Gauhati High Court
Page No.# 1/8 vs The State Of Assam And 3 Ors on 13 June, 2023
Page No.# 1/8
GAHC010099252023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2540/2023
ISMAIL ALI AND 16 ORS.
S/O- LATE AYUB ALI,
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE,
P.O- KOTAMONI,
P.S- BAZARICHERRA,
DIST- KARIMGANJ, ASSAM
2: AJMAT ALI
S/O- ISMAIL ALI
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
3: BILATUN NESSA
W/O- KHECHAMAT ALI
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
4: HASON ALI
S/O- LATE AYUB ALI
Page No.# 2/8
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
5: NAJIM UDDIN
S/O- LATE TOJOY MIYA
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
6: SHYAMS UDDIN
S/O- LATE MAHMOD ALI
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
7: NACHIR UDDIN
S/O- LATE INTAI MIA
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
8: FURKAN ALI
S/O- PETU MIA
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
Page No.# 3/8
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
9: ROSMAN ALI
S/O- LATE INCHAN ALI
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
10: RAMIJ UDDIN
S/O- LATE MUNSIFAR JAN ALI
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
11: AJIM UDDIN
S/O- NACHIR UDDIN
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
12: ARKAM ALI
S/O- LATE ACHAB ALI
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
Page No.# 4/8
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
13: SIDDIQUE AHMED
S/O- ARKAM ALI
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
14: ASAR ALI
S/O- LATE ASHID ALI
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
15: ALTAB UDDIN
S/O- LATE NAJIB ALI
R/O- VILLAGE N.S SOLAMONA FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
16: ABDUL KHALIQUE
S/O- FAYAJ ALI
R/O- VILLAGE N.S SHAMBUNAGAR FOREST VILLAGE
Page No.# 5/8
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSAM
17: RAFIK ALI
S/O- INTAZ ALI
R/O- VILLAGE N.S SHAMBUNAGAR FOREST VILLAGE
P.O- KOTAMONI
P.S- BAZARICHERRA
DIST- KARIMGANJ
ASSA
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM, ENVIRONMENT AND FOREST DEPARTMENT
A-BLOCK, 3RD FLOOR, JANATA BHAWAN, DISPUR, GUWAHATI- 781006,
ASSAM.
2:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF
FOREST FORCE
ASSAM
ARANYA BHAWAN
ASSAM
PANJABARI
GUWAHATI- 781037.
3:THE DIVISIONAL FOREST OFFICER
LONGAI FOREST DIVISION
KARIMGANJ DIVISION
KARNAMADHU PART -II
KARIMGANJ
ASSAM
4:THE FOREST BEAT OFFICER
LONGAI BEAT
KARIMGANJ
ASSA
Page No.# 6/8
Advocate for the Petitioner : MR S BORTHAKUR
Advocate for the Respondent : SC, FOREST
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 13.06.2023
Heard Mr. S. Borthakur, learned counsel for the petitioners. Also
heard Mr. K.P. Pathak, learned standing counsel for the Forest Department
appearing for all the respondents.
2. At the outset, the learned departmental counsel has referred to the
judgment and order dated 09.05.2023 passed by a coordinate Bench of this
Court in WP(C) 4775/2022 and it is submitted that in the said judgment, this
Court had interpreted the "village forest" as well as "forest village" and it has
been held that the establishment of village forest would not and cannot include
any land under a reserved forest, which has been notified under section 17 of
the Assam Forest Regulation, 1891. It is also submitted that this Court had also
interpreted that the power under section 72(e) of the 1891 Regulation cannot
be understood to be providing for creation of a "forest village". It is also
submitted that the petitioners in the said writ petition are co-villagers of the
petitioners in this present writ petition, where it was held that inclusion of
names of the petitioners in the said writ petition in respect of their land located
under a reserved forest in jamabandi was held to be unacceptable. Accordingly,
it is submitted that the case of the petitioners would be squarely covered by the
ratio laid down in the judgment dated 09.05.2023.
Page No.# 7/8
3. Per contra, the learned counsel for the petitioners has opposed the
submission made by the learned departmental counsel by submitting that the
Rules for the Establishment and Control of Forest Villages, which is contained in
Chapter-VII of the General Rules framed under the Assam Forest Regulation was
a pre-constitutional rule, which was framed under notification no. 4631-R dated
6th December, 1930 under section 72(e), 74 and 75 of the Regulation and that
the provisions of eviction from reserved forests and rules for eviction from
reserved forests was inserted in exercise of power conferred under section 72(c)
of the Assam Forest Regulation, vide notification no. FRS 153/71/89 dated 21 st
May, 1973. It is submitted that the judgment and order dated 09.05.2023
passed in WP(C) 4775/2022 would not come into the way of this Court to
adjudicate the present writ petition because of the judgment passed by the
Division Bench of this Court in the case of Anchar Ali & Ors. v. The State of
Assam & Ors., reported in 1987 SCC OnLine Gau 115 : (1987) 2 GLR 421, which
was not placed for consideration of the Court when WP(C) 4775/2022 was
decided and moreover, the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006 was also not considered while
deciding the said writ petition. In the said context, it is submitted that the Govt.
of India, Ministry of Tribal Affairs has initiated a step for conversion of all forest
villages, old habitations, unsurveyed villages etc. into revenue villages under
section 3(1)(h) of the Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006. Hence, it is submitted that before
carrying out eviction of the petitioners, the petitioners have a right to represent
before the authorities to show that they have been residing within the forest
land for more than 75 years or 3 generations as provided under section 2(o) of
the said 2006 Act.
Page No.# 8/8
4. In view of the rival submission made at the bar, the Court query is
as to whether pre-constitutional rule can be deemed to have been repealed or
the said rules are saved by virtue of Article 372 of the Constitution of India. The
said point of law has to be examined. Therefore, taking note of the judgment
rendered in WP(C) 4775/2022, this Court is inclined to examine the matter as
regards savings or implied repeal of the "Rules for the Establishment and
Control of Forest Villages", which was not an issue raised in the previous writ
petition. Hence, the Court is inclined to issue notice on the Advocate General
and/or Additional Advocate General for the State who is assigned with the
matter relating to Forest Department to address the Court on the said point.
5. The learned departmental counsel shall provide a copy of this order
as well as a copy of the writ petition to the learned Advocate General and/or
Additional Advocate General as the case may be.
6. List on 20.06.2023.
JUDGE
Comparing Assistant
