Heard Mr.Prashant Chandra, learned Senior Advocate assisted by Ms.Shraddha Agarwal, Dr.Salil Kumar Srivatava and Mr.Hari Om Singh, learned counsels for the petitioners and Mr.D.K.Upadhyay, learned Chief Standing Counsel for the State as well as Mr.A.R.Masoodi, learned Advocate.
The petitioners have challenged the order passed by the Prescribed Authority/Deputy Director, Dudhwa Tiger Reserve Division, Pallia, Kheri, whereby they have been evicted from the forest land as also the order passed by the Appellate Authority i.e. the Chief Conservator of Forest and Field Director, Dudhwa Tiger Reserve, Lakhimpur Kheri upholding the order passed by the Prescribed Authority. The Prescribed Authority has passed the order in exercise of power provided under Section 61-B(2) of the Indian Forest Act, 1927 (as amended vide The Indian Forest (Uttar Pradesh Amendment) Act, 2000) as well as under Section 34-A of the Wild Life (Protection) Act, 1972 (as amended in 2002 & 2006).
The land in question is situated near Dudhwa National Park. The place is named as Gauri Phanta.
The petitioners claim protection under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (in short 'Forest Rights Act, 2006'), which according to them, has overriding effect over the Indian Forest Act, 1927. Besides it they claim that they are in possession over there since the time of their ancestors and are carrying on business to earn their bread and butter since 1928. They also claim that their evictions are violative of Article 19 (1) (g) of the Constitution of India as well as the law laid down by the Hon'ble Supreme Court in the case of Chief Conservator of Forests, Government of A.P. Versus Collector and others, reported in (2003) 3 SCC 472. It is also their case that the shops in the Mandi were allotted to the petitioners in the year 1928 on yearly lease rent on the application moved by their father. Accordingly their shops are established having electricity connection etc. It is stated that they had been depositing the lease rent since 1928, which continued till 1985, when the department refused to accept the rent despite their best efforts. When the authorities did not accept the rent, they filed a Civil Suit being Suit No.844 of 1992 in the court of Additional Civil Judge (Junior Division), Lakhimpur Kheri seeking mandatory decree against the opposite parties, which was decided on 25th of September, 1996 with the direction to the Forest Authorities to accept the arrears of lease rent from the petitioners from 1st of October, 1986.
It is stated that the opposite parties filed an application under Order 9 Rule 13 of the Code of Civil Procedure to recall the order dated 25th of September, 1996, but the same was rejected by means of order dated 3rd of April, 1998. They challenged the said order through an appeal being civil appeal No.40 of 1998 before the District Judge, which was also rejected by means of order dated 12th of March, 1999. Thus, it is stated that the order passed by the Civil Judge attained the finality and pursuant to the order passed by the Civil Judge, they have been depositing the rent till date. Instead of conformation of their right by the Civil Court, they received the notice dated 11th of July, 2010 from the office of Regional Forest Officer, Gauri Phanta Range, Dudhwa Tiger Reserve Division, Palia-Kheri on 14th of July, 2010 for their eviction, in furtherance of the order of eviction passed on 29th of June, 2010. According to the petitioners, notices are illegal, arbitrary and uncalled for as well as also violative of principles of natural justice. They preferred applications for restoration, but of no gain. They preferred an appeal, which has also been rejected.
Mr.Prashant Chandra, learned Senior Advocate appearing for the petitioners submitted that the petitioners' rights and interest are protected under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter referred to as the "Forest Rights Act, 2006", which is Central Act. It recognizes the rights and occupation in Forest land of the Forest dwelling scheduled tribes and other traditional forest dwellers. Under this Act a complete procedure to deal with the matter has been provided, therefore, the petitioners are liable to be governed only under the procedure prescribed therein. Thus he submitted that since the Forest Rights Act, 2006 has overriding effect over the Indian Forest Act, 1927 and Wild Life (Protection) Act, 1972, the orders passed by the Prescribed Authority in exercise of power provided under these Acts are without jurisdiction and therefore unsustainable.
In support of his submission he cited a decision i.e. East Coast Railway and another versus Mahadev Appa Rao and others, reported in (2010) 7 SCC 678. The relevant paragraph 9 of which is extracted below:-
"9.There is no quarrel with the well-settled proposition of law that an order passed by a public authority exercising administrative/ executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained. It follows that the infirmity arising out of the absence of reasons cannot be cured by the authority passing the order stating such reasons in an affidavit filed before the court where the validity of any such order is under challenge. The legal position in this regard is settled by the decision of this Court in Commissioner of Police versus Gordhandas Bhanji, reported in AIR 1952 SC 16, wherein this Court observed: (AIR p.18, para 9) "9........... public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Apart from title they claim to have perfected their right on the basis of possession in light of the decision of Hon'ble Supreme court rendered in the case of Nair Service Society Ltd. Vs. K.C.Alexander, reported in AIR 1968 SC 1165, in which the Hon'ble Supreme Court held "That possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known. When the facts disclose no title in either party, possession alone decides." He further cited another case i.e. Chief Conservator of Forest Vs. Collector & others, reported in (2003) 3 SCC 472, the relevant paragraph 22 of which is extracted below:-
"22.The pattedars proved their possession of the lands in question from 1312 Fasli (1902 AD) as pattedars. There is long and peaceful enjoyment of the lands in question but no proof of conferment of patta on the late Raja and the facts relating to acquisition of title are not known. The appellant State could not prove its title to the lands. On these facts, the presumption under Section 110 of the Evidence Act applies and the appellants have to prove that the pattedars are not the owners. The appellants placed no evidence on record to rebut the presumption. Consequently, the pattedars' title to the land in question has to be upheld."
He also claims repugnancy between the provisions of two Acts on the ground that Section 61-B of the Indian Forest Act, 1927 as amended by way of the Indian Forest (Uttar Pradesh Amendment) Act, 2000, is repugnant to the Forest Rights Act, 2006. It is also submitted by him that the case of T.N.Godaverman Thirumulkpad, reported in 1997 (2) SCC 267 confines to the illegal felling of trees and unauthorized running of saw mills and the directions are pointed towards prevention of Forest timber and the consequential activities, whereas the Chief Conservator of Forests case (Supra) cannot apply to the Forest dwellers and the actual possession even without lease is a conclusive proof of valid occupation. He further submitted that the Hon'ble Supreme Court in the case of Mohinder Singh Gill Vs. Chief Election Commissioner 2, reported in 1978 (1) SCC 405 has held that the order must be supported with the reasons as the order passed by the public authority exercising administrative/executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained, whereas in the present case the orders impugned are not supported with the reasons.
In this context he further cited a decision of the Hon'ble Supreme Court i.e. East Coast Railways & others versus Mahadev Appa Rao and others reported in 2010 (7) SCC 678, the relevant paragraph 23 of which is reproduced hereunder:-
"23.Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the persons making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable."
He also invited the attention of this court towards the Notification dated 9th of June, 2008 issued by the Government of India, Ministry of Tribal Affairs, which speaks that such Scheduled Tribes and Other Traditional Forest Dwellers who are not necessarily residing inside the forest but are depending on the forest for their bona fide livelihood needs would be covered under the definition of 'forest dwelling Scheduled Tribes' and 'Other Traditional Forest Dweller' as given in Section 2(c) and 2(o) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The petitioners also claim the protection of their right under the aforesaid notification.
On this scope he further cited a decision i.e. Zameer Ahmed Latifur Rehman Shekh versus State of Maharashtra and others, reported in (2010) 5 SCC 246 of Hon'ble Supreme Court, in which the conditions of repugnancy have been laid down. In the aforesaid case the Hon'ble Supreme Court has referred its earlier decision i.e. M.Karunanidhi versus Union of India, reported in (1979) (3) SCC 431, in which the principles to be applied for determining repugnancy between a law made by Parliament and a law made by the State Legislature, were considered by a Constitution Bench of the Hon'ble Supreme Court. The Hon'ble Supreme Court held that the repugnancy may result from the following circumstances:-
"1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
2. Where, however, a law passed by the State comes into collision with a law passed by Parliament on an entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.
3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by an large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.
4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254.
In paragraph 24 of the same judgment, the Hon'ble Supreme Court further laid down the conditions to be satisfied before any repugnancy could arise, which are as follows:- .
"1.That there is a clear and direct inconsistency between the Central Act and the State Act.
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other."
Further in paragraph 35 the Hon'ble Supreme Court again laid down the following preposition:-
"1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.
2.That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. That where the two statutes occupy a particular filed, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.
4. That where there is no inconsistency but a statute occupying the same filed seeks to create distinct and separate offence, no question of repugnancy arises and both the statues continue to operate in the same field."
Mr.Prashant Chandra, learned Senior Advocate appearing for the petitioners also raised one question that the regular proceeding for eviction were already pending, but just to cut short the proceeding, the opposite parties have adopted the recourse to the provisions of Section 61-B of the Indian Forest Act, 1927 to evict the petitioners, which is absolutely illegal and arbitrary. According to him it also establishes the highhandedness of the authorities concerned.
In order to defend the orders passed by the Forest authorities, the opposite parties have filed counter affidavit, in which they have stated that the writ petitions suffers from vice of non joinder of necessary party as the Forest Range Officer, Gauri Fanta, Dudhwa Tiger Reserve Forest Division, Palia, Kheri is a necessary party in the matter.
Before proceeding to consider the other parts of reply submitted through the counter affidavit, the court appreciates the reply submitted by the petitioners against the aforesaid objections, who submitted that Article 300 of the Constitution of Indian provides that the Government of India may sue or be sued by the name of Union of India and the Government of a State may sue or be sued by the name of the State. The Article 300 of the Constitution of India is extracted below:-
"300.Suits and proceedings.-(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by an Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution-
(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings."
Learned counsel for the petitioners further submitted that in the list dealing with the property of the State, there is no dispute that the State is a necessary party, as is provided under Article 300 of the Constitution of India and also under Section 79 of the Code of Criminal Procedure. In support of his submission he cited a case i.e. Chief Conservator of Forests, Government of A.P. Versus Collector and others reported in (2003) 3 SCC 472.
In the present case the State of U.P. Through the Principal Secretary as well as the various Forest Authorities including those, who have passed the orders impugned are impleaded as opposite parties, therefore, I am of the view that the writ petition does not suffer from non joinder of parties.
Now I proceed to take note of the other parts of the reply of the opposite parties submitted through the counter affidavit.
It is stated by the opposite parties that the plea being taken by the petitioners for the protection of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, is absolutely misconceived as they do not belong to the class of Scheduled Tribe or other Traditional Forest Dwellers;
Firstly on the point of repugnancy they say that there is no conflict between the provisions of Indian Forest Act, 1927 and Forest Rights Act, 2006. Section 13 of the Forest Rights Act, 2006 provides that this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, therefore, these two Acts run in different field, thus there is no inconsistency between the provisions of these two Acts. So far as the Forest Rights Act, 2006 is concerned, it has been enacted only with a view to protect the Forest rights. The term forest rights has been defined in Section 2(e) of the Forest Rights Act, 2006.
The learned Chief Standing Counsel Mr.D.K.Upadhyay vehemently argued by giving emphasis on the facts of the case that it is admitted case of the petitioners that they run the shop. Neither they belong to any scheduled tribe nor are they traditional forest dwellers, whereas the Forest Rights Act, 2006 is a safeguard to the scheduled tribes and traditional forest dwellers, who depend on the forests and its produce for their livelihood. It is not meant for using the reserve forest land for any commercial purpose. The land in dispute is a reserve forest land and the petitioners being illegal occupants are not covered under the definition of other traditional forest dwellers, which is defined under Section 2(o) of the 2006 Act. He also invited the attention of this court towards the written statement filed in S.C.C. Suit No.X-13/1998:Ramleela Committee Palia Vs. Ishwar Chandra Gupta, in which the petitioner Mr.Ishwar Chandra Gupta admitted that he got the shop constructed about 30-32 years ago with the permission of Ram Leela Committee and after getting the shop constructed he has been doing his business.
Thus, it is stated that, from the documents itself it is clear that the petitioners cannot be termed as traditional forest dwellers and as such no benefit of the Forest Rights Act, 2006 accrued to them. The documents available in the commercial tax department also establishes that the petitioners are running their business from Pallia. It is also submitted by him that no lease was ever executed by the forest department. The petitioners have failed to produce any such lease either before the court below or before this court. Thus, in absence of any lease granted to the petitioners, no right is formed upon them either to live or run the business in the forest area and they are purely unauthorized occupants over the land in question, which is a reserve forest land, situated in Digania Forest Block of Dudhwa National Park. Gauri Fanta is one of the Forest ranges of Dudhwa National Park without having any identity of village.
It is clearly stated by the opposite parties that the persons belonging to 'Tharu' scheduled Tribe have been residing in the vicinity of the land in question, whereas they have their residences in two villages falling in Gauri Fanta Forest Range i.e. Seda Beda and Kiratpur, which are about 7 and 15 kilometers away from the land in question. The establishment of any Mandi (market) has also been denied, rather it is stated that the petitioners and other such unauthorised occupants have stall by occupying the reserve forest land illegally and unauthorizedly.
It is further submitted that in light of the dictum of the Hon'ble Supreme Court rendered in the case of T.N.Godavarman versus Union of India and others i.e. Writ Petition (Civil) No.202 of 1995, the order passed by the civil court has lost its efficacy.
In order to support the power of the authority, who have passed the order impugned, the notification dated 23rd of May, 2001 issued by the State Government has been brought on record through the supplementary counter affidavit, whereby all Deputy Conservations of Forest, Divisional Directors, Deputy Directors not below the rank of a Divisional Forest Officer and are holding the charge of respective divisions, has been said to have been authorised officers for the purpose of Indian Forest Act, 1927.
Katarniya Ghat Foundation, an applicant, has moved an application for impleadment through its Vice President with the submissions that the State Government by notification dated 9th of June, 2010 has declared the Forest area in question to be Core or Critical Tiger Habitat for Dudhwa Tiger Reserve. The rights of trade or business cannot be claimed by any person being a resident of nearby area, therefore, their business activities are in contravention of the aforesaid notification and also in violation of Wild Life Protection Act, 1972. Their illegal occupation is a constant threat to the Wild Life habitat and security of the National Park.
The applicant being a Society involved in the protection of environment and Wild Life has been permitted to be heard through its counsel as an intervenor in the matter.
In order to determine the jurisdiction of the Forest authorities as well as the rights and interest of the petitioners, it is pertinent to mention the provisions of relevant Acts, which are as under:-
1.Indian Forest Act, 1927 (as amended The Indian Forest (Uttar Pradesh Amendment) Act, 2000.
Section 2. Interpretation clause-In this Act, unless there is anything repugnant in the subject or context,-
(2) "Forest Officer" means any person whom the State Government or any office empowered by the State Government in this behalf, may appoint to carry out all or any of the purposes of this Act or to do anything required by this Act or any rule made thereunder to be done by a Forest-officer;"
Section 61-B. Summary eviction of unauthorized occupants.-(1)If a Forest Officer, not below the rank of a Divisional Forest Officer is of the opinion that any person is in unauthorised occupation of any land in areas constituted as a reserved or protected forest under Section 20 or Section 29 as the case may be, and that he should be evicted, the Forest Officer shall issue a notice in writing calling upon the persons concerned to show cause, on or before such date as is specified in the notice, why an order of eviction should not be made.
(2) If after considering the cause, if any, shown in pursuance of a notice under this section, the Forest Officer is satisfied that the said land is in unauthorised occupation, he may make an order of eviction for reasons to be recorded therein, directing that the said land shall be vacated by such date, as may be specified in the order, by the person concerned which shall not be less than then days from the date of the order.
(3) If any person refuses or fails to comply with the order of eviction by the date specified in the order, the Forest Officer who made the order under sub-section (2) or any other Forest Officer, duly authorised by him in this behalf, may evict that person from and take possession of the said land and may, for this purpose, use such force as may be necessary.
(4) Any person aggrieved by an order of the Forest Officer under sub-section (2) may, within such period and in such manner as may be prescribed, appeal against such order to the Conservator of Forests of the circle or to such officer as may be authorised by the State Governemnt in this behalf and the order of the Forest Officer shall, subject to the decision in such appeal, be final.
2. Wild Life (Protection) Act, 1972:
Section 34A. Power to remove encroachment-(1) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant conservator of Forests may,-
(a) evict any person from a sanctuary or National Park, who unauthorisedly occupies Government land in contravention of the provisions of this Act;
(b) remove any unauthorised structures, buildings, or constructions erected on any Governemnt land within any sanctuary or National Park and all the things, tools and effects belonging to such person shall be confiscated, by an order of an officer not below the rank of the Deputy Conservator of Forests:
Provided that no such order shall be passed unless the affected person is given an opportunity of being heard.
(2) The provisions of this section shall apply notwithstanding any other penalty which may be inflicted for violation of any other provision of this Act."
3. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
Section 2. In this Act, unless the context otherwise requires,-
(a).........
(b).......
(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 Tribe pastoralist communities;
(d)............
((e) "forest rights" means the forest rights referred to in section 3;
(f) to (n)..........
(o) "other traditional forest dweller" means any member or community who has for at least three generations prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs.
Explanation-For the purpose of this clause, "generation" means a period comprising of twenty-five years.
Section 3. (1) For the purpose of this Act, the following rights, which secure individual or community tenure or both, shall be the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers on all forest lands, namely:-
(a) right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers;
(b) community rights such as nistar, by whatever name called, including those used in erstwhile Princely States, Zamindari or such intermediary regimes;
(c) right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries;
(d) other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities;
(e) rights including community tenures of habitat and habitation for primitive tribal groups and pre-agricultural communities;
(f) rights in or over disputed lands under any nomenclature in any State where claims are disputed;
(g) rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles;
(h) rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and other villages in forests, whether recorded, notified or not into revenue villages;
(I) right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use;
(j) rights which are recognised under any State law or laws of any Autonomous District Council or Autonomous Regional Council or which are accepted as rights of tribals under any traditional or customary law of the concerned tribes of any State;
(k) right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity.
(l) any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers, as the case may be, which are not mentioned in clause (a) to (k) but excluding the traditional right of hunting or trapping or extracting a part of the body of any species of wild animal;
(m) right to in situ rehabilitation including alternative land in cases where the Scheduled Tribes and other traditional forest dwellers have been illegally evicted or displaced from forest land of any description without receiving their legal entitlement to rehabilitation prior to the 13th day of December, 2005.
(2) Notwithstanding anything contained in the Forest (Conservation) Act, 1980, the Central Government shall provide for diversion of forest land for the following facilities managed by the Government which involve felling of trees not exceeding seventy-five trees per hectare, namely:-
(a) schools;
(b) dispensary or hospital;
(c ) anganwadis;
(d) fair price shops;
(e) electric and telecommunication lines;
(f) tanks and other minor water bodies;
(g) drinking water supply and water pipelines;
(h) water or rain water harvesting structures;
(i ) minor irrigation canals;
(j) non-conventional source of energy;
(k) skill upgradation or vocational training centres;
(l) roads; and
(m) community centres:
Provided that such diversion of forest land shall be allowed only if,-
(i) the forest land to be diverted for the purposes mentioned in this sub-section is less than one hectare in each case; and
(ii) the clearance of such developmental projects shall be subject to the condition that the same is recommended by the Gram Sabha.
Section 4. (1) Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Act, the Central Government hereby recognises and vests forest rights in-
(a) the forest dwelling Scheduled Tribes in States or areas in States where they are declared as Scheduled Tribes in respect of all forest rights mentioned in section 3;
(b) the other traditional forest dwellers in respect of all forest rights mentioned in section 3.
(2)...........
(3)...........
(4)...........
(5)Save as otherwise provided, no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete.
Section 13. Save as otherwise provided in this Act and the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, the provisions of this Act shall be in additional to and not in derogation of the provisions of any other law for the time being in force.
Section 61-B of the Indian Forest Act, 1927 has been inserted by way of Indian Forest (Uttar Pradesh Amendment) Act, 2000, which received the assent of the President of India on March 7, 2001. The following is the Statement of Objects and Reasons of the amendment Act, 2001:-
"Prefatory Note- Statement of Objects and Reasons- In the recent past incidence of forest offences has increased considerably. Forest offences are now committed by organised and influential gangs with money and muscle power. Encroachment on forest land have also increased. The provisions of Indian Forest Act, 1927, in its application to Uttar Pradesh are not adequate to put an effective check on the activities of such offenders. It is, therefore, considered necessary to amend the said Act in its application to Uttar Pradesh so as to equip the officers of the State Government with more powers to deal with such offenders effectively and to provide for stringent punishment for such offences. Certain offences have been made non-bailable. It is also considered necessary to provide for seizure and confiscation of certain other articles like ropes, chains, etc. besides tools, boats, carts and cattles and to lay down specific procedure for seizure of forest produce which is the property of Government together with the tools, boats, carts, cattles etc. and confiscation of such tools, boats etc. It is also considered necessary to provide for appeal to the State Government against the order of confiscation and to make the decision of the State Government final. In view of large number of cases of encroachment on forest land, it has been considered necessary to provide for summary eviction of unauthorised occupants and disposal of properties left on land by such unauthorised occupants. Certain valuable forest produce are being included in the term "forest produce"/Certain other consequential amendments are also being made."
As is evident the statement of objects and reasons of the U.P. Amendment states that keeping in view the fact that the incidents of forest offences have increased considerably, which are committed by organized and influential gangs with money and muscle power as well as keeping in view large number of cases of encroachment on forest land, it was considered necessary to provide for summary eviction of unauthorised occupants and disposal of properties left on hand by such unauthorised occupants.
Section 4 of the Forest Rights Act, 2006 keeps Notwithstanding clause and by giving overriding effect over other laws, the Central Government has been empowered to recognize and vest forest rights in the forest dwelling Scheduled Tribes in States or areas in States where they are declared as Scheduled Tribes in respect of all forest rights mentioned in section 3. Thus it is very much obvious from the aforesaid provisions that it provides protection only to the Forest dwelling Scheduled Tribes and other Traditional Forest dwellers.
The term "Forest Dwelling Scheduled Tribes" has been defined under Section 2 (c ) of the Forest Rights Act, 2006 as 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 Tribe pastoralist communities;
The term "Other Traditional Forest Dweller" has been defined in Section 2(o) of the Forest Rights Act, 2006 as any member or community who has for at least three generations prior to the 13th of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs.
Through the pleadings on record, the petitioners are not able to establish their identity either as 'forest dwelling scheduled tribes' or as the 'other traditional forest dwellers'.
Though the petitioners have pleaded their right as is saved under CHAPTER II titled as FOREST RIGHTS under the Forest Rights Act, 2006, but since they are not able to establish them either as the forest dwelling scheduled tribes or the other traditional forest dwellers, it is needless to discuss the forest rights in their context as is provided under the Forest Rights Act, 2006.
In light of the aforesaid observations once it is established that they are not covered under the Forest Rights Act, 2006, they cannot hit the provisions of Section 61-B even being repugnant to the provisions of the Forest Rights Act, 2006, yet after reading Section 13 of the Forest Rights Act, 2006, I find that the provisions of the Forest Rights Act, 2006 are in addition to and not in derogation of the provisions of the Indian Forest Act, 1927, therefore, being not the position of repugnancy between two Acts, I am of the view that the petitioners are governed under Section 61-B of the Indian Forest Act, 1927 (as amended "The Indian Forest (Uttar Pradesh Amendment) Act, 2000) and they have rightly been dealt with accordingly.
So far as their right to keep the possession over the land in dispute to continue is concerned, I find that neither they have been able to produce any document of title before the Civil Court nor before this court. Only on the basis of possession the civil court has permitted them to deposit the rent. Mr.Ishwar Chandra Gupta himself has admitted before the Civil Court that there is no lease deed between the parties, rather he is mentioned as lease holder only on the lease rent slips. The exparte decree of the Civil Court is on record, which establishes this fact. Thus, they have not been able to establish any title over there.
It is not in dispute that the land in dispute is a reserve forest land and under the Forest Conservation Act, 1980 the restriction on the different reservation of forests or use of forest land or non forest use has been imposed. Relevant Section 2 of the Forest Conservation Act, 1980 is extracted below:-
"2.Restriction on the dereservation of forests or use of forest land for non-forest purpose.
Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing
(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.
Explanation- For the purpose of this section, "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for-
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;
(b) any purpose other than reafforestation;
but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.
It is admitted case of the petitioners that they run the shop, which is not related in any manner to the forest activities nor are they depend upon any relative activity of forest, therefore, on the count of possession also they have no right to continue their shops over there.
The Hon'ble Supreme Court in the case of T.N.Godavarman Thirumulkpad versus Union of India and others, reported in (1997) 2 SCC 267, in order to protect the conservation of the Forests through out the country has issued several directives to the several States of the country including State of U.P., which are reproduced hereunder:-
"III. FOR THE STATE OF HIMACHAL PRADESH AND THE HILL REGIONS OF THE STATES OF UTTAR PRADESH AND WEST BENGAL.
1. There will be no felling of trees permitted in any forest, public or private. This ban will not affect felling in any private plantation comprising of trees planted in any area which is not a "forest", and which has not been converted from an earlier "forest". This ban will not apply to permits granted to the right-holders for their bona fide personal use in Himachal Pradesh.
2. IN a "forest", the State Government may either departmentally or through the State Forest Corporation remove fallen trees or fell and remove diseased or dry standing timber from areas other than those notified under Section 18 or Section 35 of the Wild Life Protection Act, 1972 or any other Act banning such felling or removal of trees.
3. For this purpose, the State Government is to constitute an Expert Committee comprising a representative from MOEF, a representative of the State Forest Corporation (as Member Secretary), who will fix the qualitative and quantitative norms for the felling of fallen trees and diseased and standing timber. The State shall ensure that the trees so felled and removed are in accordance with these norms.
standing timber.
4.Felling of trees in any forest or any clearance of forest land in execution of projects shall be in strict conformity with the Forest Conservation Act, 1980 and any other laws applying thereto. Moreover, any trees so felled, and the disposal of such trees shall be done exclusively by the State Forest Corporation and no private agency is to be involved in any aspect thereof."
In terms of the aforesaid observations of the Hon'ble Supreme Court, now it has become necessary to protect the deforestation by restricting the non-forest activities.
In the case of State of West Bengal Vs. Sujit Kumar Rana, reported in AIR 2004 SC 1851, the Hon'ble Supreme Court has observed as under:-
"20..................."Forest is a national wealth which is required to be preserved. In most of the cases, the State is the owner of the forests and forest produce. Depletion of forest would lead to ecological imbalance. It is now well-settled that the State is enjoined with a duty to preserve the forest so as to maintain ecological balance and, thus, with a view to achieve the said object forest must be given due protection. Statutes which provide for protection of forest to maintain ecological balance should receive liberal construction at the hands of the superior Courts. Interpretive exercise of such power should be in consonance with the provisions of such statutes not only having regard to the principle of purposive construction so as to give effect to the aim and object of the legislature; keeping the principles contained in Articles 48A and 51A(g) of the Constitution of India in mind. The provisions for confiscation have been made as a deterrent object so that felling of trees and deforestation is not made."
Some of the petitioners have claimed protection of their right under Forest Rights Act, 2006, on the ground of longevity of their activities standing in the forest areas, whereas they have not been able to establish that they belong to the particular community, whose rights have been protected under the Forest Rights Act, 2006 and activities related to the forest activities.
Thus, at this stage in light of the several judicial pronouncements, whereby the non-forest activities in the forest areas have been restricted, in conclusion, I am of the considered view that the petitioners have no right to continue their possession over the forest land with their non-forest activities like doing business.
The writ petitions lack merit and are dismissed.
Dated:22nd of February,2011.
Banswar