemplated under Chapter IV of the Act

of 2006. It is argued that Section 6 of the Act of 2006 is a complete

code to prescribe a procedure for vesting and recognition of forest

rights. It is stated that Gramsabha has to pass a Resolution and forward

it to the Sub-Divisional Level Committee for its examination and further

for approval by the District Level Committee, which has not been done.

Moreover, the transit pass was not issued in a requisite format and thus,

the transportation is illegal. In short, it is contended that neither the

forest rights of Gramsabha were recognized nor the proposal was

accepted and thus, the auction itself is illegal, making the petitioners'

claim untenable.

6. Learned Counsel for the petitioner has heavily relied on

Section 3(1)(c) of the Act of 2006 to lay its claim of ownership over the

minor forest produce. My attention has been invited to Section 4 (5)

and 4(7) of the Act of 2006 to contend that the forest rights are

conferred free of all encumbrances and procedural requirements

requiring payment of cess has been exempted. The petitioner has relied

on the Scheduled Tribes and Other Traditional Forest Dwellers

(Recognition of Forest Rights) Rules of the year 2007 (for short the

Rules of 2007) framed under the Act of 2006. It is submitted that in

terms of Rule 2(1)(d) of the Rules of 2007, Gramsabha is authorized

for disposal of minor forest produce. Moreover, it is contended that in

terms of Rule 2 (2) of the Rule of 2007, the procedural requirement of

transit permit is not of mandatory nature nor it abridges right to

dispose minor forest produce. The petitioner would contend that in

terms of Government Resolution dated 02.01.2014, a full and complete

freedom is given to the Gramsabha for disposal of minor forest

produce. Likewise, my attention has been invited to revised Rules of the

year 2012. It is contended that in terms of Government Resolution

dated 24.06.2015, as per Clause 6, there is no requirement of

registration.

7. Undoubtedly, the object of the Act of 2006 is to recognize

the forest rights of the Traditional Forest Dwellers. In order to regulate

their rights, the Act has been introduced. Tendu Leaves falls within the

ambit of "minor forest produce" as defined under Section 2(i) of the

Act of 2006. Section 3 of the Act 2006 has recognized traditional forest

rights. However, Section 6 lays down a procedure for vesting of such

forest rights. Section 6(1) of the Act of 2006 indicates that Gramsabha

shall be the authority to initiate the process of determining the forest

rights by deciding the claims and it has to be forwarded to the Sub-

Divisional Level Committee who in turn after examination, forwarded it

to District Level Committee for final approval. The learned District

Judge has rightly considered the statutory mandate of getting two layer

approval for recognition of such rights. Though the rights vest in the

Gramsabha, however they are subject to the approval by following the

procedure prescribed by the Act of 2006.

8. In terms of Section 13 of the Act of 2006, the provision of

the Act of 2006 are in addition and not in derogation of the Indian

Forests Act, 1927, which bears a provision of seizure and confiscation

in case of breach. The Rules of 2007 nowhere indicates that the

Gramsabha or Mahasangh is immuned from the requirement of

recognition of forest rights as contemplated under Chapter IV of the Act

of 2006. Always in case of conflict, the provisions of the Act would

prevail over the rules as the Rules are in the nature of procedural

aspect to further the provisions of the Act. It is apparent that the rights

of the Gramsabha have not been recognized, hence the entire tender

process is without authorization and thus, it would not confer any

authority to petitioner to lay its claim. The petitioners have not brought

to the notice any order passed by the State Government granting

exemption for transit permit. Unless, community forest rights have

been allotted to the Gramsabha in terms of the provisions of the Act

2006, they cannot have any claim there over. The close examination

indicates that, the procedure has not been followed, and thus, the order

of District Judge cannot be termed as erroneous and unsustainable in

the eyes of law.

9. In view of that, both petition carries no merit, hence stand

dismissed. Rule stands discharged. No order as to costs.

(VINAY JOSHI, J.)

LATER ON :

At this juncture, the learned Counsel appearing for the

petitioner in Criminal Writ Petition No.520/2022 seeks for extension of

interim relief as the petitioner desires to challenge this order before the

Apex Court. The record indicates that by way of interim relief, this

Court has precluded to conduct the auction and the said order is

prevailing till date. Having regard to the said fact, interim relief to

continue for a period of three weeks from today.

(VINAY JOSHI, J.)

trupti

TRUPTI SANTOSHJI AGRAWAL

30.08.2022 19:14