Madras High Court
Ganesan vs The Government Of Tamilnadu on 10 August, 2021
W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.08.2021
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.13829 of 2021
(Through Video Conference)
1.Ganesan
2.Vanathai
3.Songusamy
4.Nagaraj
5.Murugan
6.Vellaiyammal
7.Velusamy
8.Singaraj
9.Balamurugan
10.Pandi
11.Perumal
12.Rakkammal
13.Jeeva
14.Jaisankar .. Petitioners
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
-Vs-
1.The Government of Tamilnadu,
Rep. by its Secretary to Government,
Forest Department,
Fort St.George,
Chennai.
2.The Director,
Schedule Tribes Welfare Department,
(Schedule Tribes and other Traditional Forest Dwellers,
Recognition of Forest Rights Department),
Adi Dravidar and Schedule Tribes Welfare Directorate,
Chepauk,
Chennai-600 005.
3.The District Collector,
Theni District,
Theni.
4.The Tahsildar,
Andipatti Taluk,
Andipatti,
Theni District.
5.The Revenue Divisional Officer,
Periyakulam,
Theni District.
6.The Divisional Forest Officer,
Collectorate Building,
Theni,
Theni District.
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
7.The Forest Settlement Officer,
Collectorate Building,
Theni,
Theni District. ..Respondents
Prayer: Writ Petition is filed under Article 226 of Constitution of India,
to issue a Writ of Mandamus, directing the respondents to proceed on
the basis of the Gram Sabha resolutions dated 15.08.2019 and
06.03.2020 in accordance with law particularly under Chapter IV fo the
Schedule Tribes and other Forest Traditional Dwellers (Recognition of
Forest Rights) Act, 2006 insofar as the petitioners' rights under Chapter
III delineating the recognition of and vesting of forest rights are
concerned.
For Petitioners : Mr.M.Joseph Thatheus Jerome
for M/s.P.Venkatesan
For Respondents : Mr.R.Suresh Kumar
Government Advocate
ORDER
Prayer sought for herein is for a Writ of Mandamus, directing the
respondents to proceed on the basis of the Gram Sabha resolutions dated
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
15.08.2019 and 06.03.2020 in accordance with law, particularly, under
Chapter IV of the Schedule Tribes and other Forest Traditional Dwellers
(Recognition of Forest Rights) Act, 2006, insofar as the petitioners'
rights under Chapter III delineating the recognition of and vesting of
forest rights are concerned.
2. As per the affidavit averment made by these petitioners, who
claim that, from the forefather atleast for three generations and more,
they had been residing in forest land, which had been infact subsequently
categorised as forest lands, where they have been not only residing but
also have been undertaking agricultural activities. In this context, though
it is the claim of the petitioners that they had approached the revenue
authorities to get patta for the land, which are in occupation of these
petitioners or their forefathers, those attempts had been failed because
the said land in question, where the petitioners claimed to have been
residing or doing agricultural activities, had already been categorised as
reserved forest land, therefore, in this context, the revenue authorities do
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
not have any rights to give patta.
3.Only at this juncture, in view of the rights to be conferred on the
Scheduled Tribes and other persons, who had been in long occupation of
the forest land that is for 75 years and more, their rights can be
recognised under the provisions of the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition and Forest Rights) Act, 2006
(in short 'the Act') and the Rules made thereunder. Under the said Act,
the rights of the dwellers in the forest land to get patta shall infact be
initiated by the Grama Sabha concerned. As per the resolution to be
passed in the Grama Sabha, the same would be forwarded to the Sub
Divisional Level Committee constituted in this regard by the State
Government, which would be headed by a Sub Divisional Officer or
equivalent Officer as a Chair Person and other members belongs to
Forest Department and Block Level Panchayat could be nominated and
the said committee can decide the claim to be made by the dwellers in the
forest land as initiated by the Grama Sabha concerned and subsequently,
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
the matter can be referred to the District Level Committee headed by the
District Collector and other Officials and if any decision is taken, firstly,
at the Sub Divisional Level Committee and secondly, at the District
Level Committee, that would become final.
4. Therefore, under the said procedure as has been contemplated
under the said Act as well as the Rule made thereunder, the issue was
initiated by the Grama Sabha of the village panchayat concerned, through
Grama Sabha resolution, dated 15.08.2019 and 06.03.2020. After the
Grama Sabha passed the resolution, according to the petitioners, it has
been forwarded to the Forest ranger and District Forest Officer as well as
the District Collector for necessary action and in this regard, the request
of the petitioner since had been given to the Director of Scheduled
Tribes, Chennai, who, in turn forwarded the same to the District Aadi
Dravidar and Tribal Welfare Officer for needful action. Despite this kind
of attempts have been made by the petitioners, the grievance of the
petitioners is that, nothing was forthcoming from the respondents,
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
especially, the District Collector and other officials belongs to the Forest
and Revenue Department of the District concerned. Therefore, at this
juncture, the petitioners joined together and filed this writ petition to
seek for a writ of mandamus to give a direction to the respondents to
proceed on the basis of the Grama Sabha resolution dated 15.08.2019
and 16.06.2020 in accordance with the provisions of the said Act.
5.Heard Mr.M.Joseph Thatheus Jerome, learned Senior counsel
appearing for the petitioner, who having reiterated the same would
submit that, the rights of the petitioners for issuance of patta for the
dwelling house as well as the agricultural land, which they have been in
occupation and have been doing their agricultural activities for several
years or several decades, atleast for 75 years and more, have to be
recognised under the provisions of the Act and in this regard, as per the
provisions of the Act, the action was initiated by the Grama Panchayat by
passing a resolution in the Grama Sabha as stated supra, and the same
having been forwarded to the respondents herein, no positive action
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
since have been taken by them, it is in violation of the provisions of the
Act as well as the Rules referred to above. Therefore, the petitioners are
entitled to seek for a writ of mandamus as prayed for, hence, the learned
counsel seeks indulgence of this Court in this regard.
6.Heard Mr.R.Suresh Kumar, learned Government Advocate
appearing for the respondents, who relied upon a latest communication,
that is, instructions given by the Wild Life Warden, Megamalai Wild
Life Division, Theni District, wherein, he has stated that, insofar as these
petitioners are concerned, prima facie, the enquiry reveals that, they do
not belonged to Scheduled Tribes community. Therefore, this can be
brought to the notice of this Court during the hearing. Relying upon the
said written instructions, learned Government Advocate would submit
that, if they are not the Scheduled Tribes, they are not entitled to get the
benefits under the Act, and in this regard, the learned Government
Advocate relied upon a recent Division Bench Judgment of this court
made in a Batch of cases in W.P.(MD)Nos.11978 of 2021 etc., batch
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
dated 27.07.2021 and would submit that, as per the said judgment, if at
all, the petitioners are not the Scheduled Tribe community people, the
benefits cannot be conferred under the said Act and they can only be
treated as encroachers of the forest land. Therefore, action can be
initiated against them for removal of the encroachment, after cultivating
the agriculture, if any, they have already undertaken in the land
concerned.
7. By making these submissions, learned Government Advocate
would submit that, the request of the petitioners, since, according to the
prima facie view expressed by way of the instructions given by the
officials concerned of the Forest Department, cannot be worthy to be
considered, therefore, the mere initiation of the proceedings by the
Grama Sabha would not ipso facto confer any rights on the petitioners' to
recognise their dwelling right under the Act. Hence, such a mandamus
as prayed for in this writ petition does not require to be granted, hence,
he seeks for dismissal of this writ petition.
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Ganesan and others v. The Government of Tamilnadu
8.I have considered the said rival submissions made by the learned
counsel for the parties and have perused the materials placed before this
Court.
9. It is the claim of the petitioners that, they have been residing in
the Forest land for more than 7 or 8 decades, that is, for three generations
and more. It is the further claim of the petitioners that they have been
doing agricultural activities also in such land. In the typeset of
documents, all these petitioners have filed the family card provided by
the State Civil Supplies authorities to each of these petitioners, and also
in respect of their dwelling houses, the local bodies have collected
property tax, and that receipts also had been submitted in the typeset of
papers. That apart, the Voter Identity Card and other identifications to
establish that they have been residing in the forest land, were also
produced.
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Ganesan and others v. The Government of Tamilnadu
10.With that strength, the petitioners already approached the
village panchayat concerned, that is, the Grama Sabha of the Village
Panchayat, in which, the petitioners have been residing or living, to
initiate action within the provisions of the said Act.
11.In this context, if we look at the provisions of the Act, under
Section 6, it has been provided that, the Grama Sabha shall be the
authority to initiate the process for determining the nature and extend of
the individual's or community's forest rights, etc. Therefore, as per
Section 6, first, the initiation must be made by the Grama Sabha and once
a resolution is passed by the Grama Sabha, it shall be placed before a Sub
Divisional Level Committee under Section 6(3) of the Act and thereafter
to be placed before the District Level Committee under Section 6(5) of
the Act.
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Ganesan and others v. The Government of Tamilnadu
12.The Government of India framed rules under the said Act called
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Rules, 2007 (in short 'the Rules'). Under the Rules, Rule 3
states about Grama Sabha and Rule 4 speaks about functions of the
Grama Sabha. Once, the resolution is passed by the Grama Sabha, that
shall be placed before the Sub Divisional Level Committee, which shall
be constituted under Rule 5, by the State Government, to be headed by
Sub Divisional Officer or equivalent Officer as Chair Person. Functions
of the Sub Divisional Committee are given in Rule 6. Like that, the state
shall also constitute a District Level Committee under Rule 7, and the
functions of the District Level Committee also have been enumerated
under Rule 8. That apart, the State Level Monitoring Committee
constituted under Rule 9 of the State Government in this regard headed
by the Chief Secretary of the State as Chair Person, can monitor the
overall action in this regard throughout the State.
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
13.Therefore, as per the exhaustive procedure as has been
contemplated under the Rule, the initiation made by the Grama Sabha
shall be placed before the Sub Divisional Committee and once the Sub
Divisional Committee makes any decision, the aggrieved persons over
the said decisions of the Sub Divisional Committee, can prefer a petition
to the District Level Committee within 60 days and thereafter, the
District Level Committee shall decide it, and the decision of the District
Level Committee, on the record of forest rights, shall be final and
binding.
14. Therefore, the initiation now made by the Grama Sabha by
passing a resolution on two dates as referred to above, shall only be the
first step, pursuant to which, the same shall be placed before the Sub
Divisional Committee constituted in this regard under Section 6 of the
Act and the Rule made thereunder, and once a decision is taken by the
Sub Divisional Committee, if at all the petitioners get aggrieved, they can
prefer further appeal to the State Level Committee for final decision.
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
15.In that view of the matter, since the procedure has been clearly
contemplated under the Act as well as the Rule as referred to above, this
Court feel that, the claim made by the petitioners through Grama Sabha
resolutions, dated 15.08.2019 and 06.03.2020, can very well be placed
before the Sub Divisional Committee for their decision as the next step
and thereafter, aggrieved party can prefer appeal to the District Level
Committee.
16.In view of the said legal position and having considered the
factual matrix of this case, this Court is inclined to dispose of this writ
petition with the following order:
“that there shall be a direction to the fifth respondent
Revenue Divisional Officer to take up the copy of the
resolution passed by the Grama Sabha concerned, in
respect of the petitioners' claim under the Act, dated
15.08.2019 and 06.03.2020, and place it before the Sub
Divisional Committee constituted in this regard for their
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
decision. Before the Sub Divisional Committee, after
giving an opportunity of being heard to the petitioners by
permitting them to file further input, if any, in support of
their claim, that they have been dwelling in that forest land
and doing agricultural activities for more than 75 years, for
seeking recognition of their rights in the forest land under
the provisions of the Act and accordingly, decide the same
on merits and in accordance with law, within a period of
three months from the date of receipt of a copy of this
order.”
17.It is made clear that, the petitioners shall send a copy of the
Grama Sabha resolutions dated 15.08.2019 and 06.03.2020 to the fifth
respondent, who in turn, shall act upon as indicated above, that is,
placing the same before the Sub Divisional Committee and take action
thereon, within the time frame as indicated above. The petitioners shall
forward the copy of the Grama Sabha resolutions within a period of two
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
weeks from the date of receipt of a copy of this order and thereafter, the
needful as indicated above shall be undertaken by the fifth respondent
and the Committee within a period of three months.
18.It is made clear that while making the application by
forwarding the Grama Sabha resolution, the petitioners shall send a
formal application as contemplated under Rule 11 of the said Rule.
19.With these directions, this writ petition is disposed of.
However, there shall be no orders as to costs.
10.08.2021
Index : Yes/No
Internet : Yes
PJL
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
To
1.The Secretary to Government
Government of Tamilnadu,
Forest Department,
Fort St.George, Chennai.
2.The Director,
Schedule Tribes Welfare Department,
(Schedule Tribes and other Traditional Forest Dwellers,
Recognition of Forest Rights Department),
Adi Dravidar and Schedule Tribes Welfare Directorate,
Chepauk,
Chennai-600 005.
3.The District Collector,
Theni District,Theni.
4.The Tahsildar,
Andipatti Taluk,
Andipatti,Theni District.
5.The Revenue Divisional Officer,
Periyakulam,
Theni District.
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W.P.(MD)No.13829 of 2021
Ganesan and others v. The Government of Tamilnadu
R.SURESH KUMAR, J.
PJL
6.The Divisional Forest Officer,
Collectorate Building,
Theni,
Theni District.
7.The Forest Settlement Officer,
Collectorate Building,
Theni,
Theni District.
W.P.(MD)No.13829 of 2021
10.08.2021
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