Guwahati hc 6 march order (Forest Dwellers)

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GAHC010241442017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : PIL 45/2017
1:PITOR BASUMATARY and 6 ORS.
S/O. LT. ENAM BASUMATARY, VILL. NO. 1 POKHORIPARA, P.O.
MEZENGJULI, P.S. MISSAMARI, DIST. SONITPUR, ASSAM.
2: KANAI BASUMATARY
S/O. LT. DHARASING BASUMATARY
VILL. NIZRAJULI
P.O. MEZENGJULI
P.S. MISSAMARI
DIST. SONITPUR
ASSAM.
3: MANIRAM BRAHMA
S/O. LT. AJENDRO BRAHMA
VILL. HATHARKHIPARA
P.O. BATASIPUR
P.S. DHEKIAJULI
DIST. SONITPUR
ASSAM.
4: GOPEN CHANDRA BASUMATARY
S/O. KOMLESWAR BASUMATARY
VILL. THAISOGURI
P.O. BATASIPUR
P.S. DHEKIAJULI
DIST. SONITPUR
ASSAM.
5: MAHENDRA BASUMATARY
S/O. KHAGEN BASUMATARY

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VILL. NO. 3 MAINAOSRI
P.O. BATASIPUR
P.S. DHEKIAJULI
DIST. SONITPUR
ASSAM.
6: JURY BAGLARY
W/O. HALDWIBARI
P.O. BATASIPUR
P.S. DHEKIAJULI
DIST. SONITPUR
ASSAM.
7: NONDESWAR SWORGIARY
S/O. LT. KOMALA SWORGIARY
VILL. THALERBARI
P.O. HAGRAJULI
P.S. DHEKIAJULI
DIST. SONITPUR
ASSAM
VERSUS
1:THE STATE OF ASSAM and 9 ORS.
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR,
GUWAHATI-6.
2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
ENVIRONMENT and FOREST DEPTT.
DISPUR
GUWAHATI-6.
3:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS and HEAD OF
FOREST FORCE
ASSAM
ARANYA BHAWAN
PANJABARI
GUWAHATI-781037.
4:THE DIVISIONAL FOREST OFFICER
SONITPUR WEST DIVISION
TEZPUR
DIST. SONITPUR
ASSAM.
5:THE RANGE OFFICER

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DHEKIAJULI RANGE
P.O. DHEKIAJULI
DIST. SONITPUR
ASSAM.
6:THE DEPUTY COMMISSIONER
SONITPUR
TEZPUR
DIST. SONITPUR
ASSAM.
7:THE CIRCLE OFFICER
DHEKIAJULI REVENUE CIRCLE
P.O. DHEKIAJULI
DIST. SONITPUR
ASSAM.
8:THE UNION OF INDIA
REP. BY THE SECRETARY
MINISTRY OF ENVIRONMENT and FORESTS
INDIRA PARYAVARAN BHAVAN
JORBAGH ROAD
NEW DELHI-110003.
9:THE INSPECTOR GENERAL OF FORESTS
TRIKOOT BHAVAN-1
BHIKAJI CAMA PLACE
NEW DELHI.
10:THE JT. SECRETARY TO THE GOVT. OF INDIA
MINISTRY OF TRIBAL AFFAIRS
SHASTRI BHAWAN
NEW DELHI
Counsel for the petitioner (s) : Mr. M. Sarania
Ms. I. Keitzar
Counsel for the respondent(s): Mr. D. Mozumder,
Addl. Advocate General, Assam
Mr. P. Borah

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BEFORE
HON’BLE THE CHIEF JUSTICE MR. AJAI LAMBA
HON’BLE MR. JUSTICE SOUMITRA SAIKIA
06.03.2020
(Ajai Lamba, CJ)
1. Pitor Basumatary and six others have filed this petition in purported public interest
with the plea that the petitioners have been espousing the grievances of other village
dwellers who are members of Scheduled Tribe community and have been residing in forest
villages for the last 35-40 years i.e. from early 1980s. It has been pleaded that the petitioners
being indigenous Scheduled Tribe residents of forest villages in Chariduar Reserved Forest
under Sonitpur District are socially responsible persons and are conscious of the needs of
their respective communities.
2. It has been asserted that the petitioners are forest dwellers and have no other place to
reside, except the present place where they have been residing. The Scheduled Tribes and
other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (for short,
hereinafter referred to as ‘the Act of 2006’) is an Act to correct the historical injustice done to
forest dwellers. Forest villagers have not been granted occupancy rights over their lands by
the authorities in contravention of the provisions of the Act of 2006, rather the dwellers have
been living in fear of the authorities who might evict them. It has been pleaded that in the
last two decades even schools have been established in the forest villages for the education
of children, however forest dwellers are being termed as encroachers.
3. It has been pleaded that the petitioners’ villages have been declared as forest villages
within the meaning of Section 2(f) of the Act of 2006. It has been pleaded that there is no
impediment for the authority to convert their villages into revenue villages, while
acknowledging their rights vis-à-vis the forest.
4. Be that as it may, learned counsel for the petitioners has argued that the petitioners
have settled in the forest villages since 1980s. Even the names of the dwellers were entered

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in the voters’ list of 2005. Rights of the petitioners are required to be recognised under
Sections 4 and 5 of the Act of 2006.
5. Mr. D. Mozumder, learned senior counsel assisted by Mr. P Borah, Advocate has drawn
attention of the Court towards the objects and reasons for which the Act of 2006 was
brought.
Having referred to the objects, we deem it appropriate to extract the following:
“An Act to recognise and vest the forest rights and occupation in forest land in
forest dwelling Scheduled Tribes and other traditional forest dwellers who have
been residing in such forests for generations but whose rights could not be
recorded; to provide for a framework for recording the forest rights so vested
and the nature of evidence required for such recognition and vesting in respect
of forest land.
WHEREAS the recognised rights of the forest dwelling Scheduled Tribes
and other traditional forest dwellers include the responsibilities and authority for
sustainable use conservation of biodiversity and maintenance of ecological
balance and thereby strengthening the conservation regime of the forests while
ensuring livelihood and food security of the forest dwelling Scheduled Tribes
and other traditional forest dwellers.”.
6. Mr. Mozumder has also referred in extenso to the provisions of the Act of 2006, in
particular sub-Section (c), (f) and (o) of Section 2.
We choose to extract the said provisions because the said provisions would be relevant
to consider the issue raised by the petitioners. The provisions read as under:
“2. Definitions – In this Act, unless the context otherwise requires –
(a) ......
(b) ......
(c) “forest dwelling Scheduled Tribal” means the members or community of the
Scheduled Tribes who primarily reside in and who depend on the forests or forest lands
for bonafide livelihood needs and includes the Scheduled Tribe pastoralist communities;
(d) ........
(e) ……….
(f) “forest villages” means the settlements which have been established inside the
forests by the forest department of any State Government for forestry operations or
which were converted into forest villages through the forest reservation process and
includes forest settlement villages, fixed demand holdings, all types of laungya
settlements, by whatever name called, for such villages and includes lands for
cultivation and other uses permitted by the Government;

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(g)……….
(h)………….
(i)………..
(j) ……….
(k) ………..
(l) ………..
(m) …….
(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.”
7. Mr. Mozumder has also referred to the provisions of Section 4, in particular sub-Section
(3), (4) and (5) of Section 4.
Sub-section (3), (4) and (5) of Section 4 read as under:
“4. Recognition of, and vesting of, forest rights in forest dwelling
Scheduled Tribes and other traditional forest dwellers—
(1) …………
(2) ………..
(3) The recognition and vesting of forest rights under this Act to the forest
dwelling Scheduled Tribes and to other traditional forest dwellers in relation to
any State or Union territory in respect of forest land and their habitat shall be
subject to the condition that such Scheduled Tribes or tribal communities or
other traditional forest dwellers had occupied forest land before the 13th day of
December, 2005.
(4) A right conferred by sub-section (1) shall be heritable but not alienable or
transferable and shall be registered jointly in the name of both the spouses in
case of married persons and in the name of the single head in the case of a
household headed by a single person and in the absence of a direct heir, the
heritable right shall pass on to the next-of-kin.
(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.”.

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8. Mr. Mazumder has argued that Section 6 of the Act of 2006 provides the procedure to
be followed by the authorities to vest forest rights in forest dwelling Scheduled Tribes and
other traditional forest dwellers.
Section 6 of the Act of 2006 is extracted below:
“6. Authorities to vest forest rights in forest dwelling Scheduled Tribes and
other traditional forest dwellers and procedure thereof- (1) The Gram Sabha
shall be the authority to initiate the process for determining the nature and extent of
individual or community forest rights or both that may be given to the forest dwelling
Scheduled Tribes and other traditional forest dwellers within the local limits of its
jurisdiction under this Act by receiving claims, consolidating and verifying them and
preparing a map delincating the area of each recommended claim in such manner as
may be prescribed for exercise of such rights and the Gram Sabha shall, then, pass a
resolution to that effect and thereafter forward a copy of the same to the Sub-
Divisional Level Committee.
(2) Any person aggrieved by the resolution of the Gram Sabha may prefer a petition to
the Sub-Divisional Level Committee constituted under sub-section (3) and the Sub-
Divisional Level Committee shall consider and dispose of such petition :
Provided that every such petition shall be preferred within sixty days from the date of
passing of the resolution by the Gram Sabha :
Provided further that no such petition shall be disposed of against the aggrieved
person, unless he has been given a reasonable opportunity to present his case.
(3) The State Government shall constitute a Sub-Divisional Level Committee to
examine the resolution passed by the Gram Sabha and prepare the record of forest
rights and forward it through the Sub-Divisional Officer to the District Level Committee
for a final decision.
(4) Any person aggrieved by the decision of the Sub-Divisional Level Committee may
prefer a petition to the District Level Committee within sixty days from the date of
decision of the Sub-Divisional Level Committee and the District Level committee shall
consider and dispose of such petition :
Provided that no petition shall be preferred directly before the District Level Committee
against the resolution of the Gram Sabha unless the same has been preferred before
and considered by the Sub-Divisional Level Committee :
Provided further that no such petition shall be disposed of against the aggrieved
person, unless he has been given a reasonable opportunity to present his case.
(5) The State Government shall constitute a District Level Committee to consider and
finally approve the record of forest rights prepared by the Sub-Divisional Level
Committee.
(6) The decision of the District Level Committee on the record of forest rights shall be
final and binding.
(7) The State Government shall constitute a State Level Monitoring Committee to
monitor the process of recognition and vesting of forest rights and to submit to the
nodal agency such returns and reports as may be called for by that agency.
(8) The Sub-Divisional Level Committee, the District Level Committee and the State

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Level Monitoring Committee shall consist of officers of the departments of Revenue,
Forest and Tribal Affairs of the State Government and three members of the Panchayati
Raj Institutions at the appropriate level, appointed by the respective Panchayati Raj
Institution, of whom two shall be the Scheduled Tribe members and at least one shall
be a woman, as may be prescribed.
(9) The composition and functions of the Sub-Divisional Level Committee, the District
Level Committee and the State Level Monitoring Committee and the procedure to be
followed by them in the discharge of their functions shall be such as may be
prescribed.”
9. In context of the above noted provisions, Mr. Mozumder has referred to the counter
affidavit of Sri Narsing Pawar, IAS posted as Deputy Commissioner, Sonitpur, Tezpur sworn on
24.7.2019.
10. Having considered the contents of the affidavit, we find that in Para-3 thereof, it has
been clearly stated that as per the records available in the office of the Divisional Forest
Officer, Sonitpur West Division, Tezpur, forest villages have been identified in various reserved
forests, including in Chariduar Reserved Forest, in regard to which the petitioners claim a
right to continue in possession. It has been stated by the Deputy Commissioner in the
affidavit that the forest villages named in Para-3 were established in the reserved forest area
to ensure the availability of daily wagers in the remote locations within the forest because
labour availability was an issue. Besides the established villages, there was no human
settlement, habitation or village in Chariduar Reserved Forest.
It has been further stated in Para-3 of the affidavit that apart from the established
villages, the other villages are occupied by encroachers including in Chariduar Reserved
Forest in different parts. Mass encroachment in the Reserved Forest over the period has led
to massive destruction of forest cover. The process of degradation in Chariduar Reserved
Forest started after the year 1995. Massive loss of forest cover took place within a period of
five years from 1995 and was so rampant that it came in national limelight and was a matter
of discussion in print and electronic media in the country.
11. In Para-4 of the counter affidavit, the Deputy Commissioner has stated that the forest
villages were established prior to 1972 and no forest village was established in 1980 in
Sonitpur District and under Sonitpur West Division. 90% of the reserved forest is under

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encroachment as per records and this encroachment has caused large scale destruction of
the forest cover in a span of less than a decade. Consequent upon coming into force of the
Act of 2006, various guidelines were notified and implemented. The process of vesting rights
started.
Under Sonitpur West Division a total of 166 Forest Rights Committees (FRCs) were
constituted for receiving claims and verification of documents/ maps etc. Claims which were
found authentic by the Forest Rights Committees were subsequently recommended to the
Sub-Divisional Level Committees. On the basis of recommendation of the Sub-Divisional Level
Committees, a total of 1361 title deeds for individual and community rights were distributed
in Sonitpur West Division.
12. We have also referred to the related documents. Annexure-4 appended with the
affidavit sworn by the Deputy Commissioner is a document authored by the Divisional Forest
Officer, Sonitpur West Division, Tezpur addressed to the Conservator of Forests, Northern
Assam Circle, Tezpur detailing the extent of encroachment of forest villages.
In Chariduar Reserved Forest itself approximately 400 hectares of land in seven areas
have been found to have been encroached.
We have also referred to the other documents appended with the affidavit sworn by
the Deputy Commissioner which indicate that in implementation of the Act of 2006 a number
of claims were received on behalf of individuals and communities. Titles were distributed to a
large number of persons.
It thus appears that relevant exercise was conducted for identifying forest villages, and
the persons who are entitled to live in those villages as individuals and communities.
13. The pleadings in the petition read in conjunction with the responses given by the
Deputy Commissioner and the Divisional Forest Officer raise seriously disputed questions of
fact. Any adjudication by us in this lis is likely to frustrate the objects and reasons for which
the Act of 2006 has been enacted. This observation is being made by us particularly for the
reason that the documents appended with the counter affidavit do establish that relevant
exercise has been conducted by the respondents for identifying individuals and communities
who are entitled to reside in such forest villages, as also for identifying the number of

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encroachers.
14. There is no material available on record which would indicate that the petitioners have
any established right to reside in the forest villages. A claim has been made on behalf of such
residents, which in the considered opinion of this Court, particularly because of the
documents placed before us by the respondents, cannot be commented upon in a public
interest lis.
In case the petitioners, or the persons or communities they represent, have any right to
claim in terms of sub-Sections (3), (4) and (5) of Section 4 of the Act of 2006, it was for them
to apply for the same in terms of Section 6 of the said Act; or under the process that was
undertaken by the respondents to identify such individuals/tribes or communities. In the garb
of Public Interest Litigation such possession can neither be determined, nor protected. A
process of law has been provided under the Act of 2006 which is required to be followed to
secure the objects and reasons for which the Act of 2006 has been enacted.
15. The petition is dismissed, however with a direction to the respondents to ensure that
the encroachers are removed from all forest lands, however after following due process
provided under the Act of 2006 and other related legislations.
16. Let a copy of this order be conveyed to the Chief Secretary, Assam; Principal Secretary
to the Government of Assam, Department of Forests; and Deputy Commissioners of each
district in the State of Assam.
JUDGE CHIEF JUSTICE
Comparing Assistant