Image: https://nanchi.blog
On April 18, the Bombay High Court rejected a Civil Revision Application filed by the forest department and observed that the prima facie officials of the forest department wanted to evict a tribal living on the borders of the famous Tadoba Tiger Reserve in Maharashtra without following due process.
“There is no dispute that Forest Officers are empowered under Section 26(1-A)(a) of the Forest Act to evict the person from reserved forest, however, their powers are subject to the rights conferred under the Dwellers Act in respect of Tribals or Traditional Forest Dwellers. If there is any claim pending in that regard, till decision of the same as per direction of State itself, no eviction can be effected.” (Para 7)
Justice MS Jawalkar noted that without giving the tribal a hearing, his claim to four hectares of land was rejected and the order wasn’t even communicated to him.
“…it is expected that Tribals have to be given an opportunity to adduce the evidence and reasoned orders to be passed…In the present matter, prima facie, it appears that, without following due process, the defendants want to evict the plaintiff from the land which is in his possession since long,” the bench observed. (Para 12)
This suit was originally filed by Bhante Gyanjoti Thero, who had sought a declaration and permanent injunction. He claimed that he and the public trust of which he is the president occupied 4 hectares of forest land since 1976. He filed a claim seeking rights to live there after the Ministry of Law and Justice enacted the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, in 2006 (Dwellers Act).
Even as his claim was pending, he filed another claim before the Forest Rights Committee in 2022. In spite of informing to defendant about pending claim, just 13 days later eviction proceedings were initiated against him and he filed the suit in the trial court. Learned Trial Court after hearing both the parties rejected the application of the defendants.
After the Civil Court denied relief, the forest department approached the High Court for dismissal of the suit. The High Court is now dealing with a Civil Revision Application filed by the Assistant Conservator of Forest under Order VII, Rule 11(d) of the CPC, seeking dismissal of the suit filed by the tribal. In the case made by the forest department, under Section 26(5) of the Indian Forest Act, no civil court has jurisdiction if forest officials evict or demolish construction under the Act. As a result, the forest department asserts that the suit is not maintainable.
In response to the argument in the High Court, Advocate AA Dhawas for the tribal man cited a government resolution prohibiting removal of encroachment in a claim before the District Level Committee. In the said GR, dated November 11, 2016, it has been specifically directed that, till the decision of District Level Committee on appeal by the dwellers under the “Dwellers Act”, no action of removal of encroachment be executed.
After hearing both parties’ arguments, the court stated at the outset that Section 26(1-A) of the IFA (Indian Forest Act) did not apply to forest dwellers whose claims were pending.
The court also noted that, while the forest department claims that the tribal claim was rejected in 2015, there was no evidence to support that claim.
“On perusal of documents on record, it appears that though it is stated that the claim of the plaintiff has rejected under Section 3(2) of the Dwellers Act, however, nothing is placed on record to show that there was any hearing granted to the plaintiff or order of rejection is duly communicated to the plaintiff. The communication of order is necessary.” (Para 10)
The court stated that if there is no communication to the concerned person whose claims are under the Traditional Forest Dwellers Act, he cannot agitate his claim before Superior Authorities.
While upholding the trial court’s order and rejecting the application, the court stated that “The defendants may be right in submitting that the plaintiff (tribal) cannot be treated as a Traditional Forest Dwellers, however, there has to be adjudication on that issue and the same is required to be communicated to the plaintiff so that the plaintiff can take an appropriate steps.” (Para 12)
The full judgment can be read here.
Related:
Mudumalai Tiger Reserve: Adivasis Cheated out of Forest Land, Compensation
SC reprimands Mumbai Metro on its bid to fell additional trees in Aarey, imposes Rs 10 lakh fine Forest Conservation Bill 2023: too many exemptions, discretion to Centre
Adivasi and other farmers under the AIKS bring Maharashtra govt to its feet
35 Adivasis arrested after face-off with Forest Department
Minister inquires about implementation of FRA in states, MoTA dodges any accountability