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2016 Supreme(Bom) 1043
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.R. Gavai, P.N. Deshmukh, JJ.
Kashinath s/o Haridas Shamkule - Petitioner
Vs.
State of Maharashtra - Respondent
W.P. No. 738 of 2016
Decided On : 08-02-2016
Advocate Appeared:
For the Petitioner: S.S. Dhengale
For the State : Mrs. Bharti Dangre
The Act requires 'other traditional forest dwellers' to establish possession of forest land for three generations, emphasizing the balance between conservation and tribal rights.
Headnote:
Forest Rights - Policy Decision - Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 - Sections 4(3), 4(5), 4(6)
Fact of the Case:
The petitioners sought a direction to decide their representations and to relax conditions for granting rights in forest lands occupied by them. The impugned order rejected their cases due to lack of evidence of possession for three generations.
Finding of the Court:
The court found that the petitioners' claim lacked substance as they did not establish possession of the forest land for the required period. The court also held that it cannot direct the State Government to frame a policy contrary to statutory provisions.
Issues: The issues revolved around the petitioners' entitlement to forest rights and the court's jurisdiction to direct the State Government to relax statutory conditions.
Ratio Decidendi: The court emphasized the statutory requirement of possession for three generations for 'other traditional forest dwellers' under the Act. It also highlighted the Act's provisions for protection of forest rights and the State's authority to modify or resettle rights in critical wildlife habitats.
Final Decision: The petition was rejected, and the court directed the Central Government to complete the procedure for recognizing critical wildlife habitats within six months to protect wildlife.
B.R. Gavai, J.
Rule returnable forthwith. Heard finally with the consent of the learned Counsel for the respective parties.
2. The petitioners have approached this Court seeking a direction to respondent Nos. 1 and 2 to decide their representations and to take a policy decision of relaxation of any of the conditions which would come in the way of granting any right, title or interest in respect of forest lands occupied by them.
3. The petitioners have further approached for a direction to respondent Nos. 1 and 2 to grant right and title and 'patta' in respect of forest lands occupied by the petitioners and others on the line of the 'patta' granted to the agriculturists in the adjacent districts of Bhandara and Gadchiroli as per the provisions under sections 4(3), 4(5) and 4(6) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter referred to as "the said Act").
4. It is the contention of the petitioners that, in view of the provisions of sub-section (3) of section 4 and clause (g) of section 3 of the said Act, such of the persons who are in possession of forest land on or before 13th day of December, 2005 are entitled to protection of their rights. It is the contention of the petitioners that they are in possession of the lands encroached by them from 1962 onwards and the said lands are in their possession since two generations and therefore, the State Government should relax the condition of possession being of three generations and grant 'patta' in favour of the petitioners.
5. Perusal of the impugned order rejecting the cases of the petitioners would reveal that the cases of the petitioners have been rejected on the ground that the documents in their possession do not show that they were in possession of the lands for three generations.
6. It is vehemently contended by Mr. S.S. Dhengale, learned Counsel for the petitioners that the State Government has power to relax the condition of requirement of possession of three generations and therefore, it is necessary in the interest of justice that this Court should direct the State Government to frame the policy thereby relaxing the said condition.
7. The Statement of Objects and Reasons of the said Act would reveal that the said Act was enacted since it was noticed that the reservation processes for creating wilderness and forest areas for production forestry somehow ignored the bona fide interests of the tribal community from legislative framework in the regions where tribal communities primarily inhabit. The Statement of Objects and Reasons would further make it clear that it was noticed that the simplicity of tribals and their general ignorance of modern regulatory framework precluded them from asserting their genuine claims to resources in areas where they belong and depended upon. The Statement of Objects and Reasons would further reveal that it was recently that forest management regimes have initiated action to recognize the occupation and other right of the forest dwellers and have in their policy processes realised that tribal communities who depend primarily on the forest resource cannot but be integrated in their designed management processes. The Statement of Objects and Reasons further states that there is a recognition of the fact that forest have the best chance to survive if communities participate in the conservation and regeneration measures. It is further stated that insecurity of tenure and fear of eviction from these lands where they have lived and thrived for generations are perhaps the biggest reasons why tribal communities feel emotionally as well as physically alienated from forest and forest lands. It further states that this historical injustice now needs correction, before it is too late to save our forests from becoming abode of undesirable elements.
8. The Statement of Objects and Reasons further states that it was proposed to enact a law laying down a procedure for recognition and vest
