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$ECEMBER
$ISCLAIMER 4HE VIEWS
EXPRESSED IN THIS PUBLICATION
ARE THE AUTHORS AND DO NOT
NECESSARILY REPRESENT THOSE OF
THE -INISTRY OF 4RIBAL !FFAIRS
'OVERNMENT OF )NDIA AND
5NITED .ATIONS $EVELOPMENT
0ROGRAMME
# / 0 92 )' ( 4
-INISTRY OF 4RIBAL !FFAIRS
'OVERNMENT OF )NDIA
!LL RIGHTS RESERVED 0UBLISHED IN )NDIA
4HE JUDGMENTS IN THE PRESENT COMPENDIUM
ARE DRAWN FROM OPEN SOURCES AND ACCORDINGLY
NO COPYRIGHT RESIDES IN THE SAME (OWEVER
THE COPYRIGHT IN THE EDITORIAL MATERIAL SUCH AS
THE CASE SUMMARIES BELONGS TO THE -INISTRY
OF 4RIBAL !FFAIRS 'OVERNMENT OF )NDIA AND
MAY NOT BE USED WITHOUT PERMISSION AND
PROPER ACKNOWLEDGEMENT OF SOURCE
4HIS PUBLICATION HAS BEEN PRODUCED
WITH SUPPORT FROM THE 5NITED .ATIONS
$EVELOPMENT 0ROGRAMME
./4%
4HE PRESENT COMPENDIUM CONTAINS
JUDGMENTS AND ORDERS AS FOUND IN A VARIETY
OPEN SOURCE WEBSITES AND THE COMPILATIONS
PREPARED BY THE EDITOR UP TO
4HEREFORE JUDGMENTS AND ORDERS WHICH HAVE
BEEN REPORTED ANDOR PASSED SUBSEQUENTLY
HAVE NOT BEEN INCLUDED 7HILE EVERY EFFORT
HAS BEEN MADE TO ENSURE ACCURACY OF THE LEGAL
INFORMATION PROVIDED IN THIS PUBLICATION
IT IS ADVISED THAT BEFORE USING THE SAME FOR
LITIGATION OR ADVOCACY PURPOSES THE CONTENT
BE CONRMED FROM THE ORIGINAL ORDER
JUDGMENT
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!CKNOWLEDGEMENTS
,AWYERS IN PARTICULAR AND LEGAL PROFESSIONALS IN GENERAL ARE HOARDERS BY NATURE 7E STORE
INFORMATION AND IDEAS AND ARGUMENTS AND JUDGMENTS SQUIRRELING THEM AWAY IN OUR
VARIED LING SYSTEMS FOR FUTURE USE AND BENET 4HIS COMPENDIUM BEGAN AS JUST SUCH A
HOARDING EXERCISE BUT WITHIN A FEW SHORT WEEKS IT WAS PAINFULLY APPARENT THAT THIS WAS
VALUABLE INFORMATION WHICH NEEDED TO BE SHARED WIDELY AND USED WIDELY !S A PERUSAL
OF THE JUDGMENTS IN THIS COMPENDIUM WILL REVEAL WHERE LAWYERS AND JUDICIAL OFCERS
HAVE HAD READY ACCESS TO DECISIONS OF OTHER CONSTITUTIONAL COURTS THEY HAVE BEEN GREATLY
BENETTED AND ENABLED TO ARRIVE AT JUST DECISIONS 7HERE SUCH MATERIAL WAS NOT READILY
AVAILABLE THE PROCESS WAS ARDUOUS AND COMPLICATED
)T IS WITH GREAT HUMILITY THEREFORE THAT ) ACKNOWLEDGE THE EFFORTS OF THOSE LEGAL
PROFESSIONALS WHO HAVE STEPPED INTO THE UNKNOWN AND TAKEN THE PLUNGE BY BRINGING
CASES TO COURT WHICH HAVE RESULTED IN THE JUDGMENTS COMPRISING THIS COMPENDIUM 4O
THESE INTREPID EXPLORERS ) AM TRULY THANKFUL
4HE GUIDANCE AND LEADERSHIP OF -R !SHOK 0AI *OINT 3ECRETARY -INISTRY OF 4RIBAL !FFAIRS
AND .ATIONAL 0ROJECT $IRECTOR OF THE 5.$0
-O4! *OINT 0ROJECT ON &OREST 2IGHTS !CT CANNOT
BE ARTICULATED IN WORDS )T HAS BEEN A PRIVILEGE TO BE CHALLENGED AND ENCOURAGED AT THE
SAME TIME BY HIM
-ANY THANKS ARE ALSO DUE TO THE OFCERS IN THE &2! DIVISION OF -O4! WHO HAVE SUFFERED
STOICALLY AS ) PULLED OUT LE AFTER DUSTY LE TO CREATE THIS COMPILATION
) MUST ALSO ACKNOWLEDGE THE VISION AND ENCOURAGEMENT OF !LKA .ARANG 3USHIL #HAUDHARY
AND 3REETAMA 'UPTABHAYA OF THE 5.$0 WHO HAVE NEVER LOST FAITH IN THIS PROJECT EVEN AT
TIMES WHEN ) WAS READY TO DO SO -Y SINCERE THANKS TO 3UDEEP #HAUDHURI FOR THE BEAUTIFUL
COVER AND THE PAINSTAKING ATTENTION TO DETAIL WITH THE DESIGN AND LAYOUT WHICH IS USER
FRIENDLY AND AESTHETIC AT THE SAME TIME
&INALLY ) MUST THANK MY 2ESEARCH !SSOCIATE 4USHARIKA -ATTOO FOR HER UNAPPABLE
EQUANIMITY AND UNAGGING ENTHUSIASM FOR THIS PROJECT WHICH AT ONE TIME HAD US
OVERWHELMED WITH ITS ENORMITY 4HIS COMPENDIUM WOULD NOT HAVE BEEN POSSIBLE
WITHOUT HER
)F THERE ARE ERRORS AND MISTAKES THE BURDEN FOR THESE IS ENTIRELY MINE
. % 7 $% , () 3(/-/. ! +(! ..!
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)NDIA VS 5NION OF )NDIA
/RS CASE OR THE 77& CASE AS IT IS BETTER KNOWN HAS BEEN TREATED AS A CONTINUING
MANDAMUS BY THE 3UPREME #OURT OF )NDIA SINCE IT WAS FIRST FILED TWENTY YEARS AGO
IN ! LARGE NUMBER OF ORDERS OF FAR
REACHING IMPORTANCE HAVE BEEN PASSED IN
THIS CASE
! LARGE NUMBER OF APPLICATIONS SEEKING DIFFERENT KINDS OF DIRECTIONS WERE POSTED
BEFORE THE #OURT ON THIS DATE /NE SUCH APPLICATION BEING )! .O
PROBABLY
FILED BY THE PROJECT PROPONENT SOUGHT THE PERMISSION OF THE #OURT FOR DIVERSION
FOR NON
FOREST PURPOSE OF HECTARES OF LAND WITHIN THE +EDARNATH -USK $EER
7ILDLIFE 3ANCTUARY IN 5TTARAKHAND 4HE #OURT OBSERVED THAT THE .ATIONAL "OARD
FOR 7ILDLIFE HAD RECOMMENDED THE PERMISSION BE GRANTED 7HILE ACCEPTING THIS
RECOMMENDATION THE #OURT INCLUDED AN ADDITIONAL CONDITION THAT THE #HIEF
7ILDLIFE 7ARDEN SHALL ENSURE THAT THE PROVISIONS OF THE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! ARE ALSO
COMPLIED WITH SEE PARAS TO BELOW
% $ ) 4 /23 . /4%
/N NUMEROUS OCCASIONS IT HAS BEEN ARGUED THAT THE &2! RUNS COUNTER TO VARIOUS
ORDERS AND DIRECTIONS PASSED BY THE 3UPREME #OURT IN THIS AND THE 'ODAVARMAN
&OR AN OVERVIEW OF THE 77& CASE SEE 3HOMONA +HANNA %XCLUDE AND 0ROTECT ! 2EPORT ON THE 77& #ASE ON
7ILDLIFE #ONSERVATION IN THE 3UPREME #OURT OF )NDIA 3254) .EW $ELHI
4. 'ODAVARMAN 4HIRUMALPAD VS 5NION OF )NDIA /RS 7RIT 0ETITION #IVIL .O OF PENDING
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
CASE AND FOR THIS REASON CANNOT BE IMPLEMENTED 4HIS ARGUMENT IS CLEARLY
INCORRECT AS THE 3UPREME #OURT ITSELF HAS PROCEEDED IN THIS PARTICULAR DECISION AS
WELL AS IN OTHER ORDERS EXTRACTED ELSEWHERE IN THIS COMPENDIUM ON THE BASIS THAT
THE PROVISIONS OF THE &2! SHOULD BE IMPLEMENTED
/2$ % 2
)! .OS
."7, TO LE ITS REPORTREPLY WITHIN EIGHT WEEKS
)! .O
)T IS ALLEGED THAT THE 5TTARANCHAL *AL 6IDYUT .IGAM ,TD HAS CONSTRUCTED A POWER HOUSE
WITHIN THE BOUNDARY OF !SKOT 7ILDLIFE SANCTUARY 7E ARE TOLD THAT THE .ATIONAL "OARD
FOR 7ILDLIFE HAS NOT TAKEN ANY STEPS SO FAR IN THIS REGARD ,EARNED COUNSEL APPEARING FOR
THE 3TATE OF 5TTARANCHAL CONTENDS THAT THE BOUNDARY OF THE SANCTUARY HAS NOT YET BEEN
NALLY DECIDED 4HE 3TATE SHALL LE A FRESH REPORT REGARDING THE DETERMINATION OF THE
BOUNDARY OF THE SANCTUARY ,IST AFTER EIGHT WEEKS
)!.O
)T IS STATED THAT ABOUT FAMILIES ARE STAYING WITHIN THE BOUNDARY OF 2AJAJI .ATIONAL
0ARK 4HERE WAS A SCHEME TO REHABILITATE THEM IN ANOTHER AREA FOR WHICH THE GOVERNMENT
HAS DIVERTED HECTARES OF FOREST LAND EARMARKED BY THE 3TATE 'OVERNMENT "UT SO FAR
THESE FAMILIES HAVE NOT YET BEEN SHIFTED TO THESE AREAS 4HE 3TATE 'OVERNMENT IS DIRECTED
TO LE AN AFDAVIT AS TO WHAT STEPS HAVE BEEN TAKEN IN THIS REGARD ALSO EXPLAINING THE
NATURE OF THE LAND WHICH IS KEPT SEPARATE FOR THE INTENDED PURPOSE ,IST AFTER EIGHT WEEKS
)!.O
)T IS ALLEGED THAT THE *AL 6IDHYUT .IGAM ,TD AND THE )RRIGATION $EPARTMENT OF THE 3TATE
HAVE SET UP CERTAIN ILLEGAL CONSTRUCTIONS INCLUDING SHOPS IN THE 2AJAJI .ATIONAL 0ARK BUT
THE 3TATE HAS NOT TAKEN ANY STEPS IN THIS REGARD ,EARNED COUNSEL FOR THE 3TATE SUBMITS
THAT IT HAD ALREADY ISSUED NOTICES TO *AL 6IDYHUT .IGAM ,TD TO REMOVE THE UNAUTHORISED
CONSTRUCTIONS INCLUDING THE SHOPS 3TATE SHALL LE AN AFDAVIT TO THIS EFFECT WITHIN EIGHT
WEEKS
)!.OS
!DJOURNED BY EIGHT WEEKS
)!.OS
2EPORT OF &!# IS AWAITED !DJOURNED BY EIGHT WEEKS
)!.O
."7, TO LE ITS REPORT REGARDING THE SAME WITHIN EIGHT WEEKS
)!.OS
!DJOURNED BY EIGHT WEEKS
)!.O
7HEN THE MATTER WAS CALLED NOBODY WAS PRESENT ON BEHALF OF 3TATE OF -ADHYA 0RADESH
%VEN ON THE LAST OCCASION ALSO NO COUNSEL APPEARED ON BEHALF OF THE 3TATE 4HE )! IS
REJECTED FOR NON
PROSECUTION
4 / \
)!.OS
4HE .ATIONAL (YDRO
%LECTRIC 0OWER #ORPN ,TD SEEKS TO CONSTRUCT 0AKAL $UL (YDRO
%LECTRIC 0ROJECT FOR WHICH HECTARES OF LAND OUT OF WHICH LAND IS WITHIN
THE +ISHTWAR .ATIONAL 0ARK AREA .ATIONAL "OARD FOR 7ILD ,IFE HAS EXAMINED THE
SAME AND HAS LED A REPORT CLEARING THIS PROJECT SUBJECT TO CERTAIN CONDITIONS 4HESE
CONDITIONS ARE ACCEPTABLE TO ."7, 3UBJECT TO FULLMENT OF THE CONDITIONS IMPOSED
BY ."7, AND ON PAYMENT OF 2S CRORES FOR CONSERVATION PURPOSE THE PROJECT IS
CLEARED AS REGARDS HECTARES 3O FAR AS HECTARES OF FOREST LAND IS CONCERNED
THE MATTER IS REFERRED TO #%# 0OST THESE APPLICATIONS BEFORE THE &OREST "ENCH
)!.OS TO TO
3TATE 'OVERNMENT SEEKS TIME TO LE ITS RESPONSE )SSUE NOTICE TO .ATIONAL "OARD FOR
7ILDLIFE 4HE 3TATE 'OVERNMENT AS ALSO THE "OARD TO LE THEIR RESPONSE FOR THE PROPOSED
PROJECT ,IST AFTER EIGHT WEEKS
)!.OS
.ONE APPEARED )!S ARE REJECTED FOR NON
PROSECUTION
)!.OS
4HE ,ANCHO (YDRO %NERGIES 0VT ,TD SEEKS PERMISSION TO DIVERT HA OF FOREST LAND
WHICH IS A PART OF +EDARNATH -USK $EER 7ILDLIFE 3ANCTUARY 5TTARAKHAND 4HE .ATIONAL
"OARD FOR 7ILDLIFE ."7, HAS CONSIDERED THE 0ROJECT AND SUBJECT TO FULLMENT OF CERTAIN
CONDITIONS IT HAS RECOMMENDED THAT THE 0ROJECT COULD BE CLEARED 7E ACCEPT THE SAME
SUBJECT TO CONDITIONS LAID DOWN BY .ATIONAL "OARD FOR 7ILDLIFE 4HE 0ROJECT IS CLEARED
ACCORDINGLY
4HE #HIEF 7ILDLIFE 7ARDEN TO MONITOR THE 0ROJECT AND TO SEE WHETHER ALL THE CONDITIONS
ARE COMPLIED WITH AND THE PROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER &OREST $WELLERS
2ECOGNITION OF 2IGHTS !CTS BE ALSO COMPLIED WITH
)!S ARE DISPOSED OF ACCORDINGLY
)!.OS
!BOUT HA FOREST LAND EARMARKED FOR CONSTRUCTION OF !DWA
-EJA LINK CANAL IS
PART OF "AN 3UGAR #ANAL 0ROJECT 4HE PROJECT WAS CLEARED SUBJECT TO FULLMENT OF CERTAIN
CONDITIONS /NE OF THE CONDITIONS IS RELOCATION OF VILLAGES .OW THE 3TATE 'OVERNMENT
SUBMITS THAT VILLAGERS ARE NOT WILLING TO MOVE OUT OF THE VILLAGES AND IT IS DIFCULT TO
COMPLY THE DIRECTIONS ISSUED BY THIS #OURT 4HE MATTER IS REFERRED TO ."7, AS TO WHAT
STEPS COULD BE TAKEN IN THIS REGARD 4HE .ATIONAL "OARD FOR 7ILDLIFE TO LE RESPONSE
REPORT ,IST AFTER EIGHT WEEKS
)!.OS
)SSUE NOTICE TO .ATIONAL "OARD FOR 7ILDLIFE AND TO THE 3TATE OF (IMACHAL 0RADESH
)!.O
4HE &AMBONGLHO 7ILDLIFE 3ANCTUARY WAS ORIGINALLY NOTIED AS SQ KM !NOTHER
HECTARES OF LAND WAS ADDED TO THIS 3ANCTUARY "UT LATER AFTER CARRYING RATIONALISATION OF
BOUNDARIES IT WAS FOUND THAT HECTARES ARE TO BE EXCLUDED
4HIS )! HAS BEEN LED FOR APPROPRIATE DIRECTIONS REGARDING RATIONALIZATION OF THE
BOUNDARIES 4HIS IS CLEARED SUBJECT TO CONDITIONS LAID DOWN BY THE .ATIONAL "OARD FOR
7ILDLIFE )! IS ALLOWED ACCORDINGLY
#OURT -ASTERS
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
#ENTRE FOR %NVIRONMENTAL ,AW 7ORLD
7IDE &UND )NDIA VS 5NION OF )NDIA
/RS
)! ./ ). 70# /&
3502%-% #/524 /& ).$)!
#/2!- +3 0!.)#+%2 2!$(!+2)3(.! !.$ #(!.$2!-!5,) +2 02!3!$ **
3 5--!29
!S FAR BACK AS THE 3UPREME #OURT IN )! .O IN 70 OF
UNREPORTED HAD PASSED THE FOLLOWING ORDER
)N THE MEANTIME WE RESTRAIN RESPONDENTS .O TO FROM ORDERING THE
REMOVAL OF DEAD DISEASED DYING OR WIND
FALLEN TREES DRIFT WOOD AND GRASSES
ETC FROM ANY .ATIONAL 0ARK 'AME 3ANCTUARY OR FOREST )F ANY ORDER TO THIS EFFECT
HAS ALREADY BEEN PASSED BY ANY OF THE RESPONDENT
3TATES THE OPERATION OF THE
SAME SHALL STAND IMMEDIATELY STAYED
3INCE THE ORDER WAS INTERIM IN NATURE APPLICATIONS FOR MODIFICATION OF THE ORDER OR
EXEMPTION FROM ITS OPERATION WERE FILED BY A VARIETY OF STAKEHOLDERS FROM TIME TO
TIME AND ORDERS GRANTING RELIEF WERE PASSED BY THE #OURT
! SIMILAR )NTERVENTION !PPLICATION .O IN 70 WAS FILED BY TRIBALS FROM
+ERALA SEEKING MODIFICATION OF THE ORDER DATED WITH PARTICULAR REFERENCE
TO THE EXTRACTION OF SHIKAKAI HONEY AND WILD TURMERIC FROM A WILDLIFE SANCTUARY
7HEN THE MATTER CAME UP FOR HEARING BEFORE THE &OREST "ENCH THE !MICUS #URIAE
FRIEND OF THE #OURT ARGUED THAT UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! THERE IS A VESTED
RIGHT TO EXTRACT MINOR FOREST PRODUCE OR -&0 AND THEREFORE FOREST DWELLERS ARE NOT
REQUIRED TO APPROACH THIS #OURT FOR PERMISSION EVERY TIME
!CCORDINGLY THE #OURT PASSED AN ORDER GRANTING A SPECIFIC AS WELL AS GENERAL RELIEF
AND FURTHER DIRECTED THAT THE TRIBAL APPLICANTS WOULD HAVE ACCESS TO THE 3TATE ,EGAL
2ESPONDENT .O TO WERE THE 3TATE 'OVERNMENTS AND 5NION 4ERRITORIES
4 / \
3ERVICES !UTHORITY IF THEY SO DESIRE
% $ ) 4 /23 . /4%
4HIS ORDER IS SIGNIFICANT AS IT DEMONSTRATES THE APPROACH OF THE &OREST "ENCH WITH
REGARD TO HARMONIOUS CONSTRUCTION OF THE VARIOUS ORDERS PASSED BY IT IN THE PAST
WITH THE &OREST 2IGHTS !CT ENACTED IN
/2$%2
888
)TEM .O )! .O OF
!PPLICATION IS DISPOSED OF GIVING LIBERTY TO THE APPLICANTS TO APPROACH THE .OTIED
!UTHORITY UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT AND IT IS FOR THE .OTIED !UTHORITY TO CONSIDER THEIR APPLICATIONS
AND TO TAKE APPROPRIATE DECISIONS IN ACCORDANCE WITH LAW
0ETITIONERS IF SO ADVISED MAY ALSO APPROACH THE 3TATE ,EGAL 3ERVICES !UTHORITY FOR LEGAL
ASSISTANCE
!PPLICATION IS DISPOSED OF ACCORDINGLY
#OURT -ASTERS
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
)NAVI 6ILLAGE VS 3TATE OF .AGALAND
/RS
3,0 # ./ /&
3502%-% #/524 /& ).$)!
#/2!- 2- ,/$(! !.$ (, '/+(!,% **
3 5--!29
4HE VILLAGERS OF )NAVI 6ILLAGE PREFERRED AN APPEAL AGAINST THE JUDGMENT DT
OF THE $IVISION "ENCH OF THE 'AUHATI (IGH #OURT SEE ELSEWHERE IN THIS COMPENDIUM
!S IS APPARENT FROM THE ORDER PASSED IN THESE PROCEEDINGS THE 3UPREME #OURT WAS
NOT INCLINED TO INTERFERE IN THE SUBSTANTIVE ISSUES ARISING IN THE CASE
(OWEVER THE #OURT DID GRANT THE VILLAGERS A MODICUM OF RELIEF )T RECORDED THE
SUBMISSION OF THE SENIOR COUNSEL AT THE BAR REPRESENTING THE PETITIONERS THAT THEY
WOULD NOT RE
ENTER THE )NTANGKI .ATIONAL 0ARK AND WOULD FILE A WRITTEN UNDERTAKING
IN THIS BEHALF
4HE #OURT ALSO RECORDED THE SUBMISSION THE !DVOCATE 'ENERAL FOR THE 3TATE OF
.AGALAND THAT THE 3TATE SHALL NOT ENFORCE THE ORDER OF THE (IGH #OURT FOR RECOVERY
OF THE COMPENSATION FROM THE PETITIONER
&INALLY THE #OURT ACKNOWLEDGED THE SUBMISSION OF THE PETITIONERS THAT THEY WERE
IN DIRE NEED OF REHABILITATION AND DIRECTED THAT IF A REPRESENTATION IN THIS REGARD
IS MADE BY THE PETITIONER
VILLAGE THE 3TATE GOVERNMENT WILL CONSIDER THE SAME IN
ACCORDANCE WITH LAW
% $ )4/23 . /4%
3INCE THE 3UPREME #OURT EXPRESSED NO OPINION EITHER WAY ON THE DECISION OF THE (IGH
#OURT THE OBSERVATIONS MADE IN THE IMPUGNED JUDGMENT REGARDING APPLICATION OF
THE &OREST 2IGHTS !CT MAY NOT HAVE THE FORCE OF PRECEDENT AND IN ANY EVENT WOULD
NOT HAVE ANY BEARING OUTSIDE OF THE 'AUHATI (IGH #OURT
4 / \
/2$%2
-R 6IKAS 3INGH LEARNED SENIOR COUNSEL FOR THE PETITIONER SUBMITS THAT ALL THE VILLAGERS
OF THE PETITIONER VILLAGE ASSURE THIS #OURT THAT THEY WOULD NOT RE
ENTER THE )NTANGKI
.ATIONAL 0ARK (E SUBMITS THAT A WRITTEN UNDERTAKING ON THEIR BEHALF SHALL BE LED IN THE
2EGISTRY WITHIN TWO WEEKS FROM TODAY
)N VIEW OF THE ABOVE STATEMENT OF THE LEARNED SENIOR COUNSEL FOR THE PETITIONER -R +.
"ALGOPAL LEARNED !DVOCATE 'ENERAL FOR THE 3TATE OF .AGALAND SUBMITS THAT THE 3TATE
SHALL NOT ENFORCE THE ORDER OF THE (IGH #OURT FOR RECOVERY OF THE COMPENSATION FROM THE
PETITIONER
7E ACCEPT THE ABOVE STATEMENTS OF THE LEARNED SENIOR COUNSEL
-R 6IKAS 3INGH LEARNED SENIOR COUNSEL FURTHER SUBMITS THAT THE VILLAGERS WHO HAVE
BEEN OUSTED FROM )NTANGKI .ATIONAL 0ARK ARE WITHOUT ANY SHELTER AND THEY INTEND TO
MAKE A REPRESENTATION TO THE 3TATE 'OVERNMENT FOR THEIR REHABILITATIONRELOCATION
7E OBSERVE THAT IF SUCH REPRESENTATION IS MADE BY THE VILLAGERS OF THE PETITIONER
VILLAGE
THE RESPONDENTS SHALL CONSIDER THE SAME IN ACCORDANCE WITH LAW
7ITH THE ABOVE OBSERVATIONS THE SPECIAL LEAVE PETITION AND THE )! FOR IMPLEADMENT
STAND DISPOSED OF
#OURT -ASTERS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
!JAY $UBEY VS .ATIONAL 4IGER
#ONSERVATION !UTHORITY /RS
3,0# ./ /&
3502%-% #/524 /& ).$)!
).4%2)- /2$%2
#/2!- !+ 0!4.!)+ !.$ 37!4!.4%2 +5-!2 **
#)4!4)/. 3## /.,).% 3#
3 5--!29
! WRIT PETITION WAS FILED BEFORE THE *ABALPUR "ENCH OF THE -ADHYA 0RADESH (IGH
#OURT SEEKING DIRECTIONS FOR CONTROL OF TOURISM RELATED ACTIVITIES WITHIN THE #ORE
AND "UFFER !REAS OF THE 4IGER 2ESERVES IN THE 3TATE 7HEN THE (IGH #OURT DID NOT
PASS ANY DIRECTIONS AS SOUGHT THE PETITIONER FILED A SPECIAL LEAVE PETITION BEFORE
THE 3UPREME #OURT 7HEN THE MATTER CAME UP FOR HEARING THE 3UPREME #OURT
WAS INFORMED BY COUNSEL THAT THE FAILURE TO NOTIFY CORE AND BUFFER AREAS AROUND
TIGER RESERVES IS A WIDESPREAD PROBLEM ACROSS THE COUNTRY AND NOT JUST IN -ADHYA
0RADESH 4AKING NOTE OF THE SERIOUS DECLINE IN TIGER POPULATION IN THE COUNTRY THE
3UPREME #OURT VIDE ORDER DT DIRECTED
ALL THE CONCERNED 3TATES TO NOTIFY THE "UFFER 0ERIPHERAL AREA AS REQUIRED UNDER
THE 7ILDLIFE 0ROTECTION !CT WITH REGARD TO TIGER RESERVE FALLING IN THE 3TATES AS
EXPEDITIOUSLY AS POSSIBLE IN ANY EVENT WITHIN THREE MONTHS FROM TODAY
!T A FURTHER HEARING ON THE #OURT FOUND THAT ITS DIRECTIONS HAD NOT BEEN
COMPLIED WITH AND DIRECTED
S UBJECT TO PAYMENT OF 2S
2UPEES 4EN 4HOUSAND ONLY AS COST BY
EACH 3TATE WE GRANT FINAL OPPORTUNITY FOR ISSUING NOTIFICATION AND PLACING THE
SAME ON RECORD WITH AFFIDAVITS EXPLAINING THE CIRCUMSTANCES FOR DELAY
3OME OF THE 3TATES IN PURPORTED COMPLIANCE OF THE 3UPREME #OURTS DIRECTIVES ISSUED
SUCH ORDERS WITHOUT COMPLYING WITH THE PROVISIONS OF THE 7ILDLIFE 0ROTECTION
!CT !CT AND THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT &2! RELATING TO PRIOR INFORMED CONSENT OF
FOREST DWELLERS BEFORE DECLARATION OF SUCH INVIOLATE AREAS FOR WILDLIFE PROTECTION
/RDER DT IN 3,0# .O OF 3UPREME #OURT OF )NDIA
/RDER DT IN 3,0# .O OF 3UPREME #OURT OF )NDIA
4 / \
! PLETHORA OF APPLICATIONS FOR INTERVENTION AND MODIFICATION OF THE AFORESAID
INTERIM ORDERS WERE FILED BEFORE THE #OURT INCLUDING BY SOME 3CHEDULED 4RIBES AND
OTHER TRADITIONAL FOREST DWELLERS !FTER HEARING ALL THE PARTIES THE #OURT MODIFIED
ITS PREVIOUS ORDERS THROUGH A DETAILED ORDER DATED )N THE SAID ORDER THE
#OURT DIRECTED THAT HENCEFORTH TOURISM ACTIVITIES IN AND AROUND 4IGER 2ESERVES
SHALL BE IN STRICT COMPLIANCE WITH THE 'UIDELINES FOR 4OURISM IN AND AROUND 4IGER
2ESERVES FRAMED BY THE .ATIONAL 4IGER #ONSERVATION !UTHORITY ON TH /CTOBER
EVEN AS IT LEFT IT OPEN TO ANY PARTY TO CHALLENGE THE SAID 'UIDELINES IF THEY ARE
AGGRIEVED BY THEM BEFORE THE APPROPRIATE FORUM
$IRECTIONS WERE ISSUED TO THE 3TATE 'OVERNMENTS TO PREPARE THEIR 4IGER #ONSERVATION
0LANS IN ACCORDANCE WITH THE PROVISIONS OF 3ECTION 6 OF THE !CT
% $ ) 4 /23 . /4%
4HE SIGNIFICANCE OF THIS ORDER LIES NOT SO MUCH IN ITS CONTENT AS IN THE FACT THAT
AFTER THE INITIAL INTERIM ORDERS WERE PASSED SEVERAL APPLICATIONS WERE MOVED
BEFORE THE #OURT SEEKING TO BRING TO ITS NOTICE THE ENABLING PROVISIONS OF THE &2!
/NE IMMEDIATE CONSEQUENCE OF THIS WAS THAT THE $RAFT 'UIDELINES PREPARED BY THE
-INISTRY OF %NVIRONMENT AND &ORESTS -O%& AND PLACED BEFORE THE #OURT STATED
AT THE OUTSET THAT THE RIGHTS OF FOREST DWELLERS AS PROVIDED IN THE &2! WOULD BE
PROTECTED
)T MAY BE NOTED THAT THE MAIN PETITION ALONG WITH A BATCH OF OTHER CONNECTED WRIT
PETITIONS IS PENDING ADJUDICATION BEFORE THE 3UPREME #OURT AT THE TIME OF WRITING
/2$%2
(EARD LEARNED COUNSEL FOR THE PARTIES
/N TH *ULY THIS #OURT PASSED AN ORDER THAT TILL THE NAL DIRECTIONS ARE ISSUED BY THIS
#OURT WITH REFERENCE TO THE 'UIDELINES SUBMITTED BY THE .ATIONAL 4IGER #ONSERVATION
!UTHORITY OF )NDIA CORE ZONE OR THE CORE AREAS IN THE 4IGER 2ESERVED !REAS WILL NOT BE
USED FOR TOURISM
4HE .ATIONAL 4IGER #ONSERVATION !UTHORITY ;FOR SHORT THE !UTHORITY= HAS BY .OTICATION
DATED TH /CTOBER NOTIED THE #OMPREHENSIVE 'UIDELINES FOR 4IGER #ONSERVATION
AND 4OURISM 0ART " OF THESE 'UIDELINES ARE TITLED 'UIDELINES FOR 4OURISM IN AND AROUND
4IGER 2ESERVES 4HE 'UIDELINES FOR 4OURISM IN AND AROUND THE 4IGER 2ESERVES HAVE BEEN
FRAMED BY VIRTUE OF THE POWERS OF THE !UTHORITY UNDER 3ECTION / C OF THE 7ILD
,IFE 0ROTECTION !CT ;FOR SHORT THE !CT= WHICH EMPOWERS THE !UTHORITY TO LAY DOWN
NORMATIVE STANDARDS FOR TOURISM ACTIVITIES IN BUFFER AND CORE AREA OF 4IGER 2ESERVES
.OW THAT THE 'UIDELINES FOR 4OURISM IN AND AROUND THE 4IGER 2ESERVES HAVE BEEN
NOTIED BY THE !UTHORITY WE MODIFY THE AFORESAID INTERIM ORDER DATED TH *ULY
AND DIRECT THAT HENCEFORTH TOURISM ACTIVITIES WILL BE STRICTLY IN ACCORDANCE WITH THE
'UIDELINES FOR 4OURISM IN AND AROUND 4IGER 2ESERVES NOTIED IN 0ART " OF THE AFORESAID
.OTICATION DATED TH /CTOBER !LL THE CONCERNED AUTHORITIES WILL ENSURE THAT THE
REQUIREMENTS IN THE AFORESAID 'UIDELINES FOR 4OURISM IN AND AROUND THE 4IGER 2ESERVES
ARE COMPLIED WITH BEFORE TOURISM ACTIVITIES RECOMMENCE
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
7E MAKE IT CLEAR THAT WE HAVE NOT DECLARED THE .OTICATION DATED TH /CTOBER
EITHER INTRA VIRES OR ULTRA VIRES AND IF ANY PARTY IS AGGRIEVED BY THE .OTICATION DATED
TH /CTOBER OF THE !UTHORITY IT WILL BE OPEN TO THE AGGRIEVED PARTY TO CHALLENGE THE
SAME BEFORE THE APPROPRIATE FORUM
)T HAS BEEN BROUGHT TO OUR NOTICE BY THE LEARNED !DDITIONAL 3OLICITOR 'ENERAL THAT UNDER
SUB
SECTION OF 3ECTION V OF THE !CT THE 3TATE 'OVERNMENT IS REQUIRED TO PREPARE A
4IGER #ONSERVATION 0LAN 7E DIRECT THAT THE RESPECTIVE 3TATE 'OVERNMENTS WILL PREPARE
THE 4IGER #ONSERVATION 0LAN WITHIN SIX MONTHS FROM TODAY AND SUBMIT THE SAME TO THE
.ATIONAL 4IGER #ONSERVATION !UTHORITY FOR APPROVAL IN ACCORDANCE WITH 3ECTION /
A OF THE !CT
7HILE PASSING THIS ORDER MODIFYING THE EARLIER INTERIM ORDER WE HAVE TAKEN NOTE OF
THE SUBMISSION OF THE LEARNED !DDITIONAL 3OLICITOR 'ENERAL THAT TOURISM ACTIVITIES MAY
RECOMMENCE STRICTLY IN ACCORDANCE WITH THE 'UIDELINES FOR 4OURISM IN 0ART " AS INDICATED
ABOVE !LL THE APPLICATIONS FOR VACATING OR MODICATION OF INTERIM ORDER DATED TH *ULY
STAND DISPOSED OF
4HE MATTERS ARE RELEASED FROM PART HEARD
,IST THE 3PECIAL ,EAVE 0ETITION ALONG WITH OTHER PENDING INTERLOCUTORY APPLICATIONS AND
7RIT 0ETITION # .OS OF AND OF ON TH .OVEMBER
#OURT -ASTERS
4 / \
/RISSA -INING #ORPORATION VS
-INISTRY OF %NVIRONMENT AND &ORESTS
/RS
70 # /&
3502%-% #/524 /& ).$)!
#/2!- !&4!" !,!- +3 2!$(!+2)3(.!. !.$ 2!.*!. '/'/) **
#)4!4)/. 3##
3 5 - -!29
" 2 ) % & &!#43
4HE WRIT PETITION ORIGINALLY FILED IN THE FORM OF AN )NTERVENTION !PPLICATION IN THE
'ODAVARMAN CASE WAS FILED BY THE /RISSA -INING #ORPORATION /-# FOR QUASHING
OF THE ORDER DATED PASSED BY THE -INISTRY OF %NVIRONMENT AND &ORESTS
-O%& REJECTING 3TAGE
)) FOREST CLEARANCE FOR DIVERSION OF HECTARES OF FOREST
LAND FOR MINING OF BAUXITE ORE IN THE .IYAMGIRI (ILLS ,ANJIGARH /RISSA
4HE 0ETITIONER /-# WHICH WAS THE HOLDER OF THE MINING LEASE CHALLENGED THE ACTION
OF THE -O%& ON THE GROUND THAT THE PREVIOUS JUDGMENTS OF THE 3UPREME #OURT IN
THE SAME CASE WERE BINDING UPON IT AND THAT IT WAS NOT OPEN TO THE 'OVERNMENT
OF )NDIA TO REJECT THE FOREST CLEARANCE )N PARTICULAR THE 0ETITIONER CHALLENGED
THE FINDING OF THE -O%& THAT THE PROVISIONS OF THE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! WERE
VIOLATED IN ANY WAY 4HE PROJECT PROPONENT -S 3TERLITE A SUBSIDIARY OF 6EDANTA
2ESOURCES AND THE 3TATE OF /RISSA WERE JOINED AS PARTY RESPONDENTS BUT SUPPORTED
THE 0ETITIONER THROUGHOUT
4. 'ODAVARMAN 4HIRUMALPAD VS 5NION OF )NDIA /RS 70 # .O OF 3UPREME #OURT OF )NDIA
0ENDING
*UDGMENTS DT AND IN 4. 'ODAVARMAN 4HIRUMALPAD VS 5NION OF )NDIA /RS REPORTED IN
3## AND 3## RESPECTIVELY
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
!RGUMENTS ON BEHALF OF THE -O%& WERE ADDRESSED BY THE 3OLICITOR 'ENERAL FOR
)NDIA 2ELYING UPON THE REPORTS OF THE TWO EXPERT COMMITTEES SET UP BY THE -O%&
TO EXAMINE THE ISSUE PRIOR TO TAKING ITS DECISION THE CONSTITUTIONAL PROVISIONS
RELATING TO &IFTH 3CHEDULE AREAS AND THE PROVISIONS OF THE &2! HE ARGUED THAT THE
-O%& WAS WITHIN ITS POWERS IN ARRIVING AT AN INFORMED DECISION THAT THE FOREST
CLEARANCE SHOULD BE REJECTED EVEN SUBSEQUENT TO THE PREVIOUS JUDGMENTS OF THE
3UPREME #OURT ALLOWING THE PROJECT
&).$ ) .' 3 /& #/52 4
4HE #OURT EXAMINED THE CONSTITUTIONAL PROVISIONS RELATING TO SPECIAL STATUS TO
3CHEDULED 4RIBES AND 3CHEDULED !REAS UNDER !RTICLE AND THE &IFTH 3CHEDULE
AND A PLETHORA OF JUDICIAL PRECEDENTS ON THE ISSUE )T EXAMINED THE PROVISIONS OF
THE 0ANCHAYATS %XTENSION TO 3CHEDULED !REAS !CT AND THE &2! WITH REGARD
TO THE POWERS OF THE VILLAGE LEVEL 'RAM 3ABHA IN PROTECTION AND PRESERVATION OF THE
CUSTOMARY AND CULTURAL RIGHTS OF THE TRIBALS AND OTHER TRADITIONAL FOREST DWELLERS
/4&$S INCLUDING THEIR RELIGIOUS AND CULTURAL RIGHTS WHICH ARE ALSO RECOGNISED AS
FUNDAMENTAL RIGHTS UNDER !RTICLES AND OF THE #ONSTITUTION #USTOMARY AND
CULTURAL RIGHTS OF TRIBAL PEOPLE ARE ALSO THE SUBJECT OF A NUMBER OF INTERNATIONAL
CONVENTIONS AND DECLARATIONS THE #OURT OBSERVED
4HE #OURT NOTED THAT IN THE 3TATEMENT OF /BJECTS AND 2EASONS OF THE &2! IT IS STATED
THAT FOREST DWELLING PEOPLE AND FORESTS ARE INSEPARABLE AND THAT FORESTS HAVE
THE BEST CHANCE TO SURVIVE IF COMMUNITIES PARTICIPATE IN THEIR CONSERVATION AND
REGENERATION MEASURES 4AKING SPECIAL NOTE OF THE CENTRALITY OF THE 'RAM 3ABHA
THE #OURT WAS OF THE VIEW THAT THE 'RAM 3ABHA HAS A SIGNIFICANT ROLE TO PLAY IN
SAFEGUARDING THE CUSTOMARY AND RELIGIOUS RIGHTS OF THE FOREST DWELLERS AND IN
PARTICULAR THE COMMUNITY FOREST RESOURCE RIGHTS
)N THE PRESENT CASE THESE IMPORTANT PROVISIONS OF THE LAW REGARDING THE ROLE OF THE
'RAM 3ABHA IN CONSERVATION OF THE COMMUNITY FOREST RESOURCE RIGHTS HAD NOT BEEN
COMPLIED WITH
4HE #OURT ACCORDINGLY DIRECTED THAT THESE ISSUES BE PLACED BEFORE THE 'RAM 3ABHAS
CONCERNED IN A SPECIALLY CONVENED MEETING FOR THIS PURPOSE WHICH WILL BE ATTENDED
AND CERTIFIED BY A JUDICIAL OFFICER OF THE RANK OF $ISTRICT *UDGE APPOINTED FOR THIS
PURPOSE BY THE #HIEF *USTICE OF THE (IGH #OURT
4HESE DECISIONS OF THE 'RAM 3ABHAS WILL BE FORWARDED TO THE -O%& WHICH SHALL
TAKE A FINAL DECISION ON THE GRANT OF 3TAGE )) FOREST CLEARANCE FOR THE BAUXITE MINING
PROJECT IN THE LIGHT OF THESE DECISIONS ! TIME FRAME FOR COMPLETING THIS EXERCISE
WAS ALSO LAID DOWN
% $ )4/23 . /4%
0URSUANT TO THIS JUDGMENT THE 3TATE GOVERNMENT SOUGHT EXTENSION OF TIME FOR
COMPLETION OF THE PROCESS %VENTUALLY 'RAM 3ABHAS COMPRISING OF $ONGARIA
+ONDHS AND +UTIA +ONDHS HELD MEETINGS WHERE RESOLUTIONS WERE PASSED
UNANIMOUSLY IN FAVOUR OF PRESERVATION OF THE .IYAMGIRI HILLS AND AGAINST THE
BAUXITE MINING PROJECT 4HEREAFTER THE -O%& ISSUED A FINAL ORDER DT
REJECTING THE GRANT OF FOREST CLEARANCE TO THE SAID PROJECT
4 / \
"EING A DECISION RENDERED BY A THREE JUDGES BENCH OF THE 3UPREME #OURT THIS
JUDGMENT CONSTITUTES BINDING JUDICIAL PRECEDENT ACROSS THE COUNTRY UNDER !RTICLE
OF THE #ONSTITUTION OF )NDIA
* 5 $ ' -% . 4
4HE JUDGMENT OF THE #OURT WAS DELIVERED BY +3 2ADHAKRISHNAN *
/
RISSA -INING #ORPORATION /-# A 3TATE OF /RISSA 5NDERTAKING HAS APPROACHED
THIS #OURT SEEKING A 7RIT OF #ERTIORARI TO QUASH THE ORDER PASSED BY THE -INISTRY OF
%NVIRONMENT AND &ORESTS -O%& DATED REJECTING THE 3TAGE
)) FOREST CLEARANCE
FOR DIVERSION OF HECTARES OF FOREST LAND FOR MINING OF BAUXITE ORE IN ,ANJIGARH
"AUXITE -INES IN +ALAHANDI AND 2AYAGADA $ISTRICTS OF /RISSA AND ALSO FOR OTHER
CONSEQUENTIAL RELIEFS
/-# URGED THAT THE ABOVE ORDER PASSED BY THE -O%& HAS THE EFFECT OF NEUTRALIZING
TWO ORDERS OF THIS #OURT PASSED IN )! .OS AND IN 7RIT 0ETITION # .O
OF WITH )! .OS
ARISING OUT OF 7RIT 0ETITION .O OF DATED
REPORTED IN 3## ;HEREINAFTER REFERRED TO AS 6EDANTA CASE= AND
THE ORDER PASSED BY THIS #OURT IN )! .O OF IN 7RIT 0ETITION .O OF ON
REPORTED IN 3## ;HEREINAFTER REFERRED TO AS THE 3TERLITE CASE= )N
ORDER TO EXAMINE THE ISSUES RAISED IN THIS WRIT PETITION IT IS NECESSARY TO EXAMINE THE
FACTS AT SOME LENGTH
&!#43
-
S 3TERLITE PARENT COMPANY OF 6EDANTA LED AN APPLICATION ON BEFORE -O%&
FOR ENVIRONMENTAL CLEARANCE FOR THE PURPOSE OF STARTING AN !LUMINA 2ENERY 0ROJECT
!20 IN ,ANJIGARH 4EHSIL OF $ISTRICT +ALAHANDI STATING THAT NO FOREST LAND WAS INVOLVED
WITHIN AN AREA OF KMS 4HE TH RESPONDENT
6EDANTA IN THEMEANWHILE HAD ALSO LED
AN APPLICATION ON BEFORE THIS #OURT SEEKING CLEARANCE FOR THE PROPOSAL FOR USE
OF HA OF LAND INCLUDING HA OF RESERVE FOREST LAND IN ,ANJIGARH 4EHSIL OF
$ISTRICT +ALAHANDI FOR SETTING UP AN !LUMINA 2ENERY .OTICING THAT FOREST LAND WAS
INVOLVED THE 3TATE OF /RISSA SUBMITTED A PROPOSAL DATED TO THE -O%& FOR
DIVERSION OF HECTARE OF FOREST LAND WHICH INCLUDED HECTARE OF FOREST LAND
FOR THE SAID !20 AND THE REST FOR THE CONVEYOR BELT AND A ROAD TO THE MINING SITE 4HE
3TATE OF /RISSA LATER WITHDREW THAT PROPOSAL
4HE -O%& AS PER THE APPLICATION SUBMITTED BY -S 3TERLITE GRANTED ENVIRONMENTAL
CLEARANCE ON TO !20 ON MILLION TONNE PER ANNUM CAPACITY OF RENERY ALONG
WITH -7 COAL BASED #00 AT ,ANJIGARH ON HECTARE LAND BY DELINKING IT WITH
THE MINING PROJECT ,ATER ON THE 3TATE OF /RISSA INFORMED -O%& ABOUT THE
INVOLVEMENT OF HA OF FOREST LAND IN THE PROJECT AS AGAINST .), MENTIONED IN THE
ENVIRONMENTAL CLEARANCE AND THAT THE &OREST $EPARTMENT OF /RISSA HAD ON
ISSUED A SHOW
CAUSE
NOTICE TO TH RESPONDENT FOR ENCROACHMENT OF ACRES OF
FOREST LAND OUT OF HA FOR WHICH &# CLEARANCE PROPOSAL WAS SENT BY WAY OF LAND
BREAKING AND LEVELING
4
HE 3TATE OF /RISSA ON FORWARDED THE PROPOSAL TO -O%& FOR DIVERSION OF
HA OF FOREST LAND FOR MINING BAUXITE ORE IN FAVOUR OF /-# IN +ALAHANDI AND
2AYAGADA $ISTRICTS 4HE #ENTRAL %MPOWERED #OMMITTEE #%# IN THE MEANWHILE
ADDRESSED A LETTER DATED TO -O%& STATING THAT PENDING THE EXAMINATION OF THE
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
PROJECT BY #%# THE PROPOSAL FOR DIVERSION OF FOREST LAND ANDOR MINING BE NOT DECIDED
6
EDANTA HOWEVER LED AN APPLICATION )! .O OF BEFORE THIS #OURT SEEKING A
DIRECTION TO THE -O%& TO TAKE A DECISION ON THE APPLICATION FOR FOREST CLEARANCE FOR BAUXITE
MINING SUBMITTED BY THE STATE 'OVERNMENT ON FOR THE 2ENERY PROJECT 4HE
QUESTION THAT WAS POSED BY THIS #OURT WHILE DECIDING THE ABOVE
MENTIONED )! WAS
WHETHER 6EDANTA SHOULD BE ALLOWED TO SET UP ITS RENERY PROJECT WHICH INVOLVED
THE PROPOSAL FOR DIVERSION OF HAOF FOREST LAND #%# HAD HOWEVER OBJECTED TO
THE GRANT OF CLEARANCE SOUGHT BY 6EDANTA ON THE GROUND THAT THE 2ENERY WOULD BE
TOTALLY DEPENDENT ON MINING OF BAUXITE FROM .IYAMGIRI (ILLS ,ANJIGARH WHICH WAS THE
ONLY VITAL WILDLIFE HABITAT PART OF WHICH CONSTITUTED ELEPHANT CORRIDOR AND ALSO ON THE
GROUND THAT THE SAID PROJECT WOULD OBSTRUCT THE PROPOSED WILDLIFE SANCTUARY AND THE
RESIDENCE OF TRIBES LIKE $ONGARIA +ONDHA
4
HE #OURT ON DIRECTED THE -O%& TO CONSULT THE EXPERTSORGANIZATIONS
AND SUBMIT A REPORT -O%& APPOINTED #ENTRAL -INING 0LANNING AND $ESIGN )NSTITUTE
#-0$) 2ANCHI TO STUDY THE SOCIAL IMPACT OF GROUND VIBRATION ON HYDRO
GEOLOGICAL
CHARACTERISTICS INCLUDING GROUND PROPENSITY PERMEABILITY OW OF NATURAL RESOURCES
ETC #-0$) SUBMITTED ITS REPORT ON -O%& APPOINTED THE 7ILDLIFE )NSTITUTE
OF )NDIA 7)) $EHRADUN TO STUDY THE IMPACT OF THE -INING 0ROJECT ON THE BIO
DIVERSITY
7)) SUBMITTED ITS REPORT DATED AND THE SUPPLEMENTARY REPORT DATED
BEFORE THE -O%& 2EPORTS OF #-0$) 7)) WERE ALL CONSIDERED BY THE &OREST
!DVISORY #OMMITTEE &!# ON AFTER PERUSING THE ABOVE MENTIONED REPORTS
APPROVED THE PROPOSAL OF /-# FOR DIVERSION OF HA OF FOREST LAND FOR THE MINING
OF BAUXITE IN +ALAHANDI AND 2AYAGADA $ISTRICTS SUBJECT TO THE CONDITIONS LAID DOWN BY
7))
4
HE 3TATE OF /RISSA HAD BROUGHT TO THE NOTICE OF THIS #OURTABOUT THE LACK OF BASIC
INFRASTRUCTURE FACILITIES IN THE 4RIBAL AREAS OFBOTH THE DISTRICTS SO ALSO THE ABJECT
POVERTY IN WHICH THE LOCALPEOPLE WERE LIVING IN ,ANJIGARH 4EHSIL INCLUDING THE TRIBAL
PEOPLE AND ALSO THE LACK OF PROPER HOUSING HOSPITALS SCHOOLS ETC "UT THIS#OURT WAS NOT
AGREEABLE TO CLEAR THE PROJECT AT THE INSTANCE OF6EDANTA HOWEVER LIBERTY WAS GRANTED
TO -S 3TERLITE TO MOVE THE #OURT IF THEY WOULD AGREE TO COMPLY WITH THE MODALITIES
SUGGESTEDBY THE #OURT
& OLLOWING WERE THE MODALITIES SUGGESTED BY THE#OURT WHILE DISPOSING OF THE 6EDANTA
CASE ON
I 3TATE OF /RISSA SHALL OAT A 3PECIAL 0URPOSE 6EHICLE 306 FOR SCHEDULED AREA
DEVELOPMENT OF ,ANJIGARH 0ROJECT IN WHICH THE STAKEHOLDERS SHALL BE 3TATE OF /RISSA
/-# ,TD AND -S 3)), 3UCH 306 SHALL BE INCORPORATED UNDER THE #OMPANIES !CT
4HE ACCOUNTS OF 306 WILL BE PREPARED BY THE STATUTORY AUDITORS OF /-# ,TD
AND THEY SHALL BE AUDITED BY THE !UDITOR 'ENERAL FOR 3TATE OF /RISSA EVERY YEAR -S
3)), WILL DEPOSIT EVERY YEAR COMMENCING FROM OF ITS ANNUAL PROTS
BEFORE TAX AND INTEREST FROM ,ANJIGARH 0ROJECT OR 2S CRORES WHICHEVER IS HIGHER
FOR 3CHEDULED !REA $EVELOPMENT WITH THE SAID 306 AND IT SHALL BE THE DUTY OF THE
SAID 306 TO ACCOUNT FOR THE EXPENSES EACH YEAR 4HE ANNUAL REPORT OF 306 SHALL BE
SUBMITTED TO #%# EVERY YEAR )F #%# NDS NON UTILISATION OR MISUTILISATION OF FUNDS
THE SAME SHALL BE BROUGHT TO THE NOTICE OF THIS #OURT 7HILE CALCULATING ANNUAL
PROTS BEFORE TAX AND INTEREST -S 3)), SHALL DO SO ON THE BASIS OF THE MARKET VALUE
OF THE MATERIAL WHICH IS SOLD BY /-# ,TD TO -S 3)), OR ITS NOMINEE
II )N ADDITION TO WHAT IS STATED ABOVE -S 3)), SHALL PAY .06 OF 2S CRORES AND 2S
CRORES TOWARDS 7ILDLIFE -ANAGEMENT 0LAN FOR #ONSERVATION AND -ANAGEMENT
OF 7ILDLIFE AROUND ,ANJIGARH BAUXITE MINE AND 2S CRORES TOWARDS TRIBAL
4 / \
DEVELOPMENT )N ADDITION -S 3)), SHALL ALSO BEAR EXPENSES TOWARDS COMPENSATORY
AFFORESTATION
III ! STATEMENT SHALL BE LED BY -S 3)), WITH #%# WITHIN EIGHT WEEKS FROM
TODAY STATING NUMBER OF PERSONS WHO SHALL BE ABSORBED ON PERMANENT BASIS IN
-S 3)), INCLUDING LAND
LOSERS 4HEY SHALL GIVE CATEGORIES IN WHICH THEY WOULD BE
PERMANENTLY ABSORBED 4HE LIST WOULD ALSO SHOW PARTICULARS OF PERSONS WHO WOULD
BE EMPLOYED BY THE CONTRACTORS OF -S 3)), AND THE PERIOD FOR WHICH THEY WOULD BE
EMPLOYED
IV 4HE 3TATE 'OVERNMENT HAS THE FOLLOWING SUGGESTIONS ON THIS ISSUE
4HE USER AGENCY SHALL UNDERTAKE DEMARCATION OF THE LEASE AREA ON THE GROUND
USING FOUR FEET HIGH CEMENT CONCRETE PILLARS WITH SERIAL NUMBER FORWARD AND
BACK BEARINGS AND DISTANCE FROM PILLAR TO PILLAR
4HE USER AGENCY SHALL MAKE ARRANGEMENTS FOR MUTATION AND TRANSFER OF
EQUIVALENT NON
FOREST LAND IDENTIED FOR COMPENSATORY AFFORESTATION TO THE
OWNERSHIP OF THE 3TATE &OREST $EPARTMENT
4HE 3TATE &OREST $EPARTMENT WILL TAKE UP COMPENSATORY AFFORESTATION AT 0ROJECT
COST WITH SUITABLE INDIGENOUS SPECIES AND WILL DECLARE THE SAID AREA IDENTIED
FOR COMPENSATORY AFFORESTATION AS PROTECTED FOREST UNDER THE /RISSA &OREST !CT
FOR THE PURPOSE OF MANAGEMENT
4HE USER AGENCY SHALL UNDERTAKE REHABILITATION OF 0ROJECT AFFECTED FAMILIES IF
ANY AS PER THE /RISSA 2EHABILITATION AND 2ESETTLEMENT 0OLICY
4HE USER AGENCY SHALL UNDERTAKE PHASED RECLAMATION OF MINED
OUT AREA !LL
OVERBURDEN SHOULD BE USED FOR BACK
LLING AND RECLAMATION OF THE MINED
OUT
AREAS
4HE USER AGENCY SHALL UNDERTAKE FENCING OF THE SAFETY ZONE AREA AND ENDEAVOUR
FOR PROTECTION AS WELL AS REGENERATION OF THE SAID AREA )T SHALL DEPOSIT FUNDS WITH
THE 3TATE &OREST $EPARTMENT FOR THE PROTECTION AND REGENERATION OF THE SAFETY
ZONE AREA
!DEQUATE SOIL CONSERVATION MEASURES SHALL BE UNDERTAKEN BY THE LESSEE ON THE
OVERBURDENED DUMPS TO PREVENT CONTAMINATION OF STREAM OW
4HE USER AGENCY SHOULD UNDERTAKE COMPREHENSIVE STUDY ON HYDROGEOLOGY OF
THE AREA AND THE IMPACT OF MINING ON THE SURROUNDING WATER QUALITY AND STREAM
OW AT REGULAR INTERVAL AND TAKE EFFECTIVE MEASURES SO AS TO MAINTAIN THE PRE
MINING WATER CONDITION AS FAR AS POSSIBLE
4HE USER AGENCY SHOULD UNDERTAKE A COMPREHENSIVE STUDY OF THE WILDLIFE
AVAILABLE IN THE AREA IN ASSOCIATION WITH INSTITUTES OF REPUTE LIKE 7ILDLIFE )NSTITUTE
OF )NDIA $EHRADUN &OREST 2ESEARCH )NSTITUTE $EHRADUN ETC AND SHALL PREPARE
A SITE SPECIC COMPREHENSIVE WILDLIFE MANAGEMENT PLAN FOR CONSERVATION AND
MANAGEMENT OF THE WILDLIFE IN THE 0ROJECT IMPACT AREA UNDER THE GUIDANCE OF THE
#HIEF 7ILDLIFE 7ARDEN OF THE 3TATE
4HE USER AGENCY SHALL DEPOSIT THE .06 OF THE FOREST LAND SOUGHT FOR DIVERSION
FOR UNDERTAKING MINING OPERATIONS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4HE USER AGENCY SHALL PREPARE A COMPREHENSIVE PLAN FOR THE DEVELOPMENT OF
TRIBALS IN THE 0ROJECT IMPACT AREA TAKING INTO CONSIDERATION THEIR REQUIREMENTS FOR
HEALTH EDUCATION COMMUNICATION RECREATION LIVELIHOOD AND CULTURAL LIFESTYLE
!S PER THE POLICY OF THE 3TATE 'OVERNMENT THE USER AGENCY SHALL EARMARK
OF THE NET PROT ACCRUED IN THE 0ROJECT TO BE SPENT FOR THE DEVELOPMENT OF HEALTH
EDUCATION COMMUNICATION IRRIGATION AND AGRICULTURE OF THE SAID SCHEDULED AREA
WITHIN A RADIUS OF KM
#ONTROLLED BLASTING MAY BE USED ONLY IN EXIGENCIES WHEREVER NEEDED TO
MINIMISE THE IMPACT OF NOISE ON WILDLIFE OF THE AREA
4HE USER AGENCY SHALL UNDERTAKE DEVELOPMENT OF GREENERY BY WAY OF
PLANTATION OF SUITABLE INDIGENOUS SPECIES IN ALL VACANT AREAS WITHIN THE 0ROJECT
4REES SHALL BE FELLED FROM THE DIVERTED AREA ONLY WHEN IT IS NECESSARY WITH THE
STRICT SUPERVISION OF THE 3TATE &OREST $EPARTMENT AT THE COST OF THE 0ROJECT
4HE FOREST LAND DIVERTED SHALL BE NON
TRANSFERABLE 7HENEVER THE FOREST LAND
IS NOT REQUIRED THE SAME SHALL BE SURRENDERED TO THE 3TATE &OREST $EPARTMENT
UNDER INTIMATION TO -INISTRY OF %NVIRONMENT AND &ORESTS 'OVERNMENT OF )NDIA
)F -S 3)), 3TATE OF /RISSA AND /-# ,TD JOINTLY AGREE TO COMPLY WITH THE ABOVE
REHABILITATION PACKAGE THIS #OURT MAY CONSIDER GRANTING OF CLEARANCE TO THE 0ROJECT
#/ . #,53 )/ .
)F -S 3)), IS AGREEABLE TO THE AFORESTATED REHABILITATION PACKAGE THEN THEY SHALL
BE AT LIBERTY TO MOVE THIS #OURT BY INITIATING A PROPER APPLICATION 4HIS #OURT IS
NOT AGAINST THE 0ROJECT IN PRINCIPLE )T ONLY SEEKS SAFEGUARDS BY WHICH WE ARE ABLE
TO PROTECT NATURE AND SUBSERVE DEVELOPMENT )!S ARE DISPOSED OF ACCORDINGLY
(OWEVER WE ONCE AGAIN REITERATE THAT THE APPLICATIONS LED BY -S 6!, STAND
DISMISSED
4HE #OURT OPINED THAT IF 3TERLITE 3TATE OF /RISSA AND /-# JOINTLY AGREE TO COMPLY
WITH THE 2EHABILITATION 0ACKAGE THE #OURT MIGHT CONSIDER GRANTING CLEARANCE TO THE
PROJECT 3TATING SO ALL THE APPLICATIONS WERE DISPOSED OF THE ORDER OF WHICH IS REPORTED
IN 3##
-S 3TERLITE RD RESPONDENT HEREIN THEN MOVED AN APPLICATION BEING )! .O OF
BEFORE THIS #OURT FOLLOWED BY AFDAVITS WHEREIN IT WAS STATED THAT -S 3TERLITE
3TATE OF /RISSA AND /-# HAD UNCONDITIONALLY ACCEPTED THE TERMS AND CONDITIONS AND
MODALITIES SUGGESTED BY THIS #OURT UNDER THE CAPTION 2EHABILITATION 0ACKAGE IN ITS
EARLIER ORDER DATED 3IDDHARTH .AYAK WHO WAS THE PETITIONER IN 70 .O
THEN LED A 2EVIEW 0ETITION .O AND SOUGHT REVIEW OF THE ORDER DATED
PASSED BY THIS #OURT STATING THAT THIS COURT HAD POSED A WRONG QUESTION
WHILE DECIDING )! .O OF AND POINTED OUT THAT !LUMINA 2ENERY WAS ALREADY
SET UP BY 6EDANTA AND PRODUCTION COMMENCED AND THE PRINCIPAL QUESTION WHICH CAME
UP BEFORE THIS #OURT WAS WITH REGARD TO THE ECOLOGICAL AND CULTURAL IMPACT OF MINING
IN THE .IYAMGIRI (ILLS &URTHER IT WAS ALSO POINTED OUT THAT IF 3TERLITE WAS ALLOWED TO
MINE IN THE .IYAMGIRI (ILLS IT WOULD AFFECT THE IDENTITY CULTURE AND OTHER CUSTOMARY
RIGHTS OF $ONGARIA +ONDH 2EVIEW 0ETITION WAS HOWEVER DISMISSED BY THIS #OURT ON
4 / \
4HIS #OURT THEN PASSED THE NAL ORDER IN 3TERLITE CASE ON THE OPERATIVE PORTION
OF WHICH READS AS FOLLOWS
&OR THE ABOVE REASONS AND IN THE LIGHT OF THE AFDAVITS LED BY 3)), /-#,
AND THE 3TATE OF /RISSA ACCEPTING THE REHABILITATION PACKAGE SUGGESTED IN
OUR ORDER DATED
WE HEREBY GRANT CLEARANCE TO THE FOREST DIVERSION
PROPOSAL FOR DIVERSION OF HA OF FOREST LAND TO UNDERTAKE BAUXITE
MINING ON .IYAMGIRI (ILLS IN ,ANJIGARH 4HE NEXT STEP WOULD BE FOR -O%& TO
GRANT ITS APPROVAL IN ACCORDANCE WITH LAW
-O%& LATER CONSIDERED THE REQUEST OF THE 3TATE OF /RISSA DATED SEEKING PRIOR
APPROVAL OF -O%& FOR DIVERSION OF HA OF FOREST LAND FOR MINING OF BAUXITE ORE IN
,ANJIGARH "AUXITE -INES IN FAVOUR OF /-# IN ACCORDANCE WITH 3ECTION OF THE &OREST
#ONSERVATION !CT -O%& AFTER CONSIDERING THE PROPOSAL OF THE 3TATE 'OVERNMENT
AND REFERRING TO THERECOMMENDATIONS OF &!# DATED AGREED IN PRINCIPLE FOR
DIVERSION OF THE ABOVE MENTIONED FOREST LAND SUBJECT TO VARIOUS CONDITIONS WHICH ARE
AS FOLLOWS
I 4HE #OMPENSATORY !FFORESTATION SHALL BE RAISED OVER NON FOREST LAND EQUAL
IN EXTENT TO THE FOREST LAND PROPOSED TO BE DIVERTED AT THE PROJECT COST 4HE
5SER !GENCY SHALL TRANSFER THE COST OF #OMPENSATORY !FFORESTATION TO THE
3TATE &OREST $EPARTMENT
II 4HE NON
FOREST LAND IDENTIED FOR #OMPENSATORY !FFORESTATION SHALL BE
DECLARED AS 2ESERVED &ORESTS UNDER )NDIAN &OREST !CT
III 4HE 5SER !GENCY SHALL CREATE FENCE AND MAINTAIN A SAFETY ZONE AROUND THE
MINING AREA 4HE 5SER !GENCY WILL DEPOSIT FUND WITH THE &OREST $EPARTMENT
FOR CREATION PROTECTION AND REGENERATION OF SAFETY ZONE AREA AND ALSO WILL
HAVE TO BEAR THE COST OF AFFORESTATION OVER ONE AND A HALF TIME OF THE SAFETY
ZONE AREA IN DEGRADED FOREST ELSEWHERE
IV 4HE RECLAMATION OF MINES SHALL BE CARRIED OUT CONCURRENTLY AND SHOULD BE
REGULARLY MONITORED BY THE 3TATE &OREST $EPARTMENT
V 2#PILLARS OF FEET HEIGHT SHALL BE ERECTED BY THE 5SER !GENCY AT THE PROJECT
COST TO DEMARCATE THE AREA AND THE PILLARS WILL BE MARKED WITH FORWARD AND
BACK BEARINGS
VI 4HE 3TATE 'OVERNMENT SHALL CHARGE .ET 0RESENT 6ALUE .06 FROM THE 5SER
!GENCY FOR THE ENTIRE DIVERTED FOREST LAND AS DIRECTED BY (ONBLE 3UPREME
#OURT AND AS PER THE GUIDELINES ISSUED VIDE -INISTRY OF %NVIRONMENT AND
&ORESTS LETTERS .O �T)) DATED TH 3EPTEMBER AND ND
3EPTEMBER
VII !S PER (ONBLE 3UPREME #OURTS ORDER DATED AND
-S 3)), SHALL PAY .06 OF 2S CRORES
VIII !N UNDERTAKING FROM THE 5SER !GENCY SHALL ALSO BE OBTAINED STATING
THAT IN CASE THE RATES OF .06 ARE REVISED UPWARDS THE ADDITIONALDIFFERENTIAL
AMOUNT SHALL BE PAID BY THE 5SER !GENCY
IX !S PER (ONBLE 3UPREME #OURTS ORDER DATED AND
-S 3)), SHALL PAY 2S CRORES TOWARDS 7ILDLIFE -ANAGEMENT 0LAN FOR
#ONSERVATION AND -ANAGEMENT OF 7ILDLIFE AROUND ,ANJIGARH BAUXITE MINE
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
X !S PER (ONBLE 3UPREME #OURTS ORDER DATED AND
-S 3)), IS REQUIRED TO CONTRIBUTE 2S CRORES TOWARDS TRIBAL DEVELOPMENT
APART FROM PAYMENT OF .06 AND APART FROM CONTRIBUTION TO THE -ANAGEMENT
OF 7ILDLIFE AROUND ,ANJIGARH "AUXITE -INE -OREOVER WHILE ALLOCATING #!-0!
&UNDS THE SAID AMOUNT OF 2S CRORES SHALL BE EARMARKED SPECICALLY FOR
TRIBAL DEVELOPMENT
XI 4HE 3TATE 'OVERNMENT SHALL DEPOSIT ALL THE FUNDS WITH THE !D HOC "ODY
OF #OMPENSATORY !FFORESTATION &UND -ANAGEMENT AND 0LANNING !UTHORITY
#!-0! IN !CCOUNT .O #! OF #ORPORATION "ANK ! 'OVERNMENT OF )NDIA
%NTERPRISE "LOCK )) 'ROUND &LOOR #'/ #OMPLEX 0HASE ) ,ODHI 2OAD .EW
$ELHI AS PER THE INSTRUCTIONS COMMUNICATED VIDE LETTER .
0# DATED
XII !S PER (ONBLE 3UPREME #OURTS ORDER DATED AND
-S 3)), SHALL DEPOSIT OF ITS ANNUAL PROTS BEFORE TAX AND INTEREST FROM
,ANJIGARH 0ROJECT OF 2S CRORES WHICHEVER IS HIGHER AS CONTRIBUTION FOR
3CHEDULED !REA $EVELOPMENT 4HE CONTRIBUTION IS TO BE MADE EVERY YEAR
COMMENCING FROM 4HE 3TATE OF /RISSA SHALL OAT A 3PECIAL 0URPOSE
6EHICLE 306 FOR SCHEDULED AREA DEVELOPMENT OF ,ANJIGARH 0ROJECT IN WHICH
THE STAKE HOLDERS SHALL BE 3TATE OF /RISSA /-# ,TD AND -S 3)), 3UCH 306 SHALL
BE INCORPORATED UNDER THE #OMPANIES !CT 4HE !CCOUNTS OF 30# SHALL BE
PREPARED BY THE 3TATUTORY AUDITORS OF /-# ,TD AND THEY SHALL BE AUDITED BY
THE !UDITOR 'ENERAL FOR 3TATE OF /RISSA EVERY YEAR
XIII 4HE PERMISSION GRANTED UNDER &# !CT SHALL BE CO
TERMINUS WITH THE
MINING LEASE GRANTED UNDER --2$ !CT OR ANY OTHER RELEVANT !CT
XIV 4REE FELLING SHALL BE DONE IN A PHASED MANNER TO COINCIDE WITH THE
PHASING OF AREA TO BE PUT TO MINING WITH A VIEW TO MINIMIZING CLEAR FELLING
4HE FELLING WILL ALWAYS BE CARRIED OUT UNDER STRICT SUPERVISION OF 3TATE &OREST
$EPARTMENT
XV !LL EFFORTS SHALL BE MADE BY THE 5SER !GENCY AND THE 3TATE 'OVERNMENT TO
PREVENT SOIL EROSION AND POLLUTION OF RIVERSNALLASSTREAMS ETC
XVI 4HE 7ILDLIFE -ANAGEMENT 0LAN 7-0 SHALL BE MODIED ACCORDINGLY
AS SUGGESTED BY THE 7ILDLIFE )NSTITUTE OF )NDIA 7)) $EHRADUN AND SHALL BE
IMPLEMENTED BY THE 3TATE 'OVERNMENT5SER !GENCY AT THE PROJECT COST 4HE
PROGRESS OF IMPLEMENTATION OF THE 7-0 SHALL BE REGULARLY MONITORED BY THE
7),, AND 2EGIONAL /FCE "HUBANESHWAR
XVII !NY OTHER CONDITION THAT THE ##& #ENTRAL 2EGIONAL /FCE
"HUBANESHWAR THE 3TATE &OREST $EPARTMENT MAY IMPOSE FROM TIME TO TIME
FOR PROTECTION AND IMPROVEMENT OF ORA AND FAUNA IN THE FOREST AREA SHALL
ALSO BE APPLICABLE
XVIII !LL OTHER PROVISIONS UNDER DIFFERENT !CTS RULES AND REGULATIONS
INCLUDING ENVIRONMENTAL CLEARANCE SHALL BE COMPLIED WITH BEFORE TRANSFER OF
FOREST LAND
XIX 4HE LEASE WILL REMAIN IN THE NAME OF /RISSA -INING #ORPORATION /-#,
AND IF ANY CHANGE HAS TO BE DONE IT WILL REQUIRE PRIOR APPROVAL OF THE #ENTRAL
'OVERNMENT AS PER GUIDELINES
4 / \
XX 4HE PRESENT FOREST CLEARANCE WILL BE SUBJECT TO THE NAL OUTCOME OF THE
7RIT PETITION .O OF FROM THE (ONBLE 3UPREME #OURT AND #OURTS
ORDER DATED AND
XXI /THER STANDARD CONDITIONS AS APPLICABLE TO PROPOSALS RELATED TO MINING
SHALL APPLY IN THE INSTANT CASE ALSO
-O%& THEN VIDE ITS LETTER DATED INFORMED THE 3TATE OF /RISSA THAT IT HAD IN
PRINCIPLE AGREED FOR DIVERSION OF HA OF FOREST LAND FOR MINING BAUXITE IN FAVOUR
OF /-# SUBJECT TO FULLMENT OF THE ABOVE MENTIONED CONDITIONS AND AFTER GETTING THE
COMPLIANCE REPORT FROM THE 3TATE 'OVERNMENT /RDER DATED WAS SLIGHTLY
MODIED ON )T WAS FURTHER ORDERED THAT THE TRANSFER OF FOREST LAND TO THE USER
AGENCY SHOULD NOT BE EFFECTED BY THE 3TATE 'OVERNMENT TILL FORMAL ORDERS APPROVING
DIVERSION OF FOREST LAND WERE ISSUED
-O%& THEN GRANTED ENVIRONMENTAL CLEARANCE TO /-# VIDE ITS PROCEEDINGS DATED
SUBJECT TO VARIOUS CONDITIONS INCLUDING THE FOLLOWING CONDITIONS
III %NVIRONMENTAL CLEARANCE IS SUBJECT TO GRANT OF FORESTRY CLEARANCE .ECESSARY
FORESTRY CLEARANCE UNDER THE &OREST #ONSERVATION !CT FOR DIVERSION OF
HA FOREST LAND INVOLVED IN THE PROJECT SHALL BE OBTAINED BEFORE STARTING MINING
OPERATION IN THAT AREA .O MINING SHALL BE UNDERTAKEN IN THE FOREST AREA WITHOUT
OBTAINING REQUISITE PRIOR FORESTRY CLEARANCE
4HE 3TATE 'OVERNMENT THEN FORWARDED THE NAL PROPOSAL TO THE -O%& VIDE ITS LETTER
DATED STATING THAT THE USER AGENCYHAD COMPLIED WITH ALL THE CONDITIONS
STIPULATED IN THE LETTER OF -O%& DATED /N THE &OREST 2IGHTS !CT THE
'OVERNMENT LETTERSTATED AS FOLLOWS
0ROVISIONS OF 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT
4HE 'OVT OF )NDIA -O%& VIDE THEIR LETTER DATED HAVE ACCORDED
ENVIRONMENTAL CLEARANCE TO ,ANJIGARH "AUXITE -INING 0ROJECT 4HIS LETTER OF
'OVT OF )NDIA -O%& PUTS ON RECORD THAT THERE IS NO HABITATION IN THE MINING
LEASE AREA ON THE PLATEAU TOP AND NO RESETTLEMENT AND REHABILITATION IS INVOLVED
0UBLIC HEARING FOR THE PROJECT WAS HELD ON FOR +ALAHANDI $ISTRICT
AND ON FOR 2AYAGADA $ISTRICT )N BOTH THE CASES THE PROJECT HAS BEEN
RECOMMENDED #OPIES OF THE PUBLIC HEARING PROCEEDINGS HAVE ALREADY BEEN
SUBMITTED TO 'OVT OF )NDIA -O%& ALONG WITH FOREST DIVERSION PROPOSAL 4HIS
PROJECT WAS ALSO CHALLENGED IN THE (ONBLE 3UPREME #OURT OF )NDIA ON THE GROUND
THAT IT VIOLATES THE PROVISIONS OF THE 3CHEDULED 4RIBES /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT 70 # .O OF WAS LED
IN THE (ONBLE 3UPREME #OURT OF )NDIA BY ONE 3RI 3IDDHARTH .AYAK CHALLENGING
THE PROJECT ON THE ABOVE ISSUE !FTER EXAMINING DIFFERENT ASPECTS OF THE WRIT
PETITION IN )! .O
IN 70 # .O THE (ONBLE 3UPREME #OURT
OF )NDIA HAD CLEARED THE PROJECT BY WAY OF DISPOSING THE 7RIT 0ETITION VIDE THEIR
ORDER DATED 3UBSEQUENTLY (ONBLE 3UPREME #OURT HAD NALLY CLEARED
THE PROJECT VIDE THEIR ORDER DATED )N VIEW OF THE ABOVE POSITION AND
ORDERS OF (ONBLE 3UPREME #OURT OF )NDIA NO FURTHER ACTION IN THIS REGARD IS
PROPOSED
3TATE OF /RISSAS NAL PROPOSAL WAS THEN PLACED BEFORE THE &!#ON &!#
RECOMMENDED THAT THE NAL CLEARANCE WOULD BECONSIDERED ONLY AFTER ASCERTAINING
OF THE COMMUNITY RIGHTS ON FORESTLAND AND AFTER THE PROCESS FOR ESTABLISHING SUCH
RIGHTS UNDER &OREST2IGHTS !CT WAS COMPLETED &!# ALSO DECIDED TO CONSTITUTE AN %XPERT
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
'ROUP TO CARRY OUT A SITE INSPECTION #ONSEQUENTLY ON A THREE MEMBER 4EAM
COMPOSED OF $R 5SHA 2AMANATHAN AND TWO OTHERS WAS CONSTITUTED TO CONSIDER AND
MAKE RECOMMENDATIONS TO -O%& ON THE PROPOSAL SUBMITTED BY /-# 4HE 4EAM CARRIED
OUT THE SITE INSPECTION DURING THE MONTHS OF *ANUARY AND &EBRUARY AND SUBMITTED
THREE INDIVIDUAL REPORTS TO -O%& ON WHICH WERE NOT AGAINST THE PROJECT AS
SUCH BUT SUGGESTED AN IN DEPTH STUDY ON THE APPLICATION OF THE &OREST 2IGHTS !CT &!#
ALSO ON CONSIDERED ALL THE THREE REPORTS AND RECOMMENDED THAT A 3PECIAL
#OMMITTEE UNDER THE -INISTRY OF 4RIBAL !FFAIRS BE CONSTITUTED TO LOOK INTO THE ISSUES
RELATING TO THE VIOLATION OF 4RIBAL RIGHTS AND THE SETTLEMENT OF &OREST RIGHTS UNDER THE
&OREST 2IGHTS !CT
-O%& THEN MET ON AND DECIDED TO CONSTITUTE A TEAM COMPOSED OF SPECIALISTS
TO LOOK INTO THE SETTLEMENT OF RIGHTS ON FOREST DWELLERS AND THE 0RIMITIVE 4RIBAL 'ROUPS
UNDER THE &OREST 2IGHTS !CT AND THE IMPACT OF THE 0ROJECT ON WILDLIFE AND BIODIVERSITY IN
THE SURROUNDING AREAS #ONSEQUENTLY A
MEMBER #OMMITTEEWAS CONSTITUTED HEADED
BY $R .ARESH 3AXENA TO STUDY AND ASSESS THE IMPACTS OF VARIOUS RIGHTS AND TO MAKE A
DETAILED INVESTIGATION 4HE #OMMITTEE AFTER CONDUCTING SEVERAL SITE VISITS AND MAKING
DETAILED ENQUIRIES SUBMITTED ITS REPORT TO -O%& ON
4HE 3TATE 'OVERNMENT THEN SUBMITTED THEIR WRITTEN OBJECTION ON TO THE
-O%& ON THE 3AXENA #OMMITTEE 2EPORT AND REQUESTED THAT AN OPPORTUNITY OF HEARING
BE GIVEN TO IT BEFORE TAKING ANY DECISION ON THE REPORT -O%& HOWEVER CALLED A
MEETING OF &!# ON AND PLACED THE 3AXENA #OMMITTEE REPORT BEFORE &!#
FOR CONSIDERATION -INUTES OF THE #OMMITTEE MEETING WAS RELEASED ON
STATING THAT THE 0RIMITIVE 4RIBAL 'ROUPS WERE NOT CONSULTED IN THE PROCESS OF SEEKING
PROJECT CLEARANCE AND ALSO NOTICED THE VIOLATION OF THE PROVISIONS OF &OREST 2IGHTS
!CT THE &OREST #ONSERVATION !CT %NVIRONMENTAL 0ROTECTION !CT AND ALSO
THE IMPACT ON ECOLOGICAL AND BIODIVERSITY VALUES OF THE .IYAMGIRI HILLS UPON WHICH
THE $ONGARIA +ONDH AND +UTIA +ONDH DEPEND &!# OPINED THAT IT WAS A T CASE FOR
APPLYING THE PRECAUTIONARY PRINCIPLE TO OBVIATE THE IRREPARABLE DAMAGE TO THE AFFECTED
PEOPLE AND RECOMMENDED FOR THE TEMPORARY WITHDRAWAL OF THE IN
PRINCIPLE3TATE )
APPROVAL ACCORDED &!# RECOMMENDED THAT THE 3TATE 'OVERNMENT BE HEARD BEFORE A
NAL DECISION IS TAKEN BY THE -O%&
4HE RECOMMENDATIONS OF THE &!# DATED AND 3AXENA #OMMITTEE REPORT WERE
CONSIDERED BY -O%& AND THE REQUEST FOR 3TAGE
)) #LEARANCE WAS REJECTED ON
STATING AS FOLLOWS
6))) &ACTORS $ICTATING $ECISION ON 3TAGE
)) #LEARANCE
) HAVE CONSIDERED THREE BROAD FACTORS WHILE ARRIVING AT MY DECISION
4HE 6IOLATION OF THE 2IGHTS OF THE 4RIBAL 'ROUPS INCLUDING THE 0RIMITIVE 4RIBAL
'ROUPS AND THE $ALIT 0OPULATION
4HE BLATANT DISREGARD DISPLAYED BY THE PROJECT PROPONENTS WITH REGARD TO RIGHTS OF
THE TRIBALS AND PRIMITIVE TRIBAL GROUPS DEPENDANT ON THE AREA FOR THEIR LIVELIHOOD
AS THEY HAVE PROCEEDED TO SEEK CLEARANCE IS SHOCKING 0RIMITIVE 4RIBAL 'ROUPS
HAVE SPECICALLY BEEN PROVIDED FOR IN THE &OREST 2IGHTS !CT AND THIS CASE
SHOULD LEAVE NO ONE IN DOUBT THAT THEY WILL ENJOY FULL PROTECTION OF THEIR RIGHTS
UNDER THE LAW 4HE NARROW DENITION OF THE 0ROJECT !FFECTED 0EOPLE BY THE 3TATE
'OVERNMENT RUNS CONTRARY TO THE LETTER AND SPIRIT OF THE &OREST 2IGHTS !CT
3IMPLY BECAUSE THEY DID NOT LIVE ON THE HILLS DOES NOT MEAN THAT THEY HAVE NO
RIGHTS THERE 4HE &OREST 2IGHTS !CT SPECICALLY PROVIDES FOR SUCH RIGHTS BUT
THESE WERE NOT RECOGNIZED AND WERE SOUGHT TO BE DENIED
4 / \
-OREOVER THE FATE OF THE 0RIMITIVE 4RIBAL 'ROUPS NEED SOME EMPHASIS AS VERY FEW
COMMUNITIES IN )NDIA IN GENERAL AND /RISSA IN PARTICULAR COME UNDER THE AMBIT
OF SUCH A CATEGORY 4HEIR DEPENDENCE ON THE FOREST BEING ALMOST COMPLETE THE
VIOLATION OF THE SPECIC PROTECTIONS EXTENDED TO THEIR HABITAT AND HABITATIONS
BY THE &OREST 2IGHTS !CT ARE SIMPLY UNACCEPTABLE
4HIS GROUND BY ITSELF HAS TO BE FOREMOST IN TERMS OF CONSIDERATION WHEN IT COMES
TO THE GRANT OF FOREST OR ENVIRONMENTAL CLEARANCE 4HE FOUR
MEMBER COMMITTEE
HAS HIGHLIGHTED REPEATED INSTANCES OF VIOLATIONS
/NE ALSO CANNOT IGNORE THE $ALITS LIVING IN THE AREA 7HILE THEY MAY TECHNICALLY
BE INELIGIBLE TO RECEIVE BENETS UNDER THE &2! THEY ARE SUCH AN INEXTRICABLE
PART OF THE SOCIETY THAT EXISTS THAT IT WOULD BE IMPOSSIBLE TO DISENTITLE THEM AS
THEY HAVE BEEN PRESENT FOR OVER VE DECADES 4HE #OMMITTEE HAS ALSO SAID ON P
OF THEIR REPORT THAT EVEN IF THE $ALITS HAVE NO CLAIMS UNDER THE &2! THE TRUTH OF
THEIR DE FACTO DEPENDENCE ON THE .IYAMGIRI FORESTS FOR THE PAST SEVERAL DECADES
CAN BE IGNORED BY THE CENTRAL AND STATE GOVERNMENTS ONLY AT THE COST OF BETRAYAL
OF THE PROMISE OF INCLUSIVE GROWTH AND JUSTICE AND DIGNITY FOR ALL )NDIANS 4HIS
OBSERVATION RINGS TRUE WITH THE -O%& AND UNDERSCORES THE -O%&S ATTEMPT
TO ENSURE THAT ANY DECISION TAKEN IS NOT JUST TRUE TO THE LAW IN LETTER BUT ALSO IN
SPIRIT
6IOLATIONS OF THE %NVIRONMENTAL 0ROTECTION !CT
I /BSERVATIONS OF THE 3AXENA #OMMITTEE AND -O%& 2ECORDS
)N ADDITIONAL TO ITS NDINGS REGARDING THE SETTLEMENT OF RIGHTS UNDER THE &2!
THE FOUR
MEMBER #OMMITTEE HAS ALSO OBSERVED WITH REFERENCE TO THE
ENVIRONMENTAL CLEARANCE GRANTED FOR THE ALUMINUM RENERY ON P OF ITS
2EPORT DATED TH !UGUST THAT
4HE COMPANYS 6EDANTA !LUMINA ,IMITED HAS ALREADY PROCEEDED WITH
CONSTRUCTION ACTIVITY FOR ITS ENORMOUS EXPANSION PROJECT THAT WOULD INCREASE
ITS CAPACITY SIX FOLD FROM -TPA TO -TPA WITHOUT OBTAINING ENVIRONMENTAL
CLEARANCE AS PER THE PROVISIONS OF %)! .OTICATION UNDER THE %0!
4HIS AMOUNTS TO A SERIOUS VIOLATION OF THE PROVISIONS OF THE %NVIRONMENT
0ROTECTION !CT 4HIS EXPANSION ITS EXTENSIVE SCALE AND ADVANCED NATURE IS
IN COMPLETE VIOLATION OF THE %0! AND IS AN EXPRESSION OF THE CONTEMPT WITH
WHICH THIS COMPANY TREATS THE LAWS OF THE LAND
) HAVE REVIEWED THE RECORDS OF THE -O%& AND HAVE FOUND NO DOCUMENTATION
WHICH ESTABLISHES SUCH ACTIVITY TO HAVE BEEN GRANTED CLEARANCE .OR IS THERE
ANY EVIDENCE TO SUGGEST THAT SUCH REQUIREMENT WAS WAIVED BY THE -INISTRY
4HE 4/2S FOR THE EXPANSION OF THE PROJECT FROM MILLION TONNES TO MILLION
TONNES WERE APPROVED IN -ARCH .O FURTHER RIGHT HAS BEEN GRANTED
IN ANY FORM BY THE -INISTRY TO THE PROJECT PROPONENTS TO PROCEED WITH THE
EXPANSION 7HILE ANY EXPANSION WITHOUT PRIOR %# IS A VIOLATION OF THE %)!
.OTICATION%0! THIS ITSELF IS NOT A MINOR EXPANSION AND IS THEREFORE A
MOST SERIOUS TRANSGRESSION OF THE %0!
4HERE ALSO APPEAR TO HAVE BEEN OTHER ACTS OF VIOLATION THAT EMERGE FROM A
CAREFUL PERUSAL OF THE EVIDENCE AT HAND 4HIS IS NOT THE RST ACT OF VIOLATION
/N -ARCH TH -S 3TERLITE LED AN APPLICATION FOR ENVIRONMENTAL
CLEARANCE FROM THE -O%& FOR THE RENERY )N THE APPLICATION IT WAS STATED
THAT NO FOREST LAND IS INVOLVED IN THE PROJECT AND THAT THERE WAS NO RESERVE
FOREST WITHIN A RADIUS OF KMSOF THE PROJECT SITE
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4HEREAFTER ON 3EPTEMBER ND ENVIRONMENT CLEARANCE WAS GRANTED
BY THE -O%& FOR THE RENERY PROJECT 7HILE GRANTING THE ENVIRONMENTAL
CLEARANCE THE -O%& WAS UNAWARE OF THE FACT THAT THE APPLICATION FOR FOREST
CLEARANCE WAS ALSO PENDING SINCE THE ENVIRONMENTAL CLEARANCE LETTER CLEARLY
STATED THAT NO FOREST LAND WAS INVOLVED IN THE PROJECT
)N -ARCH IN PROCEEDINGS BEFORE ITSELF THE #ENTRAL %MPOWERED #OMMITTEE
#%# TOO QUESTIONED THE VALIDITY OF THE ENVIRONMENTAL CLEARANCE GRANTED BY
THE -O%& AND REQUESTED THE -INISTRY TO WITHHOLD THE FOREST CLEARANCE ON
THE PROJECT TILL THE ISSUE IS EXAMINED BY THE #%# AND REPORT IS SUBMITTED TO THE
(ONBLE 3UPREME #OURT
II #ASE BEFORE THE -%!! BY THE $ONGARIA +ONDHS
!FTER THE GRANT OF %NVIRONMENT #LEARANCE THE LOCAL TRIBALS AND OTHER CONCERNED
PERSONS INCLUDING THE $ONGARIA +ONDHS CHALLENGED THE PROJECT BEFORE THE
.ATIONAL %NVIRONMENT !PPELLATE !UTHORITY .%!! ;+UMATI -AJHI AND /RS
VS-INISTRY OF %NVIRONMENT AND &OREST 3RABBU 3IKKA AND /RS VS-INISTRY OF
%NVIRONMENT AND &ORESTS 2 3REEDHAR VS -INISTRY OF %NVIRONMENT AND &OREST
0RAFULLA 3AMANTARA VS -INISTRY OF %NVIRONMENT AND &ORESTS AND /RS !PPEAL
.O AND OF =
)T IS BROUGHT TO MY ATTENTION THAT THIS IS THE RST TIME THAT THE $ONGARIA
+ONDHA HAVE DIRECTLY CHALLENGED THE PROJECT IN ANY #OURT OF LAW 4HE !PPEALS
HIGHLIGHTED THE SEVERAL VIOLATIONS IN THE %NVIRONMENTAL #LEARANCE PROCESS
3OME OF THE KEY CHARGES RAISED WERE THAT THE FULL %NVIRONMENTAL )MPACT
!SSESSMENT 2EPORT WAS NOT MADE AVAILABLE TO THE 0UBLIC BEFORE THE PUBLIC
HEARING DIFFERENT %)! REPORTS MADE AVAILABLE TO THE PUBLIC AND SUBMITTED TO
THE -INISTRY OF %NVIRONMENT AND &ORESTS THE %)! CONDUCTED WAS A RAPID %)!
UNDERTAKEN DURING THE MONSOON MONTHS 4HE MATTER IS RESERVED FOR JUDGMENT
BEFORE THE .%!!
III -ONITORING 2EPORT OF THE %ASTERN 2EGIONAL /FCE DATED TH -AY
/N TH -AY $R 60 5PADHYAY $IRECTOR 3 OF THE %ASTERN 2EGIONAL
/FCE OF THE -INISTRY OF %NVIRONMENT AND &ORESTS SUBMITTED HIS REPORT TO
THE -O%& WHICH LISTED VARIOUS VIOLATIONS IN PARA OF THE MONITORING REPORT
4HEY OBSERVED
A -S 6EDANTA !LUMINA ,IMITED HAS ALREADY PROCEEDED WITH CONSTRUCTION
ACTIVITY FOR EXPANSION PROJECT WITHOUT OBTAINING ENVIRONMENTAL CLEARANCE
AS PER PROVISIONS OF %)! .OTICATION THAT AMOUNTS TO VIOLATION OF THE
PROVISIONS OF THE %NVIRONMENT 0ROTECTION !CT
B 4HE PROJECT HAS NOT ESTABLISHED PIEZOMETERS FOR MONITORING OF GROUND
WATER QUALITY AROUND RED MUD AND ASH DISPOSAL PONDS THUS THE CONDITION NO
OF 3PECIC #ONDITION OF THE CLEARANCE LETTER IS BEING VIOLATED
C 4HE CONDITION NO )I OF 'ENERAL #ONDITION OF ENVIRONMENTAL CLEARANCE HAS
BEEN VIOLATED BY STARTING EXPANSION ACTIVITIES WITHOUT PRIOR APPROVAL FROM
THE -INISTRY
&URTHERMORE ALL BAUXITE FOR THE RENERY WAS TO BE SOURCED FROM MINES WHICH HAVE
ALREADY OBTAINED ENVIRONMENTAL CLEARANCE 4HE 2EPORT LISTED MINES FROM WHICH
"AUXITE WAS BEING SOURCED BY THE PROJECT PROPONENTS (OWEVER OUT OF THESE HAD
NOT BEEN GRANTED A MINING LICENSE WHILE HAD ONLY RECEIVED 4/2S AND ONLY HAD
4 / \
RECEIVED CLEARANCE
6IOLATIONS UNDER THE &OREST #ONSERVATION !CT
4HE 3AXENA #OMMITTEE HAS GONE INTO GREAT DETAIL HIGHLIGHTING THE VARIOUS
INSTANCES OF VIOLATIONS UNDER THE &OREST #ONSERVATION !CT !LL THESE
VIOLATIONS COUPLED WITH THE RESULTANT IMPACT ON THE ECOLOGY AND BIODIVERSITY
OF THE SURROUNDING AREA FURTHER CONDEMN THE ACTIONS OF THE PROJECT PROPONENT
.OT ONLY ARE THESE VIOLATIONS OF A REPEATING NATURE BUT THEY ARE INSTANCES OF
WILFUL CONCEALMENT OF INFORMATION BY THE PROJECT PROPONENT
)8 4HE $ECISION ON 3TAGE )) #LEARANCE
4HE 3AXENA #OMMITTEES EVIDENCE AS REVIEWED BY THE &!# AND READ BY ME AS
WELL IS COMPELLING 4HE VIOLATIONS OF THE VARIOUS LEGISLATIONS ESPECIALLY THE
&OREST #ONSERVATION !CT THE %NVIRONMENT 0ROTECTION !CT AND
THE 3CHEDULED 4RIBES AND 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT APPEAR TO BE TOO EGREGIOUS TO BE GLOSSED OVER &URTHERMORE
A MASS OF NEW AND INCRIMINATING EVIDENCE HAS COME TO LIGHT SINCE THE !PEX
COURT DELIVERED ITS JUDGMENT ON !UGUST TH 4HEREFORE AFTER CAREFUL
CONSIDERATION OF THE FACTS AT HAND DUE DELIBERATION OVER ALL THE REPORTS
SUBMITTED AND WHILE UPHOLDING THE RECOMMENDATION OF THE &!# ) HAVE COME
TO THE FOLLOWING CONCLUSIONS
4HE 3TAGE )) FOREST CLEARANCE FOR THE /-# AND 3TERLITE BAUXITE MINING
PROJECT ON THE .IYAMGIRI (ILLS IN ,ANJIGARH +ALAHANDI AND 2AYAGADA
DISTRICTS OF /RISSA CANNOT BE GRANTED 3TAGE
)) &OREST #LEARANCE THEREFORE
STANDS REJECTED
3INCE FOREST CLEARANCE IS BEING REJECTED THE ENVIRONMENTAL CLEARANCE FOR
THIS MINE IS INOPERABLE
)T APPEARS THAT THE PROJECT PROPONENT IS SOURCING BAUXITE FROM A LARGE
NUMBER OF MINES IN *HARKHAND FOR THE ONE MILLION TONNE ALUMINA RENERY
AND ARE NOT IN POSSESSION OF VALID ENVIRONMENTAL CLEARANCE 4HIS MATTER IS
BEING EXAMINED SEPARATELY
&URTHER A SHOW CAUSE NOTICE IS BEING ISSUED B Y THE -/%& TO THE PROJECT
PROPONENT AS TO WHY THE ENVIRONMENTAL CLEARANCE FOR THE ONE MILLION
TONNES PER ANNUM ALUMINA RENERY SHOULD NOT BE CANCELLED
! SHOW
CAUSE NOTICE IS ALSO BEING ISSUED TO THE PROJECT PROPONENT AS
TO WHY THE TERMS OF REFERENCE 4/2 FOR THE %)! REPORT FOR THE EXPANSION
FROM ONE MILLION TONNES TO SIX MILLION TONNES SHOULD NOT BE WITHDRAWN
-EANWHILE THE 4/2 AND THE APPRAISAL PROCESS FOR THE EXPANSION STANDS
SUSPENDED
3EPARATELY THE -O%& IS IN THE PROCESS OF EXAMINING WHAT PENAL ACTION SHOULD
BE INITIATED AGAINST THE PROJECT PROPONENTS FOR THE VIOLATIONS OF VARIOUS LAWS AS
DOCUMENTED EXHAUSTIVELY BY THE 3AXENA #OMMITTEE
/N THE ISSUES RAISED BY THE /RISSA 3TATE 'OVERNMENT ) MUST POINT OUT THAT WHILE
CUSTOMARY RIGHTS OF THE 0RIMITIVE 4RIBAL 'ROUPS ARE NOT RECOGNIZED IN THE .ATIONAL
&OREST 0OLICY THEY ARE AN INTEGRAL PART OF THE &OREST 2IGHTS !CT !N !CT
PASSED BY 0ARLIAMENT HAS GREATER SANCTITY THAN A 0OLICY 3TATEMENT 4HIS IS APART FROM
THE FACT THAT THE &OREST 2IGHTS !CT CAME INTO FORCE EIGHTEEN YEARS AFTER THE .ATIONAL
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
&OREST 0OLICY /N THE OTHER POINTS RAISED BY THE 3TATE 'OVERNMENT OFCIALS ON THE
PROCEDURAL ASPECTS OF THE &OREST 2IGHTS !CT ) EXPECT THAT THE JOINT #OMMITTEE SET
UP BY THE -O%& AND THE -INISTRY OF 4RIBAL !FFAIRS WOULD GIVE THEM DUE CONSIDERATION
4HE 3TATE 'OVERNMENT OFCIALS WERE UPSET WITH THE OBSERVATIONS MADE BY THE 3AXENA
#OMMITTEE ON THEIR ROLE IN IMPLEMENTING THE &OREST 2IGHTS !CT 7HETHER 3TATE
'OVERNMENT OFCIALS HAVE CONNIVED WITH THE VIOLATIONS IS A SEPARATE ISSUE AND IS NOT
RELEVANT TO MY DECISION ) AM PREPARED TO BELIEVE THAT THE 3TATE 'OVERNMENT OFCIALS
WERE ATTEMPTING TO DISCHARGE THEIR OBLIGATIONS TO THE BEST OF THEIR ABILITIES AND WITH THE
BEST OF INTENTIONS 4HE 3TATE 'OVERNMENT COULD WELL CONTEST MANY OF THE OBSERVATIONS
MADE BY THE 3AXENA #OMMITTEE "UT THIS WILL NOT FUNDAMENTALLY ALTER THE FACT THAT
SERIOUS VIOLATIONS OF VARIOUS LAWS HAVE INDEED TAKEN PLACE
4HE PRIMARY RESPONSIBILITY OF ANY -INISTRY IS TO ENFORCE THE LAWS THAT HAVE BEEN PASSED
BY 0ARLIAMENT &OR THE -O%& THIS MEANS ENFORCING THE &OREST #ONSERVATION !CT
THE %NVIRONMENTAL 0ROTECTION !CT THE 3CHEDULED 4RIBES AND 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT AND OTHER LAWS )T IS IN THIS
SPIRIT THAT THIS DECISION HAS BEEN TAKEN
4HE ORDER DATED WAS COMMUNICATED BY -O%& TO THE 3TATE OF /RISSA VIDE ITS
LETTER DATED THE LEGALITY OF THOSE ORDERS ARE THE SUBJECT MATTER OF THIS WRIT
PETITION
3HRI ++ 6ENUGOPAL LEARNED SENIOR COUNSEL APPEARING FOR/-# REFERRED TO THE EARLIER
JUDGMENTS OF THIS #OURT IN 6EDANTA AS WELL AS 3TERLITE AND SUBMITTED THAT THOSE
JUDGMENTS ARE BINDING ONTHE PARTIES WITH REGARD TO THE VARIOUS QUESTIONS RAISED
AND DECIDEDAND ALSO TO THE QUESTIONS WHICH OUGHT TO HAVE BEEN RAISED ANDDECIDED
,EARNED SENIOR COUNSEL ALSO POINTED OUT THAT -O%& ITSELF AFTER THE ABOVE MENTIONED
TWO JUDGMENTS HAD ACCORDED 3TAGE )CLEARANCE VIDE ITS PROCEEDING DATED
AND THAT THE 3TATEOF /RISSA VIDE ITS LETTER DATED HAD INFORMED -O%& OF THE
COMPLIANCE OF THE VARIOUS CONDITIONS STIPULATED IN THE 3TAGE ) CLEARANCE DATED
#ONSEQUENTLY THERE IS NO IMPEDIMENT IN THE -O%& GRANTING 3TAGE )) CLEARANCE FOR THE
PROJECT
4HE LEARNED SENIOR COUNSEL ALSO SUBMITTED THAT THE REASONS STATED BY THE &!# AS WELL AS
THE 3AXENA #OMMITTEE ARE ALL UNTENABLE AND HAVE NOTHING TO DO WITH "AUXITE -INING
0ROJECT "-0 UNDERTAKEN BY /-# ,EARNED SENIOR COUNSEL ALSO SUBMITTED THAT THE
CONSTITUTION OF INITIALLY A -EMBER #OMMITTEE AND LATER A -EMBER #OMMITTEE
WAS INTENDED ONLY TO CANCEL THE 3TAGE
) CLEARANCE GRANTED TO THE "-0 IN COMPLIANCE
WITH THE JUDGMENT OF THIS #OURT ,EARNED COUNSEL ALSO POINTED OUT THAT THE CLAIM UNDER
THE &OREST 2IGHTS !CT WAS ALSO RAISED BY 3IDHARTH .AYAK THROUGH A REVIEW PETITION
WHICH WAS ALSO REJECTED BY THIS #OURT ON #ONSEQUENTLY IT WOULD NOT BE OPEN
TO THE PARTIES TO AGAIN RAISE THE ISSUES WHICH FALL UNDER THE &OREST 2IGHTS !CT
3HRI #! 3UNDARAM LEARNED SENIOR COUNSEL APPEARING FOR THE 3TATE OF /RISSA
SUBMITTED THAT VARIOUS REASONS STATED BY THE -O%& FOR REJECTING THE 3TAGE
)) CLEARANCE
ARE UNSUSTAINABLE IN LAW AS WELL AS ON FACTS ,EARNED SENIOR COUNSEL POINTED OUT
THAT REASONS STATED BY THE 3AXENA #OMMITTEE AS WELL AS -O%& ALLEGING VIOLATION OF
THE %NVIRONMENTAL 0ROTECTION !CT ARE TOTALLY UNRELATED TO THE "-0 ,EARNED
SENIOR COUNSEL POINTED OUT THAT !LUMINA 2ENERY IS AN INDEPENDENT PROJECT AND THE
VIOLATION IF ANY IN RESPECT OF THE SAME OUGHT NOT TO HAVE BEEN RELEVANT CRITERIA FOR
THE CONSIDERATION OF THE GRANT OF 3TAGE
)) CLEARANCE TO THE "-0 BEING GRANTED TO /-#
2EFERRING TO THE -ONITORING 2EPORT OF %ASTERN 2EGIONAL /FCE DATED LEARNED
SENIOR COUNSEL POINTED OUT THAT THE NDINGS RECORDED IN THAT REPORT ARE REFERABLE TO TH
RESPONDENT AND NOT TO THE MINING PROJECT GRANTED TO /-#
4 / \
4HE LEARNED SENIOR COUNSEL ALSO SUBMITTED THAT 3AXENA #OMMITTEE AS WELL AS -O%& HAS
COMMITTED A FACTUAL ERROR IN TAKING INTO ACCOUNT THE ALLEGED LEGAL OCCUPATION OF
HA OF VILLAGE FOREST LANDS ENCLOSED WITHIN THE FACTORY PREMISES WHICH HAS NO CONNECTION
WITH REGARD TO THE MINING PROJECT A TOTALLY INDEPENDENT PROJECT ,EARNED SENIOR COUNSEL
ALSO SUBMITTED THAT IN THE PROPOSED MINING AREA THERE IS NO HUMAN HABITATION AND
THAT THE INDIVIDUAL HABITATION RIGHTS AS WELL AS THE #OMMUNITY &OREST 2ESOURCE 2IGHTS
FOR ALL VILLAGES LOCATED ON THE HILL SLOPE OF THE PROPOSED MINING LEASE AREA HAVE ALREADY
BEEN SETTLED ,EARNED SENIOR COUNSEL ALSO POINTED OUT THAT THE 'RAM 3ABHA HAS RECEIVED
SEVERAL INDIVIDUAL AND COMMUNITY CLAIMS FROM 2AYAGADA AND +ALAHANDI $ISTRICTS AND
THEY HAVE SETTLED BY GIVING ALTERNATE LANDS
3HRI 3UNDARAM ALSO SUBMITTED THAT THE &OREST 2IGHTS !CT DEALS WITH INDIVIDUAL AND
COMMUNITY RIGHTS OF THE 4RIBALS WHICH DOES NOT IN ANY MANNER EXPRESSLY OR IMPLIED
MAKE ANY REFERENCE TO THE RELIGIOUS OR SPIRITUAL RIGHTS PROTECTED UNDER !RTICLES AND
OF THE #ONSTITUTION OF )NDIA AND DOES NOT EXTEND TO THE PROPERTY RIGHTS ,EARNED
SENIOR COUNSEL ALSO SUBMITTED THAT THE 3TATE 'OVERNMENT CONTINUES TO MAINTAIN AND
HAVE OWNERSHIP OVER THE MINERALS AND DEPOSITS BENEATH THE FORESTS AND SUCH RIGHTS
HAVE NOT BEEN TAKEN AWAY BY THE &OREST 2IGHTS !CT AND NEITHER THE 'RAM 3ABHA NOR THE
4RIBALS CAN RAISE ANY OWNERSHIP RIGHTS ON MINERALS OR DEPOSITS BENEATH THE FOREST LAND
3HRI #5 3INGH LEARNED SENIOR COUNSEL APPEARING FOR THE RD RESPONDENT
3TERLITE
SUBMITTED THAT VARIOUS GROUNDS STATED IN 3AXENA REPORT AS WELL AS IN THE ORDER OF -O%&
DATED WERE URGED BEFORE THIS #OURT WHEN 6EDANTA AND 3TERLITE CASES WERE
DECIDED AND IT WAS FOLLOWING THOSE JUDGMENTS THAT -O%& GRANTED 3TAGE
) APPROVAL
ON ON THE BASIS OF THE RECOMMENDATION OF &!# )N COMPLIANCE OF THE 3TAGE
)
CLEARANCE ACCORDED BY -O%& 306 /-# AND 3TERLITE UNDERTOOK VARIOUS WORKS AND
COMPLETED THE DETAILS OF THE SAME HAVE BEEN FURNISHED ALONG WITH THE WRITTEN
SUBMISSIONS LED ON ,EARNED SENIOR COUNSEL SUBMITTED THAT THE ATTEMPT OF
THE -O%& IS TO CONFUSE THE ISSUE MIXING UP THE !LUMINA 2ENERY 0ROJECT WITH THAT OF
THE "AUXITE -INING 0ROJECT UNDERTAKEN BY 3TERLITE AND /-# THROUGH A 306 4HE ISSUES
RELATING TO EXPANSION OF RENERY AND ALLEGED VIOLATION OF THE %NVIRONMENTAL 0ROTECTION
!CT THE &OREST #ONSERVATION !CT ETC HAVE NOTHING TO DO WITH THE MINING
PROJECT UNDERTAKEN BY /-# AND 3TERLITE ,EARNED SENIOR COUNSEL THEREFORE SUBMITTED
THAT THE REJECTION OF THE 3TAGE
)) CLEARANCE BY -O%& IS ARBITRARY AND ILLEGAL
3HRI -OHAN 0ARASARAN 3OLICITOR 'ENERAL OF )NDIA AT THE OUTSET REFERRED TO THE JUDGMENT
OF THIS #OURT IN 3TERLITE AND PLACED CONSIDERABLE RELIANCE ON PARA OF THE JUDGMENT
AND SUBMITTED THAT WHILE GRANTING CLEARANCE BY THIS #OURT FOR THE DIVERSION OF
HA OF FOREST LAND TO UNDERTAKE BAUXITE MINING IN .IYAMGIRI HILLS LEFT IT TO THE -O%&
TO GRANT ITS APPROVAL IN ACCORDANCE WITH LAW 3HRI 0ARASARAN SUBMITTED THAT IT IS IN
ACCORDANCE WITH LAW THAT THE -O%& HAD CONSTITUTED TWO #OMMITTEES AND THE REPORTS
OF THE #OMMITTEES WERE PLACED BEFORE THE &!# WHICH IS A STATUTORY BODY CONSTITUTED
UNDER 3ECTION OF THE &OREST #ONSERVATION !CT )T WAS SUBMITTED THAT IT WAS ON THE
RECOMMENDATION OF THE STATUTORY BODY THAT -O%& HAD PASSED THE IMPUGNED ORDER
DATED &URTHER IT WAS POINTED OUT THAT THOUGH -O%& HAD GRANTED THE 3TAGE )
CLEARANCE ON IT CAN STILL EXAMINE AS TO WHETHER THE CONDITIONS STIPULATED FOR
THE GRANT OF 3TAGE ) CLEARANCE HAD BEEN COMPLIED WITH OR NOT &OR THE SAID PURPOSE TWO
#OMMITTEES WERE CONSTITUTED AND THE 3AXENA #OMMITTEE IN ITS REPORT HAS NOTICED THE
VIOLATION OF VARIOUS CONDITIONS STIPULATED IN THE 3TAGE ) CLEARANCE GRANTED BY -O%& ON
3HRI 0ARASARAN ALSO SUBMITTED THAT THE PETITIONER AS WELL AS RD RESPONDENT
HAVE ALSO VIOLATED THE PROVISIONS OF THE &OREST 2IGHTS !CT THE VIOLATION OF WHICH HAD
BEEN SPECICALLY NOTED BY THE 3AXENA #OMMITTEE AND ACCEPTED BY -O%& 2EFERRING TO
VARIOUS PROVISIONS OF THE &OREST 2IGHTS !CT UNDER 3ECTION I E AND 3ECTION OF
THE !CT IT WAS SUBMITTED THAT CONCERNED FOREST DWELLERS BE TREATED NOT MERELY AS RIGHT
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
HOLDERS AS STATUTORY EMPOWERED WITH THE AUTHORITY TO PROTECT THE .IYAMGIRI HILLS 3HRI
0ARASARAN ALSO POINTED OUT THAT 3ECTION E RECOGNISES THE RIGHT TO COMMUNITY TENURES
OF HABITAT AND HABITATION FOR PRIMITIVE TRIBAL GROUPS AND THAT $ONGARIA +ONDH HAVE
THE RIGHT TO GRAZING AND THE COLLECTION OF MINERAL FOREST OF THE HILLS AND THAT THEY HAVE
THE CUSTOMARY RIGHT TO WORSHIP THE MOUNTAINS IN EXERCISE OF THEIR TRADITIONAL RIGHTS
WHICH WOULD BE ROBED OF IF MINING IS PERMITTED IN .IYAMGIRI HILLS
3HRI 2AJ 0ANJWANI LEARNED SENIOR COUNSEL APPEARING FOR THE APPLICANTS IN )! .OS
AND OF CHALLENGED THE ENVIRONMENTAL CLEARANCE GRANTED TO /-# ON
BY -O%& BEFORE THE .ATIONAL %NVIRONMENT !PPELLATE !UTHORITY .%!! UNDER 3ECTION
OF THE .%!! !CT BY LING !PPEAL .OS OF AND OF BEFORE .%!!
.%!! VIDE ITS ORDER DATED ALLOWED THE APPEALS AND REMITTED THE MATTER TO
-O%& TO REVISIT THE GRANT OF ENVIRONMENTAL CLEARANCE TO /-# ON ,ATER -O%&
BY ITS ORDER DATED HAS WITHDRAWN THE ENVIRONMENTAL CLEARANCE DATED
GRANTED IN FAVOUR OF /-# AND THAT /-# WITHOUT AVAILING OF THE STATUTORY REMEDY OF
THE APPEAL LED )! .O OF IN THE PRESENT WRIT PETITION
3HRI 3ANJAY 0AREKH LEARNED COUNSEL APPEARING FOR THE APPLICANTS IN )! .OS AND
OF REFERRED TO THE VARIOUS PROVISIONS OF THE &OREST 2IGHTS !CT AND THE 2ULES AND
SUBMITTED THAT THE DETERMINATION OF RIGHTS OF SCHEDULED TRIBES 34S OTHER TRADITIONAL
FOREST DWELLERS 4&$S HAVE TO BE DONE BY THE 'RAM 3ABHA IN ACCORDANCE WITH THE
MACHINERY PROVIDED UNDER 3ECTION OF THE !CT ,EARNED COUNSEL ALSO SUBMITTED THAT THE
FOREST WEALTH VESTS IN THE 34S AND OTHER 4&$S AND CAN BE DIVERTED ONLY FOR THE PURPOSE
MENTIONED IN 3ECTION ,EARNED COUNSEL ALSO REFERRED TO THE 3AXENA #OMMITTEE
REPORT AND SUBMITTED THAT THE REPORT CLEARLY REVEALS THE COMMUNITY RIGHTS AS WELL
AS THE VARIOUS RIGHTS AND CLAIMS OF THE PRIMITIVE TRADITIONAL FOREST DWELLERS ,EARNED
COUNSEL ALSO SUBMITTED THAT IF THE MINING IS UNDERTAKEN IN .IYAMGIRI HILLS IT WOULD
DESTROY MORE THAN SQ KM OF UNDISTURBED FOREST LAND ON THE TOP OF THE MOUNTAIN
WHICH IS THE ABODE OF THE $ONGARIA +ONDH AND THEIR IDENTITY DEPENDS ON THE EXISTENCE
OF .IYAMGIRI HILLS
* 5$) #)! , % 6! ,5!4) /.
7E MAY AT THE OUTSET POINT OUT THAT THERE CANNOT BE ANY DOUBT THAT THIS #OURT IN
6EDANTA CASE HAD GIVEN LIBERTY TO 3TERLITE TO MOVE THIS #OURT IF THEY WERE AGREEABLE TO
THE SUGGESTED REHABILITATION PACKAGE IN THE ORDER OF THIS #OURT IN THE EVENT OF WHICH
IT WAS ORDERED THAT THIS #OURT MIGHT CONSIDER GRANTING CLEARANCE TO THE PROJECT BUT NOT
TO 6EDANTA 4HIS #OURT IN 6EDANTA CASE HAD OPINED THAT THIS #OURT WAS NOT AGAINST THE
PROJECT IN PRINCIPLE BUT ONLY SOUGHT SAFEGUARDS BY WHICH THE #OURT WOULD BE ABLE TO
PROTECT THE NATURE AND SUB
SERVE DEVELOPMENT
3TERLITE 3TATE OF /RISSA AND /-# THEN UNCONDITIONALLY ACCEPTED THE TERMS AND
CONDITIONS AND MODALITIES SUGGESTED BY THIS #OURT IN 6EDANTA UNDER THE CAPTION
2EHABILITATION 0ACKAGE AND THEY MOVED THIS #OURT BY LING )! .O OF AND
THIS #OURT ACCEPTED THE AFDAVITS LED BY THEM AND GRANTED CLEARANCE TO THE DIVERSION
OF HA OF FOREST LAND TO UNDERTAKE THE BAUXITE MINING IN .IYAMGIRI (ILLS AND
ORDERED THAT -O%& WOULD GRANT ITS APPROVAL IN ACCORDANCE WITH LAW
-O%& THEN CONSIDERED THE PROPOSAL OF THE 3TATE 'OVERNMENT MADE UNDER 3ECTION
OF THE &OREST #ONSERVATION !CT AND ALSO THE RECOMMENDATIONS OF THE &!#
AND AGREED IN PRINCIPLE FOR THE DIVERSION OF HA OF FOREST LAND FOR MINING OF
BAUXITE ORE IN ,ANJIGARH "AUXITE -INES IN FAVOUR OF /-# SUBJECT TO CONDITIONS VIDE
ITS ORDER /NE OF THE CONDITIONS WAS WITH REGARD TO IMPLEMENTATION OF THE
7ILDLIFE -ANAGEMENT 0LAN 7-0 SUGGESTED BY 7)) AND ANOTHER WAS WITH REGARD TO
4 / \
THE IMPLEMENTATION OF ALL OTHER PROVISIONS OF DIFFERENT !CTS INCLUDING ENVIRONMENTAL
CLEARANCE BEFORE THE TRANSFER OF THE FOREST LAND &URTHER IT WAS ALSO ORDERED THAT AFTER
RECEIPT OF THE COMPLIANCE REPORT ON FULLMENT OF THE CONDITIONS FROM THE 3TATE OF
/RISSA FORMAL APPROVAL WOULD BE ISSUED UNDER 3ECTION OF THE &OREST #ONSERVATION
!CT
-O%& EXAMINED THE APPLICATION OF THE /-# FOR ENVIRONMENTAL CLEARANCE UNDER 3ECTION
OF THE %)! .OTICATION READ WITH PARA I OF #IRCULAR DATED AND
ACCORDED ENVIRONMENTAL CLEARANCE FOR THE ,ANJIGARH "AUXITE -INING 0ROJECT TO
/-# FOR AN ANNUAL PRODUCTION CAPACITY OF MILLION TONNES OF BAUXITE BY OPENCAST
MECHANIZED METHOD INVOLVING TOTAL MINING LEASE AREA OF HA SUBJECT TO THE
CONDITIONS AND ENVIRONMENTAL SAFEGUARDS VIDE ITS LETTER DATED SPECIAL
CONDITIONS AND GENERAL CONDITIONS WERE INCORPORATED IN THAT LETTER )T WAS ORDERED
THAT FAILURE TO COMPLY WITH ANY OF THE CONDITIONS MIGHT RESULT IN WITHDRAWAL OF THE
CLEARANCE AND ATTRACT ACTION UNDER THE PROVISIONS OF THE %NVIRONMENT 0ROTECTION !CT
)T WAS SPECICALLY STATED THAT THE ENVIRONMENTAL CLEARANCE WOULD BE SUBJECT TO
GRANT OF FORESTRY CLEARANCE AND THAT NECESSARY CLEARANCE FOR DIVERSION OF HA /F
FOREST LAND INVOLVED IN THE PROJECT BE OBTAINED BEFORE STARTING OPERATION IN THAT AREA
AND THAT NO MINING BE UNDERTAKEN IN THE FOREST AREA WITHOUT OBTAINING PRIOR FORESTRY
CLEARANCE #ONDITION .O 888 ALSO STIPULATED THAT THE PROJECT PROPONENT SHALL TAKE ALL
PRECAUTIONARY MEASURES DURING MINING OPERATION FOR CONSERVATION AND PROTECTION OF
ORA AND FAUNA SPOTTED IN THE STUDY AREA AND ALL SAFEGUARDS MEASURES BROUGHT OUT BY
THE 7-0 PREPARED SPECIC TO THE PROJECT SITE AND CONSIDERED BY 7)) SHALL BE EFFECTIVELY
IMPLEMENTED &URTHER IT WAS ALSO ORDERED THAT ALL THE RECOMMENDATIONS MADE BY 7))
FOR 7ILDLIFE -ANAGEMENT BE EFFECTIVELY IMPLEMENTED AND THAT THE PROJECT PROPONENT
WOULD ALSO COMPLY WITH THE STANDARDS PRESCRIBED BY THE 3TATE AND #ENTRAL 0OLLUTION
#ONTROL "OARDS ,ATER A CORRIGENDUM DATED WAS ALSO ISSUED BY -O%& ADDING
TWO OTHER CONDITIONS
ONE SPECIAL CONDITION AND ANOTHER GENERAL CONDITION
4HE 3TATE OF /RISSA VIDE ITS LETTER DATED INFORMED -O%& THAT THE USER AGENCY
HAD COMPLIED WITH THE STIPULATIONS OF 3TAGE
) APPROVAL 3PECIC REFERENCE WAS MADE
POINT BY POINT TO ALL THE CONDITIONS STIPULATED IN THE LETTERS OF -O%& DATED
AND AND IN CONCLUSION THE 3TATE 'OVERNMENT HAS STATED IN THEIR LETTER AS
FOLLOWS
)N VIEW OF THE ABOVE POSITION OF COMPLIANCE BY THE 5SER !GENCY TO THE DIRECTION
OF (ONBLE 3UPREME #OURT OF )NDIA DATED AND STIPULATIONS OF THE
'OVERNMENT OF )NDIA -O%& VIDE THEIR 3TAGE
) APPROVAL ORDER DATED
THE COMPLIANCE IS FORWARDED TO THE 'OVERNMENT OF )NDIA -O%& TO KINDLY EXAMINE
THE SAME AND TAKE FURTHER NECESSARY STEPS IN MATTERS OF ACCORDING NAL APPROVAL
FOR DIVERSION OF HA OF FOREST LAND FOR THE PROJECT UNDER 3ECTION OF THE
&OREST #ONSERVATION !CT
-O%& IT IS SEEN THEN PLACED THE LETTER OF THE 3TATE 'OVERNMENT DATED BEFORE
THE &!# AND &!# ON RECOMMENDED THAT THE NAL CLEARANCE BE CONSIDERED
ONLY AFTER ASCERTAINING THE COMMUNITY RIGHTS OF FOREST LAND AND AFTER THE PROCESS FOR
ESTABLISHING SUCH RIGHTS UNDER THE &OREST 2IGHTS !CT IS COMPLETED $R 5SHA 2AMANATHAN
#OMMITTEE REPORT WAS PLACED BEFORE THE &!# ON AND &!# RECOMMENDED
THAT A 3PECIAL #OMMITTEE UNDER THE -INISTRY OF 4RIBAL !FFAIRS BE CONSTITUTED TO LOOK
INTO THE ISSUE RELATING TO VIOLATION OF TRIBAL RIGHTS AND THE SETTLEMENT OF VARIOUS RIGHTS
UNDER THE &OREST 2IGHTS !CT WHICH LED AS ALREADY INDICATED TO THE CONSTITUTION OF THE
3AXENA #OMMITTEE REPORT BASED ON WHICH THE -O%& PASSED THE IMPUGNED ORDER DATED
&!# IN ITS MEETING OPINED THAT THE NAL CLEARANCE UNDER THE &OREST #ONSERVATION !CT
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
WOULD BE GIVEN ONLY AFTER ASCERTAINING THE #OMMUNITY 2IGHTS ON FOREST LAND AND
AFTER THE PROCESS OF ESTABLISHING SUCH RIGHTS UNDER THE &OREST 2IGHTS !CT !FTER PERUSING
THE 5SHA 2AMANATHAN REPORT &!# ON RECOMMENDED THAT A 3PECIAL #OMMITTEE
BE CONSTITUTED TO LOOK INTO THE ISSUES RELATING TO THE ALLEGED VIOLATION OF RIGHTS UNDER
THE &OREST 2IGHTS !CT -O%& THEN ON CONSTITUTED THE 3AXENA #OMMITTEE AND
THE #OMMITTEE AFTER CONDUCTING AN ENQUIRY SUBMITTED ITS REPORT WHICH WAS PLACED
BEFORE THE &!# ON AND &!# NOTICED PRIMA FACIE VIOLATION OF THE &OREST 2IGHTS
!CT AND THE &OREST #ONSERVATION !CT
4HE PETITIONER HAS ASSAILED THE ORDER OF -O%& DATED AS AN ATTEMPT TO REOPEN
MATTERS THAT HAD OBTAINED NALITY &URTHER IT IS ALSO SUBMITTED THAT THE ORDER WRONGLY
CITES THE VIOLATION OF CERTAIN CONDITIONS OF ENVIRONMENTAL CLEARANCE BY !LUMINA
2ENERY 0ROJECT AS GROUNDS FOR DENIAL OF 3TAGE )) CLEARANCE TO /-# FOR ITS "AUXITE
-INING 0ROJECT 4HE CONTENTION IS BASED ON THE PREMISE THAT THE TWO 0ROJECTS ARE TOTALLY
SEPARATE AND INDEPENDENT OF EACH OTHER AND THE VIOLATION OF ANY STATUTORY PROVISION OR
A CONDITION OF ENVIRONMENTAL CLEARANCE BY ONE CANNOT BE A RELEVANT CONSIDERATION FOR
GRANT OF 3TAGE )) CLEARANCE TO THE OTHER
4HE PETITIONERS ASSERTION THAT THE !LUMINA 2ENERY 0ROJECT AND THE "AUXITE -INING
0ROJECT ARE TWO SEPARATE AND INDEPENDENT PROJECTS CANNOT BE ACCEPTED AS SUCH SINCE
THERE ARE SUFCIENT MATERIALS ON RECORD TO SHOW THAT THE TWO PROJECTS MAKE AN INTEGRATED
UNIT )N THE TWO EARLIER ORDERS OF THIS #OURT IN THE 6EDANTA CASE AND THE 3TERLITE CASE
ALSO THE TWO 0ROJECTS ARE SEEN AS COMPRISING A SINGLE UNIT 1UITE CONTRARY TO THE CASE OF
THE PETITIONER IT CAN BE STRONGLY ARGUED THAT THE !LUMINA 2ENERY 0ROJECT AND "AUXITE
-INING 0ROJECT ARE INTERDEPENDENT AND INSEPARABLY LINKED TOGETHER AND HENCE ANY
WRONG DOING BY !LUMINA 2ENERY 0ROJECT MAY CAST A REECTION ON THE "AUXITE -INING
0ROJECT AND MAY BE A RELEVANT CONSIDERATION FOR DENIAL OF 3TAGE )) CLEARANCE TO THE
"AUXITE -INING 0ROJECT )N THIS *UDGMENT HOWEVER WE DO NOT PROPOSE TO MAKE ANY
NAL PRONOUNCEMENT ON THAT ISSUE BUT WE WOULD KEEP THE FOCUS MAINLY ON THE RIGHTS OF
THE 3CHEDULED 4RIBES AND THE 4RADITIONAL &OREST $WELLERS UNDER THE &OREST 2IGHTS !CT
3 43 !.$ 4&$3
3CHEDULED 4RIBE AS SUCH IS NOT DENED IN THE &OREST 2IGHTS !CT BUT THE WORD 4RADITIONAL
&OREST $WELLER HAS BEEN DENED UNDER 3ECTION O AS ANY MEMBER OR COMMUNITY WHO
HAS AT LEAST THREE GENERATIONS PRIOR TO THE TH DAY OF $ECEMBER PRIMARILY RESIDED
IN AND WHO DEPEND ON THE FOREST OR FORESTS LAND FOR BONA DE LIVELIHOOD NEEDS !RTICLE
OF THE #ONSTITUTION STATES THAT 34S MEANS SUCH TRIBES OR TRIBAL COMMUNITIES
OR PARTS OF OR GROUPS WITHIN SUCH TRIBES OR TRIBAL COMMUNITIES AS ARE DENED UNDER
!RTICLE TO BE THE 3CHEDULED 4RIBES 4HE 0RESIDENT OF )NDIA IN EXERCISE OF THE POWERS
CONFERRED BY #LAUSE OF !RTICLE OF THE #ONSTITUTION HAS MADE THE #ONSTITUTION
3CHEDULE 4RIBES /RDER 0ART 8)) OF THE /RDER REFERS TO THE 3TATE OF /RISSA 3ERIAL .O
REFERS TO $ONGARIA +ONDH +UTIA +ANDHA ETC
"EFORE WE EXAMINE THE SCOPE OF THE &OREST 2IGHTS !CT LET US EXAMINE HOW THE RIGHTS
OF INDIGENOUS PEOPLE ARE GENERALLY VIEWED UNDER OUR #ONSTITUTION AND THE VARIOUS
)NTERNATIONAL #ONVENTIONS
#/.3 4) 454)/.! , 2 ) ' (43 !. $ #/. 6 %. 4)/. 3
!RTICLE OF THE #ONSTITUTION OF )NDIA WHICH APPEARS IN 0ART 8 PROVIDES THAT THE
ADMINISTRATION OF THE 3CHEDULED !REAS AND 3CHEDULED 4RIBES IN 3TATES OTHER THAN
!SSAM -EGHALAYA AND 4RIPURA SHALL BE ACCORDING TO THE PROVISIONS OF THE &IFTH
3CHEDULE AND #LAUSE STATES THAT 3IXTH 3CHEDULE APPLIES TO THE TRIBAL AREAS IN
4 / \
!SSAM -EGHALAYA 4RIPURA AND -IZORAM %VIDENTLY THE OBJECT OF THE &IFTH 3CHEDULE
AND THE 2EGULATIONS MADE THEREUNDER IS TO PRESERVE TRIBAL AUTONOMY THEIR CULTURES
AND ECONOMIC EMPOWERMENT TO ENSURE SOCIAL ECONOMIC AND POLITICAL JUSTICE FOR
THE PRESERVATION OF PEACE AND GOOD 'OVERNANCE IN THE 3CHEDULED !REA 4HIS #OURT
IN 3AMATHA VS !RUNACHAL 0RADESH 3## RULED THAT ALL RELEVANT CLAUSES IN
THE 3CHEDULE AND THE 2EGULATIONS SHOULD BE HARMONIOUSLY AND WIDELY BE READ AS TO
ELONGATE THE #ONSTITUTIONAL OBJECTIVES AND DIGNITY OF PERSON TO THE 3CHEDULED 4RIBES
AND ENSURING DISTRIBUTIVE JUSTICE AS AN INTEGRAL SCHEME THEREOF 4HE #OURT NOTICED THAT
!GRICULTURE IS THE ONLY SOURCE OF LIVELIHOOD FOR THE 3CHEDULED 4RIBES APART FROM
COLLECTION AND SALE OF MINOR FOREST PRODUCE TO SUPPLEMENT THEIR INCOME ,AND IS
THEIR MOST IMPORTANT NATURAL AND VALUABLE ASSET AND IMPERISHABLE ENDOWMENT
FROM WHICH THE TRIBAL DERIVE THEIR SUSTENANCE SOCIAL STATUS ECONOMIC AND SOCIAL
EQUALITY PERMANENT PLACE OF ABODE WORK AND LIVING#ONSEQUENTLY TRIBES
HAVE GREAT EMOTIONAL ATTACHMENTS TO THEIR LANDS
0ART " OF THE &IFTH 3CHEDULE ;!RTICLE = SPEAKS OF THE ADMINISTRATION AND CONTROL
OF 3CHEDULES !REAS AND 3CHEDULED 4RIBES 0ARA THEREOF SPEAKS OF 4RIBES !DVISORY
#OUNCIL 4RIBES !DVISORY #OUNCIL USED TO EXERCISE THE POWERS FOR THOSE 3CHEDULED !REAS
WHERE 0ANCHAYAT 2AJ SYSTEM HAD NOT BEEN EXTENDED "Y WAY OF THE #ONSTITUTION RD
!MENDMENT !CT 0ART )8 WAS INSERTED IN THE #ONSTITUTION OF )NDIA !RTICLE
" OF 0ART )8 OF THE #ONSTITUTION MANDATED THAT THERE SHALL BE PANCHAYATS AT VILLAGE
INTERMEDIATE AND DISTRICT LEVELS IN ACCORDANCE WITH THE PROVISIONS OF THAT 0ART !RTICLE
# OF #HAPTER )8 REFERS TO THE COMPOSITION OF 0ANCHAYATS !RTICLE
- B STATES
THAT 0ARLIAMENT MAY BY LAW EXTEND THE PROVISIONS OF 0ART )8 TO THE 3CHEDULED !REAS
AND THE 4RIBAL AREAS AND TO WORK OUT THE MODALITIES FOR THE SAME
4HE #ENTRAL 'OVERNMENT APPOINTED "HURIA #OMMITTEE TO UNDERTAKE A DETAILED STUDY
AND MAKE RECOMMENDATIONS AS TO WHETHER THE 0ANCHAYAT 2AJ SYSTEM COULD BE EXTENDED
TO 3CHEDULED !REAS 4HE #OMMITTEE SUBMITTED ITS REPORT ON AND FAVOURED
DEMOCRATIC DECENTRALIZATION IN 3CHEDULED !REAS "ASED ON THE RECOMMENDATIONS
THE 0ANCHAYAT %XTENSION TO 3CHEDULED !REAS !CT FOR SHORT 0%3! !CT WAS
ENACTED BY THE 0ARLIAMENT IN THE YEAR EXTENDING THE PROVISIONS OF 0ART )8 OF THE
#ONSTITUTION RELATING TO 0ANCHAYATS TO THE 3CHEDULED !REAS 4HE 3TATEMENT OF /BJECTS
AND 2EASONS OF THE !CT READS AS FOLLOWS
4HERE HAVE BEEN PERSISTENT DEMANDS FROM PROMINENT LEADERS OF THE 3CHEDULED
!REAS FOR EXTENDING THE PROVISIONS OF 0ART )8 OF THE #ONSTITUTION TO THESE !REAS
SO THAT 0ANCHAYATI 2AJ )NSTITUTIONS MAY BE ESTABLISHED THERE !CCORDINGLY IT IS
PROPOSED TO INTRODUCE A "ILL TO PROVIDE FOR THE EXTENSION OF THE PROVISIONS OF 0ART
)8 OF THE #ONSTITUTION TO THE 3CHEDULED !REAS WITH CERTAIN MODICATIONS PROVIDING
THAT AMONG OTHER THINGS THE 3TATE LEGISLATIONS THAT MAY BE MADE SHALL BE IN
CONSONANCE WITH THE CUSTOMARY LAW SOCIAL AND RELIGIOUS PRACTICES AND TRADITIONAL
MANAGEMENT PRACTICES OF COMMUNITY RESOURCES 4HE OFCES OF THE #HAIRPERSONS
IN THE PANCHAYATS AT ALL LEVELS SHALL BE RESERVED FOR THE 3CHEDULED 4RIBES THE
RESERVATIONS OF SEATS AT EVERY PANCHAYAT FOR THE 3CHEDULED 4RIBES SHALL NOT BE LESS
THAN ONE
THIRD OF THE TOTAL NUMBER OF SEATS
4HIS COURT HAD OCCASION TO CONSIDER THE SCOPE OF 0%3! !CT WHEN THE CONSTITUTIONAL
VALIDITY OF THE PROVISO TO SECTION G OF THE 0%3! !CT AND FEW SECTIONS OF THE *HARKHAND
0ANCHAYAT 2AJ !CT WERE CHALLENGED IN 5NION OF )NDIA VS 2AKESH +UMAR
3## AND THIS #OURT UPHELD THE #ONSTITUTIONAL VALIDITY
3ECTION OF THE 0%3! !CT STIPULATES THAT THE 3TATE LEGISLATION ON 0ANCHAYATS SHALL
BE MADE IN CONSONANCE WITH THE CUSTOMARY LAW SOCIAL AND RELIGIOUS PRACTICES AND
TRADITIONAL MANAGEMENT PRACTICES OF COMMUNITY RESOURCES
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
A #LAUSE D OF 3ECTION STATES THAT EVERY 'RAM 3ABHA SHALL BE COMPETENT TO SAFEGUARD
AND PRESERVE THE TRADITIONS AND CUSTOMS OF THE PEOPLE THEIR CULTURAL IDENTITY
COMMUNITY RESOURCES AND THE CUSTOMARY MODE OF DISPUTE RESOLUTION
B &URTHER IT ALSO STATES IN CLAUSE I OF 3ECTION THAT THE 'RAM 3ABHA OR THE 0ANCHAYATS
AT THE APPROPRIATE LEVEL SHALL BE CONSULTED BEFORE MAKING THE ACQUISITION OF LAND IN
THE 3CHEDULED !REAS FOR DEVELOPMENT PROJECTS AND BEFORE RE
SETTLING OR REHABILITATING
PERSONS AFFECTED BY SUCH PROJECTS IN THE 3CHEDULED !REAS AND THAT THE ACTUAL PLANNING
AND IMPLEMENTATION OF THE PROJECTS IN THE 3CHEDULED !REAS SHALL BE COORDINATED AT THE
3TATE LEVEL
C 3UB
CLAUSE K OF 3ECTION STATES THAT THE RECOMMENDATIONS OF THE 'RAM 3ABHA
OR THE 0ANCHAYATS AT THE APPROPRIATE LEVEL SHALL BE MADE MANDATORY PRIOR TO GRANT
OF PROSPECTIVE LICENCE OR MINING LEASE FOR MINOR MINERALS IN THE 3CHEDULED !REAS
0ANCHAYAT HAS ALSO ENDOWED WITH THE POWERS AND AUTHORITY NECESSARY TO FUNCTION AS
INSTITUTIONS OF 3ELF
'OVERNMENT
4HE CUSTOMARY AND CULTURAL RIGHTS OF INDIGENOUS PEOPLE HAVE ALSO BEEN THE SUBJECT
MATTER OF VARIOUS INTERNATIONAL CONVENTIONS )NTERNATIONAL ,ABOUR /RGANIZATION ),/
#ONVENTION ON )NDIGENOUS AND 4RIBAL 0OPULATIONS #ONVENTION .O WAS THE
RST COMPREHENSIVE INTERNATIONAL INSTRUMENT SETTING FORTH THE RIGHTS OF INDIGENOUS
AND TRIBAL POPULATIONS WHICH EMPHASIZED THE NECESSITY FOR THE PROTECTION OF SOCIAL
POLITICAL AND CULTURAL RIGHTS OF INDIGENOUS PEOPLE &OLLOWING THAT THERE WERE TWO OTHER
CONVENTIONS ),/ #ONVENTION .O AND )NDIGENOUS AND 4RIBAL 0EOPLES #ONVENTION
AND 5NITED .ATIONS $ECLARATION ON THE RIGHTS OF )NDIGENOUS 0EOPLES 5.$2)0
)NDIA IS A SIGNATORY ONLY TO THE ),/ #ONVENTION .O
!PART FROM GIVING LEGITIMACY TO THE CULTURAL RIGHTS BY #ONVENTION THE #ONVENTION
ON THE "IOLOGICAL $IVERSITY #"! ADOPTED AT THE %ARTH 3UMMIT HIGHLIGHTED
NECESSITY TO PRESERVE AND MAINTAIN KNOWLEDGE INNOVATION AND PRACTICES OF THE LOCAL
COMMUNITIES RELEVANT FOR CONSERVATION AND SUSTAINABLE USE OF BIODIVERSITY )NDIA IS A
SIGNATORY TO #"! 2IO $ECLARATION ON %NVIRONMENT AND $EVELOPMENT !GENDA AND
&ORESTRY PRINCIPLE ALSO ENCOURAGE THE PROMOTION OF CUSTOMARY PRACTICES CONDUCIVE TO
CONSERVATION 4HE NECESSITY TO RESPECT AND PROMOTE THE INHERENT RIGHTS OF INDIGENOUS
PEOPLES WHICH DERIVE FROM THEIR POLITICAL ECONOMIC AND SOCIAL STRUCTURES AND FROM
THEIR CULTURES SPIRITUAL TRADITIONS HISTORIES AND PHILOSOPHIES ESPECIALLY THEIR RIGHTS TO
THEIR LANDS TERRITORIES AND RESOURCES HAVE ALSO BEEN RECOGNIZED BY 5NITED .ATIONS IN
THE 5NITED .ATIONS $ECLARATION ON 2IGHTS OF )NDIGENOUS 0EOPLES 34S AND OTHER 4&$S
RESIDING IN THE 3CHEDULED !REAS HAVE A RIGHT TO MAINTAIN THEIR DISTINCTIVE SPIRITUAL
RELATIONSHIP WITH THEIR TRADITIONALLY OWNED OR OTHERWISE OCCUPIED AND USED LANDS
-ANY OF THE 34S AND OTHER 4&$S ARE TOTALLY UNAWARE OF THEIR RIGHTS 4HEY ALSO EXPERIENCE
LOT OF DIFCULTIES IN OBTAINING EFFECTIVE ACCESS TO JUSTICE BECAUSE OF THEIR DISTINCT
CULTURE AND LIMITED CONTACT WITH MAINSTREAM SOCIETY -ANY A TIMES THEY DO NOT HAVE
THE NANCIAL RESOURCES TO ENGAGE IN ANY LEGAL ACTIONS AGAINST DEVELOPMENT PROJECTS
UNDERTAKEN IN THEIR ABODE OR THE FOREST IN WHICH THEY STAY 4HEY HAVE A VITAL ROLE TO PLAY
IN THE ENVIRONMENTAL MANAGEMENT AND DEVELOPMENT BECAUSE OF THEIR KNOWLEDGE AND
TRADITIONAL PRACTICES 3TATE HAS GOT A DUTY TO RECOGNIZE AND DULY SUPPORT THEIR IDENTITY
CULTURE AND INTEREST SO THAT THEY CAN EFFECTIVELY PARTICIPATE IN ACHIEVING SUSTAINABLE
DEVELOPMENT
7E NOTICE BEARING IN MIND THE ABOVE OBJECTS THE &OREST 2IGHTS !CT HAS BEEN ENACTED
CONFERRING POWERS ON THE 'RAM 3ABHA CONSTITUTED UNDER THE !CT TO PROTECT THE
COMMUNITY RESOURCES INDIVIDUAL RIGHTS CULTURAL AND RELIGIOUS RIGHTS
4 / \
4 ( % &/2 % 3 4 2 )' ( 43 !#4
4HE &OREST 2IGHTS !CT WAS ENACTED BY THE 0ARLIAMENT TO RECOGNIZE AND VEST THE FOREST
RIGHTS AND OCCUPATION IN FOREST LAND IN FOREST DWELLING 34S AND OTHER 4&$S WHO HAVE
BEEN RESIDING IN SUCH FORESTS FOR GENERATIONS BUT WHOSE RIGHTS COULD NOT BE RECORDED
AND 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 4HE !CT
ALSO STATES THAT THE RECOGNIZED RIGHTS OF THE FOREST DWELLING 34S AND OTHER 4&$S INCLUDE
THE RESPONSIBILITIES AND AUTHORITY FOR SUSTAINABLE USE CONSERVATION OF BIODIVERSITY AND
MAINTENANCE OF ECOLOGICAL BALANCE AND THEREBY STRENGTHENING THE CONSERVATION REGIME
OF THE FORESTS WHILE ENSURING LIVELIHOOD AND FOOD SECURITY OF THE FOREST DWELLING 34S
AND OTHER 4&$S 4HE !CT ALSO NOTICED THAT THE FOREST RIGHTS ON ANCESTRAL LANDS AND THEIR
HABITAT WERE NOT ADEQUATELY RECOGNIZED IN THE CONSOLIDATION OF 3TATE FORESTS DURING
THE COLONIAL PERIOD AS WELL AS IN INDEPENDENT )NDIA RESULTING IN HISTORICAL INJUSTICE TO
THEM WHO ARE INTEGRAL TO THE VERY SURVIVAL AND SUSTAINABILITY OF THE FOREST ECOSYSTEM
4HE 3TATEMENT OF /BJECTS AND 2EASONS OF THE !CT STATES THAT FOREST DWELLING TRIBAL
PEOPLE AND FORESTS ARE INSEPARABLE AND 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 AND THAT
ONLY RECENTLY THAT FOREST MANAGEMENT REGIMES HAVE INITIATED ACTION TO RECOGNIZE THE
OCCUPATION AND OTHER RIGHT OF THE FOREST DWELLERS /F LATE WE HAVE REALIZED THAT FORESTS
HAVE THE BEST CHANCE TO SURVIVE IF COMMUNITIES PARTICIPATE IN THEIR CONSERVATION AND
REGENERATION MEASURES 4HE ,EGISLATURE ALSO HAS ADDRESSED THE LONG STANDING AND
GENUINE FELT NEED OF GRANTING A SECURE AND INALIENABLE RIGHT TO THOSE COMMUNITIES
WHOSE RIGHT TO LIFE DEPENDS ON RIGHT TO FORESTS AND THEREBY STRENGTHENING THE ENTIRE
CONSERVATION REGIME BY GIVING A PERMANENT STAKE TO THE 34S DWELLING IN THE FORESTS FOR
GENERATIONS IN SYMBIOTIC RELATIONSHIP WITH THE ENTIRE ECOSYSTEM
7E HAVE TO BEAR IN MIND THE ABOVE OBJECTS AND REASONS WHILE INTERPRETING VARIOUS
PROVISIONS OF THE &OREST 2IGHTS !CT WHICH IS A SOCIAL WELFARE OR REMEDIAL STATUTE 4HE
!CT PROTECTS A WIDE RANGE OF RIGHTS OF FOREST DWELLERS AND 34S INCLUDING THE CUSTOMARY
RIGHTS TO USE FOREST LAND AS A COMMUNITY FOREST RESOURCE AND NOT RESTRICTED MERELY TO
PROPERTY RIGHTS OR TO AREAS OF HABITATION
&OREST RIGHTS OF FOREST DWELLING 34S AND OTHER 4&$S ARE DEALT WITH IN #HAPTER )) OF THE
!CT 3ECTION OF THAT CHAPTER LISTS OUT WHAT ARE THE FOREST RIGHTS FOR THE PURPOSE OF THE
!CT &OLLOWING ARE SOME OF THE RIGHTS WHICH HAVE BEEN RECOGNIZED UNDER THE !CT
A 2IGHT 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 3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLERS
B #OMMUNITY RIGHTS SUCH AS NISTAR BY WHATEVER NAME CALLED INCLUDING THOSE USED
IN ERSTWHILE 0RINCELY 3TATES :AMINDARI OR SUCH INTERMEDIARY REGIMES
C 2IGHT OF OWNERSHIP ACCESS TO COLLECT USE AND DISPOSE OF MINOR FOREST PRODUCE
WHICH HAS BEEN TRADITIONALLY COLLECTED WITHIN OR OUTSIDE VILLAGE BOUNDARIES
D /THER COMMUNITY RIGHTS OF USES OR ENTITLEMENT SUCH AS SH AND OTHER PRODUCTS
OF WATER BODIES GRAZING BOTH SETTLED OR TRANSHUMANT AND TRADITIONAL SEASONAL
RESOURCE ACCESS OF NOMADIC OR PASTORALIST COMMUNITIES
E 2IGHTS INCLUDING COMMUNITY TENURES OF HABITAT AND HABITATION FOR PRIMITIVE
TRIBAL GROUPS AND PRE
AGRICULTURAL COMMUNITIES
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
F
G XXX
H 2IGHTS OF SETTLEMENT AND CONVERSION OF ALL FOREST VILLAGES OLD HABITATION
UNSURVEYED VILLAGES AND OTHER VILLAGES IN FORESTS WHETHER RECORDED NOTIED OR NOT
INTO REVENUE VILLAGES
I 2IGHT TO PROTECT REGENERATE OR CONSERVE OR MANAGE ANY COMMUNITY FOREST RESOURCE
WHICH THEY HAVE BEEN TRADITIONALLY PROTECTING AND CONSERVING FOR SUSTAINABLE USE
J 2IGHTS WHICH ARE RECOGNIZED UNDER ANY 3TATE LAW OR LAWS OF ANY !UTONOMOUS
$ISTRICT #OUNCIL OR !UTONOMOUS 2EGIONAL #OUNCIL OR WHICH ARE ACCEPTED AS RIGHTS OF
TRIBALS UNDER ANY TRADITIONAL OR CUSTOMARY LAW OF THE CONCERNED TRIBES OF ANY 3TATE
K 2IGHT OF ACCESS TO BIODIVERSITY AND COMMUNITY RIGHT TO INTELLECTUAL PROPERTY AND
TRADITIONAL KNOWLEDGE RELATED TO BIODIVERSITY AND CULTURAL DIVERSITY
L !NY OTHER TRADITIONAL RIGHT CUSTOMARILY ENJOYED BY THE FOREST DWELLING 3CHEDULED
4RIBES OR OTHER TRADITIONAL FOREST DWELLERS AS THE CASE MAY BE WHICH ARE NOT
MENTIONED IN CLAUSES 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
4HE ABOVE SECTION HAS TO BE READ ALONG WITH A DENITION CLAUSE
A 3ECTION A DENES COMMUNITY FOREST RESOURCE
A #OMMUNITY &OREST 2ESOURCE MEANS CUSTOMARY COMMON FOREST LAND WITHIN
THE TRADITIONAL OR CUSTOMARY BOUNDARIES OF THE VILLAGE OR SEASONAL USE OF LANDSCAPE
IN THE CASE OF PASTORAL COMMUNITIES INCLUDING RESERVED FORESTS PROTECTED FORESTS
AND PROTECTED AREAS SUCH 3ANCTUARIES AND .ATIONAL 0ARKS TO WHICH THE COMMUNITY
HAD TRADITIONAL ACCESS
B #RITICAL WILDLIFE HABITAT IS DENED UNDER 3ECTION B OF THE !CT WHICH READS AS
FOLLOWS
B CRITICAL WILDLIFE HABITAT MEANS SUCH AREAS OF .ATIONAL 0ARKS AND 3ANCTUARIES
WHERE IT HAS BEEN SPECICALLY AND CLEARLY ESTABLISHED CASE BY CASE ON THE BASIS OF
SCIENTIC AND OBJECTIVE CRITERIA THAT SUCH AREAS ARE REQUIRED TO BE KEPT AS INVIOLATE
FOR THE PURPOSES OF WILDLIFE CONSERVATION AS MAY BE DETERMINED AND NOTIED BY THE
#ENTRAL 'OVERNMENT IN THE -INISTRY OF %NVIRONMENT AND &ORESTS AFTER OPEN PROCESS
OF CONSULTATION BY AN %XPERT #OMMITTEE WHICH INCLUDES EXPERTS FROM THE LOCALITY
APPOINTED BY THAT 'OVERNMENT WHEREIN A REPRESENTATIVE OF THE -INISTRY OF 4RIBAL
!FFAIRS SHALL ALSO BE INCLUDED IN DETERMINING SUCH AREAS ACCORDING TO THE PROCEDURAL
REQUIREMENT ARISING FROM SUB
SECTIONS AND OF 3ECTION
C &OREST DWELLING 3CHEDULED 4RIBES IS DENED UNDER 3ECTION C OF THE !CT WHICH
READS AS FOLLOWS
C &OREST DWELLING 3CHEDULED 4RIBES MEANS THE MEMBERS OR COMMUNITY OF
THE 3CHEDULED 4RIBES WHO PRIMARILY RESIDE IN AND WHO DEPEND ON THE FORESTS
OR FORESTLANDS FOR BONA DE LIVELIHOOD NEEDS AND INCLUDES THE 3CHEDULED 4RIBE
0ASTORALIST COMMUNITIES
D &OREST LAND IS DESCRIBED UNDER 3ECTION D WHICH READS AS FOLLOWS
D FOREST LAND MEANS LAND OF ANY DESCRIPTION FALLING WITHIN ANY FOREST AREA AND
INCLUDES UNCLASSIED FORESTS UNDEMARCATED FORESTS EXISTING OR DEEMED FORESTS
PROTECTED FORESTS RESERVED FORESTS SANCTUARIES AND .ATIONAL 0ARKS
E 'RAM 3ABHA IS DENED UNDER 3ECTION G WHICH READS AS FOLLOWS
4 / \
G 'RAM 3ABHA MEANS A VILLAGE ASSEMBLY WHICH SHALL CONSIST OF ALL ADULT
MEMBERS OF A VILLAGE AND IN CASE OF 3TATES HAVING NO 0ANCHAYATS 0ADAS 4OLAS AND
OTHER TRADITIONAL VILLAGE INSTITUTIONS AND ELECTED VILLAGE COMMITTEES WITH FULL AND
UNRESTRICTED PARTICIPATION OF WOMEN
F (ABITAT IS DENED UNDER 3ECTION H WHICH READS AS FOLLOWS
H HABITAT INCLUDES THE AREA COMPRISING THE CUSTOMARY HABITAT AND SUCH OTHER
HABITATS IN RESERVED FORESTS AND PROTECTED FORESTS OF PRIMITIVE TRIBAL GROUPS AND PRE
AGRICULTURAL COMMUNITIES AND OTHER FOREST DWELLING 3CHEDULED 4RIBES
G 3CHEDULED !REAS IS DESCRIBED UNDER 3ECTION M WHICH READS AS FOLLOWS
M 3CHEDULED !REAS MEANS THE 3CHEDULED !REAS REFERRED TO IN CLAUSE OF !RTICLE
OF THE #ONSTITUTION
H 3USTAINABLE USE IS DESCRIBED UNDER 3ECTION N WHICH READS AS FOLLOWS
N SUSTAINABLE USE SHALL HAVE THE SAME MEANING AS ASSIGNED TO IT IN CLAUSE O OF
3ECTION OF "IOLOGICAL $IVERSITY !CT OF
#HAPTER ))) OF THE !CT DEALS WITH RECOGNITION RESTORATION AND VESTING OF FOREST RIGHTS
AND RELATED MATTERS 3ECTION OF THAT CHAPTER DEALS WITH RECOGNITION OF AND VESTING OF
FOREST RIGHTS IN FOREST DWELLING 34S AND OTHER 4&$S 3ECTION LISTS OUT DUTIES IN WHOM
THE FOREST RIGHTS VESTS AND ALSO THE HOLDERS OF FOREST RIGHTS EMPOWERS THEM TO CARRY
OUT DUTIES 4HOSE DUTIES INCLUDE PRESERVATION OF HABITAT FROM ANY FORM OF DESTRUCTIVE
PRACTICES AFFECTING THEIR CULTURAL AND NATURAL HERITAGE
4HE DENITION CLAUSES READ WITH THE ABOVE MENTIONED PROVISIONS GIVE EMPHASIS TO
CUSTOMARY RIGHTS RIGHTS TO COLLECT USE AND DISPOSE OF MINOR FOREST PRODUCE COMMUNITY
RIGHTS LIKE GRAZING CATTLE COMMUNITY TENURE OF HABITAT AND HABITATION FOR PRIMITIVE
TRIBAL GROUPS TRADITIONAL RIGHTS CUSTOMARILY ENJOYED ETC ,EGISLATIVE INTENTION IS
THEREFORE CLEAR THAT THE !CT INTENDS TO PROTECT CUSTOM USAGE FORMS PRACTICES AND
CEREMONIES WHICH ARE APPROPRIATE TO THE TRADITIONAL PRACTICES OF FOREST DWELLERS
#HAPTER )6 OF THE !CT DEALS WITH THE AUTHORITIES AND PROCEDURE FOR VESTING OF FOREST
RIGHTS 4HAT CHAPTER HAS ONLY ONE SECTION IE 3ECTION WHICH HAS TO BE READ ALONG WITH
4HE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !MENDMENT 2ULES AND THE !MENDMENT 2ULES
4HE -INISTRY OF 4RIBAL !FFAIRS HAS NOTICED SEVERAL PROBLEMS WHICH ARE IMPEDING THE
IMPLEMENTATION OF THE !CT IN ITS LETTER AND SPIRIT
&OR PROPER AND EFFECTIVE IMPLEMENTATION OF THE !CT THE -INISTRY HAS ISSUED CERTAIN
GUIDELINES AND COMMUNICATED TO ALL THE 3TATES AND 54S VIDE THEIR LETTER DATED
4HE OPERATIVE PORTION OF THE SAME READS AS FOLLOWS
' 5 ) $%,). %3
I 0ROCESS OF 2ECOGNITION OF 2IGHTS
A 4HE 3TATE 'OVERNMENTS SHOULD ENSURE THAT ON RECEIPT OF INTIMATION FROM THE &OREST
2IGHTS #OMMITTEE THE OFCIALS OF THE &OREST AND 2EVENUE $EPARTMENTS REMAIN PRESENT
DURING THE VERICATION OF THE CLAIMS AND THE EVIDENCE ON THE SITE
B )N THE EVENT OF MODICATION OR REJECTION OF A CLAIM BY THE 'RAM 3ABHA OR BY THE 3UB
$IVISIONAL ,EVEL #OMMITTEE OR THE $ISTRICT ,EVEL #OMMITTEE THE DECISION ON THE CLAIM
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
SHOULD BE COMMUNICATED TO THE CLAIMANT TO ENABLE THE AGGRIEVED PERSON TO PREFER
A PETITION TO THE 3UB $IVISIONAL ,EVEL #OMMITTEE OR THE $ISTRICT ,EVEL #OMMITTEE AS
THE CASE MAY BE WITHIN THE SIXTY DAYS PERIOD PRESCRIBED UNDER THE !CT AND NO SUCH
PETITION SHOULD BE DISPOSED OF AGAINST THE AGGRIEVED PERSON UNLESS HE HAS BEEN GIVEN
A REASONABLE OPPORTUNITY TO PRESENT HIS CASE
C 4HE 3UB
$IVISIONAL ,EVEL #OMMITTEE OR THE $ISTRICT ,EVEL #OMMITTEE SHOULD
IF DEEMED NECESSARY REMAND THE CLAIM TO THE 'RAM 3ABHA FOR RECONSIDERATION INSTEAD
OF REJECTING OR MODIFYING THE SAME IN CASE THE RESOLUTION OR THE RECOMMENDATION OF
THE 'RAM 3ABHA IS FOUND TO BE INCOMPLETE OR PRIMA
FACIE REQUIRES ADDITIONAL
EXAMINATION
D )N CASES WHERE THE RESOLUTION PASSED BY THE 'RAM 3ABHA RECOMMENDING A CLAIM
IS UPHELD BY 3UB
$IVISIONAL ,EVEL COMMITTEE BUT THE SAME IS NOT APPROVED BY THE
$ISTRICT ,EVEL #OMMITTEE THE $ISTRICT ,EVEL #OMMITTEE SHOULD RECORD THE REASONS FOR
NOT ACCEPTING THE RECOMMENDATIONS OF THE 'RAM 3ABHA AND THE 3UB
$IVISIONAL ,EVEL
#OMMITTEE IN WRITING AND A COPY OF THE ORDER SHOULD BE SUPPLIED TO THE CLAIMANT
E /N COMPLETION OF THE PROCESS OF SETTLEMENT OF RIGHTS AND ISSUE OF TITLES AS SPECIED
IN !NNEXURES )) ))) )6 OF THE 2ULES THE 2EVENUE &OREST $EPARTMENTS SHALL PREPARE A
NAL MAP OF THE FOREST LAND SO VESTED AND THE CONCERNED AUTHORITIES SHALL INCORPORATE
THE FOREST RIGHTS SO VESTED IN THE REVENUE AND FOREST RECORDS AS THE CASE MAY BE WITHIN
THE PRESCRIBED CYCLE OF RECORD UPDATION
F !LL DECISIONS OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE AND $ISTRICT ,EVEL #OMMITTEE
THAT INVOLVE MODICATION OR REJECTION OF A 'RAM 3ABHA RESOLUTION RECOMMENDATION
SHOULD BE IN THE FORM OF SPEAKING ORDERS
G 4HE 3UB
$IVISIONAL ,EVEL #OMMITTEE OR THE $ISTRICT ,EVEL COMMITTEE SHOULD NOT
REJECT ANY CLAIM ACCOMPANIED BY ANY TWO FORMS OF EVIDENCES SPECIED IN 2ULE AND
RECOMMENDED BY THE 'RAM 3ABHA WITHOUT GIVING REASONS IN WRITING AND SHOULD NOT
INSIST UPON ANY PARTICULAR FORM OF EVIDENCE FOR CONSIDERATION OF A CLAIM &INE RECEIPTS
ENCROACHER LISTS PRIMARY OFFENCE REPORTS FOREST SETTLEMENT REPORTS AND SIMILAR
DOCUMENTATION ROOTED IN PRIOR OFCIAL EXERCISES OR THE LACK THEREOF WOULD NOT BE THE
SOLE BASIS FOR REJECTION OF ANY CLAIM
H 5SE OF ANY TECHNOLOGY SUCH AS SATELLITE IMAGERY SHOULD BE USED TO SUPPLEMENT
EVIDENCES TENDERED BY A CLAIMANT FOR CONSIDERATION OF THE CLAIM AND NOT TO
REPLACE OTHER EVIDENCES SUBMITTED BY HIM IN SUPPORT OF HIS CLAIM AS THE ONLY FORM
OF EVIDENCE
I 4HE STATUS OF ALL THE CLAIMS NAMELY THE TOTAL NUMBER OF CLAIMS LED THE NUMBER OF
CLAIMS APPROVED BY THE $ISTRICT ,EVEL #OMMITTEE FOR TITLE THE NUMBER OF TITLES ACTUALLY
DISTRIBUTED THE NUMBER OF CLAIMS REJECTED ETC SHOULD BE MADE AVAILABLE AT THE VILLAGE
AND PANCHAYAT LEVELS THROUGH APPROPRIATE FORMS OF COMMUNICATIONS INCLUDING
CONVENTIONAL METHODS SUCH AS DISPLAY OF NOTICES BEAT OF DRUM ETC
J ! QUESTION HAS BEEN RAISED WHETHER THE FOUR HECTARE LIMIT SPECIED IN 3ECTION OF
THE !CT WHICH PROVIDES FOR RECOGNITION OF FOREST RIGHTS IN RESPECT OF THE LAND MENTIONED
IN CLAUSE A OF SUB
SECTION OF SECTION OF THE !CT APPLIES TO OTHER FOREST RIGHTS
MENTIONED IN 3ECTION OF THE !CT )T IS CLARIED THAT THE FOUR HECTARE LIMIT SPECIED IN
3ECTION APPLIES TO RIGHTS UNDER SECTION A OF THE !CT ONLY AND NOT TO ANY OTHER
RIGHT UNDER SECTION SUCH AS CONVERSION OF PATTAS OR LEASES CONVERSION OF FOREST
VILLAGES INTO REVENUE VILLAGES ETC
4 / \
II -INOR &OREST 0RODUCE
A 4HE 3TATE 'OVERNMENT SHOULD ENSURE THAT THE FOREST RIGHTS RELATING TO -&0S UNDER
3ECTION C OF THE !CT ARE RECOGNIZED IN RESPECT OF ALL -&0S AS DENED UNDER 3ECTION
I OF THE !CT IN ALL FOREST AREAS AND STATE POLICIES ARE BROUGHT IN ALIGNMENT WITH THE
PROVISIONS OF THE !CT 3ECTION I OF THE !CT DENES THE TERM MINOR FOREST PRODUCE
TO INCLUDE ALL NON
TIMBER PRODUCE OF PLANT ORIGIN INCLUDING BAMBOO BRUSH WOOD
STUMPS CANE TUSSAR COCOONS HONEY WAX LAC TENDU OR KENDU LEAVES MEDICINAL PLANTS
AND HERBS ROOTS TUBERS AND THE LIKE
B 4HE MONOPOLY OF THE &OREST #ORPORATIONS IN THE TRADE OF -&0 IN MANY 3TATES
ESPECIALLY IN CASE OF HIGH VALUE -&0 SUCH AS TENDU PATTA IS AGAINST THE SPIRIT OF THE !CT
AND SHOULD HENCEFORTH BE DONE AWAY WITH
C 4HE FOREST RIGHT HOLDERS OR THEIR COOPERATIVES FEDERATIONS SHOULD BE ALLOWED FULL
FREEDOM TO SELL SUCH -&0S TO ANYONE OR TO UNDERTAKE INDIVIDUAL OR COLLECTIVE PROCESSING
VALUE ADDITION MARKETING FOR LIVELIHOOD WITHIN AND OUTSIDE FOREST AREA BY USING LOCALLY
APPROPRIATE MEANS OF TRANSPORT
D 4HE 3TATE 'OVERNMENTS SHOULD EXEMPT MOVEMENT OF ALL -&0S FROM THE PURVIEW
OF THE TRANSIT RULES OF THE 3TATE 'OVERNMENT AND FOR THIS PURPOSE THE TRANSIT RULES BE
AMENDED SUITABLY %VEN A TRANSIT PERMIT FROM 'RAM 3ABHA SHOULD NOT BE REQUIRED
)MPOSITION OF ANY FEECHARGESROYALTIES ON THE PROCESSING VALUE ADDITION MARKETING
OF -&0 COLLECTED INDIVIDUALLY OR COLLECTIVELY BY THE COOPERATIVES FEDERATIONS OF THE
RIGHTS HOLDERS WOULD ALSO BE ULTRA VIRES OF THE !CT
E 4HE 3TATE 'OVERNMENTS NEED TO PLAY THE FACILITATING ROLE IN NOT ONLY TRANSFERRING
UNHINDERED ABSOLUTE RIGHTS OVER -&0 TO FOREST DWELLING 3CHEDULED 4RIBES AND OTHER
TRADITIONAL FOREST DWELLERS BUT ALSO IN GETTING THEM REMUNERATIVE PRICES FOR THE -&0
COLLECTED AND PROCESSED BY THEM
III #OMMUNITY 2IGHTS
A 4HE $ISTRICT ,EVEL #OMMITTEE SHOULD ENSURE THAT THE RECORDS OF PRIOR RECORDED NISTARI
OR OTHER TRADITIONAL COMMUNITY RIGHTS SUCH AS +HATIAN PART )) IN *HARKHAND AND
TRADITIONAL FOREST PRODUCE RIGHTS IN (IMACHAL AND 5TTARAKHAND ARE PROVIDED TO 'RAM
3ABHAS AND IF CLAIMS ARE LED FOR RECOGNITION OF SUCH AGE
OLD USUFRUCTORY RIGHTS SUCH
CLAIMS ARE NOT REJECTED EXCEPT FOR VALID REASONS TO BE RECORDED IN WRITING FOR DENIAL OF
SUCH RECORDED RIGHTS
B 4HE $ISTRICT ,EVEL #OMMITTEE SHOULD ALSO FACILITATE THE LING OF CLAIMS BY PASTORALISTS
BEFORE THE CONCERNED 'RAM 3ABHA S SINCE THEY WOULD BE A OATING POPULATION FOR THE
'RAM 3ABHAS OF THE AREA USED TRADITIONALLY
C )N VIEW OF THE DIFFERENTIAL VULNERABILITY OF 0ARTICULARLY 6ULNERABLE 4RIBAL 'ROUPS
04'S AMONGST THE FOREST DWELLERS $ISTRICT ,EVEL #OMMITTEE SHOULD PLAY A PRO
ACTIVE
ROLE IN ENSURING THAT ALL 04'S RECEIVE HABITAT RIGHTS IN CONSULTATION WITH THE CONCERNED
04'S TRADITIONAL INSTITUTIONS AND THEIR CLAIMS FOR HABITAT RIGHTS ARE LED BEFORE THE
CONCERNED 'RAM 3ABHAS
D 4HE FOREST VILLAGES ARE VERY OLD ENTITIES AT TIMES OF PRE INDEPENDENT ERA DULY EXISTING
IN THE FOREST RECORDS 4HE ESTABLISHMENT OF THESE VILLAGES WAS IN FACT ENCOURAGED BY
THE FOREST AUTHORITIES IN THE PRE INDEPENDENT ERA FOR AVAILABILITY OF LABOUR WITHIN THE
FOREST AREAS 4HE WELL DENED RECORD OF EACH FOREST VILLAGE INCLUDING THE AREA NUMBER
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
OF INHABITANTS ETC EXISTS WITH THE 3TATE &OREST $EPARTMENTS 4HERE ARE ALSO UNRECORDED
SETTLEMENTS AND OLD HABITATIONS THAT ARE NOT IN ANY 'OVERNMENT RECORD 3ECTION H
OF THE !CT RECOGNIZES THE RIGHT OF FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL
FOREST DWELLERS RELATING TO SETTLEMENT AND CONVERSION ON FOREST VILLAGES OLD HABITATION
UN
SURVEYED VILLAGES AND OTHER VILLAGES AND FORESTS WHETHER RECORDED NOTIED OR
NOT INTO REVENUE VILLAGES 4HE CONVERSION OF ALL FOREST VILLAGES INTO REVENUE VILLAGES
AND RECOGNITION OF THE FOREST RIGHTS OF THE INHABITANTS THEREOF SHOULD ACTUALLY HAVE
BEEN COMPLETED IMMEDIATELY ON ENACTMENT OF THE !CT 4HE 3TATE 'OVERNMENTS MAY
THEREFORE CONVERT ALL SUCH ERSTWHILE FOREST VILLAGES UNRECORDED SETTLEMENTS AND OLD
HABITATIONS INTO REVENUE VILLAGES WITH A SENSE OF URGENCY IN A TIME BOUND MANNER 4HE
CONVERSION WOULD INCLUDE THE ACTUAL LAND
USE OF THE VILLAGE IN ITS ENTIRETY INCLUDING
LANDS REQUIRED FOR CURRENT OR FUTURE COMMUNITY USES LIKE SCHOOLS HEALTH FACILITIES
PUBLIC SPACES ETC 2ECORDS OF THE FOREST VILLAGES MAINTAINED BY THE &OREST $EPARTMENT
MAY THEREAFTER BE SUITABLY UPDATED ON RECOGNITION OF THIS RIGHT
IV #OMMUNITY &OREST 2ESOURCE 2IGHTS
A 4HE 3TATE 'OVERNMENT SHOULD ENSURE THAT THE FOREST RIGHTS UNDER 3ECTION I OF
THE !CT RELATING TO PROTECTION REGENERATION OR CONSERVATION OR MANAGEMENT OF ANY
COMMUNITY FOREST RESOURCE WHICH FOREST DWELLERS MIGHT HAVE TRADITIONALLY BEEN
PROTECTING AND CONSERVING FOR SUSTAINABLE USE ARE RECOGNIZED IN ALL VILLAGES AND THE
TITLES ARE ISSUED AS SOON AS THE PRESCRIBED &ORMS FOR CLAIMING 2IGHTS TO #OMMUNITY
&OREST 2ESOURCE AND THE &ORM OF 4ITLE FOR #OMMUNITY &OREST 2ESOURCES ARE INCORPORATED
IN THE 2ULES !NY RESTRICTION SUCH AS TIME LIMIT ON USE OF COMMUNITY FOREST RESOURCES
OTHER THAN WHAT IS TRADITIONALLY IMPOSED WOULD BE AGAINST THE SPIRIT OF THE !CT
B )N CASE NO COMMUNITY FOREST RESOURCE RIGHTS ARE RECOGNIZED IN A VILLAGE THE REASONS FOR
THE SAME SHOULD BE RECORDED 2EFERENCE CAN BE MADE TO EXISTING RECORDS OF COMMUNITY
AND JOINT FOREST MANAGEMENT VAN PANCHAYATS ETC FOR THIS PURPOSE
C 4HE 'RAM 3ABHA WOULD INITIALLY DEMARCATE THE BOUNDARIES OF THE COMMUNITY
FOREST RESOURCE AS DENED IN 3ECTION A OF THE !CT FOR THE PURPOSES OF LING CLAIMS FOR
RECOGNITION OF FOREST RIGHT UNDER 3ECTION I OF THE !CT
D 4HE #OMMITTEES CONSTITUTED UNDER 2ULE E OF THE &OREST 2IGHTS 2ULES WOULD
WORK UNDER THE CONTROL OF 'RAM 3ABHA 4HE 3TATE !GENCIES SHOULD FACILITATE THIS PROCESS
E #ONSEQUENT UPON THE RECOGNITION OF FOREST RIGHT IN 3ECTION I OF THE !CT TO PROTECT
REGENERATE OR CONSERVE OR MANAGE ANY COMMUNITY FOREST RESOURCE THE POWERS OF THE
'RAM 3ABHA WOULD BE IN CONSONANCE WITH THE DUTIES AS DENED IN 3ECTION D WHEREIN
THE 'RAM 3ABHA IS EMPOWERED TO REGULATE ACCESS TO COMMUNITY FOREST RESOURCES AND
STOP ANY ACTIVITY WHICH ADVERSELY AFFECTS THE WILD ANIMALS FOREST AND THE BIODIVERSITY
!NY ACTIVITY THAT PREJUDICIALLY AFFECTS THE WILD
LIFE FOREST AND BIODIVERSITY IN FOREST
AREA WOULD BE DEALT WITH UNDER THE PROVISIONS OF THE RELEVANT !CTS
V 0ROTECTION !GAINST %VICTION $IVERSION OF &OREST ,ANDS AND &ORCED 2ELOCATION
A 3ECTION OF THE !CT IS VERY SPECIC AND PROVIDES THAT NO MEMBER OF A FOREST DWELLING
3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLERS SHALL BE EVICTED OR REMOVED FROM
THE FOREST LAND UNDER HIS OCCUPATION TILL THE RECOGNITION AND VERICATION PROCEDURE IS
COMPLETE 4HIS CLAUSE IS OF AN ABSOLUTE NATURE AND EXCLUDES ALL POSSIBILITIES OF EVICTION
OF FOREST DWELLING 3CHEDULED 4RIBES OR OTHER TRADITIONAL FOREST DWELLERS WITHOUT
SETTLEMENT OF THEIR FOREST RIGHTS AS THIS 3ECTION OPENS WITH THE WORDS 3AVE AS OTHERWISE
PROVIDED 4HE RATIONALE BEHIND THIS PROTECTIVE CLAUSE AGAINST EVICTION IS TO ENSURE THAT
4 / \
IN NO CASE A FOREST DWELLER SHOULD BE EVICTED WITHOUT RECOGNITION OF HIS RIGHTS AS THE
SAME ENTITLES HIM TO A DUE COMPENSATION IN CASE OF EVENTUALITY OF DISPLACEMENT IN
CASES WHERE EVEN AFTER RECOGNITION OF RIGHTS A FOREST AREA IS TO BE DECLARED AS INVIOLATE
FOR WILDLIFE CONSERVATION OR DIVERTED FOR ANY OTHER PURPOSE )N ANY CASE 3ECTION HAS
THE EFFECT OF RECOGNIZING AND VESTING FOREST RIGHTS IN ELIGIBLE FOREST DWELLERS 4HEREFORE
NO EVICTION SHOULD TAKE PLACE TILL THE PROCESS OF RECOGNITION AND VESTING OF FOREST RIGHTS
UNDER THE !CT IS COMPLETE
B 4HE -INISTRY OF %NVIRONMENT &ORESTS VIDE THEIR LETTER .O
&#PT
DATED AS MODIED BY THEIR SUBSEQUENT LETTER OF THE SAME NUMBER DATED
HAS ISSUED DIRECTIONS REQUIRING THE 3TATE 54 'OVERNMENTS TO ENCLOSE
CERTAIN EVIDENCES RELATING TO COMPLETION OF THE PROCESS OF SETTLEMENT OF RIGHTS UNDER THE
3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT WHILE FORMULATING UNCONDITIONAL PROPOSALS FOR DIVERSION OF FOREST LAND FOR
NON
FOREST PURPOSES UNDER THE &OREST #ONSERVATION !CT 4HE 3TATE 'OVERNMENT
SHOULD ENSURE THAT ALL DIVERSIONS OF FOREST LAND FOR NON
FOREST PURPOSES UNDER THE &OREST
#ONSERVATION !CT TAKE PLACE IN COMPLIANCE WITH THE INSTRUCTIONS CONTAINED IN THE
-INISTRY OF %NVIRONMENT &ORESTS LETTER DATED AS MODIED ON
C 4HERE MAY BE SOME CASES OF MAJOR DIVERSIONS OF FOREST LAND FOR NON
FOREST PURPOSES
UNDER THE &OREST #ONSERVATION !CT AFTER THE ENACTMENT OF THE 3CHEDULED 4RIBES
AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT BUT
BEFORE THE ISSUE OF -INISTRY OF %NVIRONMENT &ORESTS LETTER DATED REFERRED
TO ABOVE )N CASE ANY EVICTIONS OF FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL
FOREST DWELLERS HAVE TAKEN PLACE WITHOUT SETTLEMENT OF THEIR RIGHTS DUE TO SUCH MAJOR
DIVERSIONS OF FOREST LAND UNDER THE &OREST #ONSERVATION !CT THE $ISTRICT ,EVEL
#OMMITTEES MAY BE ADVISED TO BRING SUCH CASES OF EVICTIONS IF ANY TO THE NOTICE OF
THE 3TATE ,EVEL -ONITORING #OMMITTEE FOR APPROPRIATE ACTION AGAINST VIOLATION OF THE
PROVISIONS CONTAINED IN 3ECTION OF THE !CT
D 4HE !CT ENVISAGES THE RECOGNITION AND VESTING OF FOREST RIGHTS IN FOREST DWELLING
3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS OVER ALL FOREST LANDS INCLUDING
.ATIONAL 0ARKS AND 3ANCTUARIES 5NDER 3ECTION B OF THE !CT THE -INISTRY OF
%NVIRONMENT &ORESTS IS RESPONSIBLE FOR DETERMINATION AND NOTICATION OF CRITICAL
WILDLIFE HABITATS IN THE .ATIONAL 0ARKS AND 3ANCTUARIES FOR THE PURPOSE OF CREATING
INVIOLATE AREAS FOR WILDLIFE CONSERVATION AS PER THE PROCEDURE LAID DOWN )N FACT THE
RIGHTS OF THE FOREST DWELLERS RESIDING IN THE .ATIONAL 0ARKS AND 3ANCTUARIES ARE REQUIRED
TO BE RECOGNIZED WITHOUT WAITING OF NOTICATION OF CRITICAL WILDLIFE HABITATS IN THESE
AREAS &URTHER 3ECTION OF THE !CT PROVIDES FOR CERTAIN SAFEGUARDS FOR PROTECTION OF
THE FOREST RIGHTS OF THE FOREST RIGHTS HOLDERS RECOGNIZED UNDER THE !CT IN THE CRITICAL
WILDLIFE HABITATS OF .ATIONAL 0ARKS AND 3ANCTUARIES WHEN THEIR RIGHTS ARE EITHER
TO BE MODIED OR RESETTLED FOR THE PURPOSES OF CREATING INVIOLATE AREAS FOR WILDLIFE
CONSERVATION .O EXERCISE FOR MODICATION OF THE RIGHTS OF THE FOREST DWELLERS OR THEIR
RESETTLEMENT FROM THE .ATIONAL 0ARKS AND 3ANCTUARIES CAN BE UNDERTAKEN UNLESS THEIR
RIGHTS HAVE BEEN RECOGNIZED AND VESTED UNDER THE !CT )N VIEW OF THE PROVISIONS OF
3ECTION OF THE !CT NO EVICTION AND RESETTLEMENT IS PERMISSIBLE FROM THE .ATIONAL
0ARKS AND SANCTUARIES TILL ALL THE FORMALITIES RELATING TO RECOGNITION AND VERICATION OF
THEIR CLAIMS ARE COMPLETED 4HE 3TATE 54 'OVERNMENTS MAY THEREFORE ENSURE THAT
THE RIGHTS OF THE FOREST DWELLING 3CHEDULED 4RIBESAND OTHER TRADITIONAL FOREST DWELLERS
RESIDING IN .ATIONAL 0ARKS AND 3ANCTUARIES ARE RECOGNIZED RST BEFORE ANY EXERCISE FOR
MODICATION OF THEIR RIGHTS OR THEIR RESETTLEMENT IF NECESSARY IS UNDERTAKEN AND NO
MEMBER OF THE FOREST DWELLING 3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLER IS
EVICTED FROM SUCH AREAS WITHOUT THE SETTLEMENT OF THEIR RIGHTS AND COMPLETION OF ALL
OTHER ACTIONS REQUIRED UNDER SECTION OF THE !CT
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
E 4HE 3TATE ,EVEL -ONITORING #OMMITTEE SHOULD MONITOR COMPLIANCE OF THE PROVISIONS
OF 3ECTION M OF THE !CT WHICH RECOGNIZES THE RIGHT TO IN SITU REHABILITATION
INCLUDING ALTERNATIVE LAND IN CASES WHERE THE FOREST DWELLING 3CHEDULED 4RIBES AND
OTHER TRADITIONAL FOREST DWELLERS HAVE BEEN ILLEGALLY EVICTED OR DISPLACED FROM FOREST
LAND WITHOUT RECEIVING THEIR LEGAL ENTITLEMENT TO REHABILITATION AND ALSO OF THE
PROVISIONS OF 3ECTION OF THE !CT WHICH RECOGNIZES THEIR RIGHT TO LAND WHEN THEY ARE
DISPLACED FROM THEIR DWELLING AND CULTIVATION WITHOUT LAND COMPENSATION DUE TO 3TATE
DEVELOPMENT INTERVENTIONS
VI !WARENESS 2AISING -ONITORING AND 'RIEVANCE 2EDRESSAL
A %ACH 3TATE SHOULD PREPARE SUITABLE COMMUNICATION AND TRAINING MATERIAL IN LOCAL
LANGUAGE FOR EFFECTIVE IMPLEMENTATION OF THE !CT
B 4HE 3TATE .ODAL !GENCY SHOULD ENSURE THAT THE 3UB $IVISIONAL ,EVEL #OMMITTEE AND
THE $ISTRICT ,EVEL #OMMITTEE MAKE DISTRICT
WISE PLANS FOR TRAININGS OF REVENUE FOREST
AND TRIBAL WELFARE DEPARTMENTS ELD STAFF OFCIALS &OREST 2IGHTS #OMMITTEES AND
0ANCHAYAT REPRESENTATIVES 0UBLIC MEETINGS FOR AWARENESS GENERATION IN THOSE VILLAGES
WHERE PROCESS OF RECOGNITION IS NOT COMPLETE NEED TO BE HELD
C )N ORDER TO GENERATE AWARENESS ABOUT THE VARIOUS PROVISIONS OF THE !CT AND THE 2ULES
ESPECIALLY THE PROCESS OF LING PETITIONS THE 3TATE 'OVERNMENT SHOULD ORGANIZE PUBLIC
HEARINGS ON LOCAL BAZAAR DAYS OR AT OTHER APPROPRIATE LOCATIONS ON A QUARTERLY BASIS
TILL THE PROCESS OF RECOGNITION IS COMPLETE )T WILL BE HELPFUL IF SOME MEMBERS OF 3UB
$IVISIONAL ,EVEL #OMMITTEE ARE PRESENT IN THE PUBLIC HEARINGS 4HE 'RAM 3ABHAS ALSO
NEED TO BE ACTIVELY INVOLVED IN THE TASK OF AWARENESS RAISING
D )F ANY FOREST DWELLING 3CHEDULED 4RIBE IN CASE OF A DISPUTE RELATING TO A RESOLUTION
OF A 'RAM 3ABHA OR 'RAM 3ABHA THROUGH A RESOLUTION AGAINST ANY HIGHER AUTHORITY OR
#OMMITTEE OR OFCER OR MEMBER OF SUCH AUTHORITY OR #OMMITTEE GIVES A NOTICE AS PER
3ECTION OF THE !CT REGARDING CONTRAVENTION OF ANY PROVISION OF THE !CT OR ANY RULE
MADE THEREUNDER CONCERNING RECOGNITION OF FOREST RIGHTS TO THE 3TATE ,EVEL -ONITORING
#OMMITTEES THE 3TATE ,EVEL -ONITORING #OMMITTEE SHOULD HOLD AN INQUIRY ON THE BASIS
OF THE SAID NOTICE WITHIN SIXTY DAYS FROM THE RECEIPT OF THE NOTICE AND TAKE ACTION IF
ANY THAT IS REQUIRED 4HE COMPLAINANT AND THE 'RAM 3ABHA SHOULD BE INFORMED ABOUT
THE OUTCOME OF THE INQUIRY
&/2 % 3 4 2 ) ' ( 43 ! #4 !. $ --$2 !#4
3TATE OF /RISSA HAS MAINTAINED THE STAND THAT THE 3TATE HAS THE OWNERSHIP OVER THE
MINES AND MINERALS DEPOSITS BENEATH THE FOREST LAND AND THAT THE 34S AND OTHER
4&$S CANNOT RAISE ANY CLAIM OR RIGHTS OVER THEM NOR THE 'RAM 3ABHA HAS ANY RIGHT
TO ADJUDICATE SUCH CLAIMS 4HIS #OURT IN !MRITLAL .ATHUBHAI 3HAH AND /RS VS 5NION
'OVERNMENT OF )NDIA AND !NOTHER 3## WHILE DEALING WITH THE SCOPE OF
-INES AND -INERALS2EGULATION AND $EVELOPMENT !CT HELD AS FOLLOWS
THE 3TATE 'OVERNMENT IS THE OWNER OF MINERALS WITHIN ITS TERRITORY AND THE
MINERALS VEST IN IT 4HERE IS NOTHING IN THE !CT OR THE 2ULES TO DETRACT FROM THIS BASIC
FACT 4HAT WAS WHY THE #ENTRAL 'OVERNMENT STATED FURTHER IN ITS REVISIONAL ORDERS
THAT THE 3TATE 'OVERNMENT HAD THE INHERENT RIGHT TO RESERVE ANY PARTICULAR AREA FOR
EXPLOITATION IN THE PUBLIC SECTOR )T IS THEREFORE QUITE CLEAR THAT IN THE ABSENCE OF
ANY LAW OR CONTRACT ETC TO THE CONTRARY BAUXITE AS A MINERAL AND THE MINES THEREOF
VEST IN THE 3TATE OF 'UJARAT AND NO PERSON HAS ANY RIGHT TO EXPLOIT IT OTHERWISE THEN
IN ACCORDANCE WITH THE PROVISIONS OF THE !CT AND THE 2ULES
4 / \
4HE &OREST 2IGHTS !CT NEITHER EXPRESSLY NOR IMPLIEDLY HAS TAKEN AWAY OR INTERFERED
WITH THE RIGHT OF THE 3TATE OVER MINES OR MINERALS LYING UNDERNEATH THE FOREST LAND
WHICH STAND VESTED IN THE 3TATE 3TATE HOLDS THE NATURAL RESOURCES AS A TRUSTEE FOR THE
PEOPLE 3ECTION OF THE &OREST 2IGHTS !CT DOES NOT VEST SUCH RIGHTS ON THE 34S OR OTHER
4&$S 0%3! !CT SPEAKS ONLY OF MINOR MINERALS WHICH SAYS THAT THE RECOMMENDATION OF
'RAM 3ABHA SHALL BE MADE MANDATORY PRIOR TO GRANT OF PROSPECTING LICENCE OR MINING
LEASE FOR MINOR MINERALS IN THE 3CHEDULED !REAS 4HEREFORE AS HELD BY THIS #OURT IN
!MRITLAL SUPRA THE 3TATE 'OVERNMENT HAS THE POWER TO RESERVE ANY PARTICULAR AREA FOR
"AUXITE MINING FOR A 0UBLIC 3ECTOR #ORPORATION
' 2 ! - 3 !"( ! !.$ /4( % 2 !54(/2)4)%3
5NDER 3ECTION OF THE !CT 'RAM 3ABHA SHALL BE THE AUTHORITY TO INITIATE THE PROCESS FOR
DETERMINING THE NATURE AND EXTENT OF INDIVIDUAL OR COMMUNITY FOREST RIGHTS OR BOTH
AND THAT MAY BE GIVEN TO THE FOREST DWELLING 34S AND OTHER 4&$S WITHIN THE LOCAL LIMITS
OF THE JURISDICTION &OR THE SAID PURPOSE IT RECEIVE CLAIMS AND AFTER CONSOLIDATING AND
VERIFYING THEM IT HAS TO PREPARE A PLAN DELINEATING THE AREA OF EACH RECOMMENDED
CLAIM IN SUCH MANNER AS MAY BE PRESCRIBED FOR EXERCISE OF SUCH RIGHTS 4HE 'RAM 3ABHA
SHALL THEN PASS A RESOLUTION TO THAT EFFECT AND THEREAFTER FORWARD A COPY OF THE SAME
TO THE 3UB
$IVISIONAL ,EVEL #OMMITTEE !NY AGGRIEVED PERSON MAY MOVE A PETITION
BEFORE THE 3UB
$IVISIONAL ,EVEL #OMMITTEE AGAINST THE RESOLUTION OF THE 'RAM 3ABHA
3UB
SECTION OF 3ECTION CONFERS A RIGHT ON THE AGGRIEVED PERSON TO PREFER A PETITION
TO THE $ISTRICT ,EVEL #OMMITTEE AGAINST THE DECISION OF THE 3UB
$IVISIONAL ,EVEL
#OMMITTEE 3UB
SECTION OF 3ECTION ENABLES THE 3TATE 'OVERNMENT TO CONSTITUTE A
3TATE ,EVEL -ONITORING #OMMITTEE TO MONITOR THE PROCESS OF RECOGNITION AND VESTING
OF FOREST RIGHTS AND TO SUBMIT TO THE NODAL AGENCY 3UCH RETURNS AND REPORTS SHALL BE
CALLED FOR BY THAT AGENCY
&UNCTIONS OF THE 'RAM 3ABHA 3UB
$IVISIONAL ,EVEL #OMMITTEE $ISTRICT ,EVEL
#OMMITTEE 3TATE ,EVEL -ONITORING #OMMITTEE AND PROCEDURE TO BE FOLLOWED AND THE
PROCESS OF VERICATION OF CLAIMS ETC HAVE BEEN ELABORATELY DEALT WITH IN 2ULES
READ WITH !MENDMENT 2ULES %LABORATE PROCEDURES HAVE THEREFORE BEEN LAID
DOWN BY &OREST 2IGHTS !CT READ WITH AND !MENDMENT 2ULES WITH REGARD TO
THE MANNER IN WHICH THE NATURE AND EXTENT OF INDIVIDUAL OR CUSTOMARY FOREST RIGHTS
OR BOTH HAVE TO BE DECIDED 2EFERENCE HAS ALREADY BEEN MADE TO THE DETAILS OF FOREST
RIGHTS WHICH HAVE BEEN CONFERRED ON THE FOREST DWELLING 34S AS WELL AS 4&$S IN THE
EARLIER PART OF THE *UDGMENT
) . $ ) 6 )$5! , #/--5.)49 2 )'(43
&OREST 2IGHTS !CT PRESCRIBED VARIOUS RIGHTS TO TRIBALSFOREST DWELLERS AS PER 3ECTION OF
THE !CT !S PER 3ECTION OF THE !CT POWER IS CONFERRED ON THE 'RAM 3ABHA TO PROCESS
FOR DETERMINING THE NATURE AND THE EXTENT OF INDIVIDUAL OR COMMUNITY FORESTS READ
WITH OR BOTH THAT MAY BE GIVEN TO FOREST DWELLING 34S AND OTHER 4&$S BY RECEIVING
CLAIMS CONSOLIDATE IT AND VERIFYING THEM AND PREPARING A MAP DELINEATING AREA OF
EACH RECOMMENDED CLAIM IN SUCH A MANNER AS MAY BE PRESCRIBED 4HE 'RAM 3ABHA
HAS RECEIVED A LARGE NUMBER OF INDIVIDUAL CLAIMS AND COMMUNITY CLAIMS FROM THE
2AYAGADA $ISTRICT AS WELL AS THE +ALAHANDI $ISTRICT &ROM 2AYAGADA $ISTRICT 'RAM 3ABHA
RECEIVED INDIVIDUAL CLAIMS OF WHICH CLAIMS HAVE BEEN CONSIDERED AND SETTLED BY
GRANTING ALTERNATE RIGHTS OVER ACRES OF LAND )NDIVIDUAL CLAIMS PENDING BEFORE
THE 'RAM 3ABHA PERTAIN TO AREAS WHICH FALLS OUTSIDE THE MINING LEASE AREA )N RESPECT
OF +ALAHANDI $ISTRICT INDIVIDUAL CLAIMS HAVE BEEN CONSIDERED AND SETTLED BY GRANTING
ALTERNATE RIGHTS OVER AN AREA OF ACRES
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4HE 'RAM 3ABHA HAS NOT RECEIVED ANY COMMUNITY CLAIM FROM THE $ISTRICT OF 2AYAGADA
(OWEVER IN RESPECT OF +ALAHANDI $ISTRICT COMMUNITY CLAIMS HAD BEEN RECEIVED BY
THE 'RAM 3ABHA OF WHICH HAD BEEN CONSIDERED AND SETTLED BY GRANTING AN ALTERNATE
AREA OF ACRES 4HE BALANCE CLAIMS ARE PENDING CONSIDERATION
#53 4/- ! 2 9 !.$ 2 % ,)')/53 2)'(43 3!#2%$ 2)'(43
2ELIGIOUS FREEDOM GUARANTEED TO 34S AND THE 4&$S UNDER !RTICLES AND OF THE
#ONSTITUTION IS INTENDED TO BE A GUIDE TO A COMMUNITY OF LIFE AND SOCIAL DEMANDS 4HE
ABOVE MENTIONED !RTICLES GUARANTEE THEM THE RIGHT TO PRACTICE AND PROPAGATE NOT ONLY
MATTERS OF FAITH OR BELIEF BUT ALL THOSE RITUALS AND OBSERVATIONS WHICH ARE REGARDED
AS INTEGRAL PART OF THEIR RELIGION 4HEIR RIGHT TO WORSHIP THE DEITY .IYAM
2AJA HAS
THEREFORE TO BE PROTECTED AND PRESERVED
4HE 'RAM 3ABHA HAS A ROLE TO PLAY IN SAFEGUARDING THE CUSTOMARY AND RELIGIOUS RIGHTS OF
THE 34S AND OTHER 4&$S UNDER THE &OREST 2IGHTS !CT 3ECTION OF THE !CT CONFERS POWERS
ON THE 'RAM 3ABHA TO DETERMINE THE NATURE AND EXTENT OF INDIVIDUAL OR COMMUNITY
RIGHTS )N THIS CONNECTION REFERENCE MAY ALSO BE MADE TO 3ECTION OF THE !CT COUPLED
WITH THE PROVISIONS OF 0%3! !CT WHICH DEAL WITH THE POWERS OF 'RAM 3ABHA 3ECTION
OF THE &OREST 2IGHTS !CT READS AS UNDER
!CT NOT IN DEROGATION OF ANY OTHER LAW
3AVE AS OTHERWISE PROVIDED IN THIS !CT
AND THE PROVISIONS OF THE 0ANCHAYATS %XTENSION OF THE 3CHEDULED !REAS !CT
OF THE PROVISIONS OF THIS !CT SHALL BE IN ADDITION TO AND NOT IN DEROGATION
OF THE PROVISIONS OF ANY OTHER LAW FOR THE TIME BEING IN FORCE
4HE 0%3! !CT HAS BEEN ENACTED AS ALREADY STATED TO PROVIDE FOR THE EXTENSION OF THE
PROVISIONS OF 0ART )8 OF THE #ONSTITUTION RELATING TO 0ANCHAYATS TO THE 3CHEDULED !REAS
3ECTION D OF THE !CT SAYS THAT EVERY 'RAM 3ABHA SHALL BE COMPETENT TO SAFEGUARD
AND PRESERVE THE TRADITIONS CUSTOMS OF THE PEOPLE THEIR CULTURAL IDENTITY COMMUNITY
RESOURCES AND COMMUNITY MODE OF DISPUTE RESOLUTION 4HEREFORE 'RAMA 3ABHA
FUNCTIONING UNDER THE &OREST 2IGHTS !CT READ WITH 3ECTION D OF 0%3! !CT HAS AN
OBLIGATION TO SAFEGUARD AND PRESERVE THE TRADITIONS AND CUSTOMS OF THE 34S AND OTHER
FOREST DWELLERS THEIR CULTURAL IDENTITY COMMUNITY RESOURCES ETC WHICH THEY HAVE
TO DISCHARGE FOLLOWING THE GUIDELINES ISSUED BY THE -INISTRY OF 4RIBAL !FFAIRS VIDE ITS
LETTER DATED
7E ARE THEREFORE OF THE VIEW THAT THE QUESTION WHETHER 34S AND OTHER 4&$S LIKE
$ONGARIA +ONDH +UTIA +ANDHA AND OTHERS HAVE GOT ANY RELIGIOUS RIGHTS IE RIGHTS OF
WORSHIP OVER THE .IYAMGIRI HILLS KNOWN AS .IMAGIRI NEAR (UNDALJALI WHICH IS THE HILL
TOP KNOWN AS .IYAM
2AJA HAVE TO BE CONSIDERED BY THE 'RAM 3ABHA 'RAM 3ABHA CAN
ALSO EXAMINE WHETHER THE PROPOSED MINING AREA .IYAMA $ANGER KM AWAY FROM
THE PEAK WOULD IN ANY WAY AFFECT THE ABODE OF .IYAM
2AJA .EEDLESS TO SAY IF THE
"-0 IN ANY WAY AFFECTS THEIR RELIGIOUS RIGHTS ESPECIALLY THEIR RIGHT TO WORSHIP THEIR
DEITY KNOWN AS .IYAM 2AJA IN THE HILLS TOP OF THE .IYAMGIRI RANGE OF HILLS THAT RIGHT
HAS TO BE PRESERVED AND PROTECTED 7E ND THAT THIS ASPECT OF THE MATTER HAS NOT BEEN
PLACED BEFORE THE 'RAM 3ABHA FOR THEIR ACTIVE CONSIDERATION BUT ONLY THE INDIVIDUAL
CLAIMS AND COMMUNITY CLAIMS RECEIVED FROM 2AYAGADA AND +ALAHANDI $ISTRICTS MOST
OF WHICH THE 'RAM 3ABHA HAS DEALT WITH AND SETTLED
4HE 'RAM 3ABHA IS ALSO FREE TO CONSIDER ALL THE COMMUNITY INDIVIDUAL AS WELL AS
CULTURAL AND RELIGIOUS CLAIMS OVER AND ABOVE THE CLAIMS WHICH HAVE ALREADY BEEN
RECEIVED FROM 2AYAGADA AND +ALAHANDI $ISTRICTS !NY SUCH FRESH CLAIMS BE LED BEFORE
THE 'RAM 3ABHA WITHIN SIX WEEKS FROM THE DATE OF THIS *UDGMENT 3TATE 'OVERNMENT
AS WELL AS THE -INISTRY OF 4RIBAL !FFAIRS 'OVERNMENT OF )NDIA WOULD ASSIST THE 'RAM
4 / \
3ABHA FOR SETTLING OF INDIVIDUAL AS WELL AS COMMUNITY CLAIMS
7E ARE THEREFORE INCLINED TO GIVE A DIRECTION TO THE 3TATE OF /RISSA TO PLACE THESE ISSUES
BEFORE THE 'RAM 3ABHA WITH NOTICE TO THE -INISTRY OF 4RIBAL !FFAIRS 'OVERNMENT OF
)NDIA AND THE 'RAM 3ABHA WOULD TAKE A DECISION ON THEM WITHIN THREE MONTHS AND
COMMUNICATE THE SAME TO THE -O%& THROUGH THE 3TATE 'OVERNMENT /N THE CONCLUSION
OF THE PROCEEDING BEFORE THE 'RAM 3ABHA DETERMINING THE CLAIMS SUBMITTED BEFORE IT
THE -O%& SHALL TAKE A NAL DECISION ON THE GRANT OF 3TAGE )) CLEARANCE FOR THE "AUXITE
-INING 0ROJECT IN THE LIGHT OF THE DECISIONS OF THE 'RAM 3ABHA WITHIN TWO MONTHS
THEREAFTER
4HE !LUMINA 2ENERY 0ROJECT IS WELL ADVISED TO TAKE STEPS TO CORRECT AND RECTIFY
THE ALLEGED VIOLATIONS BY IT OF THE TERMS OF THE ENVIRONMENTAL CLEARANCE GRANTED BY
-O%& .EEDLESS TO SAY THAT WHILE TAKING THE NAL DECISION THE -O%& SHALL TAKE INTO
CONSIDERATION ANY CORRECTIVE MEASURES THAT MIGHT HAVE BEEN TAKEN BY THE !LUMINA
2ENERY 0ROJECT FOR RECTIFYING THE ALLEGED VIOLATIONS OF THE TERMS OF THE ENVIRONMENTAL
CLEARANCE GRANTED IN ITS FAVOUR BY THE -O%&
4HE PROCEEDINGS OF THE 'RAM 3ABHA SHALL BE ATTENDED AS AN OBSERVER BY A JUDICIAL OFCER
OF THE RANK OF THE $ISTRICT *UDGE NOMINATED BY THE #HIEF *USTICE OF THE (IGH #OURT OF
/RISSA WHO SHALL SIGN THE MINUTES OF THE PROCEEDINGS CERTIFYING THAT THE PROCEEDINGS
OF THE 'RAM 3ABHA TOOK PLACE INDEPENDENTLY AND COMPLETELY UNINUENCED EITHER BY
THE 0ROJECT PROPONENTS OR THE #ENTRAL 'OVERNMENT OR THE 3TATE 'OVERNMENT
4HE 7RIT 0ETITION IS DISPOSED OF WITH THE ABOVE DIRECTIONS #OMMUNICATE THIS ORDER
TO THE -INISTRY OF 4RIBAL !FFAIRS 'RAM 3ABHAS OF +ALAHANDI AND 2AYAGADA $ISTRICTS OF
/RISSA AND THE #HIEF *USTICE OF (IGH #OURT OF /RISSA FOR FURTHER FOLLOW UP ACTION
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
!,,!(!"!$ ()'(
#/524
4!",% /& *5$'-%.43 !.$ /2$%23
) SHWAR #HANDRA 'UPTA ETC VS 3TATE OF 50 /RS
!)2 !LL \ 3## /N,INE !LL \
*OGINDAR 3INGH VS 5NION OF )NDIA /RS
-ISC "ENCH .O OF \
'ULAB !NR VS 3TATE OF 50 /RS
3## /NLINE !LL \
4 / \
)SHWAR #HANDRA 'UPTA ETC VS 3TATE OF
50 /RS
70 -3 /& %4#
!,,!(!"!$ ()'( #/524
#/2!- .!2!9!. 3(5+,! *
#)4!4)/. !$* !LL !LL 3## /.,).% !LL
3 5 - -!29
4HE BATCH OF SEVEN WRIT PETITIONS CHALLENGED THE ORDER PASSED BY THE AUTHORITIES
AT $UDHWA 4IGER 2ESERVE WHEREBY EVICTIONS HAD TAKEN PLACE 4HE ORDER PASSED BY
THE #HIEF #ONSERVATOR OF &OREST AND &IELD $IRECTOR $UDHWA 2ESERVE IN HIS CAPACITY
AS APPELLATE AUTHORITY UPHOLDING THE ORDER OF THE PRESCRIBED AUTHORITY WAS ALSO
CHALLENGED 4HE AUTHORITY HAD PASSED THE ORDER UNDER 3
" AS AMENDED FOR
THE 3TATE OF 5TTAR 0RADESH OF THE )NDIAN &OREST !CT !CT AND THE 7ILDLIFE
0ROTECTION !CT !CT TO CUT SHORT THE PROCEEDINGS EVEN THOUGH REGULAR
PROCEEDINGS FOR EVICTION WERE PENDING
4HE #OURT CONSIDERED THE FACTS OF ONLY ONE CASE IN DETAIL SINCE IT WAS REPRESENTATIVE
OF THE OTHER CASES )N THE SAID CASE THE RENT FOR THE LAND IN QUESTION WAS DEPOSITED
FROM TO AFTER WHICH THE AUTHORITIES REFUSED TO RECEIVE THE RENT !CCORDINGLY
A CIVIL SUIT WAS FILED AFTER WHICH THE PETITIONERS PAID THE RENT CONTINUOUSLY
! LOCAL ORGANISATION +ATARNIYA 'HAT &OUNDATION BEING INVOLVED IN THE PROTECTION
OF THE ENVIRONMENT MOVED AN APPLICATION FOR IMPLEADMENT AND ARGUED THAT VIDE
3TATE 'OVERNMENT NOTIFICATION DATED THE FOREST AREA HAD BEEN DECLARED A
#RITICAL 4IGER (ABITAT FOR $UDHWA 4IGER 2ESERVE
4HE PETITIONERS CLAIMED PROTECTION UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! WHICH THEY ARGUED
OVERRIDES 3ECTION " OF THE !CT WHICH IS REPUGNANT THERETO !CCORDING TO
THE PETITIONERS THEY WERE IN POSSESSION SINCE THE TIME OF THEIR ANCESTORS AND
WERE DEPENDENT ON THE LAND IN QUESTION 'AURI 0HANTA FOR THEIR LIVELIHOOD 4HE
EVICTIONS WERE CHALLENGED ALSO UNDER !RTICLE G OF THE #ONSTITUTION WITH THE
PETITIONERS FURTHER ARGUING THAT THEIR ACTUAL POSSESSION OF THE LAND FOR A LONG PERIOD
!RTICLE G OF THE #ONSTITUTION RELATES TO THE FREEDOM TO PRACTISE ANY PROFESSION OR TO CARRY ON ANY
OCCUPATION TRADE OR BUSINESS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
OF TIME SHOULD BE SEEN AS CONCLUSIVE PROOF OF VALID OCCUPATION THUS ESTABLISHING
THEIR RIGHT 4HE CONTENTION WAS THAT THE EVICTIONS WERE ILLEGAL AND VIOLATIVE OF
PRINCIPLES OF NATURAL JUSTICE AS THE SHOPS IN THE MANDI WERE ALLOTTED TO THEM IN
ON A YEARLY BASIS AND SUBSEQUENTLY ELECTRICITY CONNECTIONS WERE ALSO ALLOTTED
4HE RESPONDENT 3TATE GOVERNMENT OPPOSED THE WRIT PETITIONS ON A VARIETY OF
TECHNICAL AND SUBSTANTIVE GROUNDS !MONG OTHER THINGS IT CONTENDED THAT THE
PETITIONERS DONT BELONG TO 34S OR /4&$S AND THAT THEY ARE USING LAND FOR OUTRIGHT
COMMERCIAL PURPOSES IE RUNNING SHOPS ,ENGTHY ARGUMENTS WERE ALSO RAISED BY
BOTH SIDES ON THE ISSUE OF REPUGNANCY OF THE 50 3TATE !MENDMENT TO THE !CT
AND THE &2! 4HE PETITIONERS CONTENDED THAT !RTICLE OF THE #ONSTITUTION HAD
NOT BEEN COMPILED WITH AND CITED SEVERAL 3UPREME #OURT PRECEDENTS IN THIS REGARD
&).$ ) .' 3 /& 4( % #/524
3UBSEQUENT TO EXAMINING THE STATUTORY PROVISIONS UNDER THE !CT THE !CT
AND THE &2! THE #OURT DID NOT FIND THAT THE PETITIONERS WERE ABLE TO ESTABLISH THEIR
IDENTITY AS FOREST DWELLING 34S OR /4&$S 4HE #OURT HELD THAT SINCE THEY ARE NOT
COVERED BY THE &2! THE QUESTION OF REPUGNANCY DID NOT ARISE
)N WHAT APPEARS TO BE AN ASIDE HAVING ALREADY CONCLUDED THAT THE PETITIONERS ARE
NOT ELIGIBLE UNDER &2! THE #OURT FURTHER OBSERVED
AFTER READING OF 3ECTION OF THE &OREST 2IGHTS !CT ) FIND THAT THE
PROVISIONS OF &OREST 2IGHTS !CT ARE IN ADDITION TO AND NOT IN DEROGATION OF
THE PROVISIONS OF THE )NDIAN &OREST !CT THEREFORE BEING NOT THE POSITION
OF REPUGNANCY BETWEEN TWO !CTS ) AM OF THE VIEW THAT THE PETITIONERS ARE
GOVERNED UNDER 3ECTION OF THE )NDIAN &OREST !CT AS AMENDED 4HE )NDIAN
&OREST 5TTAR 0RADESH !MENDMENT !CT AND THEY HAVE RIGHTLY BEEN DEALT
WITH ACCORDINGLY
4HE #OURT WAS CLEARLY UNIMPRESSED BY THE FACT THAT NO LEASE DOCUMENT WAS PRODUCED
BY THE PETITIONERS AND POSSESSION WAS THE ONLY REASON THE #IVIL #OURT ALLOWED
DEPOSITING OF THE RENT )T ALSO CITED 4. 'ODAVARMAN VS 5NION OF )NDIA /RS
3## WHERE THE 3UPREME #OURT HAS MADE IT NECESSARY TO PREVENT DEFORESTATION
BY RESTRICTING NON
FOREST ACTIVITIES
$ ) 2 % #4) /.3 ) 3 3 5% $
4HE FINAL DIRECTION ISSUED BY THE #OURT WAS THAT THE PETITIONERS HAVE NO RIGHT TO
CONTINUE THEIR POSSESSION OVER THE FOREST LAND WITH THEIR NON
FOREST ACTIVITIES LIKE
DOING BUSINESS
!CCORDINGLY THE WRIT PETITIONS WERE DISMISSED
% $ )4/23 . /4%
!LTHOUGH THERE APPEAR TO BE A NUMBER OF DAMAGING OBSERVATIONS IN THIS JUDGMENT
IT MUST BE REMEMBERED THAT THE DECISION HAS BEEN RENDERED BY THE 3INGLE *UDGE
IN THE UNIQUE FACTS OF THE CASE #LEARLY THE MATTER EMERGED FROM A LONG STANDING
CIVIL DISPUTE AND COMPLEX LITIGATIONS AND &2! WAS JUST ONE MORE ATTEMPT BY THE
PETITIONERS TO CONTINUE WHAT WERE CLEARLY COMMERCIAL ACTIVITIES
RUNNING OF SHOPS
ON FOREST LAND 4HE DECISION WOULD NOT THEREFORE HAVE PRECEDENT VALUE INSOFAR AS
4 / \
OTHER CASES WHERE THE FACTS ARE DIFFERENT
/2$%2
(EARD -R 0RASHANT #HANDRA LEARNED 3ENIOR !DVOCATE ASSISTED BY -S 3HRADDHA !GARWAL
$R 3ALIL +UMAR 3RIVATAVA AND -R (ARI /M 3INGH LEARNED #OUNSELS FOR THE 0ETITIONERS
AND -R $+ 5PADHYAY LEARNED #HIEF 3TANDING #OUNSEL FOR THE 3TATE AS WELL AS -R !2
-ASOODI LEARNED !DVOCATE
4HE 0ETITIONERS HAVE CHALLENGED THE ORDER PASSED BY THE 0RESCRIBED !UTHORITY$EPUTY
$IRECTOR $UDHWA 4IGER 2ESERVE $IVISION 0ALLIA +HERI WHEREBY THEY HAVE BEEN EVICTED
FROM THE FOREST LAND AS ALSO THE ORDER PASSED BY THE !PPELLATE !UTHORITY IE THE #HIEF
#ONSERVATOR OF &OREST AND &IELD $IRECTOR $UDHWA 4IGER 2ESERVE ,AKHIMPUR +HERI
UPHOLDING THE ORDER PASSED BY THE 0RESCRIBED !UTHORITY 4HE 0RESCRIBED !UTHORITY HAS
PASSED THE ORDER IN EXERCISE OF POWER PROVIDED UNDER 3ECTION
" OF THE )NDIAN &OREST
!CT AS AMENDED VIDE 4HE )NDIAN &OREST 5TTAR 0RADESH !MENDMENT !CT AS
WELL AS UNDER 3ECTION
! OF THE 7ILD ,IFE 0ROTECTION !CT AS AMENDED IN
4HE LAND IN QUESTION IS SITUATED NEAR $UDHWA .ATIONAL 0ARK 4HE PLACE IS NAMED AS
'AURI 0HANTA
4HE 0ETITIONERS CLAIM PROTECTION UNDER THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT IN SHORT &OREST 2IGHTS !CT
WHICH ACCORDING TO THEM HAS OVERRIDING EFFECT OVER THE )NDIAN &OREST !CT "ESIDES
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 4HEY ALSO CLAIM
THAT THEIR EVICTIONS ARE VIOLATIVE OF !RTICLE G OF THE #ONSTITUTION OF )NDIA AS WELL
AS THE LAW LAID DOWN BY THE (ONBLE 3UPREME #OURT IN THE CASE OF #HIEF #ONSERVATOR OF
&ORESTS 'OVERNMENT OF !0 VS #OLLECTOR AND /RS REPORTED IN 3## )T IS ALSO
THEIR CASE THAT THE SHOPS IN THE -ANDI WERE ALLOTTED TO THE 0ETITIONERS IN THE YEAR
ON YEARLY LEASE RENT ON THE APPLICATION MOVED BY THEIR FATHER !CCORDINGLY THEIR SHOPS
ARE ESTABLISHED HAVING ELECTRICITY CONNECTION ETC
)T IS STATED THAT THEY HAD BEEN DEPOSITING THE LEASE RENT SINCE WHICH CONTINUED TILL
WHEN THE DEPARTMENT REFUSED TO ACCEPT THE RENT DESPITE THEIR BEST EFFORTS 7HEN THE
AUTHORITIES DID NOT ACCEPT THE RENT THEY LED A #IVIL 3UIT BEING 3UIT .O OF IN THE
#OURT OF !DDITIONAL #IVIL *UDGE *UNIOR $IVISION ,AKHIMPUR +HERI SEEKING MANDATORY
DECREE AGAINST THE OPPOSITE PARTIES WHICH WAS DECIDED ON TH OF 3EPTEMBER
WITH THE DIRECTION TO THE &OREST !UTHORITIES TO ACCEPT THE ARREARS OF LEASE RENT FROM THE
0ETITIONERS FROM ST OF /CTOBER
)T IS STATED THAT THE OPPOSITE PARTIES LED AN APPLICATION UNDER /RDER 2ULE OF THE
#ODE OF #IVIL 0ROCEDURE TO RECALL THE ORDER DATED TH OF 3EPTEMBER BUT THE SAME
WAS REJECTED BY MEANS OF ORDER DATED RD OF !PRIL 4HEY CHALLENGED THE SAID ORDER
THROUGH AN APPEAL BEING #IVIL !PPEAL .O OF BEFORE THE $ISTRICT *UDGE WHICH
WAS ALSO REJECTED BY MEANS OF ORDER DATED TH OF -ARCH 4HUS IT IS STATED THAT THE
ORDER PASSED BY THE #IVIL *UDGE ATTAINED THE NALITY AND PURSUANT TO THE ORDER PASSED
BY THE #IVIL *UDGE THEY HAVE BEEN DEPOSITING THE RENT TILL DATE )NSTEAD OF CONFORMATION
OF THEIR RIGHT BY THE #IVIL #OURT THEY RECEIVED THE NOTICE DATED TH OF *ULY FROM THE
OFCE OF 2EGIONAL &OREST /FCER 'AURI 0HANTA 2ANGE $UDHWA 4IGER 2ESERVE $IVISION
0ALIA
+HERI ON TH OF *ULY FOR THEIR EVICTION IN FURTHERANCE OF THE ORDER OF EVICTION
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
PASSED ON TH OF *UNE !CCORDING TO THE 0ETITIONERS NOTICES ARE ILLEGAL ARBITRARY
AND UNCALLED FOR AS WELL AS ALSO VIOLATIVE OF PRINCIPLES OF NATURAL JUSTICE 4HEY PREFERRED
APPLICATIONS FOR RESTORATION BUT OF NO GAIN 4HEY PREFERRED AN APPEAL WHICH HAS ALSO
BEEN REJECTED
-R 0RASHANT #HANDRA LEARNED 3ENIOR !DVOCATE APPEARING FOR THE 0ETITIONERS SUBMITTED
THAT THE 0ETITIONERS RIGHTS AND INTEREST ARE PROTECTED UNDER THE 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT HEREINAFTER
REFERRED TO AS THE &OREST 2IGHTS !CT WHICH IS #ENTRAL !CT )T RECOGNIZES THE
RIGHTS AND OCCUPATION IN &OREST LAND OF THE &OREST DWELLING SCHEDULED TRIBES AND OTHER
TRADITIONAL FOREST DWELLERS 5NDER THIS !CT A COMPLETE PROCEDURE TO DEAL WITH THE MATTER
HAS BEEN PROVIDED THEREFORE THE 0ETITIONERS ARE LIABLE TO BE GOVERNED ONLY UNDER THE
PROCEDURE PRESCRIBED THEREIN 4HUS HE SUBMITTED THAT SINCE THE &OREST 2IGHTS !CT
HAS OVERRIDING EFFECT OVER THE )NDIAN &OREST !CT AND 7ILD ,IFE 0ROTECTION !CT
THE ORDERS PASSED BY THE 0RESCRIBED !UTHORITY IN EXERCISE OF POWER PROVIDED UNDER THESE
!CTS ARE WITHOUT JURISDICTION AND THEREFORE UNSUSTAINABLE
)N SUPPORT OF HIS SUBMISSION HE CITED A DECISION IE %AST #OAST 2AILWAY AND !NR VS
-AHADEV !PPA 2AO AND /RS REPORTED IN 3## 4HE RELEVANT PARAGRAPH OF
WHICH IS EXTRACTED BELOW
4HERE IS NO QUARREL WITH THE WELL
SETTLED PROPOSITION OF LAW THAT AN ORDER PASSED
BY A PUBLIC AUTHORITY EXERCISING ADMINISTRATIVEEXECUTIVE OR STATUTORY POWERS MUST
BE JUDGED BY THE REASONS STATED IN THE ORDER OR ANY RECORD OR LE CONTEMPORANEOUSLY
MAINTAINED )T FOLLOWS THAT THE INRMITY ARISING OUT OF THE ABSENCE OF REASONS CANNOT
BE CURED BY THE AUTHORITY PASSING THE ORDER STATING SUCH REASONS IN AN AFDAVIT LED
BEFORE THE #OURT WHERE THE VALIDITY OF ANY SUCH ORDER IS UNDER CHALLENGE 4HE LEGAL
POSITION IN THIS REGARD IS SETTLED BY THE DECISION OF THIS #OURT IN #OMMISSIONER OF
0OLICE VS 'ORDHANDAS "HANJI !)2 3# WHEREIN THIS #OURT OBSERVED !)2 P
PARA
PUBLIC ORDERS PUBLICLY MADE IN EXERCISE OF A STATUTORY AUTHORITY CANNOT BE
CONSTRUED IN THE LIGHT OF EXPLANATIONS SUBSEQUENTLY GIVEN BY THE OFCER MAKING
THE ORDER OF WHAT HE MEANT OR OF WHAT WAS IN HIS MIND OR WHAT HE INTENDED
TO DO 0UBLIC 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
!PART FROM TITLE THEY CLAIM TO HAVE PERFECTED THEIR RIGHT ON THE BASIS OF POSSESSION IN
LIGHT OF THE DECISION OF (ONBLE 3UPREME #OURT RENDERED IN THE CASE OF .AIR 3ERVICE 3OCIETY
,TD VS +# !LEXANDER REPORTED IN !)2 3# IN WHICH THE (ONBLE 3UPREME #OURT
HELD 4HAT POSSESSION MAY PRIMA FACIE RAISE A PRESUMPTION OF TITLE NO ONE CAN DENY BUT THIS
PRESUMPTION CAN HARDLY ARISE WHEN THE FACTS ARE KNOWN 7HEN THE FACTS DISCLOSE NO TITLE IN
EITHER PARTY POSSESSION ALONE DECIDES (E FURTHER CITED ANOTHER CASE IE #HIEF #ONSERVATOR
OF &OREST VS #OLLECTOR AND /RS REPORTED IN 3## THE RELEVANT PARAGRAPH OF
WHICH IS EXTRACTED BELOW
4HE PATTEDARS PROVED THEIR POSSESSION OF THE LANDS IN QUESTION FROM
&ASLI !$ AS PATTEDARS 4HERE IS LONG AND PEACEFUL ENJOYMENT OF THE LANDS
IN QUESTION BUT NO PROOF OF CONFERMENT OF PATTA ON THE LATE 2AJA AND THE FACTS
RELATING TO ACQUISITION OF TITLE ARE NOT KNOWN 4HE !PPELLANT 3TATE COULD NOT
PROVE ITS TITLE TO THE LANDS /N THESE FACTS THE PRESUMPTION UNDER 3ECTION
OF THE %VIDENCE !CT APPLIES AND THE !PPELLANTS HAVE TO PROVE THAT THE PATTEDARS
ARE NOT THE OWNERS 4HE !PPELLANTS PLACED NO EVIDENCE ON RECORD TO REBUT THE
PRESUMPTION #ONSEQUENTLY THE PATTEDARS TITLE TO THE LAND IN QUESTION HAS TO BE
4 / \
UPHELD
(E ALSO CLAIMS REPUGNANCY BETWEEN THE PROVISIONS OF TWO !CTS ON THE GROUND THAT
3ECTION
" OF THE )NDIAN &OREST !CT AS AMENDED BY WAY OF THE )NDIAN &OREST
5TTAR 0RADESH !MENDMENT !CT IS REPUGNANT TO THE &OREST 2IGHTS !CT
)T IS ALSO SUBMITTED BY HIM THAT THE CASE OF 4. 'ODAVARMAN 4HIRUMULKPAD REPORTED
IN 3## CONNES TO THE ILLEGAL FELLING OF TREES AND UNAUTHORISED RUNNING OF
SAW MILLS AND THE DIRECTIONS ARE POINTED TOWARDS PREVENTION OF &OREST TIMBER AND THE
CONSEQUENTIAL ACTIVITIES WHEREAS THE #HIEF #ONSERVATOR OF &ORESTS CASE 3UPRA CANNOT
APPLY TO THE &OREST DWELLERS AND THE ACTUAL POSSESSION EVEN WITHOUT LEASE IS A CONCLUSIVE
PROOF OF VALID OCCUPATION (E FURTHER SUBMITTED THAT THE (ONBLE 3UPREME #OURT IN THE
CASE OF -OHINDER 3INGH 'ILL VS #HIEF %LECTION #OMMISSIONER REPORTED IN 3##
HAS HELD THAT THE ORDER MUST BE SUPPORTED WITH THE REASONS AS THE ORDER PASSED BY
THE PUBLIC AUTHORITY EXERCISING ADMINISTRATIVEEXECUTIVE OR STATUTORY POWERS MUST
BE JUDGED BY THE REASONS STATED IN THE ORDER OR ANY RECORD OR LE CONTEMPORANEOUSLY
MAINTAINED WHERE AS IN THE PRESENT CASE THE ORDERS IMPUGNED ARE NOT SUPPORTED WITH
THE REASONS
)N THIS CONTEXT HE FURTHER CITED A DECISION OF THE (ONBLE 3UPREME #OURT IE %AST #OAST
2AILWAYS AND /RS VS -AHADEV !PPA 2AO AND /RS REPORTED IN 3## THE
RELEVANT PARAGRAPH OF WHICH IS REPRODUCED HEREUNDER
!RBITRARINESS IN THE MAKING OF AN ORDER BY AN AUTHORITY CAN MANIFEST ITSELF IN
DIFFERENT FORMS .ON
APPLICATION OF MIND BY THE AUTHORITY MAKING THE ORDER IS ONLY
ONE OF THEM %VERY ORDER PASSED BY A PUBLIC AUTHORITY MUST DISCLOSE DUE AND PROPER
APPLICATION OF MIND BY THE PERSONS MAKING THE ORDER 4HIS MAY BE EVIDENT FROM THE
ORDER ITSELF OR THE RECORD CONTEMPORANEOUSLY MAINTAINED !PPLICATION OF MIND IS
BEST DEMONSTRATED BY DISCLOSURE OF MIND BY THE AUTHORITY MAKING THE ORDER !ND
DISCLOSURE IS BEST DONE BY RECORDING THE REASONS THAT LED THE AUTHORITY TO PASS THE
ORDER IN QUESTION !BSENCE 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
(E ALSO INVITED THE ATTENTION OF THIS #OURT TOWARDS THE .OTICATION DATED TH OF *UNE
ISSUED BY THE 'OVERNMENT OF )NDIA -INISTRY OF 4RIBAL !FFAIRS WHICH SPEAKS THAT
SUCH 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS WHO ARE NOT NECESSARILY
RESIDING INSIDE THE FOREST BUT ARE DEPENDING ON THE FOREST FOR THEIR BONA DE LIVELIHOOD
NEEDS WOULD BE COVERED UNDER THE DENITION OF FOREST DWELLING 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLER AS GIVEN IN 3ECTIONS C AND O OF THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
4HE 0ETITIONERS ALSO CLAIM THE PROTECTION OF THEIR RIGHT UNDER THE AFORESAID NOTICATION
/N THIS SCOPE HE FURTHER CITED A DECISION IE :AMEER !HMED ,ATIFUR 2EHMAN 3HEKH VS
3TATE OF -AHARASHTRA AND /RS REPORTED IN 3## OF (ONBLE 3UPREME #OURT
IN WHICH THE CONDITIONS OF REPUGNANCY HAVE BEEN LAID DOWN )N THE AFORESAID CASE THE
(ONBLE 3UPREME #OURT HAS REFERRED ITS EARLIER DECISION IE - +ARUNANIDHI VS 5NION OF
)NDIA REPORTED IN 3## IN WHICH THE PRINCIPLES TO BE APPLIED FOR DETERMINING
REPUGNANCY BETWEEN A LAW MADE BY 0ARLIAMENT AND A LAW MADE BY THE 3TATE ,EGISLATURE
WERE CONSIDERED BY A #ONSTITUTION "ENCH OF THE (ONBLE 3UPREME #OURT 4HE (ONBLE
3UPREME #OURT HELD THAT THE REPUGNANCY MAY RESULT FROM THE FOLLOWING CIRCUMSTANCES
7HERE THE PROVISIONS OF A #ENTRAL !CT AND A 3TATE !CT IN THE #ONCURRENT ,IST ARE
FULLY INCONSISTENT AND ARE ABSOLUTELY IRRECONCILABLE THE #ENTRAL !CT WILL PREVAIL AND
THE 3TATE !CT WILL BECOME VOID IN VIEW OF THE REPUGNANCY
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
7HERE HOWEVER A LAW PASSED BY THE 3TATE COMES INTO COLLISION WITH A LAW PASSED
BY 0ARLIAMENT ON AN ENTRY IN THE #ONCURRENT ,IST THE 3TATE !CT SHALL PREVAIL TO THE
EXTENT OF THE REPUGNANCY AND THE PROVISIONS OF THE #ENTRAL !CT WOULD BECOME VOID
PROVIDED THE 3TATE !CT HAS BEEN PASSED IN ACCORDANCE WITH #LAUSE OF !RTICLE
7HERE A LAW PASSED BY THE 3TATE ,EGISLATURE WHILE BEING SUBSTANTIALLY WITHIN
THE SCOPE OF THE ENTRIES IN THE 3TATE ,IST ENTRENCHES UPON ANY OF THE %NTRIES IN THE
#ENTRAL ,IST 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 !CT IT APPEARS THAT BY
AN LARGE THE LAW FALLS WITHIN THE FOUR CORNERS OF THE 3TATE ,IST AND ENTRENCHMENT IF
ANY IS PURELY INCIDENTAL OR INCONSEQUENTIAL
7HERE HOWEVER A LAW MADE BY THE 3TATE ,EGISLATURE ON A SUBJECT COVERED BY
THE #ONCURRENT ,IST IS INCONSISTENT WITH AND REPUGNANT TO A PREVIOUS LAW MADE
BY 0ARLIAMENT THEN SUCH A LAW CAN BE PROTECTED BY OBTAINING THE ASSENT OF THE
0RESIDENT UNDER !RTICLE OF THE #ONSTITUTION 4HE RESULT OF OBTAINING THE ASSENT
OF THE 0RESIDENT WOULD BE THAT SO FAR AS THE 3TATE !CT IS CONCERNED IT WILL PREVAIL IN
THE 3TATE AND OVERRULE THE PROVISIONS OF THE #ENTRAL !CT IN THEIR APPLICABILITY TO THE
3TATE ONLY 3UCH A STATE OF AFFAIRS WILL EXIST ONLY UNTIL 0ARLIAMENT MAY AT ANY TIME
MAKE A LAW ADDING TO OR AMENDING VARYING OR REPEALING THE LAW MADE BY THE 3TATE
,EGISLATURE UNDER THE PROVISO TO !RTICLE
)N PARAGRAPH OF THE SAME JUDGMENT THE (ONBLE 3UPREME #OURT FURTHER LAID DOWN
THE CONDITIONS TO BE SATISED BEFORE ANY REPUGNANCY COULD ARISE WHICH ARE AS FOLLOWS
4HAT THERE IS A CLEAR AND DIRECT INCONSISTENCY BETWEEN THE #ENTRAL !CT AND THE
3TATE !CT
4HAT SUCH AN INCONSISTENCY IS ABSOLUTELY IRRECONCILABLE
4HAT THE INCONSISTENCY BETWEEN THE PROVISIONS OF THE TWO !CTS IS OF SUCH A NATURE
AS TO BRING THE TWO !CTS INTO DIRECT COLLISION WITH EACH OTHER AND A SITUATION IS
REACHED WHERE IT IS IMPOSSIBLE TO OBEY THE ONE WITHOUT DISOBEYING THE OTHER
&URTHER IN PARAGRAPH THE (ONBLE 3UPREME #OURT AGAIN LAID DOWN THE FOLLOWING
PREPOSITION
4HAT 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 ELD
4HAT THERE CAN BE NO REPEAL BY IMPLICATION UNLESS THE INCONSISTENCY APPEARS ON
THE FACE OF THE TWO STATUTES
4HAT WHERE THE TWO STATUTES OCCUPY A PARTICULAR LED BUT THERE IS ROOM OR
POSSIBILITY OF BOTH THE STATUTES OPERATING IN THE SAME ELD WITHOUT COMING INTO
COLLISION WITH EACH OTHER NO REPUGNANCY RESULTS
4HAT WHERE THERE IS NO INCONSISTENCY BUT A STATUTE OCCUPYING THE SAME LED SEEKS
TO CREATE DISTINCT AND SEPARATE OFFENCE NO QUESTION OF REPUGNANCY ARISES AND BOTH
THE STATUES CONTINUE TO OPERATE IN THE SAME ELD
-R 0RASHANT #HANDRA LEARNED 3ENIOR !DVOCATE APPEARING FOR THE 0ETITIONERS 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 3ECTION
" OF THE )NDIAN &OREST !CT TO EVICT THE 0ETITIONERS
4 / \
WHICH IS ABSOLUTELY ILLEGAL AND ARBITRARY !CCORDING TO HIM IT ALSO ESTABLISHES THE HIGH
HANDEDNESS OF THE AUTHORITIES CONCERNED
)N ORDER TO DEFEND THE ORDERS PASSED BY THE &OREST AUTHORITIES THE OPPOSITE PARTIES HAVE
LED COUNTER
AFDAVIT IN WHICH THEY HAVE STATED THAT THE WRIT PETITIONS SUFFERS FROM
VICE OF NON
JOINDER OF NECESSARY PARTY AS THE &OREST 2ANGE /FCER 'AURI &ANTA $UDHWA
4IGER 2ESERVE &OREST $IVISION 0ALIA +HERI IS A NECESSARY PARTY IN THE MATTER
"EFORE PROCEEDING TO CONSIDER THE OTHER PARTS OF REPLY SUBMITTED THROUGH THE COUNTER
AFDAVIT THE #OURT APPRECIATES THE REPLY SUBMITTED BY THE 0ETITIONERS AGAINST THE
AFORESAID OBJECTIONS WHO SUBMITTED THAT !RTICLE OF THE #ONSTITUTION OF )NDIAN
PROVIDES THAT THE 'OVERNMENT OF )NDIA MAY SUE OR BE SUED BY THE NAME OF 5NION OF
)NDIA AND THE 'OVERNMENT OF A 3TATE MAY SUE OR BE SUED BY THE NAME OF THE 3TATE 4HE
!RTICLE OF THE #ONSTITUTION OF )NDIA IS EXTRACTED BELOW
3UITS AND PROCEEDINGS
4HE 'OVERNMENT OF )NDIA MAY SUE OR BE SUED BY THE
NAME OF THE 5NION OF )NDIA AND THE 'OVERNMENT OF A 3TATE MAY SUE OR BE SUED BY
THE NAME OF THE 3TATE AND MAY SUBJECT TO ANY PROVISIONS WHICH MAY BE MADE BY
AN !CT OF 0ARLIAMENT OR OF THE ,EGISLATURE OF SUCH 3TATE ENACTED BY VIRTUE OF POWERS
CONFERRED BY THIS #ONSTITUTION SUE OR BE SUED IN RELATION TO THEIR RESPECTIVE AFFAIRS
IN THE LIKE CASES AS THE $OMINION OF )NDIA AND THE CORRESPONDING 0ROVINCES OR THE
CORRESPONDING )NDIAN 3TATES MIGHT HAVE SUED OR BEEN SUED IF THIS #ONSTITUTION HAD
NOT BEEN ENACTED
)F AT THE COMMENCEMENT OF THIS #ONSTITUTION
A ANY LEGAL PROCEEDINGS ARE PENDING TO WHICH THE $OMINION OF )NDIA IS A PARTY
THE 5NION OF )NDIA SHALL BE DEEMED TO BE SUBSTITUTED FOR THE $OMINION IN THOSE
PROCEEDINGS AND
B ANY LEGAL PROCEEDINGS ARE PENDING TO WHICH A 0ROVINCE OR AN )NDIAN 3TATE IS A
PARTY THE CORRESPONDING 3TATE SHALL BE DEEMED TO BE SUBSTITUTED FOR THE 0ROVINCE
OR THE )NDIAN 3TATE IN THOSE PROCEEDINGS
,EARNED #OUNSEL FOR THE 0ETITIONERS FURTHER SUBMITTED THAT IN THE LIST DEALING WITH
THE PROPERTY OF THE 3TATE THERE IS NO DISPUTE THAT THE 3TATE IS A NECESSARY PARTY AS IS
PROVIDED UNDER !RTICLE OF THE #ONSTITUTION OF )NDIA AND ALSO UNDER 3ECTION OF
THE #ODE OF #RIMINAL 0ROCEDURE )N SUPPORT OF HIS SUBMISSION HE CITED A CASE IE #HIEF
#ONSERVATOR OF &ORESTS 'OVERNMENT OF !0 VS #OLLECTOR AND /RS REPORTED IN 3##
)N THE PRESENT CASE THE 3TATE OF 50 4HROUGH THE 0RINCIPAL 3ECRETARY AS WELL AS THE
VARIOUS &OREST !UTHORITIES INCLUDING THOSE WHO HAVE PASSED THE ORDERS IMPUGNED ARE
IMPLEADED AS OPPOSITE PARTIES THEREFORE ) AM OF THE VIEW THAT THE WRIT PETITION DOES
NOT SUFFER FROM NON
JOINDER OF PARTIES
.OW ) PROCEED TO TAKE NOTE OF THE OTHER PARTS OF THE REPLY OF THE OPPOSITE PARTIES
SUBMITTED THROUGH THE COUNTER
AFDAVIT
)T IS STATED BY THE OPPOSITE PARTIES THAT THE PLEA BEING TAKEN BY THE 0ETITIONERS FOR THE
PROTECTION OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT IS ABSOLUTELY MISCONCEIVED AS THEY DO NOT BELONG TO THE
CLASS OF 3CHEDULED 4RIBE OR OTHER 4RADITIONAL &OREST $WELLERS
&IRSTLY ON THE POINT OF REPUGNANCY THEY SAY THAT THERE IS NO CONICT BETWEEN THE
PROVISIONS OF )NDIAN &OREST !CT AND &OREST 2IGHTS !CT 3ECTION OF THE &OREST
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
2IGHTS !CT PROVIDES THAT THIS !CT 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 !CTS RUN
IN DIFFERENT ELD THUS THERE IS NO INCONSISTENCY BETWEEN THE PROVISIONS OF THESE TWO
!CTS 3O FAR AS THE &OREST 2IGHTS !CT IS CONCERNED IT HAS BEEN ENACTED ONLY WITH A
VIEW TO PROTECT THE &OREST RIGHTS 4HE TERM FOREST RIGHTS HAS BEEN DENED IN 3ECTION E
OF THE &OREST 2IGHTS !CT
4HE LEARNED #HIEF 3TANDING #OUNSEL -R $+ 5PADHYAY VEHEMENTLY ARGUED BY GIVING
EMPHASIS ON THE FACTS OF THE CASE THAT IT IS ADMITTED CASE OF THE 0ETITIONERS THAT THEY
RUN THE SHOP .EITHER THEY BELONG TO ANY SCHEDULED TRIBE NOR ARE THEY TRADITIONAL FOREST
DWELLERS WHEREAS THE &OREST 2IGHTS !CT IS A SAFEGUARD TO THE SCHEDULED TRIBES
AND TRADITIONAL FOREST DWELLERS WHO DEPEND ON THE FORESTS AND ITS PRODUCE FOR THEIR
LIVELIHOOD )T IS NOT MEANT FOR USING THE RESERVE FOREST LAND FOR ANY COMMERCIAL PURPOSE
4HE LAND IN DISPUTE IS A RESERVE FOREST LAND AND THE 0ETITIONERS BEING ILLEGAL OCCUPANTS
ARE NOT COVERED UNDER THE DENITION OF OTHER TRADITIONAL FOREST DWELLERS WHICH IS
DENED UNDER 3ECTION O OF THE !CT (E ALSO INVITED THE ATTENTION OF THIS #OURT
TOWARDS THE WRITTEN STATEMENT LED IN 3## 3UIT .O 8
2AMLEELA #OMMITTEE
0ALIA VS )SHWAR #HANDRA 'UPTA IN WHICH THE 0ETITIONER -R LSHWAR #HANDRA 'UPTA
ADMITTED THAT HE GOT THE SHOP CONSTRUCTED ABOUT
YEARS AGO WITH THE PERMISSION
OF 2AM ,EELA #OMMITTEE AND AFTER GETTING THE SHOP CONSTRUCTED HE HAS BEEN DOING HIS
BUSINESS
4HUS IT IS STATED THAT FROM THE DOCUMENTS ITSELF IT IS CLEAR THAT THE 0ETITIONERS CANNOT
BE TERMED AS TRADITIONAL FOREST DWELLERS AND AS SUCH NO BENET OF THE &OREST 2IGHTS !CT
ACCRUED TO THEM 4HE DOCUMENTS AVAILABLE IN THE COMMERCIAL TAX DEPARTMENT
ALSO ESTABLISHES THAT THE 0ETITIONERS ARE RUNNING THEIR BUSINESS FROM 0ALLIA IT IS ALSO
SUBMITTED BY HIM THAT NO LEASE WAS EVER EXECUTED BY THE FOREST DEPARTMENT 4HE
0ETITIONERS HAVE FAILED TO PRODUCE ANY SUCH LEASE EITHER BEFORE THE #OURT BELOW OR
BEFORE THIS #OURT 4HUS IN ABSENCE OF ANY LEASE GRANTED TO THE 0ETITIONERS NO RIGHT IS
FORMED UPON THEM EITHER TO LIVE OR RUN THE BUSINESS IN THE FOREST AREA AND THEY ARE
PURELY UNAUTHORISED OCCUPANTS OVER THE LAND IN QUESTION WHICH IS A RESERVE FOREST
LAND SITUATED IN $IGANIA &OREST "LOCK OF $UDHWA .ATIONAL 0ARK 'AURI &ANTA IS ONE OF
THE &OREST RANGES OF $UDHWA .ATIONAL 0ARK WITHOUT HAVING ANY IDENTITY OF VILLAGE
)T IS CLEARLY STATED BY THE OPPOSITE PARTIES THAT THE PERSONS BELONGING TO 4HARU SCHEDULED
4RIBE HAVE BEEN RESIDING IN THE VICINITY OF THE LAND IN QUESTION WHEREAS THEY HAVE
THEIR RESIDENCES IN TWO VILLAGES FALLING IN 'AURI &ANTA &OREST 2ANGE IE 3EDA "EDA AND
+IRATPUR WHICH ARE ABOUT AND KILOMETRES AWAY FROM THE LAND IN QUESTION 4HE
ESTABLISHMENT OF ANY -ANDI MARKET HAS ALSO BEEN DENIED RATHER IT IS STATED THAT THE
0ETITIONERS AND OTHER SUCH UNAUTHORISED OCCUPANTS HAVE STALL BY OCCUPYING THE RESERVE
FOREST LAND ILLEGALLY AND UNAUTHORISEDLY
)T IS FURTHER SUBMITTED THAT IN LIGHT OF THE DICTUM OF THE (ONBLE 3UPREME #OURT RENDERED
IN THE CASE OF 4. 'ODAVARMAN VS 5NION OF )NDIA AND /RS IE 7RIT 0ETITION #IVIL .O
OF THE ORDER PASSED BY THE #IVIL #OURT HAS LOST ITS EFCACY
)N ORDER TO SUPPORT THE POWER OF THE AUTHORITY WHO HAVE PASSED THE ORDER IMPUGNED
THE NOTICATION DATED RD OF -AY ISSUED BY THE 3TATE 'OVERNMENT HAS BEEN
BROUGHT ON RECORD THROUGH THE SUPPLEMENTARY COUNTER
AFDAVIT WHEREBY ALL $EPUTY
#ONSERVATIONS OF &OREST $IVISIONAL $IRECTORS $EPUTY $IRECTORS NOT BELOW THE RANK OF
A $IVISIONAL &OREST /FCER AND ARE HOLDING THE CHARGE OF RESPECTIVE DIVISIONS HAS BEEN
SAID TO HAVE BEEN AUTHORISED OFCERS FOR THE PURPOSE OF )NDIAN &OREST !CT
+ATARNIYA 'HAT &OUNDATION AN !PPLICANT HAS MOVED AN APPLICATION FOR IMPLEADMENT
4 / \
THROUGH ITS 6ICE 0RESIDENT WITH THE SUBMISSIONS THAT THE 3TATE 'OVERNMENT BY
NOTICATION DATED TH OF *UNE HAS DECLARED THE &OREST AREA IN QUESTION TO BE #ORE OR
#RITICAL 4IGER (ABITAT FOR $UDHWA 4IGER 2ESERVE 4HE 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 NOTICATION AND ALSO IN VIOLATION OF 7ILD
,IFE 0ROTECTION !CT 4HEIR ILLEGAL OCCUPATION IS A CONSTANT THREAT TO THE 7ILD ,IFE
HABITAT AND SECURITY OF THE .ATIONAL 0ARK
4HE !PPLICANT BEING A 3OCIETY INVOLVED IN THE PROTECTION OF ENVIRONMENT AND 7ILD ,IFE
HAS BEEN PERMITTED TO BE HEARD THROUGH ITS COUNSEL AS AN INTERVENOR IN THE MATTER
)N ORDER TO DETERMINE THE JURISDICTION OF THE &OREST AUTHORITIES AS WELL AS THE RIGHTS AND
INTEREST OF THE 0ETITIONERS IT IS PERTINENT TO MENTION THE PROVISIONS OF RELEVANT !CTS
WHICH ARE AS UNDER
)NDIAN &OREST !CT AS AMENDED 4HE )NDIAN &OREST 5TTAR 0RADESH
!MENDMENT !CT
3ECTION )NTERPRETATION CLAUSE
)N THIS !CT UNLESS THERE IS ANYTHING REPUGNANT
IN THE SUBJECT OR CONTEXT
&OREST /FCER MEANS ANY PERSON WHOM THE 3TATE 'OVERNMENT OR ANY OFCE
EMPOWERED BY THE 3TATE 'OVERNMENT IN THIS BEHALF MAY APPOINT TO CARRY OUT ALL
OR ANY OF THE PURPOSES OF THIS !CT OR TO DO ANYTHING REQUIRED BY THIS !CT OR ANY
RULE MADE THEREUNDER TO BE DONE BY A &OREST
OFCER
3ECTION " 3UMMARY EVICTION OF UNAUTHORISED OCCUPANTS )F A &OREST /FCER
NOT BELOW THE RANK OF A $IVISIONAL &OREST /FCER IS OF THE OPINION THAT ANY PERSON
IS IN UNAUTHORISED OCCUPATION OF ANY LAND IN AREAS CONSTITUTED AS A RESERVED OR
PROTECTED FOREST UNDER 3ECTION OR 3ECTION AS THE CASE MAY BE AND THAT HE
SHOULD BE EVICTED THE &OREST /FCER SHALL ISSUE A NOTICE IN WRITING CALLING UPON
THE PERSONS CONCERNED TO SHOW CAUSE ON OR BEFORE SUCH DATE AS IS SPECIED IN THE
NOTICE WHY AN ORDER OF EVICTION SHOULD NOT BE MADE
)F AFTER CONSIDERING THE CAUSE IF ANY SHOWN IN PURSUANCE OF A NOTICE UNDER
THIS SECTION THE &OREST /FCER IS SATISED 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 SPECIED IN
THE ORDER BY THE PERSON CONCERNED WHICH SHALL NOT BE LESS THAN THEN DAYS FROM
THE DATE OF THE ORDER
)F ANY PERSON REFUSES OR FAILS TO COMPLY WITH THE ORDER OF EVICTION BY THE DATE
SPECIED IN THE ORDER THE &OREST /FCER WHO MADE THE ORDER UNDER 3UB
SECTION
OR ANY OTHER &OREST /FCER 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
!NY PERSON AGGRIEVED BY AN ORDER OF THE &OREST /FCER UNDER 3UB
SECTION
MAY WITHIN SUCH PERIOD AND IN SUCH MANNER AS MAY BE PRESCRIBED APPEAL
AGAINST SUCH ORDER TO THE #ONSERVATOR OF &ORESTS OF THE CIRCLE OR TO SUCH OFCER AS
MAY BE AUTHORISED BY THE 3TATE 'OVERNMENT IN THIS BEHALF AND THE ORDER OF THE
&OREST /FCER SHALL SUBJECT TO THE DECISION IN SUCH APPEAL BE NAL
7ILD ,IFE 0ROTECTION !CT
3ECTION ! 0OWER TO REMOVE ENCROACHMENT .OTWITHSTANDING ANYTHING
CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE ANY OFCER NOT BELOW THE
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
RANK OF AN !SSISTANT CONSERVATOR OF &ORESTS MAY
A EVICT ANY PERSON FROM A SANCTUARY OR .ATIONAL 0ARK WHO UNAUTHORISEDLY
OCCUPIES 'OVERNMENT LAND IN CONTRAVENTION OF THE PROVISIONS OF THIS !CT
B REMOVE ANY UNAUTHORISED STRUCTURES BUILDINGS OR CONSTRUCTIONS ERECTED ON
ANY 'OVERNMENT LAND WITHIN ANY SANCTUARY OR .ATIONAL 0ARK AND ALL THE THINGS
TOOLS AND EFFECTS BELONGING TO SUCH PERSON SHALL BE CONSCATED BY AN ORDER OF AN
OFCER NOT BELOW THE RANK OF THE $EPUTY #ONSERVATOR OF &ORESTS
0ROVIDED THAT NO SUCH ORDER SHALL BE PASSED UNLESS THE AFFECTED PERSON IS GIVEN AN
OPPORTUNITY OF BEING HEARD
4HE PROVISIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING ANY OTHER PENALTY
WHICH MAY BE INICTED FOR VIOLATION OF ANY OTHER PROVISION OF THIS !CT
4HE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 2IGHTS !CT
3ECTION )N THIS !CT UNLESS THE CONTEXT OTHERWISE REQUIRES
A
B
C &OREST DWELLING 3CHEDULED 4RIBES MEANS THE MEMBERS OR COMMUNITY OF THE
3CHEDULED 4RIBES WHO PRIMARILY RESIDE IN AND WHO DEPEND ON THE FORESTS OR FOREST
LANDS FOR BONA DE LIVELIHOOD NEEDS AND INCLUDES THE 3CHEDULED 4RIBE PASTORALIST
COMMUNITIES
D
E FOREST RIGHTS MEANS THE FOREST RIGHTS REFERRED TO IN 3ECTION
F TO N
O OTHER TRADITIONAL FOREST DWELLER MEANS ANY MEMBER OR COMMUNITY WHO HAS
FOR AT LEAST THREE GENERATIONS PRIOR TO THE TH DAY OF $ECEMBER PRIMARILY
RESIDED IN AND WHO DEPEND ON THE FOREST OR FORESTS LAND FOR BONA DE LIVELIHOOD
NEEDS
%XPLANATION
&OR THE PURPOSE OF THIS CLAUSE GENERATION MEANS A PERIOD
COMPRISING OF TWENTY
VE YEARS
3ECTION &OR THE PURPOSE OF THIS !CT THE FOLLOWING RIGHTS WHICH SECURE
INDIVIDUAL OR COMMUNITY TENURE OR BOTH SHALL BE THE FOREST RIGHTS OF FOREST
DWELLING 3CHEDULED 4RIBES 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 3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLERS
B COMMUNITY RIGHTS SUCH AS NISTAR BY WHATEVER NAME CALLED INCLUDING THOSE
USED IN ERSTWHILE 0RINCELY 3TATES :AMINDARI OR SUCH INTERMEDIARY REGIMES
4 / \
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 SH 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 3TATE WHERE
CLAIMS ARE DISPUTED
G RIGHTS FOR CONVERSION OF 0ATTAS OR LEASES OR GRANTS ISSUED BY ANY LOCAL AUTHORITY
OR ANY 3TATE 'OVERNMENT 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 NOTIED OR
NOT INTO REVENUE VILLAGES
) 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 3TATE LAW OR LAWS OF ANY !UTONOMOUS
$ISTRICT #OUNCIL OR !UTONOMOUS 2EGIONAL #OUNCIL OR WHICH ARE ACCEPTED AS RIGHTS
OF TRIBALS UNDER ANY TRADITIONAL OR CUSTOMARY LAW OF THE CONCERNED TRIBES OF ANY
3TATE
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
3CHEDULED 4RIBES OR OTHER TRADITIONAL FOREST DWELLERS AS THE CASE MAY BE WHICH
ARE NOT MENTIONED IN #LAUSE 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
3CHEDULED 4RIBES 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 TH DAY OF $ECEMBER
.OTWITHSTANDING ANYTHING CONTAINED IN THE &OREST #ONSERVATION !CT
THE #ENTRAL 'OVERNMENT SHALL PROVIDE FOR DIVERSION OF FOREST LAND FOR THE
FOLLOWING FACILITIES MANAGED BY THE 'OVERNMENT WHICH INVOLVE FELLING OF TREES
NOT EXCEEDING SEVENTY VE TREES PER HECTARE NAMELY
A SCHOOLS
B DISPENSARY OR HOSPITAL
C ANGANWADIS
D FAIR PRICE SHOPS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
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
0ROVIDED THAT SUCH DIVERSION OF FOREST LAND SHALL BE ALLOWED ONLY IF
I THE FOREST LAND TO BE DIVERTED FOR THE PURPOSES MENTIONED IN THIS 3UB
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 'RAM 3ABHA
3ECTION .OTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER LAW FOR THE TIME
BEING IN FORCE AND SUBJECT TO THE PROVISIONS OF THIS !CT THE #ENTRAL 'OVERNMENT
HEREBY RECOGNISES AND VESTS FOREST RIGHTS IN
A THE FOREST DWELLING 3CHEDULED 4RIBES IN 3TATES OR AREAS IN 3TATES WHERE THEY ARE
DECLARED AS 3CHEDULED 4RIBES IN RESPECT OF ALL FOREST RIGHTS MENTIONED IN 3ECTION
B THE OTHER TRADITIONAL FOREST DWELLERS IN RESPECT OF ALL FOREST RIGHTS MENTIONED
IN 3ECTION
3AVE AS OTHERWISE PROVIDED NO MEMBER OF A FOREST DWELLING 3CHEDULED 4RIBE
OR OTHER TRADITIONAL FOREST DWELLER SHALL BE EVICTED OR REMOVED FROM FOREST LAND
UNDER HIS OCCUPATION TILL THE RECOGNITION AND VERICATION PROCEDURE IS COMPLETE
3ECTION 3AVE AS OTHERWISE PROVIDED IN THIS !CT AND THE 0ROVISIONS OF THE
0ANCHAYATS %XTENSION TO THE 3CHEDULED !REAS !CT THE PROVISIONS OF THIS
!CT SHALL BE IN ADDITIONAL TO AND NOT IN DEROGATION OF THE PROVISIONS OF ANY OTHER
LAW FOR THE TIME BEING IN FORCE
3ECTION " OF THE )NDIAN &OREST !CT HAS BEEN INSERTED BY WAY OF )NDIAN &OREST
5TTAR 0RADESH !MENDMENT !CT WHICH RECEIVED THE ASSENT OF THE 0RESIDENT OF
)NDIA ON -ARCH 4HE FOLLOWING IS THE 3TATEMENT OF /BJECTS AND 2EASONS OF THE
4 / \
AMENDMENT !CT
0REFATORY .OTE
3TATEMENT OF /BJECTS AND 2EASONS
)N THE RECENT PAST INCIDENCE
OF FOREST OFFENCES HAS INCREASED CONSIDERABLY &OREST OFFENCES ARE NOW COMMITTED
BY ORGANISED AND INUENTIAL GANGS WITH MONEY AND MUSCLE POWER %NCROACHMENT
ON FOREST LAND HAVE ALSO INCREASED 4HE PROVISIONS OF )NDIAN &OREST !CT IN
ITS APPLICATION TO 5TTAR 0RADESH ARE NOT ADEQUATE TO PUT AN EFFECTIVE CHECK ON THE
ACTIVITIES OF SUCH OFFENDERS )T IS THEREFORE CONSIDERED NECESSARY TO AMEND THE
SAID !CT IN ITS APPLICATION TO 5TTAR 0RADESH SO AS TO EQUIP THE OFCERS OF THE 3TATE
'OVERNMENT WITH MORE POWERS TO DEAL WITH SUCH OFFENDERS EFFECTIVELY AND TO PROVIDE
FOR STRINGENT PUNISHMENT FOR SUCH OFFENCES #ERTAIN OFFENCES HAVE BEEN MADE NON
BAILABLE )T IS ALSO CONSIDERED NECESSARY TO PROVIDE FOR SEIZURE AND CONSCATION OF
CERTAIN OTHER ARTICLES LIKE ROPES CHAINS ETC BESIDES TOOLS BOATS CARTS AND CATTIES AND
TO LAY DOWN SPECIC PROCEDURE FOR SEIZURE OF FOREST PRODUCE WHICH IS THE PROPERTY
OF 'OVERNMENT TOGETHER WITH THE TOOLS BOATS CARTS CATTIES ETC AND CONSCATION OF
SUCH TOOLS BOATS ETC )T IS ALSO CONSIDERED NECESSARY TO PROVIDE FOR APPEAL TO THE 3TATE
'OVERNMENT AGAINST THE ORDER OF CONSCATION AND TO MAKE THE DECISION OF THE 3TATE
'OVERNMENT NAL )N 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
#ERTAIN VALUABLE FOREST PRODUCE ARE BEING INCLUDED IN THE TERM FOREST PRODUCE
#ERTAIN OTHER CONSEQUENTIAL AMENDMENTS ARE ALSO BEING MADE
!S IS EVIDENT THE STATEMENT OF OBJECTS AND REASONS OF THE 50 !MENDMENT STATES THAT
KEEPING IN VIEW THE FACT THAT THE INCIDENTS OF FOREST OFFENCES HAVE INCREASED CONSIDERABLY
WHICH ARE COMMITTED BY ORGANIZED AND INUENTIAL 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
3ECTION OF THE &OREST 2IGHTS !CT KEEPS .OTWITHSTANDING CLAUSE AND BY GIVING
OVERRIDING EFFECT OVER OTHER LAWS THE #ENTRAL 'OVERNMENT HAS BEEN EMPOWERED TO
RECOGNIZE AND VEST FOREST RIGHTS IN THE FOREST DWELLING 3CHEDULED 4RIBES IN 3TATES OR
AREAS IN 3TATES WHERE THEY ARE DECLARED AS 3CHEDULED 4RIBES IN RESPECT OF ALL FOREST RIGHTS
MENTIONED IN 3ECTION 4HUS IT IS VERY MUCH OBVIOUS FROM THE AFORESAID PROVISIONS
THAT IT PROVIDES PROTECTION ONLY TO THE &OREST DWELLING 3CHEDULED 4RIBES AND OTHER
4RADITIONAL &OREST DWELLERS
4HE TERM &OREST $WELLING 3CHEDULED 4RIBES HAS BEEN DENED UNDER 3ECTION C OF
THE &OREST 2IGHTS !CT AS THE MEMBERS OR COMMUNITY OF THE 3CHEDULED 4RIBES
WHO PRIMARILY RESIDE IN AND WHO DEPEND ON THE FORESTS OR FOREST LANDS FOR BONA DE
LIVELIHOOD NEEDS AND INCLUDES THE 3CHEDULED 4RIBE PASTORALIST COMMUNITIES
4HE TERM /THER 4RADITIONAL &OREST $WELLER HAS BEEN DENED IN 3ECTION O OF THE
&OREST 2IGHTS !CT AS ANY MEMBER OR COMMUNITY WHO HAS FOR AT LEAST THREE
GENERATIONS PRIOR TO THE TH OF $ECEMBER PRIMARILY RESIDED IN AND WHO DEPEND
ON THE FOREST OR FORESTS LAND FOR BONA DE LIVELIHOOD NEEDS
4HROUGH THE PLEADINGS ON RECORD THE 0ETITIONERS ARE NOT ABLE TO ESTABLISH THEIR IDENTITY
EITHER AS FOREST DWELLING SCHEDULED TRIBES OR AS THE OTHER TRADITIONAL FOREST DWELLERS
4HOUGH THE 0ETITIONERS HAVE PLEADED THEIR RIGHT AS IS SAVED UNDER #(!04%2 )) TITLED
AS &/2%34 2)'(43 UNDER THE &OREST 2IGHTS !CT 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
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
UNDER THE &OREST 2IGHTS !CT
)N LIGHT OF THE AFORESAID OBSERVATIONS ONCE IT IS ESTABLISHED THAT THEY ARE NOT COVERED
UNDER THE &OREST 2IGHTS !CT THEY CANNOT HIT THE PROVISIONS OF 3ECTION
" EVEN
BEING REPUGNANT TO THE PROVISIONS OF THE &OREST 2IGHTS !CT YET AFTER READING
3ECTION OF THE &OREST 2IGHTS !CT ND THAT THE PROVISIONS OF THE &OREST 2IGHTS
!CT ARE IN ADDITION TO AND NOT IN DEROGATION OF THE PROVISIONS OF THE )NDIAN &OREST
!CT THEREFORE BEING NOT THE POSITION OF REPUGNANCY BETWEEN TWO !CTS ) AM OF THE
VIEW THAT THE 0ETITIONERS ARE GOVERNED UNDER 3ECTION
" OF THE )NDIAN &OREST !CT
AS AMENDED 4HE )NDIAN &OREST 5TTAR 0RADESH !MENDMENT !CT AND THEY HAVE
RIGHTLY BEEN DEALT WITH ACCORDINGLY
3O FAR AS THEIR RIGHT TO KEEP THE POSSESSION OVER THE LAND IN DISPUTE TO CONTINUE IS
CONCERNED ) ND THAT NEITHER THEY HAVE BEEN ABLE TO PRODUCE ANY DOCUMENT OF TITLE
BEFORE THE #IVIL #OURT NOR BEFORE THIS #OURT /NLY ON THE BASIS OF POSSESSION THE CIVIL
#OURT HAS PERMITTED THEM TO DEPOSIT THE RENT -R LSHWAR #HANDRA 'UPTA HIMSELF HAS
ADMITTED BEFORE THE #IVIL #OURT THAT THERE IS NO LEASE DEED BETWEEN THE PARTIES RATHER
HE IS MENTIONED AS LEASE HOLDER ONLY ON THE LEASE RENT SLIPS 4HE EX PARTE DECREE OF THE
#IVIL #OURT IS ON RECORD WHICH ESTABLISHES THIS FACT 4HUS THEY HAVE NOT BEEN ABLE TO
ESTABLISH ANY TITLE OVER THERE
)T IS NOT IN DISPUTE THAT THE LAND IN DISPUTE IS A RESERVE FOREST LAND AND UNDER THE &OREST
#ONSERVATION !CT THE RESTRICTION ON THE DIFFERENT RESERVATION OF FORESTS OR USE
OF FOREST LAND OR NON
FOREST USE HAS BEEN IMPOSED 2ELEVANT 3ECTION OF THE &OREST
#ONSERVATION !CT IS EXTRACTED BELOW
2ESTRICTION ON THE DERESERVATION OF FORESTS OR USE OF FOREST LAND FOR NON
FOREST
PURPOSE
.OT WITH STANDING ANYTHING CONTAINED IN ANY OTHER LAW FOR THE TIME
BEING IN FORCE IN A 3TATE NO 3TATE 'OVERNMENT OR OTHER AUTHORITY SHALL MAKE EXCEPT
WITH THE PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT 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 3TATE 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 'OVERNMENT
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
%XPLANATION
&OR 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 RE LINES
WIRELESS COMMUNICATIONS AND CONSTRUCTION OF FENCING BRIDGES AND CULVERTS
4 / \
DAMS WATER HOLES TRENCH MARKS BOUNDARY MARKS PIPELINES OR OTHER LIKE
PURPOSES
)T IS ADMITTED CASE OF THE 0ETITIONERS 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
4HE (ONBLE 3UPREME #OURT IN THE CASE OF 4. 'ODAVARMAN 4HIRUMULKPAD VS 5NION OF
)NDIA AND /RS REPORTED IN 3## IN ORDER TO PROTECT THE CONSERVATION OF THE
&ORESTS THROUGHOUT THE COUNTRY HAS ISSUED SEVERAL DIRECTIVES TO THE SEVERAL 3TATES OF THE
COUNTRY INCLUDING 3TATE OF 50 WHICH ARE REPRODUCED HEREUNDER
))) &/2 4(% 34!4% /& ()-!#(!, 02!$%3( !.$ 4(% (),, 2%')/.3 /& 4(% 34!4%3
/& 544!2 02!$%3( !.$ 7%34 "%.'!,
4HERE WILL BE NO FELLING OF TREES PERMITTED IN ANY FOREST PUBLIC OR PRIVATE 4HIS
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 4HIS BAN WILL NOT APPLY TO PERMITS GRANTED TO THE RIGHT
HOLDERS FOR
THEIR BONA DE PERSONAL USE IN (IMACHAL 0RADESH
). A FOREST THE 3TATE 'OVERNMENT MAY EITHER DEPARTMENTALLY OR THROUGH THE
3TATE &OREST #ORPORATION REMOVE FALLEN TREES OR FELL AND REMOVE DISEASED OR DRY
STANDING TIMBER FROM AREAS OTHER THAN THOSE NOTIED UNDER 3ECTION OR 3ECTION
OF THE 7ILD ,IFE 0ROTECTION !CT OR ANY OTHER !CT BANNING SUCH FELLING OR
REMOVAL OF TREES
&OR THIS PURPOSE THE 3TATE 'OVERNMENT IS TO CONSTITUTE AN %XPERT #OMMITTEE
COMPRISING A REPRESENTATIVE FROM -O%& A REPRESENTATIVE OF THE 3TATE &OREST
#ORPORATION AS -EMBER 3ECRETARY WHO WILL X THE QUALITATIVE AND QUANTITATIVE
NORMS FOR THE FELLING OF FALLEN TREES AND DISEASED AND STANDING TIMBER 4HE 3TATE
SHALL ENSURE THAT THE TREES SO FELLED AND REMOVED ARE IN ACCORDANCE WITH THESE
NORMS
3TANDING 4IMBER
&ELLING OF TREES IN ANY FOREST OR ANY CLEARANCE OF FOREST LAND IN EXECUTION OF
PROJECTS SHALL BE IN STRICT CONFORMITY WITH THE &OREST #ONSERVATION !CT AND
ANY OTHER LAWS APPLYING THERETO -OREOVER ANY TREES SO FELLED AND THE DISPOSAL
OF SUCH TREES SHALL BE DONE EXCLUSIVELY BY THE 3TATE &OREST #ORPORATION AND NO
PRIVATE AGENCY IS TO BE INVOLVED IN ANY ASPECT THEREOF
)N TERMS OF THE AFORESAID OBSERVATIONS OF THE (ONBLE 3UPREME #OURT NOW IT HAS BECOME
NECESSARY TO PROTECT THE DEFORESTATION BY RESTRICTING THE NON
FOREST ACTIVITIES
)N THE CASE OF 3TATE OF 7EST "ENGAL VS 3UJIT +UMAR 2ANA REPORTED IN !)2 3#
THE (ONBLE 3UPREME #OURT HAS OBSERVED AS UNDER
&OREST IS A NATIONAL WEALTH WHICH IS REQUIRED TO BE PRESERVED )N MOST OF THE
CASES THE 3TATE IS THE OWNER OF THE FORESTS AND FOREST PRODUCE $EPLETION OF FOREST
WOULD LEAD TO ECOLOGICAL IMBALANCE )T IS NOW WELL
SETTLED THAT THE 3TATE 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 3TATUTES
WHICH PROVIDE FOR PROTECTION OF FOREST TO MAINTAIN ECOLOGICAL BALANCE SHOULD RECEIVE
LIBERAL CONSTRUCTION AT THE HANDS OF THE SUPERIOR #OURTS )NTERPRETIVE EXERCISE OF SUCH
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
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 !RTICLES ! AND !G
OF THE #ONSTITUTION OF )NDIA IN MIND 4HE PROVISIONS FOR CONSCATION HAVE BEEN MADE
AS A DETERRENT OBJECT SO THAT FELLING OF TREES AND DEFORESTATION IS NOT MADE
3OME OF THE 0ETITIONERS HAVE CLAIMED PROTECTION OF THEIR RIGHT UNDER &OREST 2IGHTS !CT
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 &OREST 2IGHTS !CT AND ACTIVITIES RELATED TO THE
FOREST ACTIVITIES
4HUS AT THIS STAGE IN LIGHT OF THE SEVERAL JUDICIAL PRONOUNCEMENTS WHEREBY THE
NON
FOREST ACTIVITIES IN THE FOREST AREAS HAVE BEEN RESTRICTED IN CONCLUSION ) AM OF THE
CONSIDERED VIEW THAT THE 0ETITIONERS HAVE NO RIGHT TO CONTINUE THEIR POSSESSION OVER THE
FOREST LAND WITH THEIR NON
FOREST ACTIVITIES LIKE DOING BUSINESS
4HE WRIT PETITIONS LACK MERIT AND ARE DISMISSED
4 / \
*OGINDAR 3INGH VS 5NION OF )NDIA
/RS
-)3# "%.#( ./
!,,!(!"!$ ()'( #/524
#/2!- $%6) 02!3!$ 3).'( !.$ 3# #(!52!3)! **
3 5 - -!29
4HE WRIT PETITION SOUGHT A DIRECTION TO THE 2ESPONDENT 3TATE GOVERNMENT TO DECIDE
THE PENDING APPLICATIONS FOR RECOGNITION OF FOREST RIGHTS UNDER 3ECTION AND 3ECTION
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! AND 2ULES
7ITHOUT TAKING A DECISION ON THE SUBSTANTIVE ISSUE THE WRIT PETITION WAS DISPOSED
OF WITH DIRECTIONS TO THE COMPETENT AUTHORITY TO LOOK INTO THE MATTER AND DECIDE
THE CONTROVERSY IN ACCORDANCE WITH LAW WITHIN MONTHS AND COMMUNICATE ITS
DECISION TO THE PETITIONER
% $ ) 4 /23 . /4%
3IMILAR ORDERS WERE PASSED IN VARIOUS OTHER CASES 3EE FOR INSTANCE +ASHMIR 3INGH
VS 5NION OF )NDIA /RS -ISC "ENCH .O VIDE ORDER DATED
/2$%2
3RI 0RATYUSH 4RIPATHI LEARNED COUNSEL APPEARED ON BEHALF OF 5NION OF )NDIA
(EARD LEARNED COUNSEL FOR THE PARTIES AND PERUSED THE RECORD
7ITH THE CONSENT OF LEARNED COUNSEL FOR THE PARTIES WE PROCEED TO DECIDE THE WRIT
PETITION NALLY AT THE ADMISSION STAGE
4HE PRESENT 7RIT 0ETITION UNDER !RTICLE OF THE #ONSTITUTION OF )NDIA HAS BEEN
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
PREFERRED FOR ISSUE OF A WRIT ORDER OR DIRECTION IN THE NATURE OF MANDAMUS COMMANDING
THE RESPONDENT NOS AND TO DECIDE THE CLAIM LED BY THE PETITIONER DATED
BEFORE 2ESPONDENT .OS AND FOR THE &OREST 2IGHTS UNDER SECTION READ WITH 2ULE
A OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLER 2ECOGNITIONS OF &OREST
2IGHTS !CT AND 2ULES OF ,AND 'ATA .O AD MEASURING HECTARE SITUATED AT
6ILLAGE
5DHAONAGAR 4EHSIL
.IGHASAN $ISTRICT
,AKHIMPUR +HERI
3UBMISSION OF LEARNED COUNSEL FOR THE PETITIONER IS THAT THE PETITIONER HAS GOT STATUTORY
RIGHT TO USE THE FOREST LAND
7ITHOUT ENTERTAINING INTO THE MERITS OF THE CONTROVERSY WE DISPOSE OF THE WRIT PETITION
NALLY DIRECTING THE COMPETENT AUTHORITY TO LOOK INTO THE MATTER AND DECIDE THE
CONTROVERSY IN ACCORDANCE WITH LAW EXPEDITIOUSLY SAY PREFERABLY WITHIN A PERIOD OF TWO
MONTHS FROM THE DATE OF RECEIPT OF CERTIED COPY OF THE PRESENT ORDER AND COMMUNICATE
THE DECISION TO THE PETITIONER
3UBJECT TO ABOVE THE WRIT PETITION IS DISPOSED OF NALLY
4 / \
'ULAB !NR VS 3TATE OF 50 /RS
72)4 0%4)4)/. #)6), ./ /&
!,,!(!"!$ ()'( #/524
#/2!- 6+ 3(5+,! !.$ 35.%%4 +5-!2 **
#)4!4)/. 3## /.,).% !,,
3 5 - -!29
4HE PETITIONERS IN THIS CASE CLAIM THAT THERE IS A PATTA EXECUTED IN THE NAME OF
THEIR FOREFATHERS IN A FOREST AREA IN 3ONBHADRA DISTRICT !LTHOUGH THIS HAS NOT BEEN
MUTATED IN THEIR NAMES THEY HAVE BEEN IN POSSESSION OF THE LAND (OWEVER RECENTLY
EFFORTS ARE BEING MADE TO INTERFERE WITH THEIR POSSESSION OF THE LAND !CCORDINGLY
THEY HAD PREVIOUSLY APPROACHED THE (IGH #OURT BY WAY OF A WRIT PETITION WHERE
THE #OURT HAD BY ORDER DT DIRECTED THE $ISTRICT -AGISTRATE $- TO TAKE A
DECISION
4HEREAFTER THEY APPROACHED THE $- ONLY TO HAVE THEIR PETITION REJECTED 4HE
$- REACHED A FINDING OF FACT THAT THE LAND IN QUESTION IS FOREST LAND AND SINCE
THE PETITIONERS HAVE NEVER APPROACHED THE &OREST 3ETTLEMENT /FFICER &3/ FOR
SETTLEMENT OF RIGHTS NOR PARTICIPATED IN TWO ROUNDS OF CONSOLIDATION PROCEEDINGS
THEY HAVE NO RIGHT OVER THE LAND
4HE (IGH #OURT REACHED A FINDING THAT WHILE THE PRELIMINARY NOTIFICATION UNDER
3ECTION OF THE )NDIAN &OREST !CT !CT HAS BEEN ISSUED INCLUDING THE LAND
IN QUESTION THE FINAL NOTIFICATION UNDER 3ECTION OF THE !CT HAS NOT BEEN
ISSUED TILL DATE 4HEREFORE THE #OURT CONCLUDED THE PETITIONERS ARE FREE TO MAKE
AN APPLICATION UNDER 3ECTION OF THE !CT BEFORE THE &3/ AND GRANTED THE
PETITIONERS THREE MONTHS TIME TO DO SO
)NTERESTINGLY THE #OURT REFERRED TO THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! AND OBSERVED THAT
THEIR CLAIM UNDER THIS !CT HAS TO BE EXAMINED BY THE &3/ 4HE #OURT DIRECTED THAT
THE &3/ MUST DECIDE THE CLAIM ON THE BASIS OF EVIDENCE AND RECORD AVAILABLE AND
STRICTLY AS PER LAW
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
% $ )4/23 . /4%
4HIS JUDGMENT IS AN ILLUSTRATION OF A CASE WHERE THE #OURT HAS GRANTED RELIEF IN A
MANNER OF SPEAKING TO THE PETITIONERS BEFORE IT WHILE PROCEEDING ON AN INCORRECT
OR INACCURATE UNDERSTANDING OF THE LAW )T IS A MATTER OF GREAT CONCERN THAT THE #OURT
HAS NOT CONSIDERED THE NON
OBSTANTE CLAUSE IN 3ECTION OF &2! NOR CONSIDERED THE
REQUIREMENT FOR HARMONIOUS CONSTRUCTION IN 3ECTION OF &2! 2EAD TOGETHER THESE
PROVISIONS CLEARLY REQUIRE THAT THE !CT HAS TO CEDE THE LEGAL SPACE REGARDING
PROCEDURES AND MECHANISMS FOR THE RECOGNITION AND VESTING OF RIGHTS TO THE MUCH
MORE RECENT &2! ENACTED IN 4HE ERROR OF THE #OURT IN DIRECTING THE &3/ TO
CONSIDER THE PETITIONERS CLAIM UNDER THE &2! THEREFORE PREVENTS THIS JUDGMENT
FROM BECOMING A RELIABLE JUDICIAL PRECEDENT
5NFORTUNATELY THE (IGH #OURT WENT ON TO DISPOSE OF A LARGE NUMBER OF WRIT PETITIONS
PENDING BEFORE IT IN TERMS OF THIS JUDGMENT THEREBY COMPOUNDING THE ERROR
/2$ % 2
'ULAB AND 2AMJIYAWAN BOTH SONS OF ,ATE -UNNI ARE BEFORE THIS #OURT QUESTIONING THE
VALIDITY OF THE ORDER DATED TH *UNE PASSED BY THE $ISTRICT -AGISTRATE 3ONBHADRA
WHEREIN $ISTRICT -AGISTRATE 3ONBHADRA HAS PROCEEDED TO REJECT THE REPRESENTATION SO
LED ON BEHALF OF PETITIONERS
0ETITIONERS HAVE COME UP WITH THE CASE THAT THERE IS A PATTA EXECUTED IN THE NAME
OF THEIR FOREFATHERS OF ARAZI NO AREA BIGHA SITUATED IN -AUZA 0ATNA 0ARGANA
6IJAIGARH 4EHSIL 2OBERTSGANJ $ISTRICT 3ONBHADRA AND BASED ON THE SAME THEY ARE IN
POSSESSION OF THE PROPERTY IN QUESTION AND THEIR SUBMISSION HAS BEEN THAT IN SPITE OF THE
FACT THAT THERE HAS BEEN PATTA IN THEIR FAVOUR THERE HAS BEEN NO MUTATION MADE IN THEIR
FAVOUR AND AS INTERFERENCE WAS BEING MADE ACCORDINGLY THEY HAVE LED #IVIL -ISC 7RIT
0ETITION .O OF 'ULAB AND ANOTHER VS 3TATE OF 50 AND OTHERS AND THIS #OURT
ON TH -AY DIRECTED THE $ISTRICT -AGISTRATE CONCERNED TO TAKE DECISION IN THE
MATTER 0URSUANT TO THE ORDER PASSED BY THIS #OURT REPRESENTATION DATED TH *UNE
HAS BEEN MOVED MENTIONING THEREIN THAT PETITIONERS ARE IN POSSESSION OF THE PROPERTY
IN QUESTION BUT AS THEIR NAMES HAVE NOT ENTERED INTO THE REVENUE RECORDS ACCORDINGLY
THEY LED WRIT PETITION AND THEIR CLAIM BE DECIDED
!FTER THE SAID REPRESENTATION IN QUESTION HAS BEEN MOVED THE CLAIM OF PETITIONERS
HAS BEEN EXAMINED AND THEREIN A CATEGORICAL NDING OF FACT HAS BEEN RETURNED THAT
THE LAND IN QUESTION WHICH IS BEING CLAIMED BY THE PETITIONERS THAT PATTA HAS BEEN
EXECUTED IN THEIR FAVOUR FORMS PART OF GATA NO WHICH IS A FOREST LAND AND IN RESPECT
OF THE SAID LAND IN QUESTION AS PER THE PROVISIONS OF )NDIAN &OREST !CT 3ECTION
NOTICATION HAS ALREADY BEEN MADE AND AT NO POINT OF TIME WHEN THE DECLARATION HAS
BEEN MADE ANY OBJECTIONS WHATSOEVER HAVE BEEN LED EITHER BY THE PETITIONERS OR BY
THEIR FOREFATHERS CLAIMING ANY RIGHT OVER THE LAND IN QUESTION 4HIS MUCH HAS ALSO BEEN
FOUND THAT THERE IS NO SUCH LEASE DEED AVAILABLE ON RECORD #OUPLED WITH THIS ON TWO
OCCASIONS CONSOLIDATION OPERATIONS HAVE BEEN UNDERTAKEN BUT AT NO POINT OF TIME ANY
RIGHTS WHATSOEVER HAVE BEEN CLAIMED BY THE PETITIONERS ON THE LAND IN QUESTION DURING
THE CONSOLIDATION OPERATIONS AND $ISTRICT -AGISTRATE HAS PROCEEDED TO MENTION THAT
3EE FOR INSTANCE 2AJKESHWAR VS 3TATE OF 50 3## /N,INE !LL 2AM .ARESH VS 3TATE OF 50 3##
/N,INE !LL 3HAMBHU VS 3TATE OF 50 3## /N,INE !LL
4 / \
PROCEEDINGS IN QUESTION ARE BARRED BY 3ECTION OF 50 #HAKBANDI !CT AND IN VIEW OF
THIS BACKGROUND AFTER RECORDING SUCH A NDING CLAIM OF PETITIONERS HAVE BEEN TURNED
DOWN
3HRI !NIL +UMAR -ISHRA LEARNED COUNSEL FOR THE PETITIONER SUBMITTED THAT IN THE PRESENT
CASE THERE IS A VALID LEASE DEED IN FAVOUR OF PETITIONERS FOREFATHERS AND AS SUCH A TOTALLY
INCORRECT MENTION HAS BEEN MADE THAT THERE IS NO LEASE DEED IN EXISTENCE AND RIGHTS OF
PETITIONERS STANDS DEFEATED WITH THE PASSAGE OF TIME WHEREAS THEY HAVE A SUBSISTING
RIGHT OVER THE PROPERTY IN QUESTION
#OUNTERING THE SAID SUBMISSION LEARNED 3TANDING #OUNSEL ON THE OTHER HAND CONTENDED
THAT ENTIRE CLAIM OF PETITIONERS IS UNGENUINE ONE AND CLAIM OF PETITIONERS STANDS FULLY
EXPOSED FROM THE ATTENDING CIRCUMSTANCES
!FTER RESPECTIVE ARGUMENTS HAVE BEEN ADVANCED THE FACTUAL SITUATION AS IS EMERGING
IN THE PRESENT CASE THAT GATA NO HAS BEEN DECLARED TO BE A FOREST LAND UNDER THE
PROVISIONS OF 3ECTION OF )NDIAN &OREST !CT 0URSUANT TO NOTICATION NO
+HA
MADE ON TH !UGUST AND PUBLICATION DATED ST *ANUARY RESPECTIVELY
THIS MUCH IS ACCEPTED THAT EVEN AFTER THE NOTICATION HAS BEEN MADE UNDER 3ECTION OF
THE )NDIAN &OREST !CT AND EVEN PRIOR TO IT AT NO POINT OF TIME ANY OBJECTIONS HAVE
BEEN RAISED THAT SAME IS NOT A FOREST LAND 4HE FACT OF THE MATTER IS THAT GATA NO HAS
BEEN RECORDED AS FOREST LAND WHEREIN DECLARATION HAS BEEN MADE UNDER 3ECTION OF
THE )NDIAN &OREST !CT #OLLATERAL CHALLENGE QUA NOTICATION MADE UNDER 3ECTION
OF )NDIAN &OREST !CT CANNOT BE ENTERTAINED 0ETITIONERS AT NO POINT OF TIME HAS LAID ANY
CLAIM BEFORE THE &OREST 3ETTLEMENT /FCER QUA THE SAID LAND IN QUESTION #OUPLED WITH
THIS THERE ARE ATTENDING CIRCUMSTANCES TO DISBELIEVE THE CASE INASMUCH AS AT NO POINT
OF TIME BASED ON THE AFOREMENTIONED LEASE DEED DATED TH .OVEMBER AT ANY POINT
OF TIME ANY MUTATION PROCEEDINGS HAVE BEEN UNDERTAKEN AS WELL AS IN CONSOLIDATION
PROCEEDINGS ANY CLAIM HAS BEEN SET
UP IN RESPECT OF THE GATA NO AREA BIGHA OF
LAND 4HE $ISTRICT -AGISTRATE CONCERNED HAS PROCEEDED TO MENTION THAT PROCEEDINGS ARE
ACCORDINGLY BARRED BY 3ECTION OF 50 #HAKBANDI !CT /NCE SUCH IS THE FACTUAL SITUATION
THAT HAS BEEN NOTED BY THE $ISTRICT -AGISTRATE CONCERNED AND CATEGORICAL NDING HAS
BEEN RETURNED THAT BENET OF 3ECTION
! CANNOT BE ACCORDED AS THE LAND IN QUESTION
DOES IS ON THE NORTH OF THE +AIMOOR RANGE WHEREAS 3ECTION
! IS ENFORCEABLE ON THE
SOUTH OF +AIMOOR RANGE AND AS FAR AS BENET OF 3ECTION " & IS CONCERNED EVEN THE
SAME CANNOT BE ACCORDED AS THE LAND IN QUESTION IS FOREST LAND
/NCE SUCH IS THE FACTUAL SITUATION THEN NO RELIEF OR REPRIEVE CAN BE GIVEN TO PETITIONERS
BUT ACCEPTING THE LAND IN QUESTION TO BE FOREST LAND AND ACCORDINGLY WHATEVER RIGHTS
OR BENETS PETITIONERS COULD CLAIM SAME WOULD BE CONSIDERED AND DEALT WITH ON THE
PREMISES THAT IT IS A FOREST LAND 0ETITIONERS IN THE PRESENT WRIT PETITION HAS COME UP
WITH THE CASE THAT TILL DATE NOTICATION UNDER 3ECTION OF )NDIAN &OREST !CT HAS NOT
BEEN MADE AND EVEN THE ORDER PASSED BY THE $ISTRICT -AGISTRATE DOES NOT REECT OF ANY
NOTICATION HAVING BEEN MADE UNDER 3ECTION OF )NDIAN &OREST !CT 3ECTION OF )NDIAN
&OREST !CT DEALS WITH EXTINCTION OF RIGHTS WHEREIN NO CLAIM HAS BEEN PREFERRED AND SAME
ALSO PROVIDES THAT BEFORE NOTICATION IS MADE UNDER 3ECTION THE PERSON CLAIMING SUCH
RIGHT CAN APPROACH &OREST 3ETTLEMENT /FCER GIVING THEREIN REASON FOR NOT APPROACHING
WITHIN THE TIME FRAME PROVIDED FOR IN RESPECT OF CLAIM IN QUESTION )N VIEW OF THIS IN
CASE TILL TODAY NOTICATION UNDER 3ECTION OF )NDIAN &OREST !CT HAS NOT BEEN MADE
THEN IN THAT EVENT PETITIONERS ARE FREE TO MOVE AN APPLICATION UNDER 3ECTION OF )NDIAN
&OREST !CT AND THE SAID APPLICATION BE CONSIDERED AND DEALT WITH BY &OREST 3ETTLEMENT
/FCER PREFERABLY WITHIN NEXT THREE MONTHS FROM THE DATE OF RECEIPT OF CERTIED COPY
OF THIS ORDER IN ACCORDANCE WITH LAW #OUPLED WITH THIS PETITIONERS HAVE CLAIMED THAT
THEY ARE FROM THE WEAKEST STRATA OF THE SOCIETY AND THE SO CALLED FORESTLAND HAS BEEN
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
THEIR SOLE SOURCE OF SUSTENANCE AND NOW 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS2ECOGNITION OF &OREST 2IGHTS !CT AND EVEN AS PER THE SAID PROVISION
THEIR CLAIM HAS TO BE EXAMINED BY &OREST 3ETTLEMENT /FCER )N CASE PETITIONERS CLAIM
BENET OF AFOREMENTIONED PROVISION AND PETITIONERS FULL THE PREREQUISITE TERMS AND
CONDITIONS FOR GETTING THE BENET OF AFOREMENTIONED PROVISION THEN CLAIM ON THE SAID
ASPECT OF THE MATTER BE ALSO CONSIDERED IN ACCORDANCE WITH LAW BY &OREST 3ETTLEMENT
/FCER WITHIN THE SAME TIME FRAME AS IS PROVIDED FOR &OREST 3ETTLEMENT /FCER SHOULD
DECIDE THE CLAIM ON THE BASIS OF EVIDENCE AND RECORD AVAILABLE AND STRICTLY AS PER LAW
7RIT PETITION IS DISPOSED OF ACCORDINGLY
4 / \
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
!.$(2! 02!$%3(
()'( #/524
4!",% /& *5$'-%.43 !.$ /2$%23
* 6 3HARMA /RS VS 'OVERNMENT OF )NDIA /RS
70 # .O OF \
0ODIUM $EVAIAH /RS VS 'OVERNMENT OF )NDIA /RS
70 .O OF \
-
INOR &OREST 0RODUCE 'ATHERERS #OMMITTEE 0ULLANGI 0ANCHAYAT !NR VS
'OVERNMENT OF !NDHRA 0RADESH /RS
70 .O OF \
2
AVVA 3OMARAJU /RS VS 'OVERNMENT OF )NDIA THROUGH -O4! /RS
70 .O OF \
3
UNKISALA 6ENKAIAH /RS VS 4HE 'OVT OF !NDHRA 0RADESH /RS
70 .O OF \
4 / \
*6 3HARMA /RS VS 'OVERNMENT OF
)NDIA /RS
70 # ./ /&
()'( #/524 /& !.$(2! 02!$%3(
).4%2)- /2$%2
#/2!- " 02!+!3( 2!/ 2 +!.4(! 2!/ **
3 5 - -!29
4HE MAIN WRIT PETITION HAS BEEN FILED IN THE NATURE OF A 0), BY RETIRED OFFICERS
FROM THE 3TATE &OREST $EPARTMENT SEEKING A WRIT OF MANDAMUS DECLARING THAT
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! IS ILLEGAL AND UNCONSTITUTIONAL
4HE APPLICATION FOR INTERIM DIRECTIONS FILED BY THE SAME PETITIONERS SOUGHT A STAY ON
THE IMPLEMENTATION OF THE &2! UNTIL THE DISPOSAL OF THE WRIT PETITION "Y AN EARLIER
ORDER DT THE (IGH #OURT HAD PASSED DIRECTIONS RESTRICTING THE OPERATION
OF THE &2! TO THE EXTENT THAT BEFORE THE CERTIFICATE OF TITLE IS ISSUED ORDERS FROM THE
#OURT WOULD HAVE TO BE OBTAINED
3UBSEQUENTLY A NUMBER OF TRIBALS AND OTHER TRADITIONAL FOREST DWELLERS THE INTENDED
BENEFICIARIES OF THE LEGISLATION HAD SOUGHT IMPLEADMENT AS RESPONDENTS 4HEY IN
TURN URGED THE #OURT TO PERMIT THE UNHINDERED IMPLEMENTATION OF THE &2! ALONG
WITH THE #ENTRAL AND THE 3TATE GOVERNMENTS 4HIS IS A DECISION OF THE #OURT ON THE
INTERIM APPLICATION OF THE FOREST DWELLERS FOR MODIFICATION OF THE PREVIOUS ORDER
4HE #OURT TOOK NOTE OF THE MATERIAL PLACED ON RECORD BY THE 4RIBAL 7ELFARE $EPARTMENT
OF THE 3TATE GOVERNMENT THAT OUT OF A TOTAL OF CLAIMS RECEIVED UNDER &2!
THE $ISTRICT ,EVEL #OMMITTEE HAD APPROVED CLAIMS FOR GRANT OF TITLE 4HIS
APPROVAL WAS GIVEN AFTER GOING THROUGH A DETAILED PROCESS OF DETERMINATION AND
ON
SITE VERIFICATION THROUGH #OMMITTEES AT THE 6ILLAGE 3UB
$IVISION AND $ISTRICT
LEVEL 4HE #OURT ALSO OBSERVED THAT IT IS A WELL ESTABLISHED PRINCIPLE THAT WHERE A
LEGISLATION IS UNDER CHALLENGE ON GROUND OF CONSTITUTIONAL VALIDITY OR ANY OTHER
GROUND THE #OURTS WILL BE SLOW IN GRANTING DIRECTIONS AGAINST THE IMPLEMENTATION
OF THE LEGISLATION
4HE #OURT WAS OF THE VIEW THAT A DENIAL OF THE LAUDABLE OBJECTIVE OF THE &2! WOULD
PREJUDICE THE FOREST DWELLERS SOUGHT TO BE PROTECTED AND IF THERE ARE DEFECTS IN
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
IMPLEMENTATION THERE ARE SUFFICIENT SAFEGUARDS IN THE PROCESS FOR CORRECTING THE
SAME WHICH THE PETITIONER CAN AVAIL OF
!CCORDINGLY THE #OURT ISSUED DIRECTIONS MODIFYING ITS PREVIOUS INTERIM ORDER DT
TO THE EFFECT THAT THE AUTHORITIES WOULD BE PERMITTED TO ISSUE CERTIFICATES
OF TITLE TO ELIGIBLE FOREST DWELLERS UNDER THE &2! SUBJECT TO THE FINAL RESULT OF THE
MAIN WRIT PETITION
% $ )4/23 . /4%
4HIS ORDER OF THE !NDHRA 0RADESH (IGH #OURT WENT A LONG WAY IN ALLEVIATING THE EARLY
APPREHENSIONS OF VARIOUS STAKEHOLDERS THAT THE IMPLEMENTATION OF THE &2! WOULD
LEAD TO RAMPANT ILLEGALITIES AND DEFORESTATION 3INCE THEN THE MAIN WRIT PETITION
HAS BEEN TRANSFERRED TO THE 3UPREME #OURT OF )NDIA AND IS PENDING ADJUDICATION AS
4## .O OF
/2$ % 2
THE ORDER OF THE #OURT WAS PRONOUNCED BY " 0RAKASH 2AO *
)N THE MAIN WRIT PETITION LED BY THE PETITIONERS AS 0UBLIC )NTEREST ,ITIGATION WHERE THEY
SOUGHT FOR A WRIT OF MANDAMUS DECLARING THE PROVISIONS OF THE 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT !CT .O OF
AND IN PARTICULAR CHAPTERS TO OF THE 3AID !CT AS ILLEGAL AND UNCONSTITUTIONAL AN
INTERIM APPLICATIONS HAS BEEN LED IN 70-0 .O OF WHERE A $IVISION "ENCH
OF THIS #OURT PASSED AN ORDER ON WHICH READS AS UNDER
(EARD THE LEARNED !DVOCATES
4HERE IS NO DISPUTE THAT AFTER HEARING THE CONCERNED PARTIES ON THE SAME SUBJECT A
$IVISION "ENCH OF -ADRAS (IGH #OURT HAS PASSED THE FOLLOWING ORDER ON
A IF CLAIMS ARE MADE FOR COMMUNITY RIGHTS OR RIGHTS TO FOREST LAND AND
APPLICATIONS ARE SUBMITTED AS PER SECTIONS AND OF THE !CT READ WITH 2ULES
AND OF THE 2ULES THEN THE PROCESS OF VERICATION OF THE CLAIM AFTER INTIMATION
TO THE CONCERNED CLAIMANT SHALL GO ON BUT BEFORE THE CERTICATE OF TITLE IS ACTUALLY
ISSUED ORDERS SHALL BE OBTAINED FROM THIS #OURT
B !S REGARDS FELLING OF TREES FOR PROVIDING DIVERSION OF FOREST LAND UNDER 3ECTION
OF THE !CT IS CONCERNED THE PROCESS SHALL GO ON TILL THE CLEARANCE OF SUCH
DEVELOPMENT PROJECTS AND ALSO THE 'RAM 3ABHAS RECOMMENDATION IS OBTAINED
BUT BEFORE THE ACTUAL FELLING OF TREES ORDERS SHALL BE OBTAINED FROM THIS #OURT
)T HAS BEEN SUBMITTED BY 3RI ! 2AJASHEKAR 2EDDY LEARNED !SST 3OLICITOR 'ENERAL THAT
THE 5NION OF )NDIA WOULD LIKE TO CHALLENGE THE VALIDITY OF THE SAID ORDER BEFORE THE
(ONBLE 3UPREME #OURT (OWEVER HE HAS SUBMITTED THAT AS ON TODAY THE SAID ORDER IS
IN FORCE
)N VIEW OF THE ABOVE FACT THE AFORE STATED INTERIM ORDER IS ALSO PASSED IN THIS APPLICATION
)T IS HOWEVER CLARIED THAT DURING THE PENDENCY OF THE LITIGATION NO MEMBER OF A
4 / \
FOREST DWELLING SCHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLER SHALL BE EVICTED OR
REMOVED FROM FOREST LAND UNDER HIS OCCUPATION TILL THE RECOGNITION AND VERICATION
PROCEDURE IS COMPLETED
)N VIEW OF THE ABOVE ORDER THE APPLICATION STANDS DISPOSED OF
3UBSEQUENTLY THE MATTER UNDERWENT ADJOURNMENTS FOR THE PURPOSE OF LING COUNTER
AFDAVITS 4HE MAIN GROUND URGED IN THE WRIT PETITION IS THAT HAVING REGARD TO THE
.ATIONAL &OREST 0OLICY WHICH CONTEMPLATES MAINTENANCE OF FORESTRY TO THE EXTENT OF
RD OF THE TOTAL LAND AREA IN THE COUNTRY THE PROVISIONS OF THE !CT AND THE CONFERMENT
OR RECOGNITION OF THE CERTICATES FOR THOSE ALLEGED TO BE IN POSSESSION DEFEATS THE VERY
POLICY &URTHER THESE PROVISIONS ALSO RUN COUNTER TO VARIOUS OTHER ENACTMENTS LIKE
7ILD ,IFE 0ROTECTION !CT &OREST #ONSERVATION !CT ETC 4HE PETITIONERS GAVE
A DETAILED COUNT AS TO THE POLICY AND OBJECTS THEREUNDER HENCE WITH THESE AND OTHER
GROUNDS THE PETITIONERS SOUGHT TO ASSAIL THE VALIDITY OF THE LEGISLATION
&URTHER IT WAS ALSO POINTED OUT THAT EVEN THE PROCEDURE AS CONTEMPLATED AND THE POWERS
CONFERRED ON THE 'RAM 3ABHA 3UB $IVISIONAL LEVEL #OMMITTEE $ISTRICT LEVEL #OMMITTEE
IS ONLY A MAKE BELIEVE ONE AND ONE CANNOT ACCEPT THE CONSIDERATION OF THE RELEVANT
ASPECTS VIS
A
VIS THE OBJECTS AND THE .ATIONAL 0OLICY AND THEREFORE ANY SUCH UNGUIDED
UNCONTROLLED POWERS ON THOSE AUTHORITIES IS BAD
0ENDING WRIT PETITION THE PETITIONERS SOUGHT INTERIM DIRECTIONS AGAINST THE RESPONDENTS
NOT TO GIVE EFFECT TO THE PROVISIONS OF THE SAID LEGISLATION (OWEVER FOLLOWING THE
INTERIM ORDERS GRANTED INS SIMILAR WRIT PROCEEDING BY THE $IVISION "ENCH OF -ADRAS
(IGH #OURT DATED THE AFORESAID INTERIM ORDERS DATED HAVE BEEN
PASSED $URING THE COURSE OF HEARING THE LEARNED COUNSEL FOR THE PETITIONER POINTED OUT
THAT SUBSEQUENTLY IN THE SAID WRIT PETITION BEFORE THE -ADRAS (IGH #OURT ORDERS HAVE
BEEN PASSED IN AN INTERIM APPLICATION ON 4HE OPERATION PORTION OF WHICH
READS AS UNDER
4HEREFORE WE ISSUE THE FOLLOWING DIRECTIONS
A )F CLAIMS ARE MADE FOR COMMUNITY RIGHTS OR RIGHTS TO FOREST LAND AND
APPLICATIONS ARE SUBMITTED AS PER SECTIONS AND OF THE !CT READ WITH 2ULES
AND OF THE 2ULES THEN THE PROCESS OF VERICATION OF THE CLAIM AFTER INTIMATION
TO THE CONCERNED CLAIMANT SHALL GO ON BUT BEFORE THE CERTICATE OF TITLE IS ACTUALLY
ISSUED ORDERS SHALL BE OBTAINED FROM THIS #OURT
B !S REGARDS FELLING OF TREES FOR PROVIDING DIVERSION OF FOREST LAND UNDER 3ECTION
OF THE !CT IS CONCERNED THE PROCESS SHALL GO ON TILL THE CLEARANCE OF SUCH
DEVELOPMENT PROJECTS AND ALSO THE 'RAM 3ABHAS RECOMMENDATION IS OBTAINED
BUT BEFORE THE ACTUAL FELLING OF TREES ORDERS SHALL BE OBTAINED FROM THIS #OURT
4HEREFORE IT IS THE CONTENTION ON BEHALF OF THE PETITIONERS THAT UNLESS AND UNTIL THE MAIN
QUESTIONS ARE GONE INTO AND APPROPRIATE STEPS ARE TAKEN FOR PROTECTING THE FORESTRY ANY
CONSIDERATION FOR GRANT OF CERTICATES IS NO USE AND FURTHER UNDER THE GUISE OF GRANT OF
THESE CERTICATES SEVERAL INELIGIBLE AND INUENTIAL PERSONS ARE GETTING INTO THE SAID LAND
AT THE COST OF FORESTRY AND REAL ELIGIBLE PERSONS
4HE RESPONDENTS HEREIN HAVE LED AN INTERIM APPLICATION IN 70-0 .O OF
SEEKING A DIRECTION TO PERMIT THEM TO ISSUE CERTICATE OF TITLE TO THE ELIGIBLE &OREST
$WELLING 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS UNDER THE !CT )T IS
CONTENDED IN THE AFDAVIT LED ALONG WITH THE SAID APPLICATION SWORN BY -R !SOKE
+UMAR 4IGIDI 0RINCIPAL 3ECRETARY TO THE 'OVERNMENT 4RIBAL 7ELFARE $EPARTMENT THAT
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
AFTER MAKING A DETAILED EXERCISE AND ENQUIRY WITH THE ASSISTANCE OF THE CONCERNED
DEPARTMENT AND ON RECEIPT OF THE TOTAL APPLICATION OF WITH THEIR RESPECTIVE
CLAIMS TO COVER ACRES SPREAD IN DISTRICTS AND AFTER MAKING A SURVEY THERE IS A
DUE RECOMMENDATION BY THE 'RAMA 3ABHA TO THE 3UB $IVISIONAL ,EVEL #OMMITTEES AND
OUT OF THE TOTAL CLAIMS THE 'RAMA 3ABHAS HAVE REJECTED CLAIMS AND RECOMMENDED
TO THE $ISTRICT LEVEL #OMMITTEE FOR APPROVAL OF AND REJECTED CLAIMS 4HE
$ISTRICT LEVEL #OMMITTEE APPROVED CLAIMS AND REJECTED CLAIMS )T WAS
CONTENDED THAT ELABORATE ENQUIRY WAS CONDUCTED WITH PARTICIPATION OF &OREST AND OTHER
AUTHORITIES AND WITH THE ASSISTANCE OF .'/S AND THEREFORE NOW THE ENTIRE EXERCISE IS
OVER PERMISSION AS PER THE ORDERS OF THIS #OURT PASSED EARLIER AS MENTIONED ABOVE BE
GRANTED
/PPOSING THE APPLICATION AND ALSO OPPOSING MODICATION IN REGARD TO THE EARLIER ORDERS
PASSED BY THIS #OURT THE LEARNED COUNSEL FOR THE WRIT PETITIONERS SUBMITTED THAT THE
PETITIONERS HAVE NOT GIVEN ANY DETAILS OR PARTICULARS MUCH LESS THE PROCEDURE FOLLOWED
BEFORE MAKING ANY SUCH NALIZATION AND THAT IN VIEW OF THE ABSENCE OF ANY SUCH DETAILS
THE WRIT PETITIONERS ARE NOT ABLE TO POINT OUT THE VARIOUS DEFECTS )N FACT IT IS HIS CONTENTION
THAT THERE WAS NO SURVEY NOR ANY VERICATION MUCH LESS THERE IS DUE IDENTICATION OF
THE INDIVIDUALS IN POSSESSION ENTITLED FOR ANY SUCH CERTICATES VIS
A
VIS TO ESTABLISH THE
FACTUM OF POSSESSION BY THEM THEREFORE THE QUESTION OF GRANT OF CERTICATES AT THIS
STAGE DOES NOT ARISE AND FURTHER IT WAS STATED THAT IF ALL THE PARTICULARS ARE FURNISHED
TO THE WRIT PETITIONERS THEY WOULD BE IN A POSITION TO REPLY POINTING OUT THE DEFECTS
INELIGIBILITIES OR TO SUBMIT ANY OTHER SUCH OBJECTIONS
7E HAVE HEARD -R ' 6IDYASAGAR LEARNED COUNSEL APPEARING FOR WRIT PETITIONERS LEARNED
!DVOCATE 'ENERAL AND -R "ALAGOPAL LEARNED COUNSEL APPEARING FOR OTHER RESPONDENTS
IN DETAIL AND AT LENGTH
$URING THE COURSE OF THE ARGUMENTS IT WAS POINTED OUT THAT HAVING REGARD TO THE
PENDENCY OF SIMILAR MATTERS IN OTHER (IGH #OURTS AND APPLICATIONS LED SEEKING FOR
TRANSFER BEFORE THE 3UPREME #OURT THE MAIN WRIT PETITION CANNOT BE HEARD AND ORDERS
ARE BEING AWAITED )N VIEW OF THE SAME WE REFRAIN FROM GOING INTO THE MERITS IN THE
WRIT PETITION (OWEVER FALLING BACK CONSIDERATION OF THE INTERIM APPLICATIONS LED FROM
BOTH THE SIDES AND TAKING INTO CONSIDERATION THE EARLIER ORDERS OF THIS #OURT PASSED BY
FOLLOWING THE ORDERS PASSED BY THE $IVISION "ENCH OF -ADRAS (IGH #OURT THE MAIN
ASPECT WHICH REQUIRES TO BE PONDERED OVER IS WHETHER THE RESPONDENT AUTHORITIES NEED
TO BE GIVEN PERMISSION FOR GRANT OF CERTICATES OF TITLE AS SOUGHT FOR IN THE APPLICATION
LED BY THEM SINCE ACCORDING TO THEM THE ENTIRE EXERCISE IS OVER 0RIMA FACIE IT IS TO
BE SEEN THAT THE WRIT PETITION IS LED IN A 0UBLIC )NTEREST WITH THE MAIN ABOVE OBJECT
OF PROTECTING THE FORESTRY IN GENERAL SPREAD ALL OVER )NDIA AND AFFECT OF THE PROVISIONS
OF THE SAID LEGISLATURE VIS
A
VIS THE GRANT OF CERTICATES OF TITLE TO THOSE ALLEGED TO BE IN
POSSESSION AND DEPRIVATION OF THE FORESTRY TO THE COUNTRY AS A WHOLE THAT APART THE ENTIRE
PROCEDURE AND THE CONFERMENT OF POWERS ON AUTHORITIES AS CONTEMPLATED ACCORDING TO
THE PETITIONER IS NOT SUFCIENT ENOUGH TO PROTECT THE RIGHTS OF THE INDIVIDUALS WHO ARE
REALLY ENTITLED TO AND TO PROTECT THE FORESTRY IN GENERAL 4HEREFORE THOUGH INITIALLY THE
PETITIONERS SOUGHT THE INTERIM DIRECTION NOT TO GIVE EFFECT TO THE PROVISIONS OF THE SAID
LEGISLATION THIS #OURT PASSED THE AFORESAID ORDERS FOLLOWING THE ORDERS PASSED BY THE
$IVISION "ENCH OF THE -ADRAS (IGH #OURT
)T IS NOW WELL ESTABLISHED THAT IF A LEGISLATION IS UNDER CHALLENGE ON THE GROUND OF
UNCONSTITUTIONAL OR OTHERWISE NORMALLY THE #OURTS WILL BE SLOW IN GRANTING ANY SUCH
DIRECTIONS AS AGAINST THE IMPLEMENTATION OF THE LEGISLATION IN EXERCISE OF POWERS
CONFERRED UNDER !RTICLE OF THE #ONSTITUTION OF )NDIA (OWEVER APPARENTLY IT IS ONLY
DUE TO THE PENDENCY OF SIMILAR MATTERS AND ORDERS PASSED BY THE OTHER (IGH #OURT THE
4 / \
SAME WAS FOLLOWED
)N THE END THE $IVISION "ENCH OF -ADRAS (IGH #OURT AND AS WELL THIS #OURT DID MAKE AN
OBSERVATION THAT AS AND WHEN THE CERTICATES ARE TO BE GRANTED NECESSARY PERMISSION
HAS TO BE OBTAINED FROM THIS #OURT )T IS AT THIS STAGE NOW WHERE THE APPLICATION HAS
BEEN LED BY THE AUTHORITIES SEEKING FOR SUCH PERMISSION THE QUESTION IS AS TO THE SCOPE
OF THE ENQUIRY TO BE MADE WHILE GRANTING THE PERMISSION !CCORDING TO THE RESPONDENT
AUTHORITIES EVERY ENQUIRY HAS BEEN MADE AND VERICATION ETC VIS A VIS POSSESSION AND OF
THE CLAIMS HAVE BEEN RECEIVED THROUGH AT DIFFERENT LEVELS OF 'RAMA 3ABHA 3UB $IVISIONAL
,EVEL #OMMITTEE AND $ISTRICT ,EVEL #OMMITTEE AND ULTIMATELY THE INDIVIDUALS HAVE
BEEN IDENTIED WHO ARE ENTITLED TO CERTICATES 4HERE IS NO DISPUTE ON THE PART OF THE WRIT
PETITIONER AS TO THE PARTICIPATION AS WELL BY SEVERAL .'/ ORGANIZATIONS IN THE PROCESS
APART FROM THE CONCERNED AUTHORITIES %VEN THE PROVISIONS OF THE !CT DO SPECICALLY
PROVIDE FOR SUCH EXERCISE WITH THE ASSISTANCE AND PARTICIPATION BY ALL AUTHORITIES LIKE
2EVENUE &OREST ETC (OWEVER EVEN THOUGH ENTIRE SUCH EXERCISE WAS DONE AT SEVERAL
DISTRICT PLACES THERE APPEARS TO BE NO ATTEMPT ON THE PART OF THE WRIT PETITIONER TO PUT
THEIR CLAIMSOBJECTIONS OF WHATSOEVER NATURE IN THE ENTIRE PROCESS BE THAT AS IT MAY
SINCE THE PETITIONERS THEMSELVES ARE NOT CARRYING ANY SUCH RIGHTS OR CERTICATES OF TITLE
UNDER THE PROVISIONS OR MUCH LESS DENIAL THEREOF WE ARE OF THE VIEW THAT IN THE ENTIRE
PROCESS AS STATED ON OATH BY THE AUTHORITIES THERE IS NO REASON AT THIS STAGE TO DOUBT
THE SAME &URTHER IT IS FOUND THERE HAVE BEEN SEVERAL CLAIMS RUNNING INTO THOUSANDS
AT DIFFERENT PARTS OF DISTRICTS AND PARTICULARS OF THOSE CLAIMS HAVE BEEN VERIED AND
PROCESSED THROUGH AND ULTIMATELY RESTRICTED TO THOSE WHO ARE FOUND TO BE ELIGIBLE %VEN
AN ATTEMPT BY THIS #OURT TO VERIFY CORRECTNESS OF THOSE CLAIMS INDIVIDUALLY BY GOING
THROUGH WOULD BE MUCH AGAINST THE WELL ESTABLISHED PRINCIPLES WHILE EXERCISE OF THE
JURISDICTION UNDER !RTICLE OF THE #ONSTITUTION OF )NDIA THEREFORE THIS #OURT WOULD NOT
VENTURE TO MAKE ANY ATTEMPT TO GO INTO OR CONDUCT AN ENQUIRY AS REGARDS CORRECTNESS
THEREOF (OWEVER IT WOULD SUFCE IN THE INTEREST OF JUSTICE TO PERMIT THE PETITIONERS TO
SEEK FOR ALL THOSE DETAILS OR PARTICULARS AS THEY MAY REQUIRE DIRECTLY FROM THE CONCERNED
AUTHORITIES OR BY LING APPROPRIATE APPLICATIONS AND EVEN BY INVOKING THE PROVISIONS
UNDER 2IGHT TO )NFORMATION !CT !LL THOSE CLAIMS ARE NOW ARISING IN ALMOST DISTRICT
OF THE 3TATE OF !0 AND THEREFORE THE ENTIRE RECORDS WOULD BE AVAILABLE AT THE THREE TIER
AUTHORITIES IN THE RESPECTIVE DISTRICT WHICH CAN BE AVAILED OF BY THE WRIT PETITIONER
7E ALSO TAKE NOTE OF THE FACT THAT ENTIRE EXERCISE AS PER THE PROVISIONS OF THE !CT IS A BASIS
IE A THREE TIER SYSTEM PRIMARILY AT THE 'RAMA 3ABHA SECONDLY AT 3UB $IVISIONAL ,EVEL
#OMMITTEE AND ULTIMATELY AT $ISTRICT LEVEL #OMMITTEE CONSISTING OF VARIOUS AUTHORITIES
AND IT IS ALWAYS OPEN FOR THE WRIT PETITIONERS TO SEEK FOR INFORMATION AND PARTICULARS
IF ANY INELIGIBLE PERSON OR INDIVIDUAL IS SOUGHT TO BE GIVEN ANY SUCH CERTICATE IT CAN
RAISE ALL OBJECTIONS WHICH WE ARE SURE THE CONCERNED AUTHORITIES BEFORE WHOM SUCH
OBJECTIONS ARE LED BE IT 'RAMA 3ABHA 3UB $IVISIONAL ,EVEL #OMMITTEE OR $ISTRICT
,EVEL #OMMITTEE WOULD CERTAINLY ENQUIRE INTO AND WOULD PASS APPROPRIATE ORDERS IN
ACCORDANCE WITH LAW
(OWEVER HAVING REGARD TO THE VERY LAUDABLE OBJECT TO PROTECT THE POSSESSION OF SUCH
INDIVIDUALS WHICH LAW TRIES TO TAKE CARE OF ANY DENIAL THEREOF WOULD ONLY PREJUDICE
TO THEM THEREFORE WE ARE OF THE OPINION THAT THERE IS NO BASIS AS SUCH FOR ANY
APPREHENSION ON THE PART OF THE WRIT PETITIONER TO ASSAIL THAT THE ENTIRE EXERCISE IS FARCE
ONE OR CERTICATE OF IDENTITY BY THE AUTHORITIES ARE FALSE OR IN ANY WAY TAINTED UNLESS
AND UNTIL SUCH THING HAS BEEN SPECICALLY POINTED OUT
7E ARE SURE THAT IF ANY SUCH DEFECTS OR INELIGIBILITY ASPECTS ARE POINTED OUT THE SAME
WOULD BE TAKEN INTO CONSIDERATION AND APPROPRIATE ORDERS WOULD BE PASSED BY THE
AUTHORITIES &URTHER WE REITERATE THAT IN VIEW OF THE SAFEGUARDS PROVIDED UNDER THE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
VERY PROVISIONS AND ALSO INTERIM ORDERS GRANTED EARLIER PROTECTING THOSE WHO ARE IN
POSSESSION IT IS NEEDLESS TO MAKE ANY FURTHER APPREHENSION FOR CAUSING INCONVENIENCE
OR LOSS AS SUCH
)N VIEW OF THE AFORESAID REASONS THE 70-0 .O OF IS ORDER AS UNDER
A 4HE AUTHORITIES ARE PERMITTED TO ISSUE CERTICATE OF TITLE TO THE ELIGIBLE FOREST DWELLING
3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS UNDER THE !CT
B !NY GRANT OF SUCH CERTICATES WILL BE SUBJECT TO THE RESULT IN MAIN WRIT PROCEEDINGS
CHALLENGING THE LEGISLATION
C &URTHER THE SAID CERTICATES ARE ALSO SUBJECT TO THEIR ENQUIRY OR VERICATION ON THE
OBJECTIONS POINTED OUT BY THE PETITIONERS OR OTHERWISE
D 0ETITIONERS ARE PERMITTED TO SEEK DETAILS AND PARTICULARS AND OBTAIN THE NECESSARY
COPIES IN DIFFERENT PLACES AND RAISE THEIR OBJECTIONS
E /N RECEIPT OF SUCH OBJECTIONS THE AUTHORITIES ESPECIALLY THE $ISTRICT ,EVEL #OMMITTEE
CONCERNED SHALL GO INTO THE SAME ENQUIRE VERIFY THE CORRECTNESS AND PASS APPROPRIATE
ORDERS ON MERITS AND IN ACCORDANCE WITH LAW
F 4HE CERTICATES GRANTED ABOVE SHALL BE SUBJECT TO THE ORDERS THAT MAY BE PASSED AS
MENTIONED IN CLAUSE E ABOVE
G &URTHER THE PERSON IN POSSESSION OF ANY OF THE LANDS SHALL NOT IN ANY WAY DISTURB OR
EVICTED TILL THE DISPOSAL OF THE WRIT PETITION
4 / \
0ODIUM $EVAIAH /RS VS
'OVERNMENT OF )NDIA /RS
70 /&
()'( #/524 /& !.$(2! 02!$%3(
#/2!- #6 .!'!2*5.! 2%$$9 *
3 5 - -!29
4HE 0ETITIONERS FILED THIS WRIT PETITION CLAIMING THEY ARE 3CHEDULED 4RIBES AND
SEEKING PROTECTION UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! AS ALSO PROPER DISPOSAL OF
THEIR APPLICATIONS FOR RECOGNITION OF FOREST RIGHTS AND PROTECTION FROM DISPOSSESSION
! COUNTER AFFIDAVIT WAS FILED BY THE RESPONDENT 3TATE GOVERNMENT CHALLENGING THE
STATUS OF THE TRIBE IN THE STATE OF !NDHRA 0RADESH )T ARGUED THAT THE PETITIONERS
BELONGED TO THE 'UTTIKOYAS COMMUNITY WHICH IS RECOGNISED AS A 3CHEDULED 4RIBE
BY THE GOVERNMENT OF #HHATTISGARH BUT IS NOT ONE OF THE RECOGNISED 3CHEDULED
4RIBE COMMUNITIES IN THE 3TATE OF !NDHRA 0RADESH 4HEREFORE THEY ARE NOT ENTITLED
TO INVOKE PROVISIONS OF THE &2!
4HE #OURT WAS OF THE VIEW THAT WHETHER OR NOT THE PETITIONERS CAN BE RECOGNIZED
AS A 3CHEDULED 4RIBE IN !NDHRA 0RADESH NEEDS TO BE ADJUDICATED BY THE COMPETENT
AUTHORITY NAMELY THE &OREST 2IGHTS #OMMITTEE !CCORDINGLY THE PETITION WAS
DISPOSED OF WITH A DIRECTION TO THE &OREST 2IGHTS #OMMITTEE ARRAYED AS RESPONDENT
.O TO DISPOSE OF THE 0ETITIONERS APPLICATIONS FILED FOR RECOGNITION OF FOREST RIGHTS
WITHIN A PERIOD OF MONTHS AFTER FOLLOWING PROCEDURE UNDER THE !CT AND 2ULES )T
WAS FURTHER DIRECTED THAT THE 0ETITIONERS WERE NOT TO BE EVICTED TILL THE PROCEDURE
WAS COMPLETE
% $ ) 4 /23 . /4%
4HIS JUDGMENT IS REPRESENTATIVE OF A SERIES OF JUDGMENTS AND ORDERS WHICH HAVE
BEEN ISSUED BY THE (IGH #OURT OF !NDHRA 0RADESH IN RESPONSE TO WRIT PETITIONS FILED
BY CLAIMANTS UNDER THE &2! PRIMARILY SEEKING PROTECTION FROM DISPOSSESSION AND
DIRECTIONS THAT DUE PROCESS UNDER THE !CT AND 2ULES BE FOLLOWED 4HE #OURT HAS BY
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
AND LARGE BEEN CONSISTENT IN PROVIDING THIS MINIMAL PROTECTION TO SUCH PETITIONERS
/2$ % 2
!T THE INTERLOCUTORY STAGE THE WRIT PETITION IS TAKEN UP FOR HEARING AND DISPOSAL WITH THE
CONSENT OF THE LEARNED COUNSEL FOR THE PARTIES
4HE PETITIONERS CLAIM TO BELONG TO 3CHEDULED 4RIBE 4HEY LED THE WRIT PETITION FOR A
MANDAMUS TO DECLARE THE ACTION OF THE RESPONDENTS IN TRYING TO DISPOSSESS THEM FROM
THE FOREST LANDS SITUATED IN #HUKKALAPADU UNSURVEYED AND UNRECOGNISED VILLAGE
WITHOUT PASSING ORDERS ON THEIR APPLICATIONS DATED LED FOR GRANTING FOREST
RIGHTS UNDER THE PROVISIONS OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT AND 2ULES MADE THEREUNDER FOR SHORT THE
!CT AND THE 2ULES RESPECTIVELY AS ILLEGAL AND ARBITRARY
)N THE COUNTER AFDAVIT LED BY RESPONDENT .O IT IS INTER ALIA STATED THAT THE PETITIONERS
BELONG TO 'UTTIKOYAS COMMUNITY WHICH IS RECOGNISED AS 3CHEDULED 4RIBE BY THE
'OVERNMENT OF #HHATTISGARH AND THAT THE SAID COMMUNITY IS NOT ONE OF THE RECOGNISED
3CHEDULED 4RIBE COMMUNITIES IN THE 3TATE OF !NDHRA 0RADESH AND THEREFORE THEY ARE NOT
ENTITLED TO INVOKE OF THE PROVISIONS OF THE !CT FOR RECOGNITION OF FOREST RIGHTS
4HE QUESTION WHETHER THE PETITIONERS CAN BE RECOGNISED AS 3CHEDULED 4RIBE COMMUNITY
IN THE 3TATE OF !NDHRA 0RADESH OR NOT NEEDS TO BE ADJUDICATED BY THE COMPETENT AUTHORITY
NAMELY THE &OREST 2IGHTS #OMMITTEE SHOWN AS RESPONDENT .O IN THE WRIT PETITION
4HE FACT THAT THE PETITIONERS SUBMITTED THEIR APPLICATIONS UNDER THE PROVISIONS OF THE !CT
IS NOT DISPUTED BY THE RESPONDENTS )F THE COMPETENT AUTHORITY FELT THAT THE PETITIONERS
ARE NOT ELIGIBLE FOR RECOGNITION OF FOREST RIGHTS IT CAN PASS AN APPROPRIATE ORDER ON
THE PETITIONERS APPLICATIONS "UT ON THE PURPORTED INELIGIBILITY OF THE PETITIONERS THE
COMPETENT AUTHORITY CANNOT KEEP THE APPLICATIONS PENDING
!S RIGHTLY POINTED OUT BY 3RI -UMMANENI 3RINIVASA 2AO LEARNED COUNSEL FOR THE
PETITIONERS #HAPTERS ))) AND )6 OF THE !CT DEAL WITH RECOGNITION OF THE FOREST RIGHTS
IN FAVOUR OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 4HEREFORE IT
IS INCUMBENT UPON THE COMPETENT AUTHORITY TO DISPOSE OF THE APPLICATIONS LED FOR
RECOGNITION OF THE FOREST RIGHTS 5NDER SUB
SECTION OF 3ECTION OF THE !CT TILL THE
RECOGNITION AND VERICATION PROCEDURE IS COMPLETED NO MEMBER OF A FOREST DWELLING
3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLER SHALL BE EVICTED OR REMOVED FROM THE
FOREST LAND UNDER HIS OCCUPATION
)N THE LIGHT OF THE ABOVE THE WRIT PETITION IS DISPOSED OF WITH THE DIRECTION TO RESPONDENT
.OS AND TO DISPOSE OF THE PETITIONERS APPLICATIONS LED FOR RECOGNITION OF FOREST
RIGHTS WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF RECEIPT OF A COPY OF THIS ORDER
AFTER FOLLOWING THE PROCEDURE PRESCRIBED UNDER THE PROVISIONS OF THE !CT AND THE 2ULES
.EEDLESS TO OBSERVE THAT THE PROCEDURE INCLUDES ISSUANCE OF NOTICE TO THE PETITIONERS
AND GIVING THEM AN OPPORTUNITY OF BEING HEARD BEFORE PASSING APPROPRIATE ORDERS ON
THEIR APPLICATIONS 4ILL THIS PROCEDURE IS COMPLETED THE PETITIONERS SHALL NOT BE EVICTED
FROM THE LANDS IN THEIR OCCUPATION
!S A SEQUEL TO DISPOSAL OF THE WRIT PETITION THE INTERIM ORDER DATED GRANTED
BY THIS #OURT IN 70-0 .O OF SHALL STAND VACATED AND 70-0 .O OF
AND 70-0 .O OF ARE DISPOSED OF AS INFRUCTUOUS
4 / \
-INOR &OREST 0RODUCE 'ATHERERS
#OMMITTEE 0ULLANGI 0ANCHAYAT
!NR VS 'OVERNMENT OF !NDHRA
0RADESH /RS
70 ./ /&
()'( #/524 /& !.$(2! 02!$%3(
).4%2)- /2$%2
#/2!- '6 3%%4(!0!4(9 *
3 5 - -!29
4HE 0ETITIONERS ARE TRIBALS OF 0ULLANGI 'RAMPANCHAYAT -AREDMILLI -ANDAL IN
%AST 'ODAVARI $ISTRICT 4HEY ARGUE THAT THEY HAVE BEEN SELLING HILL "ROOMS +ONDA
#HIPURU WHICH IS A MINOR FOREST PRODUCE COLLECTED BY THEM IN THE OPEN MARKET
FOR A LONG TIME BUT ARE BEING PREVENTED FROM DOING SO BY THE 3TATE GOVERNMENT
FUNCTIONARIES 4HEY ARGUE THAT THEY HAVE ABSOLUTE RIGHTS TO COLLECT SELL AND
TRANSPORT SUCH MINOR FOREST PRODUCE UNDER THE 0ANCHAYATS %XTENSION TO 3CHEDULED
!REAS !CT 0%3! THE !0 0ANCHAYAT 2AJ !CT AS WELL AS THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2!
!T A PRELIMINARY HEARING OF THE WRIT PETITION THE #OURT DIRECTED THAT NOTICE BE ISSUED
TO THE 3TATE RESPONDENTS AND FURTHER OBSERVED THAT THE PETITIONERS ARE ENTITLED TO
COLLECT AND SELL AND TRANSPORT THE MINOR FOREST PRODUCE UNDER 0%3! !CCORDINGLY
AN INTERIM ORDER WAS PASSED RESTRAINING THE RESPONDENT 3TATE GOVERNMENT FROM
INTERFERING WITH THE COLLECTION AND SALE OF HILL BROOMS BY THE PETITIONERS UNTIL
FURTHER ORDER
% $ ) 4 /23 . /4%
7HILE THIS ORDER MAKES NO REFERENCE TO THE &2! IT IS IMPORTANT TO NOTE THAT IT IS
STILL IN OPERATION AND HAS BEEN RELIED UPON BY SUBSEQUENT PETITIONERS ADVANCING
SIMILAR WRIT PETITIONS BEFORE THE (IGH #OURT OF !NDHRA 0RADESH AND 4ELANGANA
WITH POSITIVE RESULTS
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
/2$ % 2
,EARNED COUNSEL FOR THE PETITIONERS WOULD SUBMIT THAT UNDER THE GUIDELINES OF THE
0ANCHAYATS %XPANSION TO THE 3CHEDULED !REAS !CT AND ALSO THE !0 0ANCHAYAT 2AJ
!CT PETITIONERS WHO ARE TRIBALS WERE ENTITLED TO COLLECT THE MINOR FOREST PRODUCE
AND SELL THE SAME AND THAT THE OFCIALS OF THE FOREST DEPARTMENT ARE PREVENTING THE
TRIBALS FROM COLLECTING THE MINOR PRODUCE AND AS SUCH THE TRIBALS ARE DEPRIVED OF THEIR
LIVELIHOOD
)N THE CIRCUMSTANCES RESPONDENTS ARE RESTRAINED FROM INTERFERING WITH THE COLLECTION OF
THE MINOR FOREST PRODUCE NAMELY HILL BROOMS KONDA CHIPURU BY THE TRIBALS OF 0ULLANGI
0ANCHAYAT AND SELL THE SAME UNTIL FURTHER ORDERS
4 / \
2AVVA 3OMARAJU /RS VS 'OVERMENT
OF )NDIA THROUGH -O4! /RS
70 ./ /&
()'( #/524 /& !.$(2! 02!$%3(
#/2!- ! 2!-!,).'%3(7!2! 2!/ *
3 5 - -!29
4HE PETITIONERS ARGUE THEY ARE 3CHEDULED 4RIBES RESIDING AND DOING AGRICULTURAL
OPERATIONS IN THE FORESTS SINCE THE TIME OF THEIR FOREFATHERS 4HE VILLAGES THEY RESIDE
IN ARE UN
SURVEYED AND UNRECOGNISED FOREST VILLAGES 4HE 3TATE GOVERNMENT AVERS
THAT THEY ARE 'OTII +OYAS WHO HAVE MIGRATED FROM #HHATTISGARH AND ARE NOT
WHOLLY TRIBES 4HIS WRIT PETITION CHALLENGED THE ACTION OF THE RESPONDENT 3TATE
GOVERNMENT IN TRYING TO DISPOSSESS THE PETITIONERS FROM THE FOREST LANDS WITHOUT
FOLLOWING THE PROCEDURE IN THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
4HE #OURT FOUND THAT THERE ARE CONFLICTING CLAIMS REGARDING THE STATUS OF THE
PETITIONERS AND ACCORDINGLY PASSED AN ORDER THAT THE PETITIONERS WERE GIVEN LIBERTY
TO ESTABLISH THEIR IDENTITY STATUS AND RIGHT TO THE LAND CLAIMED BY THEM BEFORE
THE RESPONDENT UNDER THE PROVISIONS OF THE !CT OF AND THAT THE EXERCISE BE
COMPLETED WITHIN MONTHS )F PETITIONERS ARE AGGRIEVED THEY CAN SEEK APPROPRIATE
REMEDIES UNDER LAW 4HE #OURT FURTHER DIRECTED THAT TILL THE COMPLETION OF ENQUIRY
THE PETITIONERS SHALL NOT BE DISPOSSESSED FROM THE LANDS IN THEIR OCCUPATION
% $ ) 4 /23 . /4%
4HIS DECISION WHILE ISSUING ESSENTIALLY THE SAME DIRECTIONS MAKES NO REFERENCE TO
THE DECISION OF THE SAME #OURT IN THE CASE OF 0ODIUM $EVAIAH VS 'OVT OF )NDIA
/RS EXTRACTED ELSEWHERE IN THIS COMPENDIUM )T IS A SOBERING REFLECTION ON THE
INTRACTABLE PROBLEM OF HUNDREDS OF TRIBALS WHO HAVE FLED THE POLITICAL UNREST IN
NEIGHBOURING #HHATTISGARH INTO FORESTS ACROSS THE BORDER IN !NDHRA 0RADESH AND
HAVE NOT BEEN ABLE TO RECEIVE RELIEF DESPITE PROTECTIVE LEGISLATIONS SUCH AS &2! AND
ORDERS OF THE #OURT
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
/2$ % 2
4HIS BATCH OF WRIT PETITIONS WERE LED CHALLENGING THE ACTION OF THE RESPONDENTS IN TRYING
TO DISPOSSESS THE PETITIONERS FROM THE RESERVED FOREST LANDS SITUATED IN RESERVED FOREST
IE IN BETWEEN "URGUVADA AND $ARAPALLI FOREST AREA 5N
SURVEYED AND 5N
RECOGNIZED
VILLAGE KMS AWAY FROM -ETTAPALLI 'RAM 0ANCHAYAT 62 0URAM -ANDAL 0EDDA
.ARSINGPETA !REA &OREST 5NSURVEYED AND UNRECOGNISED VILLAGE 6ENKATAYAPALEM
0ANCHAYATHI +UNAVARAM -ANDAL 0ENAGADAPA !REA FOREST 5N
SURVEYED AND UN
RECOGNIZED VILLAGE 0ENGADAPA 0ANCHAYATHI +OTHAGUDEM -ANDAL AND +-S FAR TO THE
UN
SURVEYED AND UN
RECOGNISED VILLAGE -ARAYAGUDEM 0ANCHAYATHI $UMMUGUDEM
-ANDAL OF +HAMMAM DISTRICT WITHOUT FOLLOWING THE PROCEDURE PRESCRIBED UNDER THE
&OREST 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT AND THE 2ULES MADE THEREUNDER
)T IS THE CASE OF THE PETITIONERS THAT THEY ARE ALL 3CHEDULED 4RIBES RESIDING IN THE FOREST
AREA SINCE THE TIME OF THEIR FOREFATHERS BY DOING AGRICULTURAL OPERATIONS !CT OF
WAS ENACTED RECOGNIZING THEIR RIGHTS OVER FOREST AND WITHOUT FOLLOWING THE PROCEDURE
PRESCRIBED UNDER THE SAID !CT THEY ARE BEING DISPOSSESSED FROM THEIR LANDS TO A FAR
AWAY PLACE WHICH IS UN
SURVEYED AND UN
RECOGNISED VILLAGE 4HEY ARE EKING OUT THEIR
LIVELIHOOD BY COLLECTING MINOR FOREST PRODUCE
4HE RESPONDENTS LED A COUNTER STATING THAT THE PETITIONERS ARE 3CHEDULED 4RIBES RESIDING
IN THE PLAIN AREAS OF "HADRACHALAM 3OUTH .ORTH &OREST $IVISIONS BUT THEY ARE NOT
WHOLLY TRIBES AS CONTENDED BY THEM 4HE PETITIONERS ARE RESIDING IN THE RESERVED FOREST
AREA SINCE ONLY AND THEY ARE NOT IN OCCUPATION OF ANY FOREST LAND FROM THE TIME OF
THEIR FOREFATHERS AS ALLEGED BY THEM !S PER THE ROAD MAP FOR IMPLEMENTATION OF 2/&2
!CT THE LAST DATE FOR RECEIPT OF THE CLAIMS BY THE &OREST 2IGHTS #OMMITTEE WAS
AND NONE OF THE PETITIONERS HAVE MADE ANY CLAIM BEFORE THE &OREST 2IGHTS
#OMMITTEE CONSTITUTED UNDER THE SAID !CT OF )T IS THE CASE OF THE RESPONDENTS THAT
THERE IS NO RESERVED FOREST WITHIN THE VICINITY OF THE 'RAM 0ANCHAYATS AS MENTIONED
BY THE PETITIONERS AND NO UN
SURVEYED AND UN
RECOGNISED VILLAGES IN "HADRACHALAM
2EVENUE $IVISION 4HE PETITIONERS HAVE MIGRATED FROM ADJACENT AREAS OF #HHATTISGARH
3TATE AND THEY ARE CALLED 'OTTI +OYAS 4HE 'OTTI +OYAS ARE NOT ONE OF THE RECOGNIZED
3CHEDULED 4RIBES BY THE 'OVERNMENT OF !NDHRA 0RADESH 4HERE IS A LOT OF DIFFERENCE
BETWEEN THE 3CHEDULED 4RIBES LIVING IN THE +HAMMAM $ISTRICT AND 'OTTI +OYAS WHO HAVE
MIGRATED FROM #HHATTISGARH WITH REGARD TO THEIR NOMENCLATURE CUSTOMS APPEARANCE
DRESSING LIFE STYLE AND FOOD HABITS 4HE PETITIONERS ARE NOT ENROLLED IN ANY OF THE VILLAGES
AND THERE IS NO PROOF OF IDENTITY ALSO
(EARD THE LEARNED COUNSEL FOR THE PETITIONERS AND THE LEARNED 'OVERNMENT 0LEADER FOR
THE RESPONDENTS
)N VIEW OF THE CONICTING CLAIMS WITH REGARD TO THE STATUS OF THE PETITIONERS AS 3CHEDULED
4RIBES WITHIN THE 3TATE OF !NDHRA 0RADESH THE PETITIONERS ARE GIVEN LIBERTY TO ESTABLISH
THEIR IDENTITY STATUS AND RIGHT TO THE LAND CLAIMED BY THEM BEFORE THE RESPONDENTS
UNDER THE PROVISIONS OF !CT OF AND IF THE PETITIONERS ARE SUCCESSFUL IN THIS REGARD
THE RESPONDENTS MAY CONSIDER THEIR CASE UNDER THE PROVISIONS OF THE &OREST 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
4HE ENTIRE EXERCISE SHALL BE COMPLETED WITHIN A PERIOD OF THREE MONTHS FROM THE DATE
OF RECEIPT OF A COPY OF THIS ORDER AND IF THE PETITIONERS ARE AGGRIEVED THEY CAN SEEK
APPROPRIATE REMEDIES AVAILABLE TO THEM UNDER LAW 4ILL THE COMPLETION OF THE ENQUIRY
THE PETITIONERS SHALL NOT BE DISPOSSESSED FROM THE LANDS IN THEIR OCCUPATION
3UBJECT TO THE ABOVE OBSERVATION THESE WRIT PETITIONS ARE DISPOSED OF 0ENDING
4 / \
MISCELLANEOUS PETITIONS IF ANY IN THIS BATCH OF WRIT PETITIONS SHALL STAND DISMISSED IN
CONSEQUENCE .O COSTS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
3UNKISALA 6ENKAIAH /RS VS 4HE
'OVT OF !NDHRA 0RADESH
70 ./ /&
()'( #/524 /& !.$(2! 02!$%3(
#/2!- #6 .!'!2*5.! 2%$$9 *
3 5--!29
4HE WRIT PETITIONERS SOUGHT PROTECTION OF THEIR FOREST RIGHTS INCLUDING RIGHT TO
CULTIVATION OF CROPS ON FOREST LAND IN THEIR POSSESSION UNDER THE 3CHEDULED 4RIBES
AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
4HE PETITIONERS ALSO SOUGHT A WRIT OF MANDAMUS DIRECTING THE 3TATE
RESPONDENT NOT
TO DISPOSSESS THEM FROM THEIR LAND 4OWARDS THIS END THEY RELIED UPON AN ORDER
DATED PASSED BY THE (IGH #OURT IN 70 .O OF
4HE RESPONDENT 3TATE GOVERNMENT OPPOSED THE CLAIMS OF THE PETITIONERS ARGUING
THAT THEY HAVE BEEN CULTIVATING THE FOREST LANDS ILLEGALLY AND IN VIOLATION OF THE
PROVISIONS OF THE !NDHRA 0RADESH &OREST !CT AND THE &OREST #ONSERVATION !CT
)T WAS ALSO ARGUED THAT THE REPRESENTATION FOR THE GRANT OF PATTAS UNDER THE
&2! WAS MADE AFTER THE PRESCRIBED DATE NAMELY
4HE #OURT DIRECTED THAT ELIGIBILITY FOR GRANT OF THE PATTAS UNDER THE &2! MUST BE
MADE BY THE COMPETENT AUTHORITY SINCE THE REPRESENTATION MADE BY THE PETITIONERS
IS PENDING 4HE #OURT DIRECTED THAT SINCE THE PETITIONERS ARE IN POSSESSION OF THE
LANDS THEY SHOULD NOT BE DISPOSSESSED FROM THE LANDS IN THEIR RESPECTIVE OCCUPATION
TILL A DECISION IS TAKEN BY THE COMPETENT AUTHORITY ON THE CLAIM AS PER THE PROVISIONS
OF THE &2! &2 2ULES
*6 3HARMA /RS VS 'OVERNMENT OF )NDIA /RS /RDER DATED IN 70 .O OF !NDHRA
0RADESH (IGH #OURT &ULL ORDER IS PLACED ELSEWHERE IN THIS COMPENDIUM
4HIS IS AN ERRONEOUS ARGUMENT 4HERE IS NO CUT
OFF DATE UNDER THE &2! FOR SUBMISSION OF CLAIMS WHICH HAS
BEEN REITERATED BY THE NODAL -INISTRY ON NUMEROUS OCCASIONS
4 / \
% $ ) 4 /23 . /4%
)T IS A MATTER OF GRAVE CONCERN THAT THE 3TATE GOVERNMENT TOOK A POSITION IN THE
#OURT THAT THE PRESCRIBED DATE FOR SUBMISSION OF CLAIMS UNDER &2! IS
AND OPPOSED THE WRIT PETITION ON THE GROUND THAT THE PETITIONER HAS MISSED THIS
DEADLINE &ORTUNATELY THE #OURT DID NOT ACCEPT THIS ARGUMENT AND PROCEEDED TO
ISSUE DIRECTIONS PROTECTING THE RIGHT OF THE PETITIONERS TO DUE PROCESS UNDER THE
&2! AS WELL AS PROTECTING THEIR POSSESSION OF THE LAND UNTIL THE FINAL DECISION
/2$%2
4HIS 7RIT 0ETITION IS LED BY AS MANY AS PERSONS WHO CLAIM TO BE IN POSSESSION OF
!CS
CENTS EACH OF THE FOREST LAND SITUATED IN 3REE 2AMANJANEYAPURAM 4HANDA
-ANNESULTAN 0ALEM 6ILLAGE OF "ELLAMKONDA -ANDAL 'UNTUR $ISTRICT FROM TIME
IMMEMORIAL STATING THAT THEY HAVE BEEN RAISING CROPS SUCH AS -IRCHI 6EGETABLES AND
OTHER SEASONAL CROPS THAT THEY ARE ELIGIBLE FOR GRANT OF PATTAS UNDER THE 3CHEDULED 4RIBES
AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT FOR SHORT
THE !CT THAT IN 70 .O OF LED AS A PIECE OF 0UBLIC )NTEREST ,ITIGATION A
$IVISION "ENCH OF THIS #OURT HAS PASSED AN ORDER ON
DIRECTING THE RESPONDENTS
NOT TO EVICT OR DISTURB THEM PENDING THE 7RIT 0ETITION AND THAT PENDING CONSIDERATION
OF THEIR REQUEST FOR ISSUE OF PATTAS RESPONDENT .O IS MAKING HECTIC EFFORTS TO DISPOSSESS
THEM FROM THE LANDS IN THEIR OCCUPATION 4HE PETITIONERS HAVE THEREFORE SOUGHT FOR A
WRIT OF -ANDAMUS TO DECLARE THE ACTION OF RESPONDENT .O IN TRYING TO DISPOSSESS THEM
FROM THE FOREST LANDS AS ILLEGAL AND ARBITRARY
! DETAILED COUNTER
AFDAVIT IS LED BY RESPONDENT .O )T IS INTER ALIA STATED THEREIN
THAT IT MAY BE TRUE THAT THE PETITIONERS ARE CULTIVATING FOREST LANDS BUT SUCH CULTIVATION
IS ILLEGAL AND IN VIOLATION OF THE PROVISIONS OF THE !NDHRA 0RADESH &OREST !CT AND &OREST
#ONSERVATION !CT THAT AS THE PETITIONERS DID NOT FULL THE ELIGIBILITY CRITERIA UNDER THE
!CT THEIR CLAIMS WERE NOT CONSIDERED THAT UNDER THE PROVISIONS OF THE SAID !CT ALL THE
CLAIMANTS OTHER THAN 3CHEDULED 4RIBES MUST PROVE THAT THEY HAVE BEEN LIVING IN THE
FOREST LAND FOR THREE CONSECUTIVE GENERATIONS IE FOR YEARS AS ON
AND THAT
THEY WERE IN POSSESSION OF THE LAND AS ON
AND THAT AS THE PETITIONERS FAILED
TO PRODUCE SUCH EVIDENCES THEIR CLAIMS CANNOT BE CONSIDERED 4HE COUNTER
AFDAVIT
FURTHER AVERRED THAT THE CLAIMS OF THE PETITIONERS WERE NOT CONSIDERED AT 'RAMA 3ABHA
,EVEL AND ALSO BY THE 3UB
$IVISIONAL ,EVEL #OMMITTEE CONSTITUTED UNDER THE !CT AS THEY
DID NOT FULL THE ELIGIBILITY CRITERIA AND THAT THEREFORE EVICTION NOTICES WERE ISSUED TO
THEM BY THE &OREST 2ANGE /FCER 'UNTUR UNDER 3ECTION OF THE !0 &OREST !CT
DULY FOLLOWING THE PRESCRIBED PROCEDURE
!T THE HEARING 3MT 6IJAYALAKSHMI $EPUTY &OREST 2ANGE /FCER IS PRESENT ALONG WITH
THE LE 3HE HAS EXPLAINED THAT THE PETITIONERS HAVE NEITHER MADE APPLICATIONS NOR
APPROACHED THE 'RAMA 3ABHA&OREST 2IGHTS #OMMITTEE WITH THE REQUEST FOR GRANT OF
PATTAS BEFORE WHICH IS THE LAST DATE PRESCRIBED FOR MAKING CLAIMS 3HE HAS
HOWEVER ADMITTED THAT ON BEHALF OF THE PETITIONERS A REPRESENTATION WAS MADE FOR GRANT
OF PATTAS AND THAT THE SAME WAS RECEIVED BY THE $IVISIONAL &OREST /FCER RESPONDENT
.O ON 3HE HAS FURTHER EXPLAINED THAT AS THE SAID REPRESENTATION WAS MADE
FAR TOO BELATEDLY IE BEYOND AND NO EVIDENCE WAS SENT TO SHOW THAT THEY
BEING NON 34S HAVE BEEN IN POSSESSION OF THE FOREST LANDS FOR THE LAST THREE CONSECUTIVE
GENERATIONS IE NOT LESS THAN YEARS THE SAID REPRESENTATION WAS NOT CONSIDERED
4HE QUESTIONS WHETHER THE PETITIONERS ARE ELIGIBLE FOR GRANT OF PATTAS UNDER THE !CT OR NOT
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
AND THEIR CLAIMS WERE MADE WITHIN THE PRESCRIBED TIME OR NOT NEED TO BE DECIDED BY THE
COMPETENT AUTHORITY 3INCE A REPRESENTATION WAS ADMITTEDLY MADE BY THE PETITIONERS
WHICH WAS RECEIVED ON IT IS INCUMBENT UPON RESPONDENT .O TO CONSIDER
THE SAME TAKE A DECISION THEREON AS PER THE PROVISIONS OF THE !CT THE 2ULES MADE
THEREUNDER AND THE ROUTE MAP PREPARED UNDER THE !CT AND COMMUNICATE THE SAME TO
THE PETITIONERS )F THE PETITIONERS FEEL AGGRIEVED BY THE DECISION THAT MAY BE TAKEN BY
RESPONDENT .O THEY ARE ENTITLED TO AVAIL APPROPRIATE LEGAL REMEDIES
!S THE RESPONDENTS HAVE NOT SPECICALLY DENIED THE PLEA OF THE PETITIONERS THAT THEY
ARE IN POSSESSION OF THE LANDS THEY SHALL NOT BE DISPOSSESSED FROM THE LANDS IN THEIR
RESPECTIVE OCCUPATION TILL DECISION IS TAKEN BY RESPONDENT .O AND COMMUNICATED TO
THE PETITIONERS 2ESPONDENT .O SHALL TAKE SUCH DECISION AND COMMUNICATE THE SAME TO
THE PETITIONERS WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER
3UBJECT TO THE ABOVE DIRECTIONS THE 7RIT 0ETITION IS DISPOSED OF
!S A SEQUEL TO DISPOSAL OF THE 7RIT 0ETITION 70-0 .O OF LED BY THE
PETITIONERS FOR INTERIM RELIEF IS DISPOSED OF AS INFRUCTUOUS
4 / \
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
"/-"!9 ()'(
#/524
4!",% /& *5$'-%.43 !.$ /2$%23
"
ONDA 3AMSA 6ALI /RS VS 3TATE OF -AHARASHTRA /RS
70 .O OF \
!
RJUN 2ATANSING *ADHAV VS 3TATE OF -AHARASHTRA /RS
3## /N,INE "OM \
+
ASHTAKARI 3ANGATHANA /RS VS !SST #ONSERVATOR OF &ORESTS $AHANU /RS
70 .O OF \
4 / \
"ONDA 3AMSA 6ALI /RS VS 3TATE OF
-AHARASHTRA /RS
70 ./ /&
()'( #/524 /& "/-"!9 !52!.'!"!$ "%.#(
#/2!- .!2%3( ( 0!4), !.$ .$ $%3(0!.$% **
3 5 - -!29
4HE PETITIONERS SOUGHT PERMISSION TO FILE AN APPLICATION WITH THE CONCERNED
4AHSILDAR FOR THE PURPOSE OF GETTING THEMSELVES REHABILITATED IN FOREST LAND AS THEY
BELONG TO A 3CHEDULED 4RIBE
4HE #OURT PERMITTED THEM TO FILE APPLICATIONS BEFORE THE APPROPRIATE COMMITTEE
WITHOUT EXPRESSING ITS VIEWS ON MERITS )T ALSO DIRECTED AN EARLY DISPOSAL
/ 2 $ % 2
THE /RDER OF THE #OURT WAS DELIVERED BY .ARESH ( 0ATIL *
(EARD
4HE PETITIONERS DESIRE TO LE AN APPLICATION WITH THE CONCERNED 4AHSILDAR FOR THE PURPOSES
OF GETTING THEMSELVES REHABILITATED IN FOREST LAND AS THEY CLAIM THEMSELVES TO BE TRIBAL
UNDER 'OVERNMENT SCHEME
7ITHOUT ADDRESSING THE MERITS OF THE CLAIMS OF THE PETITIONERS WE OBSERVE THAT
PETITIONERS ARE ENTITLED TO LE SUCH APPLICATIONS BEFORE THE APPROPRIATE COMMITTEE
)F SUCH APPLICATIONS ARE LED THE COMMITTEE SHALL CONSIDER SUCH APPLICATIONS IN TUNE
WITH THE SCHEME OF THE #ENTRAL 'OVERNMENT AND ASSESS THE EVIDENCE AND BONA DES
4HEREAFTER THE COMMITTEE SHALL PASS APPROPRIATE ORDER AND DISPOSE OF THE APPLICATIONS
AS EARLY AS POSSIBLE 4HE WRIT PETITION IS DISPOSED OF
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
!RJUN 2ATANSING *ADHAV VS 3TATE OF
-AHARASHTRA /RS
#2)-).!, 72)4 0%4)4)/. ./
()'( #/524 /& "/-"!9 !52!.'!"!$ "%.#(
#/2!- +5 #(!.$)7!, !.$ !)3 #(%%-! **
#)4!4)/. 3## /.,).% "/-
3 5--!29
4HE PETITIONER HAD COLLECTED AND TRANSPORTED MINOR FOREST PRODUCE GUM FROM
#HALISGAON &OREST !REA FOR WHICH THE CONTRACT AND PASS WAS OBTAINED 4HIS WAS
SEIZED AND SEALED BY THE RESPONDENTS 7HILE THE PETITIONER HAD A LICENSE FOR THE
GUM THAT FOUND IN HIS POSSESSION EXCEEDED THE AMOUNT PERMITTED IN THE LICENSE
AND WAS OF A DIFFERENT QUALITY 4HE GUM WAS ACCORDINGLY SEIZED BY FOREST OFFICIALS
AND CRIMINAL PROCEEDINGS WERE INITIATED AGAINST HIM UNDER VARIOUS PROVISIONS OF
THE )NDIAN &OREST !CT !CT -OREOVER THIS GUM HAD BEEN STORED AT HIS
RESIDENCE AND NOT A STATE DESIGNATED GODOWN 4HESE ACTIONS WERE ALLEGED BY THE
3TATE GOVERNMENT TO BE IN VIOLATION OF THE !CT
4HE WRIT PETITION CLAIMS THAT THESE ACTS OF THE FOREST OFFICIALS ARE ILLEGAL UNDER THE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! 4HE PETITIONER DID NOT CLAIM TO BE AN ELIGIBLE RIGHT HOLDER
BUT THAT HE BOUGHT THE GUM FROM THE RIGHT HOLDERS UNDER THE &2! WHO ARE FOREST
DWELLERS IN THE #HALISGAON FOREST AREA
4HE #OURT REJECTED ALL PRAYERS INCLUDING THIS ONE AS THE PETITIONER COULD NOT
ESTABLISH THAT THE PROCEEDINGS FOR DETERMINATION OF FOREST RIGHTS UNDER THE &2! HAD
BEEN INITIATED NOR THAT HE HAD LAWFULLY PURCHASED THE SEIZED MINOR FOREST PRODUCE
FROM THE RIGHT HOLDERS 4HE #OURT HELD THAT SINCE THE 0ETITIONER COULD NOT SHOW
THAT THE GUM SEIZED FROM HIS RESIDENCE WAS THE SAME THAT HE TRANSPORTED FROM
#HALISGAON AREA THE ACTION OF THE RESPONDENT 3TATE GOVERNMENT IN SEIZING IT AND
INITIATING CRIMINAL PROCEEDINGS CANNOT BE FAULTED
!CCORDINGLY THE WRIT PETITION WAS DISMISSED
4 / \
% $ ) 4 /23 . /4%
#ERTAIN OBSERVATIONS HAVE BEEN MADE BY THE #OURT REGARDING THE APPLICABILITY OF
THE &2! IN LANDS OUTSIDE THE JURISDICTION OF THE 0ANCHAYAT AND IN PROTECTED AREAS
(OWEVER THESE ARE IN THE NATURE OF OBITER DICTA SINCE THE FINDING OF THE #OURT ON
FACTS
NAMELY THAT THE SOURCE OF THE GUM WAS NOT &2! RIGHT HOLDERS
HAS ALREADY
BEEN DECIDED AGAINST THE PETITIONERS 4HESE OBSERVATIONS DO NOT FOR THIS REASON
CONSTITUTE A LEGAL PRECEDENT
* 5 $ ' -% . 4
THE *UDGMENT OF THE #OURT WAS DELIVERED BY !)3 #HEEMA *
(EARD 2ULE 2ULE MADE RETURNABLE FORTHWITH AND HEARD NALLY WITH CONSENT OF BOTH
SIDES
)N NUTSHELL THE CASE OF PETITIONER IS THAT HE HAD TAKEN CONTRACT OF COLLECTION OF GUM FROM
#HALISHGAON &OREST AREA FOR THE PERIOD TO (E HAD GOT A PASS ISSUED
TO TRANSPORT THE GUM FROM #HALISGAON TO VILLAGE 0AL IN 4ALUKA 2AVER $ISTRICT *ALGAON
AND TRANSPORTED THE GUM 4HE FOREST OFCIALS AT 0AL SEIZED THE GUM AT 0AL AND SEALED THE
SAME IN TWO ROOMS OF THE HOUSE OF PETITIONER 0ETITIONER CLAIMS THIS ACT OF THE FOREST
OFCIALS IS ILLEGAL
4HE PETITIONER HAS SUPPORTED HIS CLAIM REFERRING TO VARIOUS DOCUMENTS LED ON RECORD
2ESPONDENTS HAVE LED AFDAVIT
IN
REPLY AND OPPOSED THE CLAIMS MADE BY THE PETITIONER
4HE LEARNED COUNSEL FOR PETITIONER ON THE BASIS OF THE CONTENTIONS RAISED AND DOCUMENTS
HAS SUBMITTED AS FOLLOWS
A 4HE PETITIONER WAS THE HIGHEST BIDDER IN AUCTION FOR COLLECTION OF GUM FROM
TO FROM #HALISGAON FOREST AREA !S PER THE PROCEDURE HE WAS
REQUIRED TO STORE THE GUM COLLECTED AT A PARTICULAR GODOWN WHICH WAS ALLOTTED TO
HIM BY THE FOREST OFCIALS (E WAS ALLOTTED GODOWN AT (IRAPUR 4ALUKA #HALISGAON
!S PER THE PROCEDURE HE RECEIVED TRANSIT PASSES TO CARRY GUM FROM THE FOREST RANGE
UP TO THE GIVEN GODOWN 4HE PASSES ARE POINTED OUT AS !NNEXURE # FROM THE
RECORD )T HAS BEEN SUBMITTED FOR THE PETITIONER THAT HE HAD REQUESTED THE 2ANGE
&OREST /FCER #HALISGAON AND WAS GIVEN TRANSIT PASS ORDER PERMITTING HIM TO
CARRY QUINTALS OF 3ALAI GUM AND QUINTALS OF ORDINARY +AD GUM FROM (IRAPUR
GODOWN TO VILLAGE 0AL AS PER ORDER DATED !NNEXURE $ AND THE TRANSIT PASS
DATED !NNEXURE % !CCORDING TO THE PETITIONER ON THE BASIS OF SUCH PASS
!NNEXURE % THE GUM WAS TRANSPORTED TO VILLAGE 0AL AT HIS RESIDENCE AND KEPT IN
TWO ROOMS
B )T HAS BEEN SUBMITTED THAT ON RESPONDENT .O CAME TO THE RESIDENCE
OF PETITIONER AND CARRIED OUT TWO PANCHANAMAS !NNEXURE & AND THE GUM STORED IN
TWO ROOMS WAS SEIZED AND THE ROOMS WERE SEALED /N AGAIN A PANCHANAMA
WAS DONE AND THE GUM ATTACHED WAS WEIGHED AND FOUND TO BE KGS OF 3ALAI
GUM AND KGS OF +AD GUM 4HE 2ANGE &OREST /FCER FORWARDED REPORT DATED
TO !SSISTANT #ONSERVATOR OF &OREST REPORTING THAT THERE WAS NO PERMISSION
FOR STORING OF THE SAID GUM AND TRUTHFULNESS OF THE CLAIM THAT THE GUM WAS BROUGHT
ON 'OVERNMENT PASS WAS REQUIRED TO BE VERIED !NNEXURE ' 3UBMISSION IS THAT
THE PETITIONER WAS ISSUED ANOTHER ORDER DATED !NNEXURE ( THAT THE GUM
HAS BEEN ILLEGALLY COLLECTED AND SO THE SAME SHOULD BE HANDED OVER TO THE 2ANGE
&OREST /FCER 4HE PETITIONER MOVED AN APPEAL !NNEXURE * WHICH CAN BE SAID TO
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
BE REPRESENTATION TO HIGHER AUTHORITIES OF THE RESPONDENT .O CLAIMING THAT THE
ACTION OF SEIZURE WAS ILLEGAL AND THE GUM SHOULD BE HANDED OVER TO THE PETITIONER
4HE APPEAL CUM REPRESENTATION WAS REJECTED ON THE GROUND THAT APPEAL WAS NOT
MAINTAINABLE !NNEXURE + 4HE PETITIONER CLAIMS THAT THE GUM IS A MINOR FOREST
PRODUCE AND UNDER THE JURISDICTION CONTROL OF RESPECTIVE VILLAGE PANCHAYATS AND
FOREST OFCIALS HAVE NO CONTROL OVER THE SAME
C !CCORDING TO THE LEARNED COUNSEL FOR THE PETITIONER BEING AGGRIEVED BY THE ORDER
DATED !NNEXURE ( EARLIER 7RIT 0ETITION .O LATER CONVERTED
INTO #RIMINAL 7RIT 0ETITION .O WAS LED BEFORE THIS #OURT !T THE TIME OF
HEARING IT TRANSPIRED THAT PRINCIPLES OF NATURAL JUSTICE HAD NOT BEEN FOLLOWED WHILE
PASSING THE IMPUGNED ORDER AND THE !00 SUBMITTED THAT SHOW
CAUSE
NOTICE WOULD
BE SERVED AND THE POINTS RAISED BY THE PETITIONER WOULD BE CONSIDERED BY THE $EPUTY
#ONSERVATOR OF &OREST CONCERNED #ONSEQUENTLY THE THEN IMPUGNED ORDER DATED
WAS QUASHED AND SET ASIDE AND THE MATTER WAS REMANDED TO THE $EPUTY
#ONSERVATOR OF &OREST 9AWAL &OREST 2EGION AT *ALGAON WITH CERTAIN DIRECTIONS 4HE
PETITIONER THEN REFERS TO THE FURTHER DEVELOPMENTS OF ISSUE OF NOTICE TO HIM DATED
HIS REPLY DATED AND DETAILED REPLY DATED )T HAS BEEN
SUBMITTED THAT THE PETITIONER HAD THEN LED 7RIT 0ETITION .O TO QUASH
AND SET ASIDE THE ENQUIRY ON THE GROUND OF DELAY AND VIOLATION OF DIRECTIONS OF THE
#OURT 2ESPONDENTS STATED THAT DECISION WOULD BE TAKEN WITHIN FOUR WEEKS AND THE
7RIT 0ETITION .O CAME TO BE DISPOSED OF ACCORDINGLY
D !CCORDING TO THE PETITIONER THE 2ANGE &OREST /FCER THEN CONDUCTED AN ENQUIRY
AND SUBMITTED REPORT DATED !NNEXURE 3 3OME STATEMENTS WERE ALSO
RECORDED !CCORDING TO THE PETITIONER EMPTY FORMALITIES WERE COMPLETED BY
RECORDING STATEMENTS AND RESPONDENT .O PASSED ORDER DATED !NNEXURE
4 AND THE PETITIONER HAS BEEN DIRECTED TO HAND OVER THE GUM ALLEGING THAT THE SAME
HAS BEEN COLLECTED FROM ADJACENT FOREST AREA
4HIS ORDER DATED IS NOW CHALLENGED BY THE PETITIONER CLAIMING THAT IT HAS
BEEN WRONGLY HELD THAT THE GUM WAS NOT THE SAME WHICH WAS TRANSPORTED FROM
#HALISGAON %VEN OTHERWISE ACCORDING TO THE LEARNED COUNSEL IN THE AREA OF 0AL
4HE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &OREST 2IGHTS !CT IN SHORT HAS BEEN ENFORCED ON AND
THE RIGHTS TO MINOR FOREST PRODUCE VEST IN THE 'RAMSABHA )T IS SUBMITTED BY LEARNED
COUNSEL FOR THE PETITIONER THAT GUM IS ONLY OF +AD AND ORDINARY TYPE AND 0AL IS A
TRIBAL FOREST AREA WHERE NO AUCTION IS HELD 3INCE #HALISGAON WAS NON
TRIBAL FOREST
AREA THERE AUCTION HAD BEEN HELD 0AL FALLS WITHIN SCHEDULED FOREST AREA UNDER THE
&OREST 2IGHTS !CT AND THE TRIBAL PEOPLE IN THE AREA ARE ENTITLED TO COLLECT THE GUM
FROM THE 0AL FOREST AREA ,EARNED COUNSEL SUBMITTED THAT THE GUM WAS TRANSPORTED
FROM #HALISGAON AND EVEN OTHERWISE PETITIONER CAN PURCHASE SUCH GUM FROM THE
LOCAL TRIBALS AT 0AL ALSO AND SO ACCORDING TO HIM THE SEIZURE COULD NOT HAVE BEEN
DONE )T IS CLAIMED THAT THE SEIZED GUM BY NOW HAS BECOME USELESS DUE TO FUNGUS
AND RESPONDENTS ARE LIABLE TO PAY RENT FOR THE GUM STORED AS WELL AS COMPENSATION
!GAINST THE CLAIM OF THE PETITIONER THE LEARNED !00 FOR RESPONDENTS HAS RELIED ON
THE AFDAVIT
IN
REPLY LED BY THE !SSISTANT #ONSERVATOR OF &OREST AND REFERRING TO THE
DOCUMENTS LED ON RECORD LEARNED !00 CLAIMS THAT THE PETITION HAS NO SUBSTANCE AND
SHOULD BE REJECTED #ASE PUT UP AND ARGUMENTS FOR RESPONDENTS ARE AS FOLLOWS
A 4HE PETITIONER WAS GIVEN CONTRACT TO COLLECT ORDINARY AND +AD GUM AT #HALISGAON
2ANGE IN *ALGAON &OREST $IVISION /RDINARY GUM INCLUDES $HAWADA "ABOOL +HAIR
WHICH ARE EDIBLE GUMS BUT 3ALAI GUM IS NOT EDIBLE AS IT IS USED FOR MAKING PASTELS
$HOOP "ATTI AND SO IT IS NOT ORDINARY GUM 6ILLAGE 0AL IS REMOTE PLACE IN 2AVER
4 / \
&OREST 2ANGE OF *ALGAON DISTRICT 4HE PETITIONER WAS TRANSPORTING GUM FROM *ALGAON
&OREST $IVISION TO 9AWAL &OREST $IVISION AND SO HE WAS REQUIRED TO GET GODOWN
APPROVED AT 0AL FROM $EPUTY #ONSERVATOR OF &OREST 9AWAL $IVISION )T IS ACCEPTED
THAT ON THE HOUSE OF PETITIONER WAS SEARCHED AND IT WAS FOUND THAT
KGS OF 3ALAI GUM AND KGS OF +AD GUM WAS THERE BUT IT IS CLAIMED THAT THE GUM
WAS FRESHLY COLLECTED AND WAS MOIST 4HE SAME WAS SEIZED AND PANCHANAMAS OF
SEIZURE AND SEALING OF ROOMS WERE CARRIED OUT )T IS ACCEPTED THAT ON AGAIN
PANCHANAMA WAS DONE AND THE GUM WAS ACTUALLY WEIGHED AND FOUND THAT THERE
WAS KGS OF 3ALAI GUM AND KGS OF +AD GUM 4HE SAME WAS KEPT IN THE
CUSTODY OF PETITIONER 2ANGE &OREST /FCER 2AVER REPORTED THAT THE TRUTHFULNESS
OF THE CLAIM THAT THE GUM WAS BROUGHT ON 'OVERNMENT 0ASS WAS REQUIRED TO BE
VERIED )T IS SUBMITTED BY THE LEARNED !00 THAT THE GUM WHICH WAS SEIZED AT THE
HOUSE OF PETITIONER WAS DIFFERENT AS IT WAS WET AND QUANTITY WAS ALSO DIFFERENT
!CCORDING TO THE RESPONDENTS THE PETITIONER WAS IN ILLEGAL POSSESSION OF 3ALAI AND
+AD GUM 4HE $EPUTY #ONSERVATOR OF &OREST 9AWAL $IVISION UNDER POWERS AS PER
3ECTION C OF )NDIAN &OREST !CT &OREST !CT FOR SHORT WAS ENTITLED TO SEARCH
THE GUM WHICH HAD BEEN STORED
B 4HE AFDAVIT FOR RESPONDENTS CLAIMS THAT THE TRANSIT PERMIT WAS OF QUINTALS
OF 3ALAI GUM AND QUINTALS OF ORDINARY AND +AD GUM WHEREAS WHAT WAS FOUND
WAS KGS OF 3ALAI GUM AND KGS OF +AD GUM !CCORDING TO THE RESPONDENTS
-AHARASHTRA -INOR &OREST 0RODUCE 2EGULATION OF 4RADE !CT IS APPLICABLE
ONLY TO 4ENDU AND !PTA AND THE PETITIONER IS WRONGLY REFERRING TO THE SAID !CT 4HE
4RANSFER OF /WNERSHIP OF -INOR &OREST 0RODUCE IN 3CHEDULED !REAS !CT DOES
NOT APPLY IN THE PRESENT MATTER AS #HALISGAON DOES NOT FALL UNDER THE SCHEDULED
AREA
C !CCORDING TO LEARNED !00 THE GUM WHICH WAS SEIZED BY RESPONDENT .O FROM
THE HOUSE OF PETITIONER HAD BEEN SPREAD OUT FOR DRYING AS CAN BE SEEN FROM THE
PANCHANAMA !PPARENTLY IT WAS WET 4HE GUM WHICH WAS COLLECTED IN THE #HALISGAON
RANGE HAD BEEN TRANSPORTED TO (IRAPUR GODOWN ON AND AS PER THE
PASSES AT %XHIBIT # )T IS ARGUED THAT SUCH GUM COULD NOT HAVE REMAINED MOIST FOR
MONTHS WHEN GUM WAS SEIZED VIDE PANCHANAMA DATED ,EARNED !00
SUBMITS THAT THE FOREST OFCIALS RIGHTLY CLAIMED THAT THE GUM FOUND IN THE 9AWAL
&OREST $IVISION FROM THE HOUSE OF PETITIONER WAS NOT THE SAME AND THAT IT HAD BEEN
ILLEGALLY COLLECTED FROM 9AWAL $IVISION WHERE THERE ARE AMPLE 3ALAI AND +AD TREES
)T HAS BEEN SUBMITTED THAT 9AWAL &OREST $IVISION HAS MANY 3ALAI $HAWADA +HAIR
+AD TREES FROM WHICH GUM IS EXTRACTED !CCORDING TO RESPONDENTS THERE WAS ILLEGAL
EXTRACTION IN THE AREA BY MAKING NOTCHES AND REMOVING OF BARKS WHEREBY THE TREES
WERE BEING DAMAGED AND SO FOREST CASES WERE REQUIRED TO BE LED AS BECAUSE OF SUCH
ACTIVITIES THE TREES DIE AFTER SOME DAYS 2ESPONDENTS CLAIM THAT AS PER 3ECTION OF
THE "OMBAY &OREST 2ULES IF A FOREST PRODUCE IS TRANSPORTED IT IS NECESSARY THAT
THE PASS IS EXAMINED AND THE ARTICLES ARE STORED IN DEPOTS FOR THE PURPOSE 4HE LEARNED
!00 HAS SUBMITTED THAT THE IMPUGNED ORDER HAS BEEN PASSED AFTER CONSIDERING ALL
RELEVANT FACTORS AND THE PETITION DESERVES TO BE REJECTED 2ELIANCE HAS BEEN PLACED
ON 3ECTION TO CLAIM THAT WHENEVER QUESTION ARISES WHETHER FOREST PRODUCE IS
THE PROPERTY OF THE 'OVERNMENT THE SAME HAS TO BE PRESUMED TO BE THE PROPERTY
OF THE 'OVERNMENT TILL THE CONTRARY IS PROVED !CCORDING TO LEARNED !00 THE CLAIM
OF THE PETITIONER THAT THE GUM SEIZED WAS TRANSPORTED FROM #HALISGAON NEEDS TO
BE REJECTED FOR WANT OF PROOF OF ACTUAL TRANSPORTING AND DUE TO THE DIFFERENCE IN
QUANTITY !CCORDING TO LEARNED !00 THE ARGUMENT OF LEARNED COUNSEL FOR PETITIONER
THAT 0AL BEING IN SCHEDULED AREA THE GUM CAN BE PURCHASED FROM LOCAL TRIBALS ALSO IS
NOT MAINTAINABLE AS THE PETITIONER HAS ALL ALONG CLAIMED THAT THIS GUM WAS BROUGHT
FROM #HALISGAON IN *ALGAON &OREST 2ANGE AND NO DOCUMENTS HAVE BEEN SHOWN OF
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
PURCHASE FROM LOCAL TRIBALS IN 0AL AREA !CCORDING TO LEARNED !00 ALTHOUGH TRANSIT
PASS WAS TAKEN FROM #HALISGAON THERE IS NO EVIDENCE OF ACTUAL TRANSPORTATION ELSE
THE PASS WOULD HAVE GOT ENDORSED ON THE WAY AS REQUIRED
7E HAVE PERUSED THE IMPUGNED ORDER DATED OF THE $EPUTY #ONSERVATOR OF
&OREST 9AWAL $IVISION %XHIBIT 4 4HE $EPUTY #ONSERVATOR OF &OREST CONSIDERED THE
CONCERNED DOCUMENTS AND ORDERS IN 7RIT 0ETITION LED EARLIER AND GAVE OPPORTUNITY TO
THE PETITIONER 4HE CONCERNED DOCUMENTS WHICH ARE ALSO PART OF PRESENT RECORD WERE
DISCUSSED (E ALSO OBTAINED AN ENQUIRY REPORT FROM 2ANGE &OREST /FCER !NNEXURE 3 IN
THE PRESENT MATTER AND HAS DEALT WITH THE SPECIC AVERMENTS MADE BY THE PETITIONER
AND RECORDED HIS REASONS !FTER CONSIDERING THE MATERIAL HE HAS RECORDED NDINGS AS
FOLLOWS
I 3ALAI GUM KG AND +AD GUM KG WHICH WAS SEIZED ON IN THE
RESIDENTIAL PREMISES OF PETITIONER AND QUANTITY OF GUM WHICH WAS SHOWN TO &OREST
/FCIALS VIDE 40 .O DT KG OF SALAI GUM AND KG +AD
AND SADA GUM 4HE QUANTITY OF GUM SEIZED IS IN EXCESS OF THAT SHOWN AS PER 4RANSIT
0ERMIT 4HE SEIZED GUM WAS WET AND WAS SPREAD FOR DRYING
II 4HE PETITIONER WAS GRANTED A CONTRACT AND WAS AUTHORIZED TO COLLECT GUM FROM
#HALISGAON 2ANGE OF *ALGAON &OREST $IVISION FOR THE PERIOD
(E HAS SIGNED
AN AGREEMENT WITH $Y #& *ALGAON
III /N WHILE TRANSPORTING GUM MATERIAL FROM (IRAPUR #HALISGAON TO 0AL
HE HAS NOT PRODUCED 40 AT &OREST CHECK POST AT "HUSAWAL 4HE PETITIONER HIMSELF
WAS PRESENT WITH THE VEHICLE !S RESPONSIBLE GOVT CONTRACTOR OF GUM HE SHOULD HAVE
HIMSELF SHOWN THE 40 AT &OREST CHECK POST "HUSAWAL OF *ALGAON $IVISION )T SEEMS
THAT HE PURPOSEFULLY AVOIDED
IV 7HEN HE WAS TRANSPORTING THE GUM MATERIAL TO 0AL WHICH IS IN THE JURISDICTION
OF 9AWAL &OREST $IVISION HE SHOULD HAVE APPLIED FOR APPROVAL OF GODOWN TO $Y
#ONSERVATOR OF &OREST 9AWAL 2&/ 2AVER IN WRITING !T LEAST HE SHOULD HAVE
INTIMATED IN WRITING TO CONCERNED 2&/ 2AVER AND GOT HIS STOCKS VERIED )T SEEMS
THAT HE PURPOSEFULLY AVOIDED IT %NQUIRY CARRIED OUT BY 2&/ 2AVER ALSO INFERRED THAT
THE GUM MATERIAL SEIZED SEEMS TO BE COLLECTED FROM ADJOINING FOREST AREAS AROUND
0AL VILLAGE 4HIS HAS BEEN SUBSTANTIATED BY SEIZURE OF ILLEGAL GUM VEHICLES AND &OREST
/FCERS REGISTERED FOR ILLEGALLY MAKING NOTCHES ON 3ALAI AND OTHER GUM EXUDING TREES
IN FOREST AREAS OF 9AWAL &OREST $IVISION AND IN 0AL FOREST ROUND $EPUTY #ONSERVATOR
OF &OREST *ALGAON $IVISION LETTER VIDE .O DT ALSO CLARIED THAT THE GUM
MATERIAL SEIZED AT RESIDENTIAL PREMISES OF PETITIONER IS NOT THE SAME AS COLLECTED BY
THE PETITIONER IN #HALISGAON 2ANGE CONSIDERING THE DIFFERENCE IN QUANTITY
V 4HE PETITIONER HAS COLLECTED GUM FROM #HALISGAON 2ANGE OF *ALGAON $IVISION IN
THE MONTH OF *ANUARY (E TRANSPORTED THE GUM MATERIAL ON AS PER
TRANSIT PERMIT ISSUED BY 2&/ *ALGAON 'UM MATERIAL WAS SEIZED FROM PETITIONERS
RESIDENTIAL PREMISES ON !FTER A PERIOD OF MONTHS FROM COLLECTION THE GUM
WILL NOT REMAIN WET 4HE PETITIONER 3HRI !2 *ADHAV 2O 0AL 4AL 2AVER HAS FAILED
TO PROVE SUBSTANTIALLY THE OWNERSHIP OF GUM MATERIAL SEIZED FROM HIS RESIDENTIAL
PREMISES ON BY &OREST /FCIALS IRRESPECTIVE OF ALL THE OPPORTUNITIES GIVEN
TO HIM -ERE POSSESSION OF 4RANSIT 0ERMIT DOES NOT PROVE HIS OWNERSHIP BEYOND
DOUBT 4HERE ARE REASONABLE GROUNDS TO BELIEVE THAT HE HAS NOT TRANSPORTED THE GUM
MATERIAL COLLECTED BY HIM IN #HALISGAON 2ANGE TO 0AL 4AL 2AVER WHICH IS VERY REMOTE
PLACE IN 4RIBAL AREAS AND IS FAR FROM MARKET (E PURPOSEFULLY AVOIDED VERICATION OF
VEHICLE CARRYING GUM FOREST PRODUCE IN 4RANSIT PERMIT AS PER PROVISION OF )NDIAN
&OREST !CT AND PROVISION OF 3ECTION 4HERE ARE GROUNDS ON RECORD TO BELIEVE
4 / \
THAT PETITIONER HAD MALADE INTENTION AND WAS FOUND TO POSSESS KG 3ALAI AND
KG OF +AD SADA GUM COLLECTED BY ILLEGAL MEANS FROM FOREST AREAS AROUND 0AL
4HIS HAS BEEN CONRMED BY THE ENQUIRY CONDUCTED BY 2&/ 2AVER
VII "OMBAY &OREST 2ULES 3ECTION PRESCRIBES $EPOTS AND THEIR PURPOSES TO
WHICH &OREST PRODUCE SHOULD BE TAKEN FOR EXAMINATION PREVIOUS TO THE GRANT OF A
PASS IN RESPECT THEREOF
VIII !S PER PROVISIONS OF )NDIAN &OREST !CT 3ECTION WHICH STATES AS UNDER
3EC 0RESUMPTION THAT THE &OREST 0RODUCE BELONGS TO 'OVERNMENT 7HEN IN
ANY PROCEEDINGS TAKEN UNDER THIS !CT OR IN CONSEQUENCE OF ANYTHING DONE UNDER
THIS !CT A QUESTION ARISES AS TO WHETHER ANY &OREST 0RODUCE IS THE PROPERTY OF
'OVERNMENT SUCH PRODUCE SHALL BE PRESUMED TO BE THE PROPERTY OF 'OVERNMENT
UNTIL THE CONTRARY IS PROVED
)N VIEW OF FACTS AND CIRCUMSTANCES MENTIONED ABOVE THE GUM SEIZED AT RESIDENTIAL
PREMISES OF THE PETITIONER 3ALAI GUM KG AND +AD 3ADA GUM KG IS 'OVT
PROPERTY AS PER PROVISIONS OF 3EC OF )NDIAN &OREST !CT EXPLAINED EARLIER
4HE PETITION ITSELF SHOWS THAT WHEN THE PETITIONER GOT THE TENDER FOR COLLECTION OF GUM
IN #HALISGAON AREA AS PER PROCEDURE HE WAS REQUIRED TO DEPOSIT THE SAME AT PARTICULAR
GODOWN ALLOTTED BY THE FOREST OFCIALS AND WAS REQUIRED TO TAKE TRANSIT PASS EVEN WITHIN
THE #HALISGAON FOREST RANGE AS CAN BE SEEN AT %XHIBIT # 4HUS HE IS AWARE THAT IT IS
NECESSARY TO HAVE PASS FOR TRANSPORTING AND NEED TO KEEP THE FOREST PRODUCE AT SPECIED
PLACE AFTER COLLECTION 2ESPONDENTS ARE REFERRING TO THE "OMBAY &OREST 2ULES
#HAPTER 6) DEALS WITH 4RANSIT OF &OREST 0RODUCE 2ULES SHOW THAT NO FOREST PRODUCE
SHALL BE MOVED INTO OR FROM OR WITHIN DISTRICT EXCEPT AS PROVIDED IN THE #HAPTER WITHOUT
A PASS FROM SOME OFCER OR PERSON DULY AUTHORIZED 4HE CHAPTER DEALS WITH NOT ONLY
&OREST 0ASSES BUT ALSO &OREST $EPOTS 0ETITIONER CLAIMS THAT FROM THE FOREST DIVISION OF
#HALISGAON THE GUM WAS BROUGHT TO 0AL 4ALUKA 2AVER VIDE 0ASS %XHIBIT % 4HIS PASS
SPECICALLY DESCRIBES THE FOREST PRODUCE AS 3ALAI 'UM
QUINTALS AND ORDINARY AND
+AD GUM AS QUINTALS %VEN THE ROUTE IS SPECIED AS #HALISGAON 0ACHORA "HUSAWAL
&AIZPUR .HAVI AND VIA -AHEMANDLI .O MATERIAL IS THERE TO SHOW THAT ALTHOUGH TRANSIT
PASS %XHIBIT % WAS TAKEN THE GUM MENTIONED THEREIN WAS ACTUALLY TRANSPORTED TO
0AL AS ON THE WAY THERE IS "HUSAWAL &OREST #HECK 0OST AND THERE IS NO RECORD THAT THE
PETITIONER GOT ENDORSED THE TRANSIT PASS AT "HUSAWAL &OREST #HECK 0OST 4HE LEARNED
COUNSEL FOR PETITIONER HAS SUBMITTED THAT THERE WAS NOBODY AT THE &OREST #HECK 0OST
AND SO THE PASS WAS NOT SHOWN (OWEVER THERE IS NO MATERIAL TO SHOW THAT ANY EFFORT
WAS MADE TO INFORM THE AUTHORITIES THAT THERE WAS NOBODY AT THE #HECK 0OST SO THE
GOODS HAVE BEEN TRANSPORTED FURTHER %VEN WHEN APPROACHING REMOTE AREA OF 0AL THE
PETITIONER DID NOT GET THE GODOWN OR PLACE FOR STORAGE APPROVED FOR KEEPING THE FOREST
PRODUCE AS PER RULES REFERRED ABOVE
4HE PANCHANAMAS RECORDED %XHIBIT & WHICH ARE DATED SHOW THAT WHEN
THE FOREST OFCIALS CARRIED OUT THE INSPECTION IT WAS FOUND THAT WHILE SOME GUM
WAS STORED IN BUNDLES SOME OF IT HAD BEEN SPREAD OUT ON THE OOR 4HE REPORT OF THE
$EPUTY #ONSERVATOR OF &OREST HAVING ENQUIRED INTO THE MATTER DISCUSSED THE MATERIAL
AND FOUND THAT THE GUM FOUND IN THE HOUSE OF PETITIONER WAS WET 4HE GUM AS REGARDS
COLLECTION AT #HALISGAON 2ANGE WAS IN THE MONTH OF *ANUARY 0ETITIONER CLAIMS
THAT HE TRANSPORTED THE GUM IN -ARCH AND THE SAME WAS SEIZED ON &OREST
OFCIALS IN DISCHARGE OF THEIR DUTY AND EXPERIENCE CLAIM THAT AFTER A PERIOD OF TWO
MONTH FROM COLLECTION THE GUM WILL NOT REMAIN WET 4HE LEARNED !00 SAYS THAT THIS IS
ONE OF THE REASONS WHY FOREST OFCIALS HAVE FOUND THAT THE GUM SEIZED AT THE RESIDENCE
OF PETITIONER AT 0AL IS NOT THE SAME FOR WHICH THE PASS WAS TAKEN AT #HALISGAON
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
!LTHOUGH 0ASS %XHIBIT % RELIED ON BY THE PETITIONER HIMSELF MENTIONS THAT THE GOODS
WERE 3ALAI GUM TO THE EXTENT OF QUINTALS AND ORDINARY AND +AD GUM TO THE EXTENT
OF QUINTALS WHICH IS ALSO THE DESCRIPTION IN THE PASSES AT %XHIBIT # AT THE TIME OF
ARGUMENTS THE LEARNED COUNSEL FOR THE PETITIONER CLAIMED THAT EVEN 3ALAI GUM IS
ORDINARY GUM (E HAS THUS TRIED TO JUSTIFY THE QUANTITY FOUND IN THE HOUSE OF PETITIONER
(OWEVER THE PETITIONER DID NOT OBJECT TO THE TYPE OF GUM RECORDED IN THE DOCUMENTS AT
#HALISGAON %VEN AT THE TIME OF PANCHANAMAS IN !PRIL HE DOES NOT APPEAR TO HAVE
DISPUTED WHEN IT WAS BEING RECORDED THAT 3ALAI GUM IS FOUND ALTHOUGH HE WAS PRESENT
AND EVEN SIGNED THE PANCHANAMAS !S SUCH NOW HE CANNOT CLAIM THAT EVEN 3ALAI GUM
IS ORDINARY GUM 4HE AFDAVIT ON BEHALF OF RESPONDENTS IN PARA CLAIMS THAT ORDINARY
GUM INCLUDES $HAWADA "ABOOL +HAIR WHICH ARE EDIBLE GUM BUT 3ALAI GUM IS NOT EDIBLE
AS IT IS USED FOR MAKING PASTELS 4HE AFDAVIT CLAIMS IN PARA THAT IN THE 9AWAL &OREST
$IVISION THERE ARE VARIOUS GUM PRODUCING TREES VIZ 3ALAI
$HAWADA
+HAIR
+AD
4HUS THE AFDAVIT IS THAT THESE ARE GUM FROM DIFFERENT
TREES )N THE TRANSIT PASS %XHIBIT % 3ALAI WAS SHOWN SEPARATELY AND ORDINARY AND
+AD GUM WAS SHOWN SEPARATELY 2ECORD SHOWS THAT ALTHOUGH PETITIONER CLAIMS THAT
HE TRANSPORTED KGS 3ALAI GUM AND KGS OF ORDINARY AND +AD GUM WHAT
WAS SEIZED AT HIS RESIDENCE WAS KGS OF 3ALAI GUM AND KGS OF +AD GUM )T IS
APPARENT THAT THE 3ALAI 'UM SEIZED AT HIS HOUSE WAS MUCH MORE THAN WHAT HE CLAIMED
TO HAVE TRANSPORTED FROM #HALISGAON FOREST AREA 4HERE IS SUBSTANCE IN THE SUBMISSION
ON BEHALF OF RESPONDENTS THAT THE GUM SEIZED AT THE RESIDENCE OF PETITIONER AT 0AL IS NOT
FROM AUTHORIZED SOURCE AND THE PETITIONER HAS NOT BEEN ABLE TO SATISFY THAT IT WAS THE
GUM TRANSPORTED BY HIM FROM #HALISGAON AREA
0ETITIONER SUBMITTED THAT GUM IS MINOR FOREST PRODUCE 4HE LEARNED !00 ACCEPTS THIS
)T IS FURTHER SUBMITTED ON BEHALF OF PETITIONER THAT 0AL IS IN SCHEDULED AREA %VEN THIS IS
NOT IN DISPUTE )T IS THEN ARGUED BY THE LEARNED COUNSEL FOR PETITIONER THAT LOOKING TO THE
PROVISIONS OF &OREST 2IGHTS !CT THE RIGHT OF OWNERSHIP OF THE MINOR FOREST PRODUCE VESTS
IN THE 'RAMSABHA OF 0AL AND SO THE PETITIONER CAN ACQUIRE SUCH GUM EVEN FROM THE LOCAL
TRADITIONAL FOREST DWELLERS AND SCHEDULED TRIBES 4HIS ARGUMENT NEEDS TO BE DISCARDED AS
SOON AFTER THE PANCHANAMAS DATED WHEN THE RESPONDENTS ISSUED ORDER DATED
!NNEXURE ( TO THE PETITIONER INFORMING THAT THE GUM IS NOT ONE WHICH HAS
BEEN COLLECTED FROM #HALISGAON AND HAS BEEN ILLEGALLY COLLECTED THE PETITIONER HAD TAKEN
UP REPRESENTATION TO SUPERIORS VIDE %XHIBIT * )N THIS REPRESENTATION DATED AND
EVEN SUBSEQUENTLY THE PETITIONER HAS ALL ALONG CLAIMED THAT IT WAS THE SAME GUM WHICH
HE HAD COLLECTED IN THE *ALGAON &OREST $IVISION FROM #HALISGAON AND HAD CLAIMED THAT
HE HAD TRANSPORTED THE SAME AND SO HE WAS LEGALLY IN POSSESSION )N THE REPRESENTATION
DATED !NNEXURE * PETITIONER DID NOT CLAIM THAT THE GUM HAD BEEN PURCHASED
LOCALLY FROM PERSONS WHO HAVE ACQUIRED FOREST RIGHTS UNDER THE &OREST 2IGHTS !CT
)T IS RIGHTLY ARGUED BY THE LEARNED !00 THAT THE PETITIONER HAS EVEN OTHERWISE FAILED TO
SHOW ANY DOCUMENT OF LOCALLY PURCHASING AT 0AL !CCORDING TO THE RESPONDENTS AS PER
3ECTION OF &OREST 2IGHTS !CT THERE IS RECOGNITION AND VESTING OF FOREST RIGHTS MENTIONED
IN 3ECTION IN FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS !S
PER 3ECTION THE 'RAMSABHA IS 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 FOREST DWELLING SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS WITHIN THE LOCAL
LIMITS OF ITS JURISDICTION 0ETITIONER HAS NOT SHOWN DOCUMENT TO SHOW PURCHASE FROM ANY
SUCH 3CHEDULED 4RIBES AS TRADITIONAL FOREST DWELLERS
2ESPONDENTS CLAIM THAT OUTSIDE THE JURISDICTION OF THE 0ANCHAYAT THE RIGHTS STILL REMAIN
WITH THE 'OVERNMENT 0AL VILLAGE IS ADJOINING FOREST AREA BELONGING TO THE FOREST AS
WELL AS 7ILDLIFE 3ANCTUARY !REA 3ECTION OF 4HE -AHARASHTRA 4RANSFER OF /WNERSHIP
OF -INOR &OREST 0RODUCE IN THE 3CHEDULED !REAS AND THE -AHARASHTRA -INOR &OREST
0RODUCE 2EGULATION OF 4RADE !MENDMENT !CT READS AS UNDER
4 / \
/WNERSHIP OF -INOR &OREST 0ROCEDURE TO VEST 0ANCHAYAT
4HE OWNERSHIP OF -INOR &OREST 0RODUCE FOUND IN THE 'OVERNMENT LANDS IN THE
3CHEDULED !REAS EXCLUDING THE .ATIONAL 0ARKS AND 3ANCTUARIES SHALL VEST IN THE
0ANCHAYAT WITHIN WHOSE JURISDICTION SUCH AREA FALLS
%XPLANATION
4HE EXPRESSIONS .ATIONAL 0ARKS AND 3ANCTUARIES USED IN THIS SECTION
SHALL HAVE THE SAME MEANINGS RESPECTIVELY ASSIGNED TO THEM UNDER THE 7ILD
LIFE
0ROTECTION !CT
4HUS AREAS OF .ATIONAL 0ARKS AND 3ANCTUARIES ARE EXCLUDED !GAIN 0ANCHAYAT ALSO
HAS TO ADHERE TO THE PRESCRIPTIONS CONTAINED IN THE 7ORKING 0LAN -ANAGEMENT 0LAN
OR 7ORKING 3CHEME UNDER 3ECTION 2ESPONDENTS ARE CLAIMING THAT THE GUM SEIZED
IS ILLEGALLY OBTAINED FROM ADJOINING FOREST OF 0AL AND IN THE CIRCUMSTANCES IS SUSPECT
2ESPONDENTS IN THE CIRCUMSTANCES RELY ON PRESUMPTION UNDER 3ECTION OF THE )NDIAN
&OREST !CT TO CLAIM THAT UNTIL CONTRARY IS PROVED THE FOREST PRODUCE SHALL PRESUME
TO BE THE PROPERTY OF THE 'OVERNMENT +EEPING IN VIEW THE PARTICULARS AS TO HOW ILLEGAL
EXTRACTION OF GUM LEADS TO DEATH OF TREES IF PETITIONER HAS TO SUCCEED RELIABLE PROOF HAS
TO BE THERE 4HE SAME IS WANTING
&OR REASONS DISCUSSED IT CANNOT BE FOUND THAT THE PETITIONER IS ABLE TO SHOW THAT THE
GUM SEIZED FROM HIS RESIDENCE AT 0AL WAS ONE WHICH HE TRANSPORTED FROM #HALISGAON
AREA )N THE ABSENCE OF SHOWING LEGAL SOURCE OF ACQUIRING OF THE MINOR FOREST PRODUCE
THE ACTION OF THE RESPONDENTS CANNOT BE FAULTED WITH 4HE IMPUGNED ORDER !NNEXURE
4 CANNOT BE SAID TO BE ILLEGAL OR ARBITRARY
4HERE IS NO SUBSTANCE IN THE 7RIT 0ETITION 4HE SAME IS REJECTED 2ULE IS DISCHARGED
(EARD )NTERIM RELIEF DATED TH 3EPTEMBER IS EXTENDED TILL RD .OVEMBER
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
+ASHTAKARI 3ANGATHANA /RS VS
!SSISTANT #ONSERVATOR OF &ORESTS
$AHANU /RS
72)4 0%4)4)/. ./ /&
"/-"!9 ()'( #/524
).4%2)- /2$%2
#/2!- !3 /+! !.$ !3 '!$+!2) **
3 5--!29
4HE WRIT PETITION HAD BEEN FILED BY +ASHTAKARI 3ANGATHANA AN ORGANISATION
DEDICATED TO THE UPLIFT AND PROTECTION OF TRIBALS AND FOREST DWELLERS IN $AHANU
DISTRICT SEEKING PROTECTION FROM EVICTION AND DISPOSSESSION OF THE TRIBALS AND
FOREST DWELLERS IN THE LAND IN QUESTION )T WAS ARGUED THAT THEY ARE CLAIMANTS
UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 2IGHTS !CT &2! BUT THE RESPONDENT 3TATE GOVERNMENT AUTHORITIES ARE
ATTEMPTING TO DISPOSSESS THEM ON THE GROUND THAT THE FOREST LANDS FALL WITHIN THE
LIMITS OF THE $AHANU -UNICIPAL #OUNCIL WHERE THE &2! IS NOT APPLICABLE
7HILE ISSUING NOTICE TO THE RESPONDENTS ON THE #OURT HAD PASSED AN ORDER
PROTECTING THE PETITIONERS FROM DISPOSSESSION IN THE FOLLOWING TERMS
.O COERCIVE ACTION IN THE MEANTIME BE TAKEN AGAINST THE PETITIONERS
$URING THE COURSE OF THE PROCEEDINGS THE .ODAL !GENCY FOR THE IMPLEMENTATION OF
THE &2! -INISTRY OF 4RIBAL !FFAIRS 'OVERNMENT OF )NDIA ISSUED A SERIES OF #IRCULARS
IN EXERCISE OF ITS POWERS UNDER 3ECTION OF &2! CLARIFYING THEREBY THAT THE &OREST
2IGHTS !CT IS APPLICABLE TO CLAIMANTS IN RESPECT OF FOREST LANDS WHEREVER THEY MAY
BE LOCATED NO EXCEPTION IS MADE FOR MUNICIPAL AREAS
!CCEPTING THE SUBMISSION MADE BY THE SAID -INISTRY ON AFFIDAVIT THE #OURT ISSUED
/RDER DT IN 70 .O OF "OMBAY (IGH #OURT
3EE FOR INSTANCE #IRCULAR DATED TH !PRIL BEARING & .O
&2! ISSUED BY THE -INISTRY OF
4RIBAL !FFAIRS 'OVERNMENT OF )NDIA 3UBSEQUENTLY DETAILED 'UIDELINES WERE ISSUED VIDE #IRCULAR DT
BEARING .O
&2! 6OL)) BY THE SAID -INISTRY GIVING THE PROCEDURE FOR APPLICATION OF &2! TO
MUNICIPAL AND URBAN AREAS
4 / \
RULE NISI IN THE PROCEEDING )T FURTHER REINFORCED ITS PREVIOUS ORDER PROTECTING THE
RESIDENTIAL STRUCTURES OF THE PETITIONERS FROM DEMOLITION UNTIL THE FINAL DISPOSAL
OF THE WRIT PETITION )T ALSO PUT THE ONUS ON THE PETITIONERS NOT TO MAKE ANY MAJOR
ALTERATIONS OR ADDITIONS IN THE STRUCTURES OR CREATE THIRD PARTY RIGHTS WITHOUT THE
PERMISSION OF THE #OURT DURING THIS TIME
% $ ) 4 /23 . /4%
!LTHOUGH THIS IS AN INTERIM ORDER AND FOR THIS REASON DOES NOT OPERATE AS A BINDING
PRECEDENT THE DIRECTIONS AND OBSERVATIONS MADE BY THE #OURT ARE IMPORTANT IN THE
CONTEXT OF THE IMPLEMENTATION OF THE &2! IN FOREST LANDS INSIDE MUNICIPAL AREAS
ACROSS THE COUNTRY
/2$%2
(EARD THE LEARNED COUNSEL APPEARING FOR THE 0ETITIONERS THE LEARNED !'0 FOR THE &IRST
3ECOND AND &OURTH 2ESPONDENTS AND THE LEARNED COUNSEL APPEARING FOR THE &IFTH AND 3IXTH
2ESPONDENTS
7E HAVE PERUSED THE AFDAVIT OF 3HRI 5TTAM +UMAR +AR 5NDER 3ECRETARY TO THE
'OVERNMENT OF )NDIA -INISTRY OF 4RIBAL !FFAIRS 'OVERNMENT OF )NDIA .EW $ELHI 4HE
SPECIC CONTENTION RAISED IN PARAGRAPH OF THE AFDAVIT IS THAT THE 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT FOR SHORT THE
SAID !CT IS ALSO APPLICABLE TO THE -UNICIPAL AREAS 4IME WAS GRANTED TO THE LEARNED !'0 TO
TAKE INSTRUCTIONS AND TO MAKE A STATEMENT (OWEVER HE HAS NOT RECEIVED ANY INSTRUCTIONS
4HE CASE MADE OUT BY THE 0ETITIONERS IS THAT THE STRUCTURES IN RESPECT OF WHICH IMPUGNED
ORDERS HAVE BEEN PASSED ARE SITUATED WITHIN THE LIMITS OF $AHANU -UNICIPAL #OUNCIL
#ONSIDERING THE ISSUES RAISED AND THE STAND TAKEN BY THE 5NION OF )NDIA THIS 0ETITION
NEEDS NAL HEARING !CCORDINGLY WE ISSUE RULE 4HE CONCERNED COUNSEL REPRESENTING THE
2ESPONDENTS WAIVE SERVICE
4HE 0ETITIONERS HAVE BEEN PROTECTED AS REGARDS THEIR RESIDENTIAL STRUCTURES BY THE ORDER
DATED TH /CTOBER "Y WAY OF INTERIM RELIEF WE DIRECT THAT THE DEMOLITION OF THE
RESIDENTIAL STRUCTURES OF THE 0ETITIONERS WHICH ARE SUBJECT MATTER OF THE ORDERS DATED TH
$ECEMBER %XHIBIT (
TO (
TO THE 0ETITION SHALL NOT BE CARRIED OUT TILL THE NAL
DISPOSAL OF THE 0ETITION SUBJECT TO CONDITION THAT THE 0ETITIONERS SHALL NOT CARRY OUT ANY
MAJOR ADDITIONS OR ALTERATIONS TO THE RESIDENTIAL STRUCTURES AND SHALL NOT CREATE THIRD PARTY
INTERESTS THEREIN OR PART WITH POSSESSION THEREOF WITHOUT PRIOR PERMISSION OF THIS #OURT
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
#((!44)3'!2(
()'( #/524
4!",% /& *5$'-%.43 !.$ /2$%23
'
EETA 9ADAV VS 3TATE OF #HHATTISGARH /RS
3## /N,INE #HH \
4 / \
'EETA 9ADAV VS 3TATE OF #HHATTISGARH
/RS
70# ./ /&
()'( #/524 /& #((!44)3'!2(
#/2!- 02)4).+%2 $)7!+%2 *
#)4!4)/. 3## /.,).% #((
3 5 - -!29
4HE WRIT PETITION WAS FILED IN SEEKING PROTECTION OF RIGHTS UNDER THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2! SINCE THE PETITIONER HAD FILED A CLAIM BEFORE THE 'RAM 3ABHA BUT EVEN
WHILE IT WAS PENDING EFFORTS WERE MADE BY THE RESPONDENT FOREST AUTHORITIES TO
DISPOSSESS HER "Y AN INTERIM ORDER SHE WAS PROTECTED FROM EVICTION DURING THE
PENDENCY OF THE CASE
$URING THE PENDENCY OF THE WRIT PETITION IT APPEARS HER APPLICATION WAS DECIDED BY
THE 'RAM 3ABHA AND THE PETITIONER SOUGHT PERMISSION TO WITHDRAW THIS WRIT AND
APPROACH THE 3UB $IVISIONAL ,EVEL #OMMITTEE 3$,# IN APPEAL
)N THE PROCESS SHE SOUGHT TWO CONCESSIONS FROM THE #OURT WHICH WERE GRANTED
/NE SHE SOUGHT A DIRECTION TO THE 3$,# THAT HER APPEAL WILL NOT BE REJECTED ON THE
GROUND OF DELAY THE STATUTE PROVIDES THAT AN APPEAL BE FILED WITHIN DAYS WHILE
IN THE PRESENT CASE ALREADY YEARS HAD ELAPSED WHICH PRAYER WAS GRANTED BY THE
#OURT ON CONDITION THAT THE APPEAL BE FILED WITHIN FOUR WEEKS FROM THIS DAY
3ECOND SHE SOUGHT A CONTINUATION OF THE INTERIM PROTECTION AGAINST EVICTION
GRANTED TO HER )N THIS REGARD THE #OURT EXTENDED THE PROTECTION BY ONE MONTH
OBSERVING THAT THEREAFTER IT SHALL BE THE PREROGATIVE OF THE 3$,# TO DECIDE ON THIS IN
ACCORDANCE WITH LAW 7ITH THESE DIRECTIONS THE WRIT PETITION WAS PERMITTED TO BE
WITHDRAWN
% $ ) 4 /23 . /4%
!LTHOUGH A BRIEF DECISION IT IS SIGNIFICANT FOR THE REASON THAT THE #OURT SAW FIT TO
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
PERMIT THE PETITIONER TO FILE AN APPEAL AGAINST THE ORDER OF THE 'RAM 3ABHA BEFORE
THE 3$,# AFTER AN ELAPSE OF OVER THREE YEARS EVEN WHILE THE STATUTE PROVIDES ONLY
DAYS
/2$ % 2
4HE PETITIONER APPEARS TO HAVE LED AN APPLICATION BEFORE THE 'RAM 3ABHA UNDER THE
&OREST 2IGHTS !CT 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT HEREINAFTER REFERRED TO AS THE !CT FOR GRANT OF LEASE
OF THE LAND IN QUESTION $URING THE PENDENCY OF HIS APPLICATION WHEN AN ATTEMPT WAS
MADE BY THE FOREST AUTHORITY TO DISPOSSESS HIM THIS PETITION WAS LED
7HILE ENTERTAINING THE WRIT PETITION ON INTERIM PROTECTION WAS GRANTED IN
FAVOUR OF THE PETITIONER DIRECTING RESPONDENTS NOT TO EVICT HIM FROM THE FOREST LAND
UNDER THE OCCUPATION OF THE PETITIONER
#OUNSEL FOR THE PETITIONER SUBMITS THAT DURING THE PENDENCY OF THE WRIT PETITION HIS
APPLICATION HAS BEEN DECIDED BY THE 'RAM 3ABHA VIDE ORDER DATED AND
THEREFORE HE MAY BE PERMITTED TO WITHDRAW THIS PETITION WITH LIBERTY TO LE THE APPEAL
BEFORE THE 3UB $IVISIONAL ,EVEL #OMMITTEE UNDER 2ULE OF THE 2ULES FRAMED UNDER
THE !CT (E FURTHER SUBMITS THAT AS THE PETITIONER WAS PROSECUTING PRESENT WRIT
PETITION HIS APPEAL MAY BE TREATED AS TIME BARRED AND THEREFORE APPELLATE AUTHORITY BE
DIRECTED TO DECIDE THE APPEAL TO BE LED BY THE PETITIONER IGNORING THE POINT OF LIMITATION
)T HAS ALSO BEEN ARGUED THAT STAY OPERATING IN FAVOUR OF THE PETITIONER MAY BE DIRECTED
TO CONTINUE TILL HE LES THE APPEAL ALONG WITH AN APPLICATION FOR INTERIM RELIEF AND SUCH
APPLICATION FOR INTERIM RELIEF IS DECIDED
3TATE COUNSEL HAS NO OBJECTION TO THE PROPOSITION PUT FORTH BY THE PETITIONER
4HE PETITIONER IS PERMITTED TO WITHDRAW THIS PETITION WITH THE AFORESAID LIBERTY
)N THE EVENTUALITY OF LING AN APPEAL BEFORE THE APPELLATE AUTHORITY ASSAILING THE ORDER
DATED BY THE PETITIONER WITHIN FOUR WEEKS FROM TODAY IT IS EXPECTED FROM
THE APPELLATE AUTHORITY TO DECIDE THE SAID APPEAL IGNORING THE POINT OF LIMITATION 4HE
PETITIONER WOULD BE FURTHER AT LIBERTY TO LE AN APPLICATION SEEKING INTERIM PROTECTION
FROM THE APPELLATE AUTHORITY AND IT WOULD BE FOR THE APPELLATE AUTHORITY TO DECIDE THE
SAID APPLICATION IN ACCORDANCE WITH LAW
4ILL ONE MONTH FROM TODAY THE INTERIM ORDER GRANTED IN FAVOUR OF THE PETITIONER ON
SHALL REMAIN IN OPERATION
)T IS MADE CLEAR THAT NOTHING HAS BEEN OBSERVED ON MERIT ASPECTS OF THE CASE AND THE
COMPETENT AUTHORITY WOULD BE AT LIBERTY TO DECIDE THE APPEAL AND ANY OTHER SUCH
APPLICATION STRICTLY IN ACCORDANCE WITH LAW
4HE PETITION IS ACCORDINGLY DISMISSED AS WITHDRAWN WITH THE AFORESAID LIBERTY
4 / \
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
()'( #/524 /&
$%,()
4!",% /& *5$'-%.43 !.$ /2$%23
0RIYA 0ARAMESWARAN 0ILLAI VS 5NION OF )NDIA /RS
3## /N,INE $EL \ $,4 \
4 / \
0RIYA 0ARAMESWARAN 0ILLAI VS 5NION
OF )NDIA /RS
70# ./ /&
()'( #/524 /& $%,()
#/2!- 2!*)6 3(!+$(%2 *
#)4!4)/. 3## /.,).% $%, $,4
3 5 - -!29
4HE PETITIONER A LAWYER AND CIVIL RIGHTS ACTIVIST ASSOCIATED WITH 'REENPEACE )NDIA
3OCIETY WAS WORKING WITH FOREST DWELLING COMMUNITIES IN THE 3INGRAULI #OAL BELT
IN -ADHYA 0RADESH 3HE WAS TO TRAVEL TO THE 5NITED +INGDOM TO ADDRESS AN !LL 0ARTY
0ARLIAMENTARY 'ROUP !00' COMPRISING OF "RITISH 0ARLIAMENTARIANS REGARDING
VIOLATION OF VARIOUS ENVIRONMENTAL LAWS IN )NDIA AND ALSO THE DEGRADATION OF THE
EXISTING WILDLIFE WATER AND AIR POLLUTION IN THE REGION BECAUSE OF THE WORK IN THE
AREA BY THE #OAL COMPANIES 5PON REACHING THE $ELHI !IRPORT THE IMMIGRATION
AUTHORITIES REFUSED TO ALLOW HER TO BOARD THE FLIGHT AND HER PASSPORT WAS ENDORSED
OFF LOAD 3HE SOUGHT REASONS FROM THE -INISTRY OF (OME !FFAIRS 'OVERNMENT OF
)NDIA FOR PREVENTING HER FROM TRAVELLING BUT NO OFFICIAL RESPONSE WAS RECEIVED FROM
THE 'OVERNMENT ALTHOUGH SUBSEQUENTLY SHE LEARNT THAT A ,OOK /UT #IRCULAR ,/#
HAD BEEN ISSUED AGAINST HER
4HE PETITIONER APPROACHED THE $ELHI (IGH WITH A WRIT PETITION CITING THAT HER
FUNDAMENTAL RIGHTS UNDER !RTICLES A G AND OF THE #ONSTITUTION HAVE
BEEN VIOLATED 4HE PETITIONER ARGUED THAT THE ,/# WAS ISSUED WITHOUT FOLLOWING
THE DUE PROCEDURE OF LAW 3HE FURTHER ARGUED THAT IMPOSING RESTRICTIONS ON HER
TRAVEL ABROAD IS A VIOLATION OF HER FUNDAMENTAL RIGHTS TO TRAVEL FREE SPEECH AND
EXPRESSION AND TO PRACTICE HER PROFESSION AND OR OCCUPATION 4HE PETITIONER
SUBMITTED THAT SHE CANNOT BE CATEGORIZED AS ANTI
NATIONAL BECAUSE SHE SEEKS TO
ASSIST TRIBAL COMMUNITIES TO CLAIM THEIR RIGHTS UNDER THE 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
4HE RESPONDENTS ARGUED THAT THE PETITIONER WOULD CREATE A NEGATIVE IMAGE OF
)NDIA AND WAS THEREFORE PREVENTED FROM TRAVELLING OUTSIDE )NDIA TO ARTICULATE HER
VIEWS TO "RITISH 0ARLIAMENTARIANS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
&).$ ) .' 3 /& 4( % #/524
4HE #OURT EXAMINED A NUMBER OF ISSUES IN DETAIL SUCH AS WHETHER THE RIGHT TO TRAVEL
ABROAD IS A FUNDAMENTAL RIGHT WHETHER THE /FFICE -EMORANDUM UNDER WHICH
THE ,/# WAS ISSUED CONSTITUTES A LAW WHETHER THE ISSUE OF SUCH ,/# AGAINST THE
PETITIONER WAS JUSTIFIED AND WHETHER THERE WAS ANY VIOLATION OF HER FUNDAMENTAL
RIGHTS THROUGH THE ACTIONS OF THE RESPONDENTS
2ELYING UPON THE DECISIONS IN -ANEKA 'ANDHI AND !+ 'OPALAN THE #OURT HELD
THAT WHEN A PERSONS RIGHT TO LIFE UNDER !RTICLE IS DEPRIVED IN ACCORDANCE WITH
PROCEDURE ESTABLISHED BY LAW THIS MEANS ENACTED LAW WHICH MUST BE JUST AND
REASONABLE
4HE #OURT DISAGREED WITH THE CONTENTION OF THE RESPONDENTS THAT BY TESTIFYING BEFORE
THE !00' THE PETITIONER WOULD CREATE A NEGATIVE IMAGE OF )NDIA THEREBY CREATING
AN ATMOSPHERE WHICH RETARDS FOREIGN INVESTMENT IN )NDIA 4HE #OURT OBSERVED THAT
THERE HAS ALWAYS BEEN A COUNTER VIEWPOINT ON DEVELOPMENTAL ISSUES AND THAT
4HE MERE FACT THAT SUCH DEBATES OBTAIN OR SUCH DEBATES METAMORPHOSE INTO
PEACEFUL PROTESTS CANNOT BE THE REASON FOR CURTAILING A CITIZENS FUNDAMENTAL
RIGHTS )N THIS CASE -S 0ILLAIS RIGHT TO TRAVEL ABROAD AND INTERACT WITH RELEVANT
STAKE HOLDERS IE THE "RITISH 0ARLIAMENTARIANS TO PERSUADE THEM TO HAVE
ENTITIES INCORPORATED IN THEIR COUNTRY TO FALL IN LINE WITH THE DEVELOPMENTAL
ETHOS WHICH IS CLOSE TO HER IDEOLOGY AND BELIEF CANNOT BE IMPEDED ONLY BECAUSE
IT IS NOT IN SYNC WITH POLICY PERSPECTIVE OF THE EXECUTIVE PARA
4HE #OURT ALSO HELD THAT THE EXECUTIVE MAY OR MAY NOT AGREE WITH THE VIEWS OF THE
PETITIONER REGARDING ADVERSE IMPACT ON THE RIGHTS OF THE TRIBAL COMMUNITIES DUE TO
COAL MINING (OWEVER THAT BY ITSELF CANNOT BE A REASON TO PREVENT THE PETITIONER
FROM EXERCISING HER FUNDAMENTAL RIGHT TO TRAVEL ABROAD AND THEREBY IN EFFECT
DISABLE HER FROM EXPRESSING HER VIEWS ON THE SUBJECT
4HE #OURT HELD THAT THE DETENTION OF THE PETITIONER AT THE AIRPORT WAS A VIOLATION
OF HER FUNDAMENTAL RIGHTS UNDER !RTICLE AND G OF THE #ONSTITUTION AND
THEREFORE ILLEGAL .OR CAN THE ACTION OF THE RESPONDENTS IN ISSUING AN ,/# AGAINST
THE PETITIONER BE CATEGORIZED AS A REASONABLE RESTRICTION IN TERMS OF !RTICLE
!CCORDINGLY THE #OURT QUASHED THE ,/# ISSUED AGAINST THE PETITIONER AND DIRECTED
THE RESPONDENT AUTHORITIES TO REMOVE THE ENDORSEMENT OFF LOAD MADE ON THE
PETITIONERS PASSPORT AND TO ALSO REMOVE HER NAME FROM THE DATA BASE MAINTAINED
BY THEM RELATING TO PERSONS WHO CANNOT LEAVE THE #OUNTRY
% $ )4/23 . /4%
!LTHOUGH THE QUESTIONS OF LAW ARISING IN THE PRESENT CASE DO NOT RELATE TO THE &2!
IT IS AN IMPORTANT DECISION UPHOLDING THE RIGHT OF CITIZENS TO BE CRITICAL OF THE
DEVELOPMENT PARADIGM OF THE GOVERNMENT OF THE DAY AND AFFIRMING THAT SUCH
RIGHT IS PART OF THE FUNDAMENTAL RIGHT TO LIFE AS ALSO THE RIGHT TO FREEDOM OF SPEECH
AND EXPRESSION
-ANEKA 'ANDHI VS 5NION OF )NDIA 3##
!+ 'OPALAN VS 3TATE OF -ADRAS /RS 3#2
4 / \
* 5 $ ' -% . 4
%VERY ONCE IN A WHILE CITIZENS GOING ABOUT THEIR USUAL AND ORDINARY BUSINESS GET ENTANGLED
WITH THE 3TATE APPARATUS SOMETIMES FOR GOOD REASON AND AT TIMES UNJUSTIABLY SO )N
SUCH A SITUATION AN AGGRIEVED CITIZENS REMEDY QUITE NATURALLY IS TO APPROACH THE COURTS
OF LAW FOR APPROPRIATE RELIEF 4HESE REMEDIES AT MOST TIMES ARE NANCIALLY DEBILITATING
AND NOT WITHIN THE MEANS OF EVERY AGGRIEVED PARTY
A 4HE INSTANT MATTER IS A CASE IN POINT 4HE PETITIONER HEREINAFTER REFERRED TO AS -S
0ILLAI CHOSE TO TRAVEL TO THE 5NITED +INGDOM IN THE EARLY HOURS OF THE MORNING OF
BY AN !IR )NDIA IGHT BEARING NO !)
3HE WAS HOWEVER STOPPED AT THE
IMMIGRATION FOR REASONS THAT ) SHALL SHORTLY ADVERT TO IN THE COURSE OF MY DISCUSSION
B 3UFCE IT TO STATE AT THIS STAGE THE CONCERNED IMMIGRATION OFCER PROCEEDED TO
ENDORSE -S 0ILLAIS PASSPORT WITH AN ANNOTATION OFF LOAD (AVING NOT BEEN SUPPLIED
WITH ANY REASONS AN INDIGNANT -S 0ILLAI SHOT OFF IN MY VIEW QUITE CORRECTLY AS WOULD
BE EVIDENT FROM FACTS DELINEATED HEREAFTER A LETTER OF EVEN DATE IE TO THE
3ECRETARY 'OVERNMENT OF )NDIA 'O) -INISTRY OF (OME !FFAIRS SEEKING TO KNOW THE
REASONS WHICH HAD IMPELLED THE AUTHORITIES CONCERNED TO DETAIN HER AT THE AIRPORT
4HOUGH THERE WAS NO OFCIAL RESPONSE TO HER COMMUNICATION DATED THE
MEDIA WAS RIFE WITH REPORTS THAT A ,OOK
/UT
#IRCULAR ,/# HAD BEEN ISSUED QUA HER
2ESULTANTLY -S 0ILLAI DISPATCHED YET ANOTHER LETTER DATED TO THE SAME OFCER
SEEKING TO KNOW INTER ALIA AS TO WHETHER WHAT WAS BEING BANDIED ABOUT IN THE PRESS
WAS FACTUALLY CORRECT
C -S 0ILLAIS COMMUNICATIONS RECEIVED NO RESPONSE
"EING AGGRIEVED -S 0ILLAI HAS MOVED THIS COURT UNDER !RTICLE OF THE #ONSTITUTION
4HE BROAD PLANK OF HER CHALLENGE IS PIVOTED ON THE ASSERTION THAT THESE ACTIONS OF THE
RESPONDENTS ARE VIOLATIVE OF HER FUNDAMENTAL RIGHTS !RTICLE A G AND HAVE
BEEN INVOKED BY -S 0ILLAI TO ASSAIL THE ACTIONS OF THE RESPONDENTS WHICH SHE CATEGORISES
IF ONE WERE TO SUM HER SUBMISSIONS AS EGREGIOUSLY ILLEGAL
-S 0ILLAIS CURRICULUM VITAE BROADLY READS AS FOLLOWS 3HE AVERS THAT SHE IS A CIVIL RIGHTS
ACTIVIST WHO WORKS IN PUBLIC SPACES (ER CORE AREA OF WORK RELATES TO ENVIRONMENTAL
ISSUES 3HE IS A LAWYER BY PROFESSION AND IS CURRENTLY EMPLOYED WITH 'REENPEACE )NDIA
3OCIETY AS A 0OLICY /FCER
)T APPEARS OF LATE SHE HAS BEEN WORKING IN -AHAN IN THE 3INGRAULI #OAL BELT IN THE 3TATE OF
-ADHYA 0RADESH !S AN ACTIVIST WORKING IN -AHAN IT APPEARS SHE HAS ASSOCIATED HERSELF
WITH THE LOCAL TRIBAL COMMUNITIES WHICH ACCORDING TO HER SEEK TO RESIST THE POSSIBILITY
OF A COAL MINE BEING OPERATED IN THE AREA 4HE OPPOSITION EVIDENTLY ALBEIT NONVIOLENT
APPEARS TO BE FOCUSSED AGAINST THE PROPONENT OF THE PROPOSAL A COMPANY BY THE NAME
OF -AHAN #OAL ,TD WHICH SEEKS TO OPEN A COAL MINE IN THE CONCERNED AREA
A -AHAN #OAL ,TD APPARENTLY IS A JOINT VENTURE COMPANY FORMED AND INCORPORATED
AT THE BEHEST OF TWO ENTITIES BY THE NAME OF (INDALCO AND %33!2 0OWER ,TD )T IS AVERRED
THAT %33!2 0OWER ,TD IS A WHOLLY OWNED SUBSIDIARY OF %33!2 %NERGY A COMPANY
INCORPORATED AND REGISTERED IN 5NITED +INGDOM IN SHORT 5+ )T IS CLAIMED THAT TILL VERY
RECENTLY %33!2 %NERGY WAS ALSO LISTED ON THE ,ONDON 3TOCK %XCHANGE
B )T IS ASSERTED THAT -AHAN IS HOME TO THE OLDEST AND LARGEST SURVIVING 3AL FOREST IN
!SIA 4HE ASSERTION MADE IN THE WRIT PETITION IS THAT OPENING OF A MINE IN -AHAN HAD
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
THE POTENTIALITY OF DISPLACING THE FOREST TRIBAL COMMUNITIES WHICH IN TURN COULD
IMPACT LIVES OF THOUSANDS OF PEOPLE WHO DEPEND ON FOREST PRODUCE 4HERE IS ALSO AN
ASSERTION THAT SUCH AN ACTIVITY COULD ALSO DEGRADE THE EXISTING WILD LIFE FOUND IN THE
AREA AND LEAD TO WATER AND AIR POLLUTION IN THE REGION
C )T IS TO TALK ON THESE ASPECTS WITH "RITISH 0ARLIAMENTARIANS THAT -S 0ILLAI WAS INVITED
BY 'REENPEACE 5+ !CCORDINGLY A REQUEST FOR VISA WAS SENT BY 'REENPEACE 5+ ON
ON BEHALF OF -S 0ILLAI )N ITS COMMUNICATION 'REENPEACE 5+ INDICATED THAT
ALL EXPENSES WOULD BE MET BY IT WHICH INCLUDED EXPENSES QUA TRAVEL INSURANCE AND
MEDICAL INSURANCE
D #ONSEQUENT THERETO -S 0ILLAI WAS ISSUED A VISA BY THE "RITISH (IGH #OMMISSION FOR
A PERIOD OF MONTHS
E "ASED ON THE ABOVE -S 0ILLAIS AIR TICKET WAS BOOKED WITH !IR )NDIA (ER SEAT WAS
CONRMED BY THE !IRLINE ON IGHT NO !) WHICH WAS TO Y OUT OF $ELHI ON 3UNDAY
AT AM
!S INDICATED AT THE VERY OUTSET -S 0ILLAI WAS DETAINED AT THE AIRPORT JUST BEFORE SHE
WAS TO BOARD HER IGHT 3HE WAS ACCOSTED BY -R 6+ /JHA AN )MMIGRATION /FCER
EMPLOYED WITH RESPONDENT NO IE "UREAU OF )MMIGRATION
)T IS AVERRED THAT -R /JHA AFTER CONSULTATIONS WITH THE OFCERS AT THE 3PECIAL !SSISTANCE
#OUNTER ASKED -S 0ILLAI TO ACCOMPANY HIM TO ANOTHER PLACE FOR FURTHER CONFABULATIONS
ALBEIT WITHIN THE AIRPORT COMPLEX )T IS AT THIS POINT IN TIME THAT -S 0ILLAI WAS INFORMED
THAT SHE COULD NOT TRAVEL OUT OF )NDIA 2ESULTANTLY HER BAGGAGE WAS RETRIEVED FROM THE
AIRCRAFT AND AN ENDORSEMENT TO THE EFFECT OFF LOAD WAS MADE ON HER PASSPORT
/N -S 0ILLAI SEEKING INFORMATION AS TO WHY SHE HAD BEEN DETAINED SHE WAS ASKED
TO SPEAK TO -R 6+ /JHAS SUPERIOR ONE -S 3USHMA 3HARMA )T IS AVERRED THAT -S
3USHMA 3HARMA RECEIVED A FAX FROM AN UNKNOWN SOURCE WHEREUPON SHE CONRMED
THAT -S 0ILLAI HAD BEEN DETAINED SINCE HER NAME STOOD INCLUDED IN THE DATA BASE
OF INDIVIDUALS WHO ARE NOT ALLOWED TO LEAVE THE COUNTRY !PPARENTLY NO FURTHER
INFORMATION WAS SUPPLIED TO -S 0ILLAI AS TO WHY AND HOW HER NAME GOT INCLUDED IN
THE SAID DATA BASE
"EING UNHAPPY WITH HER SITUATION -S 0ILLAI AS INDICATED ABOVE WROTE A LETTER ON
THAT VERY DATE IE TO THE 3ECRETARY -INISTRY OF (OME !FFAIRS WHEREIN SHE
RECOUNTED HER ORDEAL
4HE SAID COMMUNICATION WAS FOLLOWED BY A LETTER DATED WHEREBY SHE SOUGHT
CLARICATION FROM 3ECRETARY -INISTRY OF (OME !FFAIRS AS TO WHETHER AN ,/# HAD BEEN
ISSUED IN HER NAME 4HIS CLARICATION WAS SOUGHT AS MEDIA REPORTS WERE SUGGESTIVE OF
THE FACT THAT THIS WAS THE PRECISE REASON WHICH THE OFCIAL SOURCES HAD TROTTED OUT FOR
HER DETENTION AT THE AIRPORT
)N ADDITION -S 0ILLAI BY THIS VERY COMMUNICATION MOST EMPHATICALLY SOUGHT THE
DETAILS OF THE ,/# IF ANY ISSUED ALONG WITH INFORMATION AS TO THE AUTHORITY WHICH HAD
DIRECTED ITS ISSUANCE AND THE REASONS WHICH HAD LED TO ITS ISSUANCE -S 0ILLAI BRIEY
ALSO TOUCHED UPON THE FACT THAT SHE HAD NOT BEEN CONVICTED IN ANY CRIMINAL CASE AND ALL
THAT SHE PROPOSED TO DO WAS TO GIVE A SPEECH TO THE -EMBERS OF THE "RITISH 0ARLIAMENT
.ONE OF THE AFOREMENTIONED COMMUNICATIONS OF -S 0ILLAI RECEIVED A RESPONSE
2ESULTANTLY THE CAPTIONED PETITION CAME TO BE MOVED ON WHEN NOTICE
4 / \
WAS ISSUED IN THE MATTER 3INCE RESPONDENTS HAD RECEIVED ADVANCE NOTICE THEY WERE
REPRESENTED BY COUNSELS 2ESPONDENTS COUNSELS ACCEPTED NOTICE AND WERE ACCORDINGLY
GIVEN A WEEKS TIME TO LE A COUNTER AFDAVIT 4HE RETURNABLE DATE XED IN THE MATTER
WAS $ESPITE OPPORTUNITY NO COUNTER AFDAVIT WAS LED
(OWEVER ON RESPONDENTS WERE REPRESENTED BY -R 3ANJAY *AIN LEARNED
!3' WHO REQUESTED FOR FURTHER TIME BEING GRANTED TILL TO ENABLE LING OF A
COUNTER AFDAVIT IN THE MATTER 4HE REQUEST WAS ACCEDED TO ,IBERTY WAS CONSEQUENTLY
GRANTED TO THE PETITIONER TO LE A REJOINDER BEFORE THE NEXT DATE OF HEARING
3INCE THE COUNTER AFDAVIT WAS NOT LED WITHIN THE PRESCRIBED TIME COUNSELS FOR THE
PETITIONER PLEADED THAT THEY COULD ONLY BRING THE REJOINDER TO THE COURT #OUNSELS
WERE AGREED THOUGH THAT BOTH COUNTER AFDAVIT AND REJOINDER COULD BE TAKEN ON
RECORD !CCORDINGLY THE NEEDFUL WAS DONE 3UBMISSIONS IN THE MATTER WERE HEARD ON
AND 7RITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER WERE PLACED
ON RECORD ON 4HE RESPONDENTS AS REQUESTED WERE GIVEN TWO DAYS TO LE
WRITTEN SUBMISSIONS IN THE MATTER 4HIS DID NOT HAPPEN 5PON A REQUEST BEING MADE ON
MENTIONING WRITTEN SUBMISSIONS OF RESPONDENTS WERE TAKEN ON RECORD ON IN
THE PRESENCE OF COUNSELS FOR THE OPPOSITE SIDE
3 5 " -)3 3 ) /. /& #/5.3 % ,3
/N BEHALF OF -S 0ILLAI ARGUMENTS WERE ADVANCED BY -S )NDIRA *AISING LEARNED SENIOR
COUNSEL ASSISTED BY -S 6RINDA 'ROVER -S !MRITA #HAKRAVORTY -R "HAVOOK #HAUHAN
-S 3ONAKSHI -ALHAN AND -R 2ATNA !PPANENDRA !DVOCATES 2ESPONDENTS WERE
REPRESENTED BY -R 3ANJAY *AIN LEARNED !3' WHO WAS ASSISTED BY -R .EERAJ *AIN AND
-R !NIRUDH 3HUKLA !DVOCATES
-S *AISINGS SUBMISSIONS CAN BE BRIEY PARAPHRASED AS FOLLOWS
A 4HE ,/# ISSUED IN THE MATTER WHICH AS PER THE COUNTER AFDAVIT IS DATED
HAS BEEN ISSUED WITHOUT DUE AUTHORITY OF LAW 4HERE BEING NO RESTRICTION IMPOSED
UPON -S 0ILLAI TO TRAVEL OUTSIDE )NDIA BY ANY COURT SHE COULD NOT BE PREVENTED FROM
TRAVELLING OUTSIDE THE COUNTRY FOR THE STATED PURPOSE WHICH WAS TO MEET THE "RITISH
0ARLIAMENTARIANS WITH RESPECT TO WORK CARRIED OUT BY HER WITH TRIBAL COMMUNITIES
IN -AHAN
B 4HE DETENTION OF -S 0ILLAI ON HAD VIOLATED HER FUNDAMENTAL RIGHT TO
TRAVEL FREE SPEECH AND EXPRESSION AND TO PRACTICE HER PROFESSION AND OR OCCUPATION
#ONSEQUENTLY THE ACTION OF THE RESPONDENTS CONTRAVENED HER FUNDAMENTAL RIGHTS
UNDER !RTICLE A AND G OF THE #ONSTITUTION
C 4HE ONLY LEGAL RECOURSE OPEN TO THE RESPONDENTS WHEREBY IF AT ALL THEY COULD
HAVE LAWFULLY PREVENTED -S 0ILLAI FROM EXERCISING HER CONSTITUTIONAL RIGHT OF FREE
TRAVEL WAS TO EXERCISE POWERS CONFERRED UNDER THE PROVISIONS OF 4HE 0ASSPORTS !CT
IN SHORT THE 0ASSPORTS !CT
C I 4HIS POWER COULD IF AT ALL BE EXERCISED BY THE CONSTITUTED AUTHORITY OR THE
#ENTRAL 'OVERNMENT OR THE DESIGNATED OFCER PERHAPS ONLY IN TERMS OF AND IN
CONSONANCE WITH THE PROVISIONS OF 3ECTION OF THE 0ASSPORTS !CT
C II !PART FROM THE POWERS CONTAINED IN THE AFOREMENTIONED 3ECTION WHICH
INCLUDES THE POWER TO VARY IMPOUND OR REVOKE THE PASSPORT EMERGENT POWER
IS FOUND IN 3ECTION ! OF THE 0ASSPORTS !CT TO SUSPEND THE PASSPORT OR TRAVEL
DOCUMENTS WHICH ARE OTHERWISE LIKELY TO BE IMPOUNDED OR CAUSED TO BE IMPOUNDED
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
OR REVOKED UNDER THE PROVISIONS OF CLAUSE C OF SUB
SECTION OF 3ECTION PROVIDED
IT IS DEEMED NECESSARY IN PUBLIC INTEREST TO DO SO 3UCH A SUSPENSION SHALL RUN FOR
A PERIOD OF FOUR WEEKS 4HE SUSPENSION CAN THUS BE CARRIED OUT BY THE 0ASSPORT
!UTHORITY ONLY IF IT DEEMS IT NECESSARY TO DO SO IN THE INTEREST OF THE SOVEREIGNTY
AND INTEGRITY OF )NDIA SECURITY OF )NDIA FRIENDLY RELATIONS OF )NDIA WITH ANY FOREIGN
COUNTRY OR IN THE INTEREST OF THE GENERAL PUBLIC
C III %VEN IN SUCH SITUATIONS THE AFFECTED PARTY HAS TO BE GIVEN AN OPPORTUNITY OF
HEARING WITHIN A PERIOD NOT EXCEEDING EIGHT WEEKS RECKONED FROM THE DATE OF
PASSING OF SUCH AN ORDER )N OTHER WORDS FETTER IF ANY ON THE CONSTITUTIONAL RIGHT OF
A CITIZEN TO TRAVEL ABROAD CAN BE IMPOSED BY A DULY CONSTITUTED AUTHORITY AND THAT
TOO ONLY IN ACCORDANCE WITH THE AFOREMENTIONED PROVISIONS
D 4HE OSTENSIBLE BASIS ON WHICH ,/#S GENERALLY AND IN PARTICULAR IN THIS CASE HAVE
BEEN ISSUED BY THE RESPONDENTS IS SOURCED IN /- DATED IN SHORT
/- WHICH IN TURN IS SAID TO BE BASED ON THE DIRECTIONS ISSUED BY THIS #OURT IN
THE FOLLOWING JUDGMENTS 6IKRAM 3HARMA VS 5NION OF )NDIA ; $,4 = AND
3UMER 3INGH -ALKAN VS !SSISTANT $IRECTOR /RS ;)) $- =
D I ! PERUSAL OF THE SAID JUDGMENTS WOULD SHOW THAT WHILE THEY DISCUSS AS TO THE
APPROPRIATE AUTHORITY WHICH CAN ISSUE AN ,/# AND THE ENTITY WHICH CAN MAKE A
REQUEST FOR ISSUANCE OF AN ,/# THEY DO NOT ADDRESS THE QUESTION AS TO THE LEGAL BASIS
FOR ISSUANCE OF AN ,/# 4HE POWER TO ISSUE AN ,/# SHOULD BE ROOTED IN A SUBSTANTIVE
LAW SUCH AS THE PROVISIONS OF 3ECTION OF THE #ODE OF #RIMINAL 0ROCEDURE IN
SHORT THE #R 0# )N OTHER WORDS THE /- IS NOT BACKED BY AUTHORITY OF LAW 4HE
SAID /- WHICH IS IN THE NATURE OF AN EXECUTIVE INSTRUCTION IS NOT LAW WITHIN THE
MEANING OF !RTICLE A OF THE #ONSTITUTION
E 4HE RESPONDENTS BY THEIR OWN ADMISSION HAVE INVOKED THE PROVISIONS OF CLAUSE
J OF THE /- WHICH EMPOWERS THEM TO ISSUE AN ,/# ALBEIT IN EXCEPTIONAL
CASES WITHOUT COMPLETE OR EVEN IN CASES WHERE NO DETAILS ARE AVAILABLE ONLY
AGAINST PERSONS FALLING IN THE FOLLOWING CATEGORIES
COUNTER INTELLIGENCE SUSPECTS TERRORISTS ANTI
NATIONAL ELEMENTS ETC IN LARGER
PUBLIC INTEREST 4HEREFORE IN SUCH LIKE CASES THE SAFEGUARDS CONTAINED IN THE
/- CAN IN A SENSE BE SIDE
STEPPED PROVIDED THE PERSON AGAINST WHOM AN
,/# IS ISSUED FALLS IN THE CATEGORIES PRESCRIBED THEREIN
E I -S 0ILLAI HAS BEEN CATEGORIZED AS ONE INDULGING IN ANTI
NATIONAL ACTIVITIES 4HE
RECOURSE TO CLAUSE J OF THE /- IS AWED AS THE EXPRESSION ANTI
NATIONAL
HAS TO BE INTERPRETED IN THE CONTEXT OF THOSE EXPRESSIONS PRECEDING IT THAT IS IN
CONSONANCE WITH THE PRINCIPLE OF EJUSDEM GENERIS
E II %XPRESSION OF OPINION ON ECONOMIC ACTIVITIES OF THE 'OVERNMENT OR INVESTMENT
DECISIONS OF A PARTICULAR MULTINATIONAL CORPORATION QUA COAL MINES IN )NDIA TO
THE EXTENT IT IMPACTS TRIBAL COMMUNITIES OF THE AREA OR THE ENVIRONMENT CANNOT
BE CONSTRUED AS AN ANTI
NATIONAL ACTIVITY IF READ IN THE CONTEXT OF THE PRECEDING
EXPRESSIONS OBTAINING IN CLAUSE J 4HE LOGICAL COROLLARY OF WHICH IS THAT ANTI
NATIONAL ACTIVITIES CAN ONLY BE CONSTRUED AS THOSE ACTIVITIES WHICH IMPINGE UPON
SOVEREIGNTY OR INTEGRITY OF )NDIA 4HE TWO EXAMPLES GIVEN IN CLAUSE J OF THE
/- SUCH AS COUNTER INTELLIGENCE SUSPECTS AND TERRORISTS FALL IN THIS CATEGORY
3EE (UKAM #HAND 3HYAM ,AL VS 5NION OF )NDIA 3##
3EE "IJOE %MMANUEL AND /RS VS 3TATE OF +ERALA AND /RS 3##
4 / \
E III 4HIS ARGUMENT WAS HOWEVER ADVANCED DEHORS THE SUBMISSION THAT AN ,/# IS
AN ADMINISTRATIVE INSTRUCTION NOT BACKED BY AUTHORITY OF LAW AND THAT THE GROUNDS
SET OUT THEREIN WHEREBY RESTRICTIONS ON TRAVEL COULD PERHAPS BE IMPOSED HAD TO
ABIDE BY THE MANDATE OF !RTICLE OF THE #ONSTITUTION 3INCE THE EXPRESSION
ANTI NATIONAL OR NATIONAL INTEREST DOES NOT ND MENTION IN !RTICLE OF THE
#ONSTITUTION THE LAST CATEGORY IN CLAUSE J OF /- BEING ANTI NATIONAL
ELEMENTS ETC IN LARGER NATIONAL INTEREST DOES NOT QUALIFY AS A REASONABLE
RESTRICTION WITHIN THE MEANING OF !RTICLE OF THE #ONSTITUTION
F 4HE RESPONDENTS HAD FAILED TO SHOW AS TO HOW THE PURPOSE OF -S 0ILLAIS VISIT
WHICH INVOLVED SPEAKING WITH "RITISH 0ARLIAMENTARIANS QUA RIGHTS OF TRIBAL
COMMUNITIES IN -AHAN WOULD CONSTITUTE A THREAT TO THE SOVEREIGNTY AND INTEGRITY
OF )NDIA %SPOUSING A CAUSE OF PARTICULAR SECTION OF PEOPLE COULD NOT BE CONSIDERED AS
ANTI
NATIONAL OR CREATING DISAFFECTION AMONGST PEOPLE AT LARGE
G 4HE RIGHT TO TRAVEL ABROAD IS A FUNDAMENTAL RIGHT WHICH STANDS SUBSUMED IN THE
RIGHT TO LIFE AND PERSONAL LIBERTY GUARANTEED UNDER !RTICLE OF THE #ONSTITUTION .O
CITIZEN OF THE COUNTRY CAN BE DEPRIVED OF THIS RIGHT EXCEPT ACCORDING TO THE PROCEDURE
ESTABLISHED BY LAW
H -S 0ILLAI HAS A FUNDAMENTAL RIGHT TO EXPRESS HER OPINION ON CRUCIAL ECONOMIC
POLICIES OF THE 'OVERNMENT WHICH MAY DIFFER FROM THE DOMINANT OPINION AND WOULD
INCLUDE THE RIGHT TO PROPAGATE AN ALTERNATIVE OPINION 4HIS OPINION CAN BE EXPRESSED
AT SEMINARS BY PUBLISHING ARTICLES AND INCLUDING IN THE MANNER SOUGHT TO BE DONE
IN THE INSTANT CASE BY MEETING WITH PARLIAMENTARIANS OF FOREIGN COUNTRIES -S 0ILLAI
HAD PROPOSED TO TRAVEL TO THE 5+ TO HIGHLIGHT THE ROLE OF A "RITISH COMPANY IE %SSAR
%NERGY 3UCH A MEETING COULD BY NO STRETCH OF IMAGINATION HAVE HAD AN IMPACT ON
THE FRIENDLY RELATIONS BETWEEN )NDIA AND "RITAIN AS IT PERTAINED TO A CONTESTATION
BETWEEN A "RITISH #OMPANY AND THE LOCAL POPULATION SITUATE IN -AHAN NONE OF
WHICH IMPINGED UPON THE RELATIONSHIP BETWEEN "RITAIN AND )NDIA ! 3TATE CANNOT
IMPOSE TRAVEL RESTRICTIONS ON ITS CITIZENS WITHOUT DUE AUTHORITY OF LAW
I 4HE RESPONDENTS HAD FAILED TO PROVIDE ANY MATERIAL WHICH WOULD SUBSTANTIATE
THEIR CLAIM THAT -S 0ILLAIS ASSOCIATION WITH 'REENPEACE )NDIA 3OCIETY AS AN EMPLOYEE
POSED A THREAT TO )NDIAS SOVEREIGNTY AND INTEGRITY 4HE RESPONDENTS HAVE NOT
IMPOSED A BAN ON 'REENPEACE )NDIA 3OCIETY AND IS THUS NOT AN UNLAWFUL ASSOCIATION
WHOSE ACTIVITIES CAN BE PROHIBITED UNDER THE 5NLAWFUL !CTIVITIES 0REVENTION !CT
4HE 'REENPEACE )NDIA 3OCIETY IS AN ORGANISATION REGISTERED UNDER THE LAWS OF
)NDIA AND IS THUS FREE TO CARRY OUT ITS ACTIVITIES WITHIN THE PARAMETERS OF AN ENACTED
LAW 4HOUGH RESPONDENTS HAVE PUT 'REENPEACE )NTERNATIONAL ON ITS WATCH
LIST
NO MATERIAL WAS PLACED ON RECORD BY THE RESPONDENTS IN THAT RESPECT AS IS EVIDENT
FROM THE DECISION OF THIS COURT DATED RENDERED IN 70# TITLED
'REENPEACE )NDIA 3OCIETY VS 5NION OF )NDIA
J 2ESTRICTIONS ON CRITICISM OF 'OVERNMENT POLICIES OR PROGRAMMES WHETHER IN )NDIA
OR ABROAD CAN IF AT ALL APPLY TO 'OVERNMENT SERVANTS )N SUPPORT OF THIS SUBMISSION
3EE 3 2ANGARAJAN VS 0 *AGJIVAN 2AM 3##
3EE 3REE 2AMA 2AO VS 4ELUGU $ESAM A 0OLITICAL 0ARTY AND /RS !)2 !0
3EE -ANEKA 'ANDHI VS 5NION OF )NDIA 3##
3EE $R $# 3AXENA VS (ONBLE #HIEF *USTICE OF )NDIA 3## .ANDINI 3UNDER VS 3TATE OF #HHATTISGARH
3## AND -AHANADI #OALELDS VS -ATHIAS /RAM 3##
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
RELIANCE WAS PLACED ON 2ULE OF !LL )NDIA 3ERVICE #ONDUCT 2ULES AND THE
JUDGMENT OF THE 3UPREME #OURT IN THE CASE OF 6IJAY 3HANKAR 0ANDEY VS 5NION OF
)NDIA 3##
K 4HE FACT THAT -S 0ILLAIS AIR TICKET WAS BOUGHT BY 'REENPEACE 5+ WHICH IS AN
ENTITY SEPARATE AND DISTINCT FROM 'REENPEACE )NTERNATIONAL WOULD NOT CONSTITUTE A
VIOLATION OF THE PROVISIONS OF THE &OREIGN #ONTRIBUTION 2EGULATION !CT IN SHORT
THE ! 4HE EXPENSES INCURRED ON BEHALF OF -S 0ILLAI WOULD NOT CONSTITUTE FOREIGN
CONTRIBUTION WITHIN THE MEANING OF 3ECTION H OF THE ! )F AT ALL THE EXPENSES
TOWARDS AIR TICKETS WOULD COME WITHIN THE DENITION OF FOREIGN HOSPITALITY UNDER
THE PROVISIONS OF 3ECTION I OF THE ! )N CASE THE RESPONDENTS SEEK TO PROHIBIT
ACCEPTANCE OF FOREIGN HOSPITALITY BY -S 0ILLAI FROM 'REENPEACE 5+ THEY ARE
REQUIRED TO PASS AN ORDER UNDER 3ECTION E OF THE ! AND SEEK INFORMATION IN
TERMS THEREOF AND FOR THE GROUNDS STATED THEREIN )N THE PRESENT CASE NO SUCH ORDER
WAS ADMITTEDLY BEEN PASSED BY THE RESPONDENTS
L 4HE FUNDAMENTAL RIGHT TO FREE SPEECH CAN ONLY BE RESTRICTED BY A DULY ENACTED
LAW WHICH MUST PASS MUSTER OF THE TEST OF REASONABLE RESTRICTIONS AS CONTAINED IN
!RTICLE OF THE #ONSTITUTION
M 4HE OSTENSIBLE REASON GIVEN BY THE RESPONDENTS FOR PREVENTING -S 0ILLAI
FROM TRAVELLING OUTSIDE )NDIA AND THUS IN EFFECT ARTICULATING HER VIEWS TO "RITISH
0ARLIAMENTARIANS IS THAT IT WOULD CREATE NEGATIVE IMAGE OF )NDIA OVERSEAS WHICH
IN EFFECT WOULD WHITTLE DOWN &OREIGN $IRECT )NVESTMENT &$) IN )NDIA SO VERY MUCH
NEEDED IN MANUFACTURING AND INFRASTRUCTURE SECTORS AND IN ADDITION COULD ALSO
LEAD TO SANCTIONS .ONE OF THESE REASONS CAN BE CLASSIED AS ANTI
NATIONAL ACTIVITIES
N 4HE PETITIONER WHO BEARS TRUE FAITH AND ALLEGIANCE TO THE #ONSTITUTION OF )NDIA
AND SEEKS TO SECURE FOR ITS CITIZENS JUSTICE SOCIAL ECONOMIC AND POLITICAL CANNOT
BE CATEGORIZED AS ANTI
NATIONAL BECAUSE SHE SEEKS TO ASSIST TRIBAL COMMUNITIES TO
CLAIM THEIR RIGHTS UNDER THE &OREST 2IGHTS !CT IN SHORT THE &OREST 2IGHTS !CT
O 4HE RESTRICTIONS PUT ON -S 0ILLAI WHICH IN SUM AND SUBSTANCE AFFECT HER FREEDOM
OF EXPRESSION IS VIOLATIVE OF THE )NTERNATIONAL #OVENANT ON #IVIL AND 0OLITICAL 2IGHTS
IN SHORT THE )##02 TO WHICH )NDIA IS A PARTY 2ELIANCE IN THIS REGARD WAS PLACED ON
'ENERAL #OMMENT NO OF THE (UMAN 2IGHTS #OMMITTEE OF THE 5. IN RELATION TO
!RTICLE OF THE )##02 )T WAS ALSO STATED THAT SAID COVENANT STANDS SUBSUMED IN
THE -UNICIPAL ,AW OF THE COUNTRY VIA THE PROVISIONS OF 3ECTION OF THE 0ROTECTION OF
(UMAN 2IGHTS !CT
P 4HE MAINTENANCE OF A SECRET DATA BASE BY RESPONDENT NO IE THE )NTELLIGENCE
"UREAU AMOUNTS TO UNLAWFUL SURVEILLANCE AND IS THUS VIOLATIVE OF RIGHT TO PRIVACY
GUARANTEED UNDER !RTICLE OF THE #ONSTITUTION
Q 4HE STAND OF THE RESPONDENTS THAT -S 0ILLAI WOULD BE ALLOWED TO TRAVEL IF SHE WERE
TO FURNISH AN UNDERTAKING THAT SHE WILL NOT SPEAK ON THE SUBJECT MATTER REFERRED TO
ABOVE TO "RITISH 0ARLIAMENTARIANS AMOUNTS TO PREPUBLICATION CENSORSHIP AND IN
THAT SENSE IS AN UNCONSTITUTIONAL CONDITION ATTACHED TO HER OTHERWISE CONSTITUTIONAL
3EE 0RAVASI "HALAI 3ANGATHAN VS 5NION OF )NDIA 3##
3EE +HARAK 3INGH VS 3TATE OF 5TTAR 0RADESH 3#2 0EOPLES 5NION OF #IVIL ,IBERTIES VS 5NION OF
)NDIA AND !NR 3##
4 / \
RIGHT TO TRAVEL ABROAD WHICH IS GUARANTEED UNDER !RTICLE OF THE #ONSTITUTION
XVIII 4HE COUNTER AFDAVIT LED ON BEHALF OF THE RESPONDENTS IS NOT DECLARED AS
MANDATED BY LAW AS THE SOURCE OF INFORMATION BASED ON WHICH AVERMENTS HAD
BEEN MADE THEREIN ARE NOT DISCLOSED )T IS NOT UNDERSTOOD AS TO THE BASIS ON WHICH IT
IS ASSERTED BY THE DEPONENT THAT -S 0ILLAI WAS ACTING CONTRARY TO NATIONAL INTEREST
4HE AFDAVIT LED ON BEHALF OF THE RESPONDENTS THUS DESERVES TO BE IGNORED
/N THE OTHER HAND -R 3ANJAY *AIN LEARNED !3' DEFENDED THE STAND OF THE RESPONDENTS
AND MADE SUBMISSIONS IN LINE WITH THE STAND TAKEN IN THE COUNTER AFDAVIT -R *AINS
SUBMISSIONS THUS BROADLY ALLUDED TO THE FOLLOWING
A 4HE RESPONDENTS ACTION OF ISSUING ,/#S IN GENERAL AS ALSO IN THIS PARTICULAR
CASE IS BACKED BY THE NECESSARY AUTHORITY WHICH IS CONTAINED IN THE /- 4HE
SAID /- HAS ITS GENESIS IN THE -INISTRY OF (OME !FFAIRS 'OVERNMENT OF )NDIA
LETTER DATED FOLLOWED BY /- DATED 4HE /- IN THAT
SENSE RENED THE GUIDELINES IN THE LIGHT OF DIRECTIONS ISSUED BY THIS COURT IN 6IKRAM
3HARMAS CASE AND THOSE ISSUED BY THE $IVISION BENCH OF THIS COURT IN 3UMER 3INGH
-ALKANS CASE 4HE CONTENTION ADVANCED ON BEHALF OF THE PETITIONER IS THEREFORE
WITHOUT BASIS
B )N SO FAR AS -S 0ILLAI WAS CONCERNED SHE WAS ALREADY AN ,/# SUBJECT AND
ACCORDINGLY AN ,/# DATED HAD BEEN ISSUED QUA HER ON AN EARLIER OCCASION
!S REGARDS THE RECENT INCIDENT WHEREBY SHE WAS DETAINED AT THE AIRPORT ON
A NUMBERED ,/# WAS OPENED BY THE !SSISTANT $IRECTOR OF )" ON 4HE
PURPOSE WITH WHICH THE SAID ,/# WAS ISSUED WAS TO PREVENT -S 0ILLAI FROM LEAVING
)NDIA SINCE SHE PROPOSED TO TESTIFY BEFORE THE !LL 0ARTY 0ARLIAMENTARY 'ROUP !00'
ON 4RIBAL 0EOPLE COMPRISING OF "RITISH 0ARLIAMENTARIANS WHICH WITHOUT DOUBT
WOULD HAVE NEGATIVELY PROJECTED THE IMAGE OF THE 'OVERNMENT OF )NDIA
C 4HE INVESTIGATING AGENCIES HAVE FROM TIME TO TIME ISSUED ,/#S EITHER AGAINST
PERSONS WHO ARE INVOLVED IN CRIME OR AGAINST THOSE WHOSE ACTIVITIES ARE FOUND TO
BE PREJUDICIAL IN NATIONAL INTEREST 4HOUGH -S 0ILLAI HAS BEEN PERMITTED TO TRAVEL
OUT OF )NDIA ON AT LEAST EIGHT OCCASIONS BETWEEN *ANUARY AND *UNE THIS
TIME AROUND SHE WAS DETAINED AS THE PURPOSE OF HER VISIT WAS TO DEPOSE BEFORE A
FORMAL COMMITTEE OF THE "RITISH 0ARLIAMENT WITH A DENED MOTIVE OF IMPACTING
)NDIAS IMAGE ABROAD AT A TIME WHEN IT WAS LOOKING TO ATTRACT &$) IN INFRASTRUCTURE
AND MANUFACTURING SECTOR
D 'REENPEACE )NTERNATIONAL 5+ OFCE HAS TAKEN KEEN INTEREST IN FOMENTING GROUND
LEVEL PROTEST VIA 'REENPEACE )NDIA BECAUSE OF WHICH AT LEAST FOREIGN ACTIVISTS
WORKING FOR 'REENPEACE )NTERNATIONAL HAVE BEEN BLACKLISTED AS THEY WERE FOUND
TO HAVE ACTED IN VIOLATION OF 6ISA RULES IN VIEW OF THEIR INVOLVEMENT IN TRAINING
MOTIVATING AND ORGANIZING 'REENPEACE )NDIAS ACTIVISTS AT ELD LEVEL TO PROTEST
IN CLOSE PROXIMITY TO THERMAL PLANTS AND COAL MINE LOCATIONS 4HESE PROTESTS HAVE
MARRED )NDIAS ENERGY SECURITY INTEREST
E 4HE MAIN OBJECTIVE OF THE FOREIGN AND )NDIAN ACTIVISTS ASSOCIATED WITH 'REENPEACE
)NTERNATIONAL AND 'REENPEACE )NDIA IS TO STEP UP AGITATIONS IN COAL PRODUCING
REGIONS SUCH AS -AHAN IN 3INGRAULI DISTRICT IN THE 3TATE OF -ADHYA 0RADESH &OR THIS
3EE 3T 8AVIER %DUCATION 3OCIETY !HMEDABAD VS 3TATE OF 'UJARAT 3##
3EE !MAR 3INGH VS 5NION OF )NDIA AND /RS 3##
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
PURPOSE A FRONT IN THE FORM OF AN ENTITY BY THE NAME OF -AHAN 3ANGHARSH 3AMITI
-33 WAS CREATED WHICH IS FUNDED BY 'REENPEACE )NDIA AND THAT -S 0ILLAI HAS BEEN
POSTED THERE TO ORGANIZE THE VILLAGERS
F 'REENPEACE )NDIAS FUNDING WAS CURTAILED BY -INISTRY OF (OME !FFAIRS IN
BASED ON SPECIC INTELLIGENCE INPUTS 4HE INPUTS RECEIVED SHOW THAT 'REENPEACE )NDIA
PLANS TO TAKE
DOWN NEARLY -7 THERMAL PROJECTS 4HESE PROTESTS ARE FUNDED
THROUGH FOREIGN SOURCES )N THIS BEHALF SPECIC REFERENCE WAS MADE TO PARAGRAPH
OF THE COUNTER AFDAVIT WHICH SET OUT THE POSSIBLE LOCATIONS IN WHICH THERMAL PLANTS
ARE LIKELY TO COME UP 2EFERENCE WAS ALSO MADE TO PROTESTS ORGANIZED AT TWO NUCLEAR
SITES LOCATED AT +UNDAKULAM IN 4AMIL .ADU AND &ATEHBAD IN (ARYANA 4HERE IS ALSO
A GENERIC REFERENCE QUA PROTESTS ORGANIZED IN RESPECT OF GENETICALLY MODIED FOOD
TRIALS AND WITH REGARD TO )NDIAS TEA EXPORT INDUSTRY
G 4HE FUNDING PATTERN OF 'REENPEACE )NTERNATIONAL IS OPAQUE AS IT CLAIMS THAT
IT COLLECTED DONATION IN SMALL AMOUNTS FROM PERSONS OF DIFFERENT NATIONALITIES
LOCATED ALL OVER THE WORLD )T IS BECAUSE OF THIS REASON AND ITS ACTIVITIES THAT IT HAS
BEEN PLACED IN THE PROSCRIBED LIST OF DONORS UNDER 3ECTION OF THE ! IN OTHER
WORDS IN RESPECT OF EACH FOREIGN DONATION 'REENPEACE )NTERNATIONAL WOULD HAVE
TO SEEK PERMISSION OF -(! )T IS THUS PLACED IN A CATEGORY WHICH IS KNOWN AS 0RIOR
2EFERENCE #ATEGORY
G I 4HE )NDIAN ARM OF 'REENPEACE )NTERNATIONAL IE 'REENPEACE )NDIA AND
'REENPEACE %NVIRONMENT 4RUST HAVING VIOLATED )NDIAN INCOME TAX LAWS HAVE BEEN
ISSUED NOTICES BY THE AUTHORITIES UNDER THE )NCOME 4AX !CT WHICH INVOLVE AMOUNTS
EQUIVALENT TO 2S CRORES
H 3INCE 'REENPEACE )NDIAS FUNDING HAD BEEN CURTAILED AND PRIOR CLEARANCE IS
REQUIRED FOR DONATIONS RECEIVED BY 'REENPEACE )NTERNATIONAL 'REENPEACE 5+ HAS
BEEN USED TO ENGINEER PROTESTS IN -AHAN !S A PART OF THIS PLAN IN THE RST INSTANCE
STEPS WERE TAKEN TO GARNER FUNDS AND ORGANIZE VISITS OF -S 0ILLAI AND ONE -R !KSHAY
'UPTA ALONG WITH VE ACTIVISTS OF -33 TO MEET
UP WITH "RITISH 0ARLIAMENTARIANS
"ECAUSE OTHERS WERE NOT ABLE TO OBTAIN VISAS IN TIME -S 0ILLAI ATTEMPTED TO EMBARK
ALONE ON A TRIP TO 5+ "ASED ON SPECIC INTELLIGENCE INPUT AS TO THE PURPOSE OF HER
VISIT SHE WAS DETAINED AT THE AIRPORT
I !00' IS HEADED BY ONE -R -ARTIN (ORWOOD AND COCHAIRED BY A PERSON OF )NDIAN
ORIGIN BY THE NAME OF 6IRENDRA 3HARMA WHO IS THE CHAIR OF !00' ON )NDO "RITISH
RELATIONS "OTH PERSONS ARE THE MEMBERS OF THE "RITISH 0ARLIAMENT -R -ARTIN
(ORWOOD IS A LIBERAL DEMOCRAT WHEREAS -R 6IRENDRA 3HARMA IS FROM THE ,ABOUR
0ARTY !S WOULD BE EVIDENT !00' IS A FORMAL COMMITTEE OF A FOREIGN 0ARLIAMENT
4HE DECISION OF -S 0ILLAI TO DEPOSE BEFORE SUCH A COMMITTEE WITH RESPECT TO THE
CONCERNS OF TRIBAL COMMUNITIES IN -AHAN WOULD ONLY DAMAGE THE COUNTRYS IMAGE
AND CONSEQUENTLY HAMPER ITS ECONOMIC INTEREST 5NLIKE OTHER PROMINENT CIVIL RIGHTS
ACTIVISTS -S 0ILLAI HAS TAKEN A DECISION TO VENT HER IRE ANDOR ARTICULATE HER VIEWS
AGAINST 3TATE POLICY BEFORE A #OMMITTEE COMPRISING OF "RITISH 0ARLIAMENTARIANS AN
ACT WHICH CAN ONLY BE CONSTRUED AS AN ANTI NATIONAL ACTIVITY
J )T HAS BEEN A CORE FOREIGN POLICY OBJECTIVE OF COUNTRIES SUCH AS THE 53! 5+
AND OTHER %UROPEAN COUNTRIES TO ISSUE ANNUAL REPORTS OF THEIR ASSESSMENTS OF
SPECIC HUMAN RIGHTS VIOLATION IN OTHER COUNTRIES )N PREPARATION OF THESE REPORTS
THE TESTIMONIES OF GLOBAL .'/S AND THINK
TANK EXPERTS ARE RECORDED INCLUDING
TESTIMONIES OF HUMAN RIGHTS ACTIVISTS ORIGINATING FROM THE COUNTRY CONCERNED
2EPORTS INCORPORATING SUCH TESTIMONIES ARE PREPARED ON RELIGIOUS FREEDOM AS WELL
4 / \
AS TRIBAL AND INDIGENOUS PEOPLE
K I 4HE 5NITED 3TATES HAS IN PLACE A STATUTE TITLED AS )NTERNATIONAL 2ELIGIOUS
&REEDOM !CT WHICH EMPOWERS ITS GOVERNMENT TO IMPOSE SANCTIONS AGAINST
A #OUNTRY OF 0ARTICULAR #ONCERNS #0# )NDIA HAS COME PERILOUSLY CLOSE TO BEING
DECLARED A #0# IN THE REPORTS GENERATED BY THE 53 #OMMISSION ON )NTERNATIONAL
2ELIGIOUS &REEDOM AND THE 53 3TATE $EPARTMENT OF !PRIL AND *ULY RESPECTIVELY
4HESE REPORTS HAVE IN FACT RATED )NDIA ONE NOTCH ABOVE THE #0# LEVEL
K II 3IMILARLY THE !00'S OF THE "RITISH 0ARLIAMENT HAVE DIRECTED THEIR FOCUS
ON TRIBAL PEOPLE SINCE !S A MATTER OF FACT THE 5+ !00' REPORT ON RELIGIOUS
FREEDOM ISSUED IN ALLEGES A VIOLATION OF RELIGIOUS FREEDOM IN )NDIA 3IMILARLY
THE %UROPEAN 0ARLIAMENTS 7ORKING 'ROUP 2EPORT ON 2ELIGIOUS &REEDOM OF &EBRUARY
PLACES )NDIA IN THE LOWEST CATEGORY AS A #0# ALONGSIDE 0AKISTAN 7ITHIN THE #0#
)NDIA HAS BEEN LABELLED AS A SERIOUS VIOLATOR OF RELIGION AND BELIEF 4HERE ARE INDICATIONS
THAT 5+ 0ARLIAMENTS !00' REPORT WILL USE -S 0ILLAIS TESTIMONY TO RATE )NDIA AT A
LOW LEVEL EXPOSING IT TO THE POTENTIALITY OF BEING GOVERNED BY A SANCTION REGIME
K III 3IMILARLY THE 53 0RESIDENT IS EMPOWERED UNDER THE LAW OBTAINING IN THAT
COUNTRY TO ISSUE TRADE ARMS AND INVESTMENT SANCTION AGAINST #0# COUNTRIES
K IV 4HESE REPORTS ON RELIGIOUS FREEDOM TRIBAL PEOPLE INDIGENOUS PEOPLE HUMAN
TRAFCKING AND DALIT RIGHTS GENERATED BY VARIOUS #OMMISSIONS AND #OUNTRIES FEED
ON EACH OTHER AND THEREBY CREATE A CIRCULAR DOCUMENTATION
K V )N %UROPEAN 0ARLIAMENT HAS ALREADY PASSED SIX RESOLUTIONS AGAINST
)NDIA ON DALIT RIGHTS AND ONE ON VIOLENCE AGAINST WOMEN 4HE CONTENT OF THESE
RESOLUTIONS IS SUGGESTIVE OF THE FACT THAT 'OVERNMENT OF )NDIA AND THE 0ARLIAMENT
OF )NDIA HAVE NOT BEEN ABLE TO PROTECT DALITS AND WOMEN AND THEREFORE A CALL IS
MADE TO %UROPEAN 5NION TO FACTOR IN THESE ASPECTS IN THEIR TRADE NEGOTIATION WITH
)NDIA AND )NDIAN COMPANIES 4HESE REPORTS ARE USED AS INSTRUMENTS OF FOREIGN POLICY
TO IMPEDE )NDIAS GROWTH PROSPECTS AT A TIME WHEN IT IS ACTIVELY PURSUING ECONOMIC
GROWTH AND DEVELOPMENT WHICH REQUIRES A MASSIVE OW OF &$)
K VI 4HAT THESE INSTRUMENTS HAVE BEEN USED EFFECTIVELY AGAINST COUNTRIES IS
APPARENT FROM SANCTIONS MADE AGAINST COUNTRIES SUCH AS )RAN 2USSIA AND .ORTH
+OREA
K VII /NE OF THE IMPORTANT ELEMENTS IN THE CREATION OF SUCH DOCUMENTATION
REPORT IS THE IN
PERSON TESTIMONY OF LOCAL ACTIVISTS WHICH ADDS TO THE CREDIBILITY OF
ITS CONTENT QUA THE REPORTS 4HE RESPONDENTS ARE HANDICAPPED IN AS MUCH AS WHILE
REPORTS GENERATED UNDER THE AEGIS OF 5NITED .ATION CAN BE CONTESTED SUCH LIKE
REPORTS CREATED BY FORMAL COMMITTEES OF COUNTRIES LIKE 53 5+ AND THE %UROPEAN
0ARLIAMENT CANNOT BE CONTESTED AS NO OPPORTUNITY IS PROVIDED TO THE 'OVERNMENT
OF )NDIA OR ITS %MBASSIES(IGH #OMMISSIONS TO RECORD THEIR OPINION IN THE MATTER
L 4HE TESTIMONY OF -S 0ILLAI BEFORE A FORMAL #OMMITTEE OF "RITISH 0ARLIAMENT
WOULD HAVE A CASCADING EFFECT GLOBALLY WHICH WOULD ONLY SERVE THE FOREIGN POLICY
INTEREST OF OTHER NATIONS
L I -S 0ILLAIS DEPOSITION WOULD THUS BE PREJUDICIAL TO NATIONAL INTEREST
4HEREFORE THE ,/# ISSUED QUA -S 0ILLAI IS DIRECTED NOT TO LIMIT ALL HER FREEDOMS BUT
WAS FOCUSSED ONLY ON THE PROPOSED ACTIVITY WHICH INVOLVED DEPOSITION BEFORE A
FOREIGN PARLIAMENT
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
L II )N OTHER WORDS IF -S 0ILLAI WERE TO GIVE AN UNDERTAKING THAT SHE WOULD NOT
DEPOSE BEFORE THE #OMMITTEE OF "RITISH 0ARLIAMENTARIANS THE ,/# ISSUED QUA HER
COULD BE LIFTED
2 % !3 /.3
(AVING HEARD THE LEARNED COUNSELS OF THE PARTIES WHAT HAS EMERGED FROM THE RECORD IS
AS FOLLOWS
A !N ,/# WAS ISSUED QUA -S 0ILLAI ON FOLLOWED BY A FRESH ,/# WHICH
GOT ISSUED ON 4HESE ,/#S HAVE NOT BEEN SERVED ON -S 0ILLAI !S A MATTER
OF FACT SHE HAD NO NOTICE OF AN ,/# HAVING BEING ISSUED VIS
g
VIS HER TILL SHE WAS
DETAINED AT THE AIRPORT ON AT A POINT IN TIME WHEN SHE INTENDED TO BOARD
!IR )NDIA IGHT !)
B 4HE RESULTANT EVENTS LED TO HER PASSPORT BEING ENDORSED WITH THE ANNOTATION
OFF
LOAD
C 4HE RESPONDENTS HAVE CLAIMED THAT THE ,/# IS A SECRET DOCUMENT AND HENCE
CANNOT BE HANDED OVER TO -S 0ILLAI OR FOR THAT MATTER TO ANY PERSON AGAINST WHOM
THE SAME HAS BEEN ISSUED (OWEVER IN ORDER TO TRIGGER ISSUANCE OF AN ,/# IT REQUIRES
A DULY AUTHORIZED ORIGINATOR TO SEND A REQUEST IN THE PROFORMA STIPULATED UNDER THE
/- TO THE "UREAU OF )MMIGRATION
D 4HE AFDAVIT LED ON BEHALF OF THE RESPONDENTS RECORDS THAT THE ORIGINATOR
OF THE ,/# WAS A *OINT $IRECTOR IN )" AND THAT A NUMBERED ,/# WAS OPENED BY
THE !SSISTANT $IRECTOR OF )" ON TO PREVENT HER -S 0ILLAI FROM LEAVING
)NDIA SINCE SHE WOULD PROJECT THE IMAGE OF )NDIAN 'OVERNMENT NEGATIVELY AT THE
INTERNATIONAL LEVEL
E -S 0ILLAIS COMMUNICATION OF AND ADDRESSED TO THE 3ECRETARY
-INISTRY OF (OME !FFAIRS DID NOT RECEIVE ANY RESPONSE
F 4HAT THE STATED REASON FOR ISSUING THE ,/# WAS THAT -S 0ILLAIS TESTIMONY
BEFORE A FORMAL #OMMITTEE OF "RITISH 0ARLIAMENT CARRIED WITH IT THE POSSIBILITY OF IT
BEING INCORPORATED IN THE REPORT OF THE !00' ON TRIBAL PEOPLE WHICH COULD IN TURN
COMPROMISE COUNTRYS ECONOMIC INTEREST AS IT MAY LEAD TO TRADE AND INVESTMENT
SANCTIONS
G 4HAT WHILE REPORTS GENERATED UNDER THE AEGIS OF THE 5NITED .ATIONS CAN BE
CONTESTED BY 'OVERNMENT OF )NDIA BY PUTTING ACROSS ITS POINT OF VIEW THE SAME
OPPORTUNITY IS NOT AVAILABLE TO IT VIS
g
VIS THE REPORTS GENERATED BY THE !00'S AND
#OMMISSIONS OF COUNTRIES SUCH AS 53 5+ AND OTHER %UROPEAN COUNTRIES
H -S 0ILLAI THOUGH HAS DENIED IN THE PLEADINGS THAT SHE INTENDED TO DEPOSE BEFORE
THE "RITISH 0ARLIAMENT )T IS HER STAND THAT ALL THAT SHE INTENDED TO DO WAS TO MEET
UP
WITH "RITISH 0ARLIAMENTARIANS TO EXERT NECESSARY MORAL PRESSURE ON A "RITISH ENTITY
IE %SSAR ENERGY WHICH ACCORDING TO HER HAD A SAY IN THE WORKING OF A JOINT VENTURE
COMPANY BY THE NAME OF -AHAN #OAL ,IMITED AN ENTITY THAT PROPOSED TO OPEN UP A
MINE IN -AHAN TO THE DETRIMENT OF THE TRIBAL COMMUNITIES LOCATED THEREIN
I A -AHAN #OAL ,IMITED IS A JOINT VENTURE COMPANY FORMED AND INCORPORATED
WITH THE AID AND ASSISTANCE OF (INDALCO AND %SSAR 0OWER ,TD %SSAR 0OWER ,TD IS A
WHOLLY OWNED SUBSIDIARY OF %SSAR %NERGY WHICH AS INDICATED ABOVE IS A COMPANY
INCORPORATED AND REGISTERED IN 5+
4 / \
)N VIEW OF THE AFORESAID FACTS THE FOLLOWING ISSUES ARISE FOR CONSIDERATION
A 7HETHER THE RIGHT TO TRAVEL ABROAD IS A FUNDAMENTAL RIGHT PROTECTED BY !RTICLE
OF THE #ONSTITUTION !ND IF SO COULD THE VIOLATION OF THAT RIGHT IMPACT THE FREEDOM OF
SPEECH AND EXPRESSION OF A CITIZEN PROTECTED UNDER !RTICLE A OF THE #ONSTITUTION
B 7HETHER THE /- WOULD CONSTITUTE A LAW WITHIN THE MEANING OF !RTICLE
A OF THE #ONSTITUTION
C 7HETHER THE ISSUANCE OF AN ,/# QUA -S 0ILLAI WAS JUSTIED IN THE GIVEN FACTS AND
CIRCUMSTANCES
D 7HETHER THE CONSEQUENT DETENTION OF -S 0ILLAI ON AT THE AIRPORT
RESULTED IN VIOLATION OF HER FUNDAMENTAL RIGHT UNDER !RTICLE AND A OF THE
#ONSTITUTION
) 3 3 5 % ./ )
)N SO FAR AS THE RST ISSUE IS CONCERNED THE ANSWER TO THE SAME IS FAIRLY SIMPLE IN
VIEW OF THE LAW LAID DOWN BY THE 3UPREME #OURT BOTH PRE AND POST THE ENACTMENT
OF THE 0ASSPORTS !CT IE THE !CT 4HE 3UPREME #OURT IN THE CASE OF 3ATWANT 3INGH
3AWHNEY VS $ 2AMARATHNAM !SSTT 0ASSPORT /FCER 'OVERNMENT OF )NDIA .EW $ELHI
/RS 3#2 DEALT WITH A MATTER WHERE THE PETITIONER BEFORE IT ASSAILED THE
DECISIONS OF THE !SSISTANT 0ASSPORT /FCER .EW $ELHI AND THE 2EGIONAL 0ASSPORT /FCE
AT "OMBAY WHEREBY HE HAD BEEN ASKED TO SURRENDER PASSPORTS ISSUED BY THE SAID
AUTHORITIES 4HE CHALLENGE WAS LAID BY THE PETITIONER BY WAY OF A PETITION UNDER !RTICLE
OF THE #ONSTITUTION 4HE MAJORITY JUDGEMENT OF THE 3UPREME #OURT DEALT WITH THE
CASE PURELY ON THE HIGH PLAIN OF FUNDAMENTAL RIGHTS AND THEIR BREACH AS DESCRIBED
SO FELICITOUSLY IN THE DISSENTING JUDGEMENT OF (ONBLE -R *USTICE (IDAYATULLAH 4HE
MAJORITY JUDGEMENT QUITE STRIKINGLY DID NOT ALLOW FACTS BAD AS THEY WERE TO MUDDY
THE DISCERNMENT OF THE WIDTH AND THE AMPLITUDE OF THE RIGHTS OF THE PETITIONER UNDER
!RTICLE OF THE #ONSTITUTION )N THEIR DISCUSSION THE LEARNED *UDGES WHILE CITING WITH
APPROVAL THEIR EARLIER DECISION IN +HARAK 3INGH VS 3TATE OF 50 3#2 MADE
THE FOLLOWING VITAL OBSERVATIONS
4HIS DECISION IS A CLEAR AUTHORITY FOR THE POSITION THAT LIBERTY IN OUR #ONSTITUTION
BEARS THE SAME COMPREHENSIVE MEANING AS GIVEN TO THE EXPRESSION LIBERTY BY THE
TH AND TH !MENDMENTS TO THE 53 #ONSTITUTION AND THE EXPRESSION PERSONAL
LIBERTY IN !RT ONLY EXCLUDES THE INGREDIENTS OF LIBERTY ENSHRINED IN !RT OF
THE #ONSTITUTION )N OTHER WORDS THE EXPRESSION PERSONAL LIBERTY IN !RT TAKES IN
THE RIGHT OF LOCOMOTION AND TO TRAVEL ABROAD BUT THE RIGHT TO MOVE THROUGHOUT THE
TERRITORIES OF )NDIA IS NOT COVERED BY IT INASMUCH AS IT IS SPECIALLY PROVIDED IN !RT
EMPHASIS IS MINE
4HEREAFTER UPON A BRIEF DISCUSSION QUA THE JUDGEMENTS OF VARIOUS (IGH #OURTS SUCH AS
+ERALA "OMBAY -YSORE AS IT THEN WAS AND $ELHI THE MAJORITY JUDGEMENT CONCLUDED
AS FOLLOWS
&OR THE REASONS MENTIONED ABOVE WE WOULD ACCEPT THE VIEW OF +ERALA "OMBAY
AND -YSORE (IGH #OURTS IN PREFERENCE TO THAT EXPRESSED BY THE $ELHI (IGH #OURT )T
FOLLOWS THAT UNDER !RT OF THE #ONSTITUTION NO PERSON CAN BE DEPRIVED OF HIS RIGHT
TO TRAVEL EXCEPT ACCORDING TO PROCEDURE ESTABLISHED BY LAW )T IS NOT DISPUTED THAT NO
LAW WAS MADE BY THE 3TATE REGULATING OR DEPRIVING PERSONS OF SUCH A RIGHT
EMPHASIS IS MINE
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4HE ISSUE CAME UP FOR CONSIDERATION ONCE AGAIN AS INDICATED ABOVE POST THE ENACTMENT
OF THE 0ASSPORTS !CT IE !CT BEFORE THE 3UPREME #OURT IN THE CASE OF -ANEKA
'ANDHI VS 5NION OF )NDIA !NR (ONBLE -R *USTICE "HAGWATI WRITING FOR HIMSELF
*USTICE 5NTWALIA AND *USTICE &AZAL !LI INTER ALIA OPINED THAT FUNDAMENTAL RIGHTS
CONFERRED BY 0ART ))) OF THE #ONSTITUTION WERE NOT DISTINCT OR MUTUALLY EXCLUSIVE %ACH
FREEDOM HAD DIFFERENT DIMENSIONS AND MERELY BECAUSE THE LIMIT OF INTERFERENCE WITH
ONE FREEDOM WAS SATISED THE LAW SO BROUGHT INTO PLAY WAS NOT FREED OF THE NECESSITY
TO MEET THE CHALLENGE OF ANOTHER GUARANTEED FREEDOM )N THIS REGARD THE COURT RELIED
UPON THE MINORITY VIEW IN THE CASE OF !+ 'OPALAN VS 3TATE OF -ADRAS 3#2
AND DISTINCTLY OBSERVED IN THIS BEHALF THAT THE MAJORITY VIEW IN THE SAID CASE STOOD
OVERRULED IN VIEW OF THE DECISION IN 2# #OOPER VS 5NION OF )NDIA 3#2
!S REGARDS ITS VIEW WITH REGARD TO THE DECISION RENDERED IN 3ATWANT 3INGH 3AWHNEY
CASE THE LEARNED JUDGES OPINED AS FOLLOWS
4HE EXPRESSION PERSONAL LIBERTY IN !RTICLE IS OF THE WIDEST AMPLITUDE AND
IT COVERS A VARIETY OF RIGHTS WHICH GO TO CONSTITUTE THE PERSONAL LIBERTY OF MAN
AND SOME OF THEM HAVE BEEN RAISED TO THE STATUS OF DISTINCT FUNDAMENTAL RIGHTS
AND GIVEN ADDITIONAL PROTECTION UNDER !RTICLE .OW IT HAS BEEN HELD BY THIS
#OURT IN 3ATWANT 3INGHS CASE THAT PERSONAL LIBERTY WITHIN THE MEANING OF !RTICLE
INCLUDES WITHIN ITS AMBIT THE RIGHT TO GO ABROAD AND CONSEQUENTLY NO PERSON
CAN BE DEPRIVED OF THIS RIGHT EXCEPT ACCORDING TO PROCEDURE PRESCRIBED BY LAW 0RIOR
TO THE ENACTMENT OF THE 0ASSPORTS !CT THERE WAS NO LAW REGULATING THE RIGHT OF
A PERSON TO GO ABROAD AND THAT WAS THE REASON WHY THE ORDER OF THE 0ASSPORT /FCER
REFUSING TO ISSUE PASSPORT TO THE PETITIONER IN 3ATWANT 3INGHS CASE WAS STRUCK
DOWN AS INVALID )T WILL BE SEEN AT ONCE FROM THE LANGUAGE OF !RTICLE THAT THE
PROTECTION IT SECURES IS A LIMITED ONE )T SAFEGUARDS THE RIGHT TO GO ABROAD AGAINST
EXECUTIVE INTERFERENCE WHICH IS NOT SUPPORTED BY LAW AND LAW HERE MEANS ENACTED
LAW OR 3TATE ,AW 6IDE !+ 'OPALANS CASE 4HUS NO PERSON CAN BE DEPRIVED
OF HIS RIGHT TO GO ABROAD UNLESS THERE IS A LAW MADE BY THE 3TATE PRESCRIBING THE
PROCEDURE FOR SO DEPRIVING HIM AND THE DEPRIVATION IS EFFECTED STRICTLY IN ACCORDANCE
WITH SUCH PROCEDURE )T WAS FOR THIS REASON IN ORDER TO COMPLY WITH THE REQUIREMENT
OF !RTICLE THAT 0ARLIAMENT ENACTED THE 0ASSPORTS !CT FOR REGULATING
THE RIGHT TO GO ABROAD )T IS CLEAR FROM THE PROVISIONS OF THE 0ASSPORTS !CT
THAT IS LAYS DOWN THE CIRCUMSTANCES UNDER WHICH A PASSPORT MAY BE ISSUED OR
REFUSED OR CANCELLED OR IMPOUNDED AND ALSO PRESCRIBES A PROCEDURE FOR DOING SO
BUT THE QUESTION IS WHETHER THAT IS SUFCIENT COMPLIANCE WITH !RTICLE )S THE
PRESCRIPTION OF SOME SORT OF PROCEDURE ENOUGH OR MUST THE PROCEDURE COMPLY
WITH ANY PARTICULAR REQUIREMENTS /BVIOUSLY PROCEDURE CANNOT BE ARBITRARY
UNFAIR OR UNREASONABLE 4HIS INDEED WAS CONCEDED BY THE LEARNED !TTORNEY 'ENERAL
WHO WITH HIS USUAL CANDOUR FRANKLY STATED THAT IT WAS NOT POSSIBLE FOR HIM TO CONTEND
THAT ANY PROCEDURE HOWSOEVER ARBITRARY OPPRESSIVE OR UNJUST MAY BE PRESCRIBED
BY THE LAW
EMPHASIS IS MINE
(AVING REGARD TO THE ABOVE IT IS QUITE CLEAR THAT IT CAN NO LONGER BE ARGUED THAT
THE RIGHT TO TRAVEL ABROAD IS NOT A FUNDAMENTAL RIGHT )T IS AS A MATTER OF FACT A SECOND
GENERATION RIGHT WHICH OWS FROM THE RIGHT TO LIFE AND PERSONAL LIBERTY CONFERRED
ON THE CITIZENS UNDER !RTICLE WHICH CAN BE TAKEN AWAY ONLY BY PROCEDURE
AS ESTABLISHED IN LAW 7HILE IT MAY BE TRUE THAT THE RIGHT TO GO ABROAD IS NOT
INCLUDED THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION
IN SOME CASES THE
CURTAILMENT OF RIGHT TO TRAVEL ABROAD COULD IMPACT A CITIZENS RIGHT OF FREE SPEECH AND
EXPRESSION ;SEE -ANEKA 'ANDHI CASE PARAGRAPH AT PAGE AND PARAGRAPH AT
PAGE =
4 / \
) 3 3 5 % ./ ) ) )) ) !.$ )6
)N ORDER TO ANSWER THESE ISSUES ) WOULD FOR A MOMENT ASSUME THAT THE ISSUANCE OF AN ,/#
IS ROOTED IN THE POWER OF THE EXECUTIVE TO TAKE ACTION DEHORS A STATUTORY ENACTMENT AS
LONG AS THE POWER ENACTED BY THE 3TATE IN THIS CASE THE 5NION OF )NDIA FALLS WITHIN ONE
OF THE LEGISLATIVE ENTRIES INCLUDED IN THE #ONSTITUTION PROVIDED IT DOES NOT CONTRAVENE
THE PROVISIONS OF THE #ONSTITUTION IN PARTICULAR 0ART ))) OF THE #ONSTITUTION OR TAKES
AWAY RIGHTS OF CITIZENS UNDER EXISTING LAW ;3EE -AGANBHAI VS 5O) 3## =
) MUST HOWEVER NOTE BEFORE ) PROCEED FURTHER THAT -S )NDIRA *AISING HAS ARGUED WITH
MUCH VEHEMENCE THAT THE RESPONDENTS STAND THAT THE POWER TO ISSUE AN ,/# CAN BE
TRACED TO THE /- OR THOSE WHICH PRECEDE THE SAID /- IS UNSUSTAINABLE AS IT
CANNOT BE DESCRIBED AS LAW WITHIN THE MEANING OF !RTICLE A OF THE #ONSTITUTION
4HIS SUBMISSION ) MUST CONFESS HAS MUCH MERIT IN VIEW OF THE DECISIONS OF THE
3UPREME #OURT BOTH IN -ANEKA 'ANDHI CASE AS WELL AS IN THE CASE OF !+ 'OPALAN "OTH
JUDGEMENTS TAKE THE VIEW THAT LAW REFERRED TO IN !RTICLE WOULD MEAN ENACTED
LAW
4HE REASON ) DO NOT WISH TO ELABORATE ON THIS ISSUE ANY FURTHER IS THAT WHILE THIS
SUBMISSION WAS ADVANCED BY -S )NDIRA *AISING BOTH DURING THE COURSE OF HEARING AS
WELL AS IN THE FORM OF WRITTEN SUBMISSION IN THE PETITION THERE IS NO RELIEF SOUGHT TO
STRIKE DOWN THE /- /NE OF THE REASONS PERHAPS FOR THIS WOULD BE THAT -S 0ILLAI
WAS NEVER FURNISHED A COPY OF THE ,/# 4HE FACTUM OF ISSUANCE OF AN ,/# GOT OFCIALLY
KNOWN TO HER ONLY WHEN SHE APPROACHED THIS COURT BY WAY OF THE INSTANT PETITION
.EVERTHELESS DURING THE COURSE OF THE PROCEEDINGS NO LEAVE WAS SOUGHT TO SEEK AN
AMENDMENT IN THE WRIT PETITION
"E THAT AS IT MAY AS INDICATED ABOVE WHILE -S *AISINGS POINT IS TAKEN THAT AN ,/# CAN
BE ISSUED IF AT ALL IN CIRCUMSTANCES DELINEATED IN 3ECTION H OF THE 0ASSPORTS !CT
THERE MAY ARISE CERTAIN SITUATIONS OUTSIDE THE SCOPE OF THE SAID !CT WHICH MAY REQUIRE
THE EXECUTIVE OF THE DAY TO TAKE RECOURSE TO AN ,/# UNDER CIRCUMSTANCES WHICH ARE NOT
COVERED BY A STATUTORY ENACTMENT !S ADVERTED ABOVE THE 3TATE IS NOT DENUDED OF ITS
EXECUTIVE POWERS ONLY BECAUSE THERE IS NO STATUTE TO BACK THE EXERCISE OF SUCH A POWER
4HE CAVEAT BEING IF A CHALLENGE IS LAID TO THE EXERCISE OF SUCH POWER ON THE ANVIL OF THE
#ONSTITUTION SAY UNDER !RTICLE AND THE 3TATE WOULD HAVE TO MAKE GOOD ITS CASE
THAT THE EXERCISE OF POWER WAS UNDER A VALID LAW AND IN DOING SO IT DID NOT VIOLATE
ANY CONSTITUTIONAL PROVISIONS !T THAT STAGE THE COURT MAY HAVE TO ENQUIRE AND RULE
WHETHER THE KIND OF IMPEDIMENT THAT ISSUANCE OF AN ,/# ENVISAGE REQUIRES ENACTMENT
OF LAW
!S AN ILLUSTRATION ) MAY ONLY ADVERT TO THE PROVISIONS OF 3ECTION OF THE #R0#
WHICH INTER ALIA EMPOWERS A POLICE OFCER TO ARREST A PERSON WITHOUT THE ORDER OF
A -AGISTRATE AND ARREST WARRANT UPON RECEIPT OF A REASONABLE COMPLAINT OR CREDIBLE
INFORMATION OR EVEN REASONABLE SUSPICION THAT HE HAS COMMITTED A COGNIZABLE OFFENCE
7HETHER AN ,/# ISSUED TO EFFECTUATE SUCH A PURPOSE WOULD REQUIRE A FURTHER SUPPORT
OF AN ENACTMENT WOULD REQUIRE CONSIDERATION AS IT COULD BE ARGUED THAT IT IS ONLY IN AID
OF THE POWER CONTAINED IN THE STATUTE IE THE #R0# ) WOULD THUS LEAVE THE DISCUSSION
ON THIS ISSUE TO A BETTER AND MORE EVOLVED WISDOM OF ANOTHER COURT
3UFCE IT TO STATE THAT IN THIS PARTICULAR CASE A DECISION ON THE AFORESAID ASPECT MAY NOT
BE NECESSARY IN VIEW OF THE CIRCUMSTANCES WHICH HAVE OBTAINED IN THE INSTANT MATTER
4HE STAND OF THE RESPONDENTS THAT THEY HAD PREVENTED -S 0ILLAI FROM LEAVING THE
COUNTRY AS SHE INTENDED TO TESTIFY BEFORE AN !00' OF "RITISH 0ARLIAMENTARIANS WHICH
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
IN TURN WOULD HAVE NEGATIVELY IMPACTED THE IMAGE OF )NDIA IN MY VIEW IS A STAND
WHICH IS COMPLETELY UNTENABLE
4HE REASONS FOR THE SAME ARE AS FOLLOWS &IRST AND FOREMOST -S 0ILLAI HAS CLEARLY
CONTESTED THIS ATTRIBUTION VIS
g
VIS HER WHICH IS THAT SHE INTENDED TO TESTIFY BEFORE A
FORMAL #OMMITTEE OF "RITISH 0ARLIAMENTARIANS )T IS HER STATED STAND THAT SHE INTENDED
TO MEET A 'ROUP OF "RITISH 0ARLIAMENTARIANS IN ,ONDON TO SPEAK ABOUT VIOLATIONS OF
ENVIRONMENTAL LAWS IN -AHAN #OAL BLOCK IN PARTICULAR WITH RESPECT TO THE PROVISIONS
OF THE %NVIRONMENT 0ROTECTION !CT THE &OREST 0ROTECTION !CT THE &OREST 2IGHTS !CT THE
7ILD ,IFE 0ROTECTION !CT WHICH AMONGST OTHER AREAS ARE OPERABLE IN THAT AREA AS WELL
4HIS CONVERSATION -S 0ILLAI SAYS SHE NEEDED TO HAVE WITH THE "RITISH 0ARLIAMENTARIANS
SO THAT THEY COULD CALL UPON %SSAR %NERGY A "RITISH COMPANY HAVING A MAJOR NANCIAL
STAKE IN -AHAN #OAL ,TD TO FALL IN LINE WITH THE LEGAL REGIME OF OUR COUNTRY
4HERE IS NOTHING ON RECORD TO SHOW THAT -S 0ILLAI INTENDED TO DO ANYTHING MORE
THAN THIS 4HE ARGUMENT OF THE RESPONDENTS THAT 'REENPEACE 5+ AND 'REENPEACE
)NTERNATIONAL WERE FOMENTING PROTESTS IN THE COUNTRY WITH RESPECT TO VARIOUS PUBLIC
PROJECTS ESPECIALLY IN THE ELD OF THERMAL AND NUCLEAR POWER GENERATION IS NOT BACKED
WITH ACTIONABLE MATERIAL 4HE RECORD WOULD SHOW THAT WHILE THE RESPONDENTS MAY
HAVE REGULATED THE INOW OF FUNDS TO 'REENPEACE )NTERNATIONAL BY HAVING IT PUT IN THE
PRIOR APPROVAL CATEGORY THERE IS NO SUCH DIRECTIVE ISSUED EITHER QUA 'REENPEACE 5+
OR 'REENPEACE )NDIA -S 0ILLAI IS ADMITTEDLY EMPLOYED WITH 'REENPEACE )NDIA
4HE ONLY VIOLATION WHICH IS BROUGHT TO FORE IN THE COUNTER AFDAVIT QUA 'REENPEACE
)NDIA IS ONE CONCERNING CERTAIN NOTICES ISSUED BY THE )NCOME 4AX !UTHORITIES WHICH
HAVE CLEARLY SOME REVENUE IMPLICATIONS (OWEVER THE ALLEGED VIOLATION OF TAX LAWS
WHICH ) AM INFORMED IS CONTESTED WOULD NOT IN MY OPINION BY ITSELF BE DEMONSTRATIVE
OF THE FACT THAT THE ACTIVITIES CARRIED OUT BY 'REENPEACE )NDIA VIA ITS EMPLOYEES AGENTS
AND SERVANTS IS INIMICAL TO THE ECONOMIC INTEREST OF THE COUNTRY 7HILE THERE IS NO
GAINSAYING THAT ECONOMIC SECURITY AS AGAINST PHYSICAL SECURITY OF A NATION IN TODAYS
TIME AND SPACE IS EQUALLY VITAL IF NOT MORE NOTHING WHICH IS PLACED BEFORE ME IN
THE FORM OF AFDAVIT OR IS FOUND IN THE RECORD WHICH WAS SHOWN TO ME IN COURT WOULD
HAVE ME PRESENTLY COME TO A CONCLUSION THAT THE ACTIVITIES OF -S 0ILLAI IN PARTICULAR OR
THOSE OF THE ORGANIZATIONS WITH WHICH SHE IS ASSOCIATED ARE ACTIVITIES WHICH HAVE THE
POTENTIALITY OF DEGRADING THE ECONOMIC INTEREST OF THE COUNTRY
4HE SENSE THAT ) GET UPON PERUSAL OF THE STAND TAKEN BY THE RESPONDENTS IN THEIR
PLEADINGS IS THAT THEY DO NOT APPROVE OF THE VIEW EXPRESSED BY CIVIL RIGHT ACTIVISTS IN
FORUMS OUTSIDE THE COUNTRY WHICH TEND TO PORTRAY ACCORDING TO THEM AN INACCURATE
PICTURE OF THE STATE OF HUMAN RIGHTS IN THE COUNTRY )N OTHER WORDS THE RESPONDENTS
ARE CONCERNED BY THE FACT THAT SUCH PORTRAYAL GENERATES AN ATMOSPHERE WHICH RETARDS
INVESTMENT OF FOREIGN FUNDS IN VITAL INFRA STRUCTURAL PROJECTS
7HETHER THIS CONCERN OF THE RESPONDENTS IS VALID OR NOT IN MY OPINION IS NOT THE ISSUE
4HE REASON FOR THE SAME IS THAT DEVELOPMENTAL ACTIVITIES NOT NOW BUT FOR AGES HAVE
ALWAYS HAD A COUNTER POINT 4HE ADVANCEMENT IN KNOWLEDGE BASE AND THE ABILITY OF
COMMON CITIZEN TO ACCESS INFORMATION VIS g VIS PUBLIC PROJECTS HAS ONLY MADE DISSENT
MORE STRIDENT AND VIGOROUS 7HETHER ONE MODEL OF DEVELOPMENT HAS TO BE ROLLED OUT
AS AGAINST THE OTHER IS AN ON GOING DEBATE 4HIS DEBATE IMPINGES UPON ALL KINDS OF
DEVELOPMENTAL PROJECTS WHICH INCLUDES PROJECT SUCH AS MINING SETTING UP OF NUCLEAR
PLANTS CONSTRUCTION OF ROADS THROUGH FORESTS ACQUISITION OF LAND FOR HOUSING PROJECTS
INDUSTRIES CONSTRUCTION OF HIGHWAYS ROADS DAMS AND BRIDGES ETC NONE OF WHICH HAVE
STOPPED IF THE EXECUTIVE OF THE DAY IS CONVINCED OF THEIR NEED AND NECESSITY
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4HE MERE FACT THAT SUCH DEBATES OBTAIN OR SUCH DEBATES METAMORPHOSE INTO PEACEFUL
PROTESTS CANNOT BE THE REASON FOR CURTAILING A CITIZENS FUNDAMENTAL RIGHTS )N THIS
CASE -S 0ILLAIS RIGHT TO TRAVEL ABROAD AND INTERACT WITH RELEVANT STAKE HOLDERS IE
THE "RITISH 0ARLIAMENTARIANS TO PERSUADE THEM TO HAVE ENTITIES INCORPORATED IN THEIR
COUNTRY TO FALL IN LINE WITH THE DEVELOPMENTAL ETHOS WHICH IS CLOSE TO HER IDEOLOGY
AND BELIEF CANNOT BE IMPEDED ONLY BECAUSE IT IS NOT IN SYNC WITH POLICY PERSPECTIVE OF
THE EXECUTIVE
-S 0ILLAI AS THE FACTS IN THIS CASE WOULD REVEAL BELIEVES THAT THE RIGHTS OF TRIBAL
COMMUNITIES RESIDING IN -AHAN WOULD GET IMPACTED IF A COAL MINE WERE TO BE OPENED
IN THAT AREA 4HIS IS A VIEW WHICH THE EXECUTIVE MAY OR MAY NOT AGREE WITH 4HAT BY
ITSELF CANNOT BE A REASON TO PREVENT -S 0ILLAI FROM EXERCISING HER FUNDAMENTAL RIGHT
TO TRAVEL ABROAD AND THEREBY IN EFFECT DISABLE HER FROM EXPRESSING HER VIEWS ON THE
SUBJECT )N TODAYS TIME AND SPACE BECAUSE OF ADVENT OF TECHNOLOGY AND ESPECIALLY THE
INTERNET THE UNIVERSE HAS BEEN REDUCED TO A GLOBAL
VILLAGE 7HAT OCCURS IN A REMOTE
PART OF ANY COUNTRY GETS IMMEDIATELY KNOWN THE WORLD OVER EITHER VIA TELEVISION OR
THROUGH SOCIAL MEDIA
4HEREFORE THE ARGUMENT OF THE RESPONDENTS THAT THEY WOULD NOT PERMIT -S 0ILLAI TO
TRAVEL OUT OF )NDIA FOR THE STATED PURPOSE BUT OTHERWISE WOULD PLACE NO IMPEDIMENT
IN HER TRAVEL IS CLEARLY AWED -S 0ILLAI NEED NOT TRAVEL ABROAD TO EXPRESS HER VIEW
POINT 3HE CAN TRANSMIT HER VIEWS VIA TECHNOLOGICAL DEVICES AVAILABLE TO HER WITHOUT
HAVING TO MOVE OUT OF THE COUNTRY
"UT THAT IS NOT THE POINT IN ISSUE 4HE POINT IN ISSUE IS WHY MUST THE 3TATE INTERFERE
WITH THE FREEDOM OF AN INDIVIDUAL AS LONG AS THE INDIVIDUAL CONCERNED OPERATES WITHIN
THE AMBIT OF LAWS FRAMED BY THE LEGISLATURE
4HE CORE ASPECT OF DEMOCRACY IS THE FREEDOM OF AN INDIVIDUAL TO BE ABLE TO FREELY OPERATE
WITHIN THE FRAMEWORK OF THE LAWS ENACTED BY THE 0ARLIAMENT 4HE INDIVIDUAL SHOULD BE
ABLE TO ORDER HIS OR HER LIFE ANY WAY HE OR SHE PLEASES AS LONG AS IT IS NOT VIOLATIVE OF THE
LAW OR CONSTITUTES AN INFRACTION OF ANY ORDER OR DIRECTION OF A DULY CONSTITUTED COURT
TRIBUNAL OR ANY STATUTORY AUTHORITY FOR THAT MATTER !MONGST THE VARIED FREEDOMS
CONFERRED ON AN INDIVIDUAL IE THE CITIZEN IS THE RIGHT OF FREE SPEECH AND EXPRESSION
WHICH NECESSARILY INCLUDES THE RIGHT TO CRITICISE AND DISSENT #RITICISM BY AN INDIVIDUAL
MAY NOT BE PALATABLE EVEN SO IT CANNOT BE MUZZLED -ANY CIVIL RIGHT ACTIVISTS BELIEVE
THAT THEY HAVE THE RIGHT AS CITIZENS TO BRING TO THE NOTICE OF THE 3TATE THE INCONGRUITY
IN THE DEVELOPMENTAL POLICIES OF THE 3TATE 4HE 3TATE MAY NOT ACCEPT THE VIEWS OF THE
CIVIL RIGHT ACTIVISTS BUT THAT BY ITSELF CANNOT BE A GOOD ENOUGH REASON TO DO AWAY WITH
DISSENT
4HE ARGUMENT ADVANCED BEFORE ME BY THE LEARNED !3' THAT REPORTS GENERATED BY !00'
WHICH INCLUDE INPUTS OF CIVIL RIGHT ACTIVISTS ) HAVE DELIBERATELY NOT USED THE WORD
TESTIMONY AS -S 0ILLAI HAS DENIED THAT SHE INTENDED TO DEPOSE BEFORE ANY #OMMITTEE
OF "RITISH 0ARLIAMENTARIANS CANNOT BE CONTRADICTED AS THE RESPONSE OF THE 3TATE IS NOT
SOUGHT BY THESE BODIES DOES NOT IMPRESS ME 4HE 3TATE HAS AT ITS COMMAND A POSSE
OF SOPHISTICATED FOREIGN SERVICE OFCERS WHO ARE SKILLED IN THE ART OF DIPLOMACY AND
FOREIGN AFFAIRS 4HEY ARE TRAINED TO DEAL WITH NEGATIVE CONNOTATIONS OR FALL OUT OF ANY
DISCUSSION THAT ANY INDIVIDUAL OR ENTITY MAY HAVE WITH ANOTHER 3TATE ACTOR
4HEREFORE THE LEARNED !3'S ATTEMPT TO DRAW A DISTINCTION BETWEEN THE REPORTS WHICH
ARE GENERATED UNDER THE AEGIS OF THE 5NITED .ATIONS AND THOSE WHICH ARE GENERATED
BY #OMMITTEES AND #OMMISSIONS OF COUNTRIES SUCH AS 53 5+ AND THE %UROPEAN
0ARLIAMENT IS REALLY A DISTINCTION WITHOUT A SUBSTANTIAL DIFFERENCE
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4HEREFORE HAVING REGARD TO THE AFORESAID DISCUSSION IN MY VIEW THERE WAS NO BASIS FOR
THE RESPONDENTS TO ISSUE AN ,/# QUA THE PETITIONER 4HAT BEING SO THE DECISION TAKEN
TO DETAIN THE PETITIONER AT THE AIRPORT ON IN MY OPINION WAS ILLEGAL BEING
VIOLATIVE OF THE -S 0ILLAIS RIGHT UNDER !RTICLE AND A OF THE #ONSTITUTION
4HE ACTIONS OF THE RESPONDENTS DO NOT FALL WITHIN THE AMBIT OF REASONABLE RESTRICTION
AS ARTICULATED IN #LAUSE OF !RTICLE #LAUSE OF !RTICLE PROTECTS A LAW WHICH
IMPOSES REASONABLE RESTRICTIONS ON THE EXERCISE OF RIGHTS CONFERRED UPON A CITIZEN
UNDER !RTICLE A IN THE INTEREST OF SOVEREIGNTY AND INTEGRITY OF )NDIA THE SECURITY
OF 3TATE FRIENDLY RELATIONS WITH FOREIGN 3TATES PUBLIC ORDER DECENCY MORALITY OR IN
RELATION TO CONTEMPT OF COURT DEFAMATION OR INCITEMENT TO AN OFFENCE !S INDICATED
ABOVE EVEN IF ) WERE TO ASSUME THAT /- HAS THE STATUS OF LAW QUA WHICH ) HAVE
A SERIOUS DOUBT THE ACTION OF THE RESPONDENTS IN ISSUING AN ,/# VIS
A
VIS -S 0ILLAI
CANNOT BE CATEGORIZED AS A REASONABLE RESTRICTION AS IT IS NOT A RESTRICTION WHICH FALLS IN
ANY OF THE LIMITATIONS ARTICULATED IN CLAUSE OF !RTICLE
)N ORDER TO UNDERSTAND THE SCOPE AND AMPLITUDE OF THE EXPRESSION REASONABLE
RESTRICTION IT WOULD BE RELEVANT TO BRIEY ADVERT TO THE CIRCUMSTANCES IN WHICH
THE AMENDMENTS WERE MADE IN CLAUSE OF !RTICLE OF THE #ONSTITUTION #LAUSE
OF !RTICLE AS FOUND IN ITS PRESENT FORM HAS ITS ROOTS IN THE ST RST AND THE TH
SIXTEENTH !MENDMENT TO THE #ONSTITUTION CARRIED OUT IN AND 0RIOR TO THESE
AMENDMENTS THE FREEDOM OF SPEECH AND EXPRESSION WAS SUBJECT TO ONLY THE FOLLOWING
QUALICATIONS IE THE GOVERNMENTS AUTHORITY TO LEGISLATE IN RESPECT OF ASPECTS
CONCERNING LIBEL SLANDER DEFAMATION CONTEMPT OF COURT OR ANY MATTER OFFENDING
DECENCY AND MORALITY OR THAT WHICH UNDERMINES THE SECURITY OR TENDS TO OVERTHROW
THE 3TATE
%VIDENTLY TAKING A CUE FROM THE ABOVE THE THREE 3TATE 'OVERNMENTS THAT IS THE
'OVERNMENT OF "IHAR %AST 0UNJAB AND -ADRAS AS THEY WERE THEN CONSTITUTED TOOK
RECOURSE TO THESE QUALICATIONS IN !RTICLE TO ENACT LAWS WHICH WERE CHALLENGED IN
COURT IN THREE SEPARATE CASES ON THE GROUND THAT THEY PUT A FETTER ON THE FREEDOM OF
SPEECH AND EXPRESSION GUARANTEED BY THE #ONSTITUTION
)N THE RST CASE THE "IHAR 'OVERNMENT EXERCISED ITS POWER UNDER THE 0RESS %MERGENCY
0OWERS !CT TO DEMAND NANCIAL SECURITY QUA A PAMPHLET ISSUED BY AN ENTITY BY
THE NAME OF "HARTI 0RESS WHICH CONTAINED ACCORDING TO THE 0ATNA (IGH #OURT A CLEAR
INVITATION TO THE READERS TO JOIN TOTAL AND DEADLY STRUGGLE TO BRING ABOUT REVOLUTION
BY VIOLENCE RESULTING IN COMPLETE ANNIHILATION OF THOSE WHOM THE AUTHOR OF THE
PAMPHLET CONSIDERED AS OPPRESSORS
4HE 0ATNA (IGH #OURT REJECTED THE "IHAR 'OVERNMENTS CONTENTION THAT THE PAMPHLET
INCITED VIOLENCE A DECISION WHICH WAS UNANIMOUSLY UPHELD BY THE 3UPREME #OURT IN
3TATE OF "IHAR VS 3HAILA "ALA $EVI 3#2
)N THE SECOND CASE THE 'OVERNMENT IN %AST 0UNJAB HAD IMPOSED PRE CENSORSHIP ON AN
%NGLISH LANGUAGE WEEKLY IN THE GUISE OF MAINTAINING PUBLIC SAFETY AND ORDER BY TAKING
RECOURSE TO THE PROVISIONS OF THE %AST 0UNJAB 0UBLIC 3AFETY !CT
7ORKING A $EMOCRATIC #ONSTITUTION 4HE )NDIAN %XPERIENCE 'RANVILLE !USTIN
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)N THE THIRD CASE THE -ADRAS 'OVERNMENT LIKEWISE HAD BANNED ENTRY INTO THE 3TATE
OF A JOURNAL ENTITLED #ROSSROADS WITH THE AID OF THE -ADRAS -AINTENANCE OF 0UBLIC
3AFETY !CT
4HE 3UPREME #OURT STRUCK DOWN THE PROVISIONS OF THE %AST 0UNJAB 0UBLIC 3AFETY
!CT AND THE -ADRAS -AINTENANCE OF 0UBLIC 3AFETY !CT VIDE TWO SEPARATE
JUDGEMENTS TITLED "RIJ "HUSHAN VS 3TATE OF $ELHI !)2 3# AND 2OMESH 4HAPPAR
VS 3TATE OF -ADRAS 3#2
"ECAUSE OF THE OBSERVATIONS MADE BY THE #OURT WHICH INCIDENTALLY WERE JUDGEMENTS
DELIVERED BY THE SAME "ENCH THE 0ARLIAMENT MOVED TO INTRODUCE THE EXPRESSION
REASONABLE RESTRICTION IN CLAUSE OF !RTICLE 4HE 0ARLIAMENT THUS CARRIED OUT THE
&IRST !MENDMENT WHICH PERMITTED THE 'OVERNMENT TO IMPOSE REASONABLE RESTRICTIONS
ON FREEDOM OF SPEECH AND EXPRESSION BOTH RETROACTIVELY AND PROSPECTIVELY
4HE TH !MENDMENT !CT WAS PASSED SIMILARLY IN THE BACKGROUND OF SERIES OF EVENTS
WHICH INCLUDED THE #HINESE INCURSION IN .ORTH EAST BEGINNING IN THE ASSERTION
OF A SEPARATE 3IKH 3TATE BY -ASTER 4ARA 3INGH IN MID AND THE CALL BY $-+ FOR AN
ENTITY SEPARATE FROM )NDIA WHICH WAS REFERRED TO AS $RAVIDANAD
7HAT IS OF RELEVANCE THOUGH IS THE INTERPRETATION THAT THE 3UPREME #OURT GAVE TO THE
EXPRESSION SECURITY OF THE 3TATE IN 2OMESH 4HAPPAR VS 3TATE OF -ADRAS )N THE SAID
CASE THE 3UPREME #OURT OBSERVED THAT THE EXPRESSION SECURITY OF THE 3TATE IS ONE
WHICH HAS REFERENCE TO THOSE AGGRAVATED FORMS OF PREJUDICIAL ACTIVITIES WHICH TEND TO
ENDANGER THE VERY EXISTENCE OF THE 3TATE 4HE -ADRAS MAINTENANCE OF 0UBLIC 3AFETY !CT
WHICH HAD AS ITS OBJECT PUBLIC SAFETY AND ORDER WAS DECLARED UNCONSTITUTIONAL AS
IT DID NOT FALL WITHIN THE SCOPE AND AMBIT OF THE EXPRESSION 3ECURITY OF THE 3TATE 4HIS
LED INTER ALIA TO THE INSERTION OF THE EXPRESSION PUBLIC ORDER IN CLAUSE OF !RTICLE
)N THE CONTEXT OF THE ABOVE LET ME EXAMINE THE SUBMISSIONS OF -R *AIN THE LEARNED !3'
WHICH IS PIVOTED ON THE RATIONALE ALBEIT AN ERRONEOUS ONE THAT -S 0ILLAIS INTERFACE
WITH "RITISH 0ARLIAMENTARIANS WILL IMPINGE UPON SECURITY INTEREST READ ECONOMIC
)NTEREST OF THE 3TATE AS IT HAS ANTI NATIONAL CONNOTATION 4HE POWER TO IMPOSE SUCH
A FETTER ON -S 0ILLAIS RIGHT TO TRAVEL ABROAD AND THE CONSEQUENT IMPEDIMENT ON HER
EXCHANGE OF VIEWS WITH "RITISH 0ARLIAMENTARIANS WAS TRACED BY -R *AIN TO CLAUSE J
OF THE /- #LAUSE J OF THE /- READS AS FOLLOWS
J )N EXCEPTIONAL CASES ,/#S CAN BE ISSUED WITHOUT COMPLETE PARAMETERS AND
OR CASE DETAILS AGAINST #) SUSPECTS TERRORISTS ANTI NATIONAL ELEMENTS ETC IN LARGER
NATIONAL INTEREST
)T WAS THEREFORE ASSERTED BEFORE ME THAT -S 0ILLAI COULD BE CATEGORIZED AS AN ANTI
NATIONAL ELEMENT IN THE LARGER NATIONAL INTEREST !CCORDING TO -R *AIN SINCE THE
INTENDED ACTIVITY OF -S 0ILLAI HAD THE POTENTIALITY OF DEGRADING THE IMAGE OF )NDIA IN
THE EYES OF FOREIGN NATIONS LEADING TO A REGRESSION IN THE COUNTRYS ECONOMIC ACTIVITIES
AND ENDEAVOURS HER JOURNEY OUT OF THE COUNTRY COULD LEGITIMATELY BE INTERDICTED TO
PREVENT HER FROM ESPOUSING VIEWS WHICH WERE AGAINST NATIONAL INTEREST OR IN OTHER
WORDS VIEWS WHICH IMPINGED UPON THE SECURITY OF THE 3TATE 4HE SUBMISSION THEREFORE
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WAS THAT SINCE THE RESPONDENTS CONSIDERED -S 0ILLAIS INTENDED CONVERSATION SPEECH
WITH THE "RITISH 0ARLIAMENTARIANS AGAINST THE NATIONAL INTEREST IT NECESSARILY WAS
GROUNDED IN LARGER PUBLIC INTEREST
4HE DIFCULTY IN ACCEPTING THIS ARGUMENT IS THREE
FOLD &IRST REASONABLE RESTRICTIONS
SPOKEN OF IN CLAUSE OF !RTICLE DO NOT ADVERT TO ANTI
NATIONAL ACTIVITIES 0ERTINENTLY
THE WORD ANTI
NATIONAL DOES NOT ND A PLACE IN MOST DICTIONARIES IT IS IN EFFECT
A COMBINATION OF TWO WORDS )F ONE WERE TO DECONSTRUCT THE MEANING OF THE WORD
ANTI
NATIONAL ONE WOULD PERHAPS HAVE TO LOOK TO THE MEANING OF THE WORD .ATIONALISM
4HE NEAREST EQUIVALENT TO THE WORD .ATIONALISM WOULD BE PATRIOTISM 0ATRIOTISM AS
A CONCEPT WOULD BE LINKED TO NATIONHOOD .ATIONHOOD HAS SEVERAL ATTRIBUTES WHICH
ARE INTER ALIA INEXTRICABLY CONNECTED WITH SYMBOLS SUCH AS THE .ATIONAL &LAG THE
.ATIONAL !NTHEM THE .ATIONAL 3ONG AND PERHAPS THE COMMON HISTORY CULTURE
TRADITION AND HERITAGE THAT PEOPLE OF AN ORGANIZED 3TATE SHARE AMONGST THEMSELVES
)N RESPECT OF EACH OF THESE ATTRIBUTES OF NATIONHOOD THERE MAY BE DISPARATE VIEWS
AMONGST PERSONS WHO FORM THE NATION 4HE DIVERSITY OF VIEWS MAY RELATE TO NOT ONLY
THE STATIC SYMBOLS SUCH AS THE .ATIONAL &LAG AND .ATIONAL ANTHEM ETC BUT MAY ALSO
PERTAIN TO THE TRADITION AND HERITAGE OF THE .ATION AND THE MANNER IN WHICH THEY ARE
TO BE TAKEN FORWARD #ONTRARIAN VIEWS HELD BY A SECTION OF PEOPLE ON THESE ASPECTS
CANNOT BE USED TO DESCRIBE SUCH SECTION OR CLASS OF PEOPLE AS ANTI
NATIONAL "ELLIGERENCE
OF VIEWS ON NATIONALISM CAN OFTEN LEAD TO JINGOISM 4HERE IS A NE BUT DISTINCT LINE
DIVIDING THE TWO %ITHER WAY VIEWS HELD BY ANY SECTION OR CLASS OF PEOPLE BY ITSELF
CANNOT BE CHARACTERIZED AS ANTI
NATIONAL ACTIVITIES
&OR ANTI NATIONAL ACTIVITIES TO BE BROUGHT WITHIN THE LIMITATION OF CLAUSE OF !RTICLE
IT WOULD HAVE TO HAVE A CLOSE NEXUS WITH THE SECURITY OF THE 3TATE 3ECURITY OF THE 3TATE
AS INDICATED IN 2OMESH 4HAPPARS CASE CAN ONLY BE AN AGGRAVATED FORM OF PREJUDICIAL
ACTIVITIES WHICH ENDANGERS THE VERY EXISTENCE OF THE 3TATE OR IN THE VERY LEAST ) WOULD
THINK THREATENS THE LIFE AND LIMB OF ITS CITIZENS 4HEREFORE IF THE EXPRESSION ANTI
NATIONAL ELEMENTS FOUND IN CLAUSE J OF THE /- IS TO BE BROUGHT WITHIN THE
FOUR CORNERS OF CLAUSE OF !RTICLE ITS MEANING WILL HAVE TO BE CONNED TO ACTIVITIES
OF PERSONS WHO FALL IN THE CATEGORY OF COUNTER INTELLIGENCE SUSPECTS AND OR TERRORISTS
4HE ENDEAVOUR OF -S 0ILLAI TO ENGAGE WITH "RITISH 0ARLIAMENTARIANS ON THE ISSUES
RELATING TO DEVELOPMENTAL ACTIVITIES IN THE -AHAN COAL BLOCK AREA CANNOT BE CONSTRUED
AS AN ANTI NATIONAL ACTIVITY OF THE KIND ENVISAGED UNDER CLAUSE J OF THE /-
4HEREFORE THE ACTION OF THE RESPONDENTS IN ISSUING AN ,/# QUA -S 0ILLAI WITH THE OBJECT
OF PREVENTING HER FROM PROPAGATING AND DISSEMINATING HER VIEWS ON DEVELOPMENTAL
ACTIVITIES IN THE -AHAN COAL BLOCK AREA CANNOT BE CONSTRUED AS A REASONABLE RESTRICTION
WHICH WOULD PASS MUSTER OF THE PROVISIONS OF CLAUSE OF !RTICLE OF THE #ONSTITUTION
4HAT THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION INCLUDES THE RIGHT TO PROPAGATE
ONES VIEWS WHICH CANNOT BE STIED OR IMPEDED EXCEPT ON GROUNDS ALLUDED TO IN CLAUSE
OF !RTICLE IS A CONSTITUTIONAL PRINCIPLE RECOGNIZED BY OUR COURTS IN A LONG LINE OF
JUDGEMENTS )T IS A RIGHT SO WELL ENTRENCHED IN OUR #ONSTITUTION THAT IT CANNOT BE
DISLODGED AT THIS POINT IN TIME OF OUR NATIONS HISTORY
3ECOND EVEN IF ) WERE TO ACCEPT THAT RESPONDENTS COULD HAVE ISSUED AN ,/# FOR THE STATED
PURPOSE BY SOURCING ITS POWER UNDER CLAUSE J OF /- THE EXERCISE OF THE POWER
IN -S 0ILLAIS CASE WAS FATALLY AWED ! PLAIN READING OF CLAUSE J WOULD SHOW THAT THE
EXPRESSION ANTI
NATIONAL TAKES COLOUR FROM THE PRECEDING TERM ANDOR EXPRESSIONS
3EE ,IFE )NSURANCE #ORPORATION OF )NDIA VS 0ROF -ANUBHAI $ 3HAH 3##
4 / \
FOUND IN CLAUSE J 4HE CLAUSE BY ITSELF SHOWS THAT IT IS A POWER WHICH IS EXERCISABLE
BY THE 3TATE IN EXCEPTIONAL CASES WHERE IT IS ENTITLED TO SIDE STEP EVEN THE GUIDELINES
AND PARAMETERS LAID DOWN IN THE /- ITSELF 4HE POWER VESTED ON RESPONDENTS BEING
RARE AND EXCEPTIONAL IT NECESSARILY IS REQUIRED TO BE CONNED TO PERSONS FALLING IN
SPECIC CATEGORIES SUCH AS COUNTER INTELLIGENCE SUSPECTS TERRORISTS AND ANTI NATIONAL
ELEMENTS 4HE EXPRESSION ANTI NATIONAL IS FOLLOWED BY THE ABBREVIATED FORM OF THE WORD
ETCETERA 4HEREFORE QUITE CLEARLY THE WORD ANTI NATIONAL CONTEXTUALLY CAN ONLY TAKE
COLOUR FROM THE WORDS PRECEDING IT 4O RULE OTHERWISE WOULD RESULT IN ALLOWING FOR A
SITUATION WHERE ANY AND EVERY ACTIVITY COULD BE BROUGHT WITHIN THE PURVIEW OF CLAUSE
J 4HIS BEING AN EXCEPTIONAL POWER CONFERRED ON THE 3TATE WHICH IS TO BE EXERCISED IN
THE LARGER NATIONAL INTEREST IT CANNOT BE GIVEN A MEANING WIDER THAN THE PURPOSE FOR
WHICH THE POWER IS VESTED IN THE 3TATE FUNCTIONARIES
4HEREFORE TO MY MIND A PERSON FALLING IN THE CATEGORY OF AN ANTI NATIONAL ELEMENT IN
THE ABSENCE OF ANY OTHER GUIDELINE CONTAINED IN THE /- CAN ONLY BE THAT PERSON
WHO PROJECTS A PRESENT AND IMMINENT DANGER TO THE NATIONAL INTEREST 4RAVELLING
ABROAD AND ESPOUSING VIEWS WITHOUT ANY CRIMINAL INTENT OF THE KIND ADVERTED TO
ABOVE CANNOT IN MY OPINION PUT -S 0ILLAI IN THE CATEGORY OF AN ANTI NATIONAL ELEMENT
4HIRD WHAT INHIBITS ME FROM ACCEPTING THE SUBMISSION ADVANCED ON BEHALF OF THE !3'
IS THAT IF THE VIEW ADVANCED ON BEHALF OF THE RESPONDENTS IS ACCEPTED IT WOULD RESULT
IN CONFERRING UN
CANALISED AND ARBITRARY POWER IN THE EXECUTIVE WHICH COULD BASED
ON ITS SUBJECTIVE VIEW PORTRAY ANY ACTIVITY AS ANTI
NATIONAL 3UCH A SITUATION IN A TRULY
DEMOCRATIC COUNTRY WHICH IS GOVERNED BY RULE OF LAW IS BEST AVOIDED
) MUST INDICATE HEREIN THAT IN THE WRIT PETITION THERE IS A DISCLOSURE OF THE FACT THAT IN
RESPECT OF THE PROTEST LED BY -S 0ILLAI IN THE -AHAN COAL BLOCK AREA A CRIMINAL CASE HAS
BEEN LODGED IN -UMBAI IN WHICH SHE HAS BEEN ENLARGED ON BAIL 4HE ORDER GRANTING
BAIL HAS NOT PUT ANY CONDITION IN PLACE 4HERE IS NO CONDITION PUT BY COURT WITH REGARD
TO RESTRAINT ON TRAVEL 4HESE FACTS HAVE NOT BEEN DISPUTED BY THE RESPONDENTS IN THEIR
COUNTER
AFDAVIT 4HERE IS ALSO NO CASE SET UP BY THE RESPONDENTS THAT RECOURSE TO
ANY PROVISIONS OF THE 0ASSPORTS !CT HAS BEEN TAKEN VIS
A
VIS -S 0ILLAI 1UITE CLEARLY
THEREFORE THERE IS NO IMPEDIMENT PUT IN PLACE BY ANY COURT OR STATUTORY AUTHORITY ON
-S 0ILLAIS RIGHT TO TRAVEL ABROAD AND PROPAGATE HER VIEWS ON ISSUES REFERRED TO ABOVE
4HE ATTEMPT OF THE RESPONDENTS TO LINK 'REENPEACE )NDIA WITH 'REENPEACE 5+ AND
'REENPEACE )NTERNATIONAL BY ADVERTING TO THE SCREEN SHOTS OF THE LATTERS WEBSITE IN
MY OPINION CANNOT CARRY THEIR CASE ANY FURTHER !CCORDING TO THE RESPONDENTS THE
WEBSITE OF THE 'REENPEACE )NTERNATIONAL SHOWS 'REENPEACE )NDIA AND 'REENPEACE 5+
AS ITS AFLIATES )T IS SOUGHT TO BE SUGGESTED THAT SINCE 'REENPEACE )NDIA IS AFLIATED TO
'REENPEACE )NTERNATIONAL THE ILLEGALITY ATTACHED TO THE CONDUCT OF THE LATTER SHOULD
APPLY TO THE FORMER AS WELL AS 'REENPEACE 5+ )N MY VIEW MONITORING AND REGULATION OF
FUNDS RECEIVED BY 'REENPEACE )NTERNATIONAL BY ITSELF CANNOT LEAD TO ANY CONCLUSION AT
LEAST AT THIS STAGE OF ALLEGED ILLEGALITY HAVING BEEN COMMITTED BY THE SAID ORGANIZATION
4HEREFORE ONE CANNOT CONCLUDE THAT 'REENPEACE )NDIA HAS COMMITTED ANY ILLEGALITY
4HUS THE ATTEMPT TO INVEIGLE -S 0ILLAI IN THE ILLEGALITY ARGUMENT VIA THIS ROUTE MUST
FAIL 4HE SUBMISSION THAT 'REENPEACE )NTERNATIONAL HAD INTENDED TO INCUR EXPENSES
QUA -S 0ILLAIS TRAVEL AND ACCOMMODATION IS CLEARLY UNSUSTAINABLE AS THERE IS NO BAR IN
-S 0ILLAI RECEIVING FOREIGN HOSPITALITY AS AGAINST FOREIGN CONTRIBUTION 4HIS IS CLEAR
ON A CONJOINT READING OF THE PROVISIONS OF 3ECTIONS E H AND I OF THE !
4HEREFORE THE SUBMISSION MADE IN THIS BEHALF IS IN MY VIEW BEING MISCONCEIVED IS
ACCORDINGLY REJECTED
4HEREFORE HAVING REGARD TO THE AFORESAID DISCUSSION IN MY OPINION THE PRAYER MADE IN
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THE WRIT PETITION FOR QUASHING AND SETTING ASIDE THE ,/# ISSUED QUA -S 0ILLAI IS LIABLE TO
BE GRANTED )T IS ORDERED ACCORDINGLY !CCORDINGLY THE FOLLOWING CONSEQUENTIAL PRAYERS
ARE ALSO GRANTED 2ESPONDENT NO SHALL EXPUNGE THE ENDORSEMENT OFF
LOAD MADE
ON -S 0ILLAIS PASSPORT &URTHERMORE RESPONDENTS SHALL ALSO REMOVE -S 0ILLAIS NAME
FROM THE DATA BASE MAINTAINED BY THEM PERTAINING TO THOSE INDIVIDUALS WHO ARE NOT
ALLOWED TO LEAVE THE COUNTRY 4HIS IS IN SO FAR AS PRAYERS MADE IN CLAUSE ! I TO III ARE
CONCERNED
!S REGARDS PRAYER CLAUSE " NO SUBMISSIONS WERE MADE DURING THE COURSE OF THE
ARGUMENTS NOR ARE ANY SPECICS ALLUDED TO IN THE INSTANT CASE 4HE PRAYER IS
ACCORDINGLY DECLINED
!S REGARDS PRAYER CLAUSE # WHILE -S *AISING HAD IN THE PASSING ARGUED THAT RESPONDENTS
BY THEIR ACTION HAD TARNISHED THE REPUTATION OF -S 0ILLAI BY BRACKETING HER AS ANTI
NATIONAL THE NECESSARY INGREDIENTS FOR GRANT OF COMPENSATION HAVE NOT BEEN ADVERTED
TO WITH SPECICITY IN THE BODY OF THE WRIT PETITION %VEN IF ) WERE TO TAKE A BROAD VIEW
OF THE PLEADINGS IT MAY NOT BE APPROPRIATE TO EMBARK UPON AN EXERCISE OF ASCERTAINING
DAMAGES CLAIMED BY -S 0ILLAI WHILE EXERCISING WRIT JURISDICTION )T WOULD HOWEVER BE
OPEN TO -S 0ILLAI TO TAKE RECOURSE TO AN APPROPRIATE CIVIL REMEDY TO AGITATE HER RIGHTS IN
THAT BEHALF .EEDLESS TO SAY IF SUCH AN ACTION IS TAKEN RECOURSE TO THE RESPONDENTS WILL
HAVE A RIGHT TO DEFEND THE SAME IN ACCORDANCE WITH LAW
4HE WRIT PETITION AND THE PENDING APPLICATION ARE DISPOSED OF IN THE AFOREMENTIONED
TERMS 4HE COSTS WILL FOLLOW THE RESULT OF THE PETITION
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'!5(!4) ()'(
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4!",% /& *5$'-%.43 !.$ /2$%23
* ANJATI "ARIBIDHASTA /RS VS 5NION OF )NDIA /RS
70 # OF \
3
HRI "ABURAM .ARZAR /RS VS 3TATE OF !SSAM /RS ETC
70 # OF ETC \
3
HRI 6IJOY 4ACHANG /RS VS 3TATE OF !RUNACHAL 0RADESH /RS
70 # .O !0 OF \
3
HRI .UNEY 4AYANG VS 5NION OF )NDIA /RS
70 # .O !0 OF \
3
MT -AYA $OLO VS 6IJOY 4ACHANG /RS
3## /NLINE 'AU \ 'AU ,2 \
.
AGA 5NITED)NAVI 6ILLAGE VS 3TATE OF .AGALAND /RS
SCC /NLINE 'AU \
)N RE +AZIRANGA .ATIONAL 0ARK VS 5NION OF )NDIA
3## /NLINE 'AU \
4 / \
*ANJATI "ARIBIDHASTA /RS VS 5NION
OF )NDIA /RS
70# ./ /&
()'( #/524 /& '!5(!4)
#/2!- "+ 3(!2-! *
3 5 - -!29
! TOTAL OF PETITIONERS MEMBERS OF A 3CHEDULED 4RIBE COMMUNITY WHO WERE IN
POSSESSION OF FOREST LAND SINCE WERE UNDER THE APPREHENSION OF AN EVICTION
4HE PETITIONERS HAD FILED THIS WRIT PETITION FOR PROTECTION UNDER 3ECTION OF THE
!SSAM ,AND 2EVENUE 2EGULATION !CT AND THE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
4HE #OURT TOOK NOTE OF THE FACT THAT THE SAME PETITIONERS HAD BEEN PREVIOUSLY
EVICTED ON BUT HAD RETURNED TO THE SAME LAND 4HE 3TATE GOVERNMENTS
ARGUMENT THAT THIS DEMONSTRATES THEY ARE ILLEGAL ENCROACHERS FOUND FAVOUR WITH
THE #OURT
$ESPITE THIS FINDING THE #OURT DIRECTED THAT THE PETITIONERS MAY NOT BE EVICTED
FROM THE LAND EXCEPT BY FOLLOWING DUE PROCEDURE OF LAW IF NOT ALREADY FOLLOWED
)T FURTHER OBSERVED THAT IT IS NOT EXPRESSING ITS VIEWS ON THE MERITS OF THE CASE
!CCORDINGLY THE WRIT PETITION WAS DISPOSED OF
% $ ) 4 /23 . /4%
!N EARLY DECISION OF THE 'AUHATI (IGH #OURT IT PRESAGES SUBSEQUENT JUDGMENTS
OF THE #OURT WHICH ADOPTED A DECIDEDLY STERN APPROACH TOWARDS ENCROACHERS ON
FOREST LAND &OR REASONS WHICH STILL REMAIN TO BE EXPLORED THE PARADIGM SHIFT IN
THE PERCEPTION OF THE LAW TOWARDS SUCH ENCROACHERS AND THEIR RECOGNITION AS
RIGHT
HOLDERS HAS NOT FOUND FAVOUR WITH THE (IGH #OURT IN CONTRAST WITH OTHER
CONSTITUTIONAL COURTS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
/2$ % 2
(EARD -R $2 'OGOI ,EARNED COUNSEL FOR THE PETITIONER AS WELL AS -S 2 #HAKRABORTY
LEARNED 3TATE #OUNSEL FOR THE RESPONDENTS ) HAVE ALSO HEARD -R " $AS LEARNED #'3# FOR
THE RESPONDENT .O
4HIS WRIT PETITION HAS BEEN LED ON THE APPREHENSION THAT THE RESPONDENTS MIGHT EVICT
THE PETITIONERS FROM THE LAND STATED TO BE IN THEIR POSSESSION 4HE DESCRIPTION OF THE LAND
IS GIVEN IN PARAGRAPH OF THE WRIT PETITION 4HE LAND IS SITUATED IN THE VILLAGE
4INKOPANI
IN THE DISTRICT OF 4INSUKIA !LTOGETHER WRIT PETITIONER ARE INVOLVED 4HEY ARE STATED
TO BE OF THE 3CHEDULE 4RIBE COMMUNITY !S PER THE AVERMENTS MADE IN THIS WRIT PETITION
THEY ARE IN OCCUPATION OF THE LAND
4HE PETITIONERS ARE STATED TO BE IN OCCUPATION OF THE LAND SINCE )N PARAGRAPH OF
THE WRIT PETITION IT HAS BEEN STATED THAT THE PETITIONERS WERE ONCE EVICTED FROM THE LAND
ON (OWEVER THEY HAVE ONCE AGAIN SETTLED DOWN IN THE SAME VERY LAND 5PON
A REFERENCE TO 3ECTION OF THE !SSAM ,AND 2EVENUE 2EGULATION AND 3CHEDULED 4RIBES
AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &ORESTS 2IGHTS !CT IT IS THE
CASE OF THE PETITIONERS THAT THEY ARE ENTITLED TO CERTAIN PROTECTION AND CANNOT BE EVICTED
FROM THE LAND
-S #HAKRABORTY LEARNED 3TATE #OUNSEL AS WELL AS -S $AS LEARNED FOR THE RESPONDENT
.O SUBMITS THAT ADMITTEDLY THE PETITIONERS ARE UNAUTHORISED OCCUPANTS OF THE LAND IN
QUESTION 4HEY WERE ALREADY EVICTED FROM THE LAND ON AND THUS THEY ARE ILLEGAL
ENCROACHER OF THE LAND IN QUESTION
7ITHOUT EXPRESSING ANY OPINION ON THE MERIT OF THE RESPECTIVE CASE OF THE PARTIES )
DISPOSE OF THE WRIT PETITION PROVIDING THAT THE PETITIONERS MAY NOT BE EVICTED FROM THE
LAND EXCEPT BY FOLLOWING THE DUE PROCEDURE OF LAW IF NOT ALREADY FOLLOWED
7RIT PETITION IS DISPOSED OF
4 / \
3HRI "ABURAM .ARZAR /RS VS 3TATE
OF !SSAM /RS ETC
70# /& %4#
()'( #/524 /& '!5(!4)
#/2!- (. 3!2-! *
3 5 - -!29
4HE WRIT PETITIONS RELATING TO THE COMMON QUESTION OF LAW WERE DISPOSED OF IN A
COMMON JUDGMENT 4HE PETITIONERS ARE MEMBERS OF THE "ODO TRIBE A 3CHEDULED
4RIBE COMMUNITY AND REGISTERED IN THE VOTER LIST AS INHABITANTS OF THESE VILLAGES
4HEY WERE SHIFTED TWICE FROM THEIR ORIGINAL VILLAGES BECAUSE OF ETHNIC CLASHES
!FTER THEIR RETURN THE 3ASHASTRA 3EEMA "AL 33" OFFICIALS ASKED THEM TO VACATE THE
PLACE AND DEMOLISHED THEIR HOUSES 4HE PETITIONERS CLAIMED TO BE ENTITLED TO GRANT
OF PATTAS AND LEASE OVER LAND UNDER 3ECTION OF THE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
4HE AUTHORITIES NOT HAVING RECOGNIZED THE SAID RIGHT THE PETITIONERS HAD FILED THESE
WRIT PETITIONS TO STOP THE EVICTIONS 4HEY ARGUED THAT UNDER 3ECTION OF &2! THEY
HAVE RIGHTS TO GRANT OF PATTAS OVER THE LAND OCCUPIED BY THEM AND THAT BEING FOREST
DWELLERS THEY HAVE NO OTHER SOURCE OF LIVELIHOOD
4HE RESPONDENT 3TATE GOVERNMENT CATEGORICALLY ARGUED THAT THE PETITIONERS ARE
NEITHER THE RESIDENTS NOR FOREST DWELLERS OF THE FOREST VILLAGE AND THE LAND WAS
ENCROACHED BY THE PETITIONERS )T WAS ALSO ARGUED THAT REHABILITATION BY THE 3TATE
'OVERNMENT DOES NOT MEAN THAT THEIR RIGHTS HAVE BEEN ACCEPTED AND CONFIRMED
4HE ENCROACHED LAND FALLS WITHIN THE RESERVE FOREST SO THE PETITIONERS HAVE NO
RIGHTS AND SHOULD BE EVICTED
4HE #OURT DELIBERATED THAT THE &2! WAS ENACTED TO PROVIDE A FRAMEWORK FOR
RECOGNISING FOREST RIGHTS TO 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
WHOSE RIGHTS COULD NOT BE RECORDED DESPITE RESIDING IN FORESTS FOR GENERATIONS 4HE
&2! ALSO PROVIDES A FRAMEWORK FOR RECORDING OF EVIDENCE FOR SUCH RECOGNITION
!FTER EXAMINING THE FACTS AND PROVISIONS OF &2! IN DETAIL THE #OURT ARRIVED AT
THE CONCLUSION THAT THE PETITIONERS DID NOT FALL WITHIN THE CATEGORIES OF PERSONS
DESCRIBED UNDER 3ECTION C AND O OF THE &2! !S THEY HAVE NOT BEEN ABLE TO
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
ESTABLISH THEY ARE FOREST DWELLERS THE PETITIONERS WERE FOUND TO BE ENCROACHERS
ON THE FORESTLAND AND THEREFORE THE ACTIONS OF THE AUTHORITIES IN TAKING NECESSARY
STEPS FOR THE EVICTION OF THE PETITIONERS FROM THE FOREST LAND WAS HELD NOT TO BE
ILLEGAL OR WITHOUT JURISDICTION !CCORDINGLY NO INTERFERENCE WAS CALLED FOR AGAINST
SUCH ACTION OF THE 3TATE AUTHORITY
$) 2 % #4) /.3 ) 3 3 5% $
#ONSIDERING THE CIRCUMSTANCES OF THE CASE THE #OURT OBSERVED THAT THE 3TATE
GOVERNMENT COULD REHABILITATE THE PETITIONERS IN SOME OTHER AREA NOT BEING FOREST
LAND AS THEY HAVE BEEN RENDERED HOMELESS
* 5$ '-% . 4
4HE SUBJECT MATTER OF CHALLENGE AND THE RELIEFS SOUGHT FOR IN BOTH THE WRIT PETITIONS
BEING COMMON LEADING TO DETERMINATION OF COMMON QUESTION OF LAW BOTH THE MATTERS
WERE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY THIS COMMON JUDGMENT
(EARD -R ! $ASGUPTA ,EARNED #OUNSEL FOR THE PETITIONER AND -R $ $AS LEARNED 3TANDING
#OUNSEL "ODOLAND 4ERRITORIAL #OUNCIL AS WELL AS THE LEARNED #ENTRAL 'OVERNMENT #OUNSEL
FOR THE RESPONDENTS
7RIT 0ETITION # .O HAS BEEN LED BY A GROUP OF PETITIONERS ALLEGING THAT
THEY BELONG TO 3CHEDULED 4RIBE "ODO 34 COMMUNITY OF !SSAM RESIDING IN 3ARALPARA
FOREST VILLAGE UNDER THE (ALTUGAON FOREST DIVISION IN THE DISTRICT OF +OKRAJHAR !SSAM AND
THEIR NAMES HAVE BEEN ENTERED IN THE VOTER LIST OF .O +OKRAJHAR %AST 34 ,EGISLATIVE
!SSEMBLY #ONSTITUENCY AS INHABITANTS OF 3ARALPARA VILLAGE 4HE PETITIONERS WERE THE
VICTIMS OF ETHNIC CLASHES OF THAT TOOK PLACE BETWEEN THE "ORO AND !DIVASI PEOPLE
AND THEY SHIFTED TO .AHARANI 2ELIEF #AMPUS NEAR "HUTAN "ORDER ESTABLISHED BY THE
STATE AUTHORITIES 3UBSEQUENTLY THEY CAME BACK TO THEIR PLACE OF RESIDENCE AT 3ARALPARA
VILLAGE IN THE YEAR $UE TO RE
ERUPTION OF ETHNIC CLASHES THEY WERE AGAIN SHIFTED
TO .AHARANI RELIEF CAMP AND THEREAFTER TO ,AHORIPARA RELIEF CAMP 5PON PREVAILING
HARMONY BETWEEN THE TWO RIVAL GROUPS THE PETITIONERS AND OTHER GROUP OF PERSONS
RETURNED TO THEIR ORIGINAL PLACE OF RESIDENCE AND CONSTRUCTED THEIR THATCHED HOUSES AND
STARTED THEIR NORMAL AVOCATION /N SOME OFCIALS OF 33" DEPARTMENT CAME TO
THEIR PLACE AND ASKED THEM TO VACATE THE SAID PLACE AND ALSO DEMOLISHED SOME OF THE
THATCHED HOUSES CONSTRUCTED BY THEM
4HE PETITIONERS CLAIM THAT THEY ARE FOREST DWELLERS AND THEY HAVE NO OTHER SOURCE OF
LIVELIHOOD OTHER THAN THE FOREST LAND UNDER THEIR OCCUPATION 4HEY HAVE ACQUIRED
RIGHTS UNDER 3ECTION OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT THE !CT WHICH INCLUDES GRANTING OF PATTA AND
LEASE OVER THE LAND OCCUPIED BY THE PETITIONERS INCLUDING THE RIGHT OF SETTLEMENT "UT
THE AUTHORITIES NOT HAVING RECOGNIZED THE SAID RIGHT THE PETITIONERS HAVE LED THIS WRIT
PETITION PRAYING TO STOP THE EVICTION OF THE PETITIONERS FROM THEIR DWELLING HOUSES AND
AGRICULTURAL LAND SITUATED IN THE .O 3ONAPUR OF 3ARALPARA FOREST VILLAGE AND TO ALLOW
THE PETITIONERS TO RESIDE PEACEFULLY IN THE 3ARALPARA FOREST VILLAGE AS FOREST DWELLERS AND
TO SETTLE THE LAND UNDER THEIR OCCUPATION IN THEIR NAME
70# .O HAS BEEN LED BY A GROUP OF SEVENTEEN PETITIONERS ALLEGING THAT THEY ARE
TRADITIONAL FOREST DWELLERS RESIDING IN THE FOREST VILLAGE OF 5LTAPANI AREA IN THE +OKRAJHAR
DISTRICT OF !SSAM "EING THE VICTIM OF ETHNIC CLASHES BETWEEN THE "ORO AND !DIVASIS IN
4 / \
THEY TOOK SHELTER IN THE RELIEF CAMP IN THE 3ARALPARA FOREST VILLAGE IN THE DISTRICT
OF +OKRAJHAR 3UBSEQUENTLY THEY WERE SHIFTED TO THE "ISMURI RELIEF AMP IN THE SAME
DISTRICT AS THE EARLIER CAMP WAS ATTACKED BY SOME ARMED MISCREANTS 4HE PETITIONERS
AND OTHER SIMILARLY SITUATED PERSONS WERE GRANTED REHABILITATION GRANT AT THE RATE OF
2S EACH AND WERE ASKED TO SHIFT TO THEIR ORIGINAL RESIDENTIAL PLACE !CCORDINGLY
THE PETITIONERS CONSTRUCTED THEIR DWELLING HOUSES IN THEIR ORIGINAL PLACE OF RESIDENCE AT
5LTAPANI AREA OF +OKRAJHAR BUT THEY HAVE BEEN EVICTED BY THE FOREST PERSONNEL FROM
THEIR DWELLING HOUSES 4HE PETITIONERS ALLEGE THAT THE ACTION OF THE 'OVERNMENT BY
REHABILITATING THEM IN DIFFERENT FOREST VILLAGES INDICATE THAT THE 'OVERNMENT (AD SETUP
DIFFERENT VILLAGES FOR SETTLEMENT OF THE PETITIONERS AND ACCORDINGLY THEY ARE NOT LIABLE
TO BE EVICTED 4HE PETITIONERS HAVE LED THIS WRIT PETITION PRAYING FOR A DECLARATION THAT
THEY ARE ENTITLED TO STAY IN DIFFERENT FOREST VILLAGES LIKE 3ARALPARA AND 5LTAPANI IN THE
DISTRICT OF +OKRAJHAR !SSAM AND THEY HAVE ACQUIRED NECESSARY RIGHTS RECOGNIZED UNDER
THE AFORESAID !CT
4HE PETITIONERS FURTHER ALLEGE THAT THEY ARE ALSO ENTITLED TO GET PROTECTION UNDER THE
!SSAM &OREST 2EGULATION AS FOREST VILLAGERS APART FROM THE RIGHTS UNDER THE !CT 4HE
VARIOUS REQUESTS OF THE PETITIONERS TO INCLUDE THEM AS FOREST VILLAGERS AND THE RELATED
RIGHTS NOT HAVING BEEN ACCEPTED BY THE AUTHORITIES THEY HAVE LED THE WRIT PETITION
WITH THE PRAYERS TO STOP EVICTION OF THE PETITIONERS FROM THEIR DWELLING HOUSES AND
FOR ADEQUATE COMPENSATIONS AND TO ALLOW TO REBUILD THEIR RESIDENTIAL HOUSES IN FOREST
VILLAGES WITHIN THE +OKRAJHAR DISTRICT
#ONTROVERTING THE CLAIM OF THE PETITIONERS COUNTER AFDAVITS HAVE BEEN LED IN BOTH THE
CASES BY THE RESPONDENT .OS AND IN 70# .O AND A SEPARATE COUNTER HAS
BEEN LED THE RESPONDENT .OS AND IN 70# .O
4HE RESPONDENTS CATEGORICALLY DENY THE PETITIONERS TO BE THE RESIDENTS OF 3ONAPUR .O
3ARALPARA FOREST VILLAGE AND THE 3ARALPARA &OREST 6ILLAGE IS INHABITED ONLY BY THE PEOPLE
OF .EPALI COMMUNITY )T IS FURTHER CONTENDED THAT THERE IS NO VILLAGE IN THE NAME OF
3ONAPUR .O AS PER FOREST RECORD AND THE NAMES OF THE PETITIONERS DO NOT ND PLACE IN
THE REVENUE RECORD OF 3ARALPARA &OREST VILLAGE )T IS ALSO STATED THAT UNDER THE (ALTUGAON
&OREST DIVISION THERE ARE TWENTY
VE .OS OF FOREST VILLAGES AND THE 3ARALPARA FOREST
VILLAGE WAS ESTABLISHED WAY BACK IN THE YEAR WHICH IS FULLY INHABITED BY THE PEOPLE
BELONGING TO THE .EPALI COMMUNITY WHICH IS ALSO CONRMED BY THE REVENUE RECORD 4HE
RESPONDENTS ALLEGE THAT THE PETITIONERS HAVE RECENTLY ENCROACHED THE FOREST LAND IN THE
YEAR ITSELF AND THEY ARE NOT FOREST DWELLERS AND ARE NOT ENTITLED TO ANY PROTECTION
UNDER THE !CT AS THEY DO NOT FULL THE CONDITIONS PRESCRIBED UNDER THE !CT
-R ! $ASGUPTA ,EARNED #OUNSEL FOR THE PETITIONERS HAS STRENUOUSLY SUBMITTED THAT THE
PETITIONERS ARE THE VICTIM OF CIRCUMSTANCES AND THEY BEING SUBJECTED TO ETHNIC CLASHES
DISTURBANCES THAT TOOK PLACE IN THE AREA BETWEEN THE !DHIVASIS AND TRIBAL PEOPLE AND
ACCORDINGLY THEY WERE PROVIDED SHELTER IN DIFFERENT RELIEF CAMPS ESTABLISHED BY THE
3TATE AUTHORITIES )T IS FURTHER URGED THAT THE PETITIONERS BELONGS TO THE RECOGNIZED
3CHEDULED 4RIBES AND THEY BEING IN OCCUPATION OF THEIR LAND WITHIN THE FOREST VILLAGE FOR
A LONG PERIOD OF TIME THEY ARE ENTITLED TO THE PROTECTION GRANTED UNDER THE !CT ,EARNED
#OUNSEL HAS REFERRED TO SUCH PROTECTION AND VARIOUS RIGHTS AND RECOGNITION THEREOF AS
PROVIDED UNDER 3ECTIONS AND OF THE !CT )T IS CONTENDED THAT IN SPITE OF PETITIONERS
HAVING FULLLED THE NECESSARY CONDITIONS PRECEDENT AS PRESCRIBED UNDER 3ECTION OF
THE !CT THE 3TATE RESPONDENTS HAVE FAILED TO DISCHARGE THEIR OBLIGATION TO RECOGNIZE THE
PETITIONERS AS FOREST DWELLERS
3UBMISSION MADE ON BEHALF OF THE PETITIONER HAVE BEEN STRICTLY RESISTED BY THE
RESPONDENTS CONTENDING THAT THE PETITIONERS ARE THE RECENT ENCROACHERS IN THE AREA
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
AND NO SEMBLANCE OF RIGHTS AS FOREST DWELLERS COULD BE ACQUIRED BY THE PETITIONERS
ENTITLING THEIR PROTECTION UNDER THE !CT )T IS ALSO CONTENDED THAT THE 3TATE 'OVERNMENT
HAS ALREADY PAID PECUNIARY COMPENSATION TO THE PETITIONERS FOR THEIR REHABILITATION IN
THEIR ORIGINAL PLACES AND THAT DOES NOT MEAN THAT THEIR RIGHTS AS FOREST DWELLERS HAVE
BEEN ACCEPTED AND CONRMED 4HE PETITIONERS HAVE NOT SATISED THE REQUIREMENTS AS
FOREST DWELLERS EITHER UNDER THE !CT OR UNDER THE PROVISION OF !SSAM &OREST 2EGULATION
AND THEY BEING MERE ENCROACHERS OF THE FOREST LAND NO SUCH RIGHT IN THEIR FAVOUR CAN BE
RECOGNIZED 4HE LAND ENCROACHED BY THE PETITIONERS FALLS WITHIN BOUNDARY OF RESERVED
FOREST AND HENCE THEY ARE NOT ENTITLED TO CONTINUE THEIR POSSESSION THEREIN AND ARE
LIABLE TO BE EVICTED 5NDER &OREST #ONVERSATION !CT NONE OF THE ACTIVITIES AS ALLEGED
BY THE PETITIONERS ARE PERMISSIBLE NOR ANY PERSON OTHER THAN THE RECOGNIZED FOREST
VILLAGERS ARE ENTITLED TO CLAIM ANY RIGHT OF SETTLEMENT OR CONSTRUCTION OF RESIDENTIAL
HOUSES WITHIN THE RESERVED FOREST AREA )N THIS BACKDROP OF FACTS THE ACTION TAKEN BY
THE RESPONDENT AUTHORITIES TO EVICT THE PETITIONERS FROM THE FOREST LAND IS FULLY JUSTIED
CONTENDED BY THE ,EARNED #OUNSEL FOR THE RESPONDENTS
3UBMISSIONS OF THE ,EARNED #OUNSEL FOR THE PARTIES HAVE RECEIVED DUE ATTENTION OF THE
COURT &ROM THE MATERIALS AVAILABLE ON RECORD AND THE PROVED FACTS IT IS ESTABLISHED
THAT NEITHER THE PETITIONERS NOR THEIR ANCESTORS WEREARE THE RESIDENTS UNDER THE FOREST
VILLAGE AREA OR ANY OTHER FOREST VILLAGE UNDER THE (ALTUGAON &OREST $IVISION 4HE AREA
IN QUESTION FALLS WITHIN THE #HIRANG 2ESERVE &OREST WHICH WAS CONSTITUTED AS RESERVE
FOREST LAND BY THE 'OVERNMENT VIDE .OTICATION PUBLISHED IN THE YEAR 4HE
(ALTUGAON &OREST $IVISION COVERS THE ORIGINAL AREA OF HECTARES 4HE 3ARALPARA
VILLAGE COVERS AN AREA OF HECTARES AND OUT OF WHICH ALMOST HECTARES ARE
UNDER ENCROACHMENT 4HE 3ARALPARA FOREST VILLAGE WAS ESTABLISHED WAY BACK IN THE
YEAR 4HE NAME OF THE FOREST VILLAGERS CAN BE FOUND IN THE *AMABANDI WHICH IS
AN AUTHENTICATE REVENUE RECORD PREPARED BY THE 2EVENUE AUTHORITY .EITHER IN THE
REVENUE RECORD NOR IN ANY OTHER DOCUMENT THE NAMES OF THE PETITIONERS ARE FOUND AS
FOREST VILLAGERS
4HE !CT !CT OF WAS ENACTED TO RECOGNIZE AND VEST THE FOREST RIGHTS AND OCCUPATION
IN FOREST LAND IN FOREST DWELLING 3CHEDULED 4RIBES 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 ACCORDING THE FOREST RIGHTS SO VESTED AND THE
NATURE OF EVIDENCE REQUIRED FOR SUCH RECOGNITION AND VESTING IN RESPECT OF FOREST LAND
4HE BASIS OF SUBMISSION FOR CLAIMING THE RIGHTS ACQUIRED BY THE PETITIONERS AS MADE BY
-R $ASGUPTA ,EARNED #OUNSEL FOR THE PETITIONERS OWS FROM THE PROVISION OF 3ECTION
OF THE !CT )N ORDER TO APPRECIATE THE SUBMISSION OF THE LEARNED #OUNSEL LET US HAVE A
CLOSE SCRUTINY OF THE RELEVANT SECTIONS OF THE !CT WHICH ARE QUOTED BELOW
C FOREST DWELLING 3CHEDULED 4RIBES MEANS THE MEMBERS OR COMMUNITY OF THE
3CHEDULED 4RIBES WHO PRIMARILY RESIDE IN AND WHO DEPEND ON THE FORESTS OR FOREST
LANDS FOR BONA DE LIVELIHOOD NEEDS AND INCLUDES THE 3CHEDULED 4RIBE PASTORALIST
COMMUNITIES
D &OREST LAND MEANS LAND OF ANY DESCRIPTION FALLING WITHIN ANY FOREST AREA AND
INCLUDES UNCLASSIED FORESTS UNDEMARCATED FORESTS EXISTING OR DEEMED FORESTS
PROTECTED FORESTS RESERVED FORESTS 3ANCTUARIES AND .ATIONAL 0ARKS
F FOREST VILLAGES MEANS THE SETTLEMENTS WHICH HAVE BEEN ESTABLISHED INSIDE THE
FORESTS BY THE FOREST DEPARTMENT OF ANY 3TATE 'OVERNMENT FOR FORESTRY OPERATIONS
OR WHICH WERE CONVERTED INTO FOREST VILLAGES THROUGH THE FOREST RESERVATION PROCESS
AND INCLUDES FOREST SETTLEMENT VILLAGES XED DEMAND HOLDINGS ALL TYPES OF TAUNGYA
SETTLEMENTS BY WHATEVER NAME CALLED FOR SUCH VILLAGES AND INCLUDES LANDS FOR
4 / \
CULTIVATION AND OTHER USES PERMITTED BY THE 'OVERNMENT
O OTHER TRADITIONAL FOREST DWELLER MEANS ANY MEMBER OR COMMUNITY WHO HAS FOR
AT LEAST THREE GENERATIONS PRIOR TO THE TH DAY OF $ECEMBER PRIMARILY RESIDED
IN AND WHO DEPEND ON THE FOREST OR FORESTS LAND FOR BONA DE LIVELIHOOD NEEDS
4HE FOREST RIGHTS OF FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST
DWELLERS ON ALL FOREST LAND ARE MENTIONED IN 3ECTION OF THE !CT WHICH ARE AS FOLLOWS
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 3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLERS
B COMMUNITY RIGHTS SUCH AS NISTAR BY WHATEVER NAME CALLED INCLUDING THOSE USED
IN ERSTWHILE 0RINCELY 3TATES :AMINDARI 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 SH 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 3TATE WHERE
CLAIMS ARE DISPUTED
G RIGHTS FOR CONVERSION OF 0ATTAS OR LEASES OR GRANTS ISSUED BY ANY LOCAL AUTHORITY OR
ANY 3TATE 'OVERNMENT 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 NOTIED 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 RECOGNIZED UNDER ANY 3TATE LAW OR LAWS OF ANY !UTONOMOUS
$ISTRICT #OUNCIL OR !UTONOMOUS 2EGIONAL #OUNCIL OR WHICH ARE ACCEPTED AS RIGHTS OF
TRIBALS UNDER ANY TRADITIONAL OR CUSTOMARY LAW OF THE CONCERNED TRIBES OF ANY 3TATE
K RIGHT OF ACCESS TO BIODIVERSITY AND COMMUNITY RIGHT TO )NTELLECTUAL PROPERTY AND
TRADITIONAL KNOWLEDGE RELATED TO BIODIVERSITY AND CULTURAL DIVERSITY
L ANY OTHER TRADITIONAL RIGHT CUSTOMARILY ENJOYED BY THE FOREST DWELLING 3CHEDULED
4RIBES OR OTHER TRADITIONAL FOREST DWELLERS AS THE CASE MAY BE WHICH ARE NOT
MENTIONED IN #LAUSES 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
3CHEDULED 4RIBES 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 TH DAY OF $ECEMBER
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
3UB
SECTION PROVIDE CERTAIN EXCEPTION AS REGARDS USE OF FOREST LAND AS CONTEMPLATED
UNDER THE &OREST #ONSERVATION !CT FOR THE PURPOSE OF SETUP SCHOOLS HOSPITAL
ANGANWADIS FAIR PRICE SHOPS ETC 3ECTION OF THE !CT PROVIDED FOR RECOGNITION OF AND
VESTING OF FOREST RIGHTS IN FOREST DWELLING 3CHEDULE 4RIBES AND OTHER TRADITIONAL FOREST
DWELLERS
5NDER 3ECTION OF THE !CT THE #ENTRAL 'OVERNMENT RECOGNIZE AND VEST FOREST RIGHTS IN
FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS NOTWITHSTANDING
ANYTHING CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE AND SUBJECT TO THE
PROVISIONS OF THIS !CT
&ROM A CLOSE SCRUTINY OF THE RELEVANT PROVISION OF THE !CT IT TRANSPIRES THAT IN ORDER TO
CLAIM THE FOREST RIGHTS AS CONTAINED IN 3ECTION OF THE !CT AND FOR RECOGNITION OF SUCH
RIGHTS AS CONTAINED IN 3ECTION OF THE !CT A PERSON MUST FALL WITHIN THE CATEGORY OF
SUCH PERSON UNDER THE DENITION AS CONTAINED IN 3ECTION C AND 3ECTION O OF THE !CT
"UT IN THE AVERMENTS MADE IN THIS TWO WRIT PETITIONS AND THE COUNTER AFDAVITS AS WELL
AS OTHER DOCUMENTS MADE AVAILABLE BEFORE ME DO NOT DISCLOSE THAT THE PETITIONERS FALLS
WITHIN THE AFORESAID CATEGORY OF PERSONS AS DENE UNDER 3ECTION C AND O OF THE !CT
4HE NECESSARY CONDITIONS PRECEDENT FOR RECOGNITION OF THE RIGHTS UNDER THE !CT AS
FOREST DWELLERS AS CONTAINED IN 3ECTION OF THE !CT NOT HAVING BEEN FULLLED BY THE
PETITIONERS THEY COULD NOT SATISFY THEN
CLAIMS AS FOREST DWELLING 3CHEDULE 4RIBES OR
OTHER TRADITIONAL FOREST DWELLER WITHIN THE MEANING OF THE !CT )N SUCH A SITUATION THE
RECOGNITION OF THEIR RIGHTS UNDER 3ECTION OF THE !CT DOES NOT ARISE
4HE PETITIONERS BEING FOUND ENCROACHERS OF THE FOREST LAND ACTIONS OF THE AUTHORITIES
IN TAKING NECESSARY STEPS FOR THEIR EVICTION FROM SUCH FOREST LAND CANNOT BE TERMED AS
ILLEGAL OR WITHOUT JURISDICTION AND ACCORDINGLY NO INTERFERENCE IS CALLED FOR AGAINST SUCH
ACTION OF THE AUTHORITY .O DECLARATION UNDER 3ECTIONS AND OF THE !CT CAN BE GIVEN IN
FAVOUR OF THE PETITIONERS ON THE BASIS OF THE PROVED FACTS OF THE CASE
(OWEVER IN VIEW OF THE CIRCUMSTANCES TO WHICH THE PETITIONERS ARE SUBJECTED ) WOULD
OBSERVE THAT IT WOULD BE OPEN FOR THE 3TATE RESPONDENTS TO REHABILITATE THE PETITIONERS
IN SOME OTHER AREAS OTHER THAN FOREST LAND AS PER THE PREVAILING POLICY OF THE 3TATE
'OVERNMENT 3INCE THE PETITIONERS HAVE BEEN RENDERED HOMELESS SUCH CONSIDERATION
MAY BE TAKEN BY THE AUTHORITY IN AN EXPEDITIOUS MANNER
"OTH THE WRIT PETITIONS STAND DISPOSED OF WITH THE ABOVE ORDER
)NTERIM ORDERS IF ANY PASSED EARLIER STANDS VACATED
.O COSTS
4 / \
3HRI 6IJOY 4ACHANG /RS VS 3TATE OF
!RUNACHAL 0RADESH /RS
70# ./ !0 /&
()'( #/524 /& '!5(!4) )4!.!'!2 "%.#(
#/2!- 0+ -53!(!29 *
3 5 - -!29
" 2 ) % & &!#43
4HE PETITIONERS ARE MEMBERS OF THE INDIGENOUS .YISHI TRIBE OF !RUNACHAL 0RADESH
AND THE LAND IN QUESTION WAS POSSESSED BY THEM ALONG WITH OTHER MEMBERS OF THE
TRIBE AS CUSTOMARY COMMON FOREST LAND WITHIN THE TRADITIONAL AND CUSTOMARY
BOUNDARIES OF THE VILLAGE FOR THE SEASONAL USE FOR CULTIVATION /NE OF THE RESPONDENTS
RESPONDENT WHO WAS A POLITICIAN AND ALSO MARRIED TO A #ABINET -INISTER WAS
GRANTED A ,AND 0OSSESSION #ERTIFICATE ,0# BY THE $EPUTY #OMMISSIONER WITHOUT
FOLLOWING ANY PROCEDURE PARTICULARLY WITHOUT OBTAINING A .O /BJECTION #ERTIFICATE
./# FROM THE $IVISIONAL &OREST /FFICER CONCERNED
2ESPONDENT .O IN TURN AFTER RECEIPT OF THE ,0# DONATED THE AFORESAID LAND IN
FAVOUR OF THE 4OURISM $EPARTMENT FOR THE CONSTRUCTION OF A TOURIST LODGE AND ALSO
OBTAINED THE CONTRACT FOR SUCH CONSTRUCTION 4HE TOURISM DEPARTMENT HAD FORCIBLY
DISPOSSESSED THE PETITIONERS FROM THEIR LANDS AND RESPONDENT NO STARTED THE
CONSTRUCTION WORK OF THE TOURIST LODGE
4HE PETITIONERS FILED THIS WRIT PETITION FOR SETTING ASIDE AND QUASHING THE ,0# IN
FAVOUR OF RESPONDENT NO INASMUCH AS THE SAME HAS BEEN ISSUED IN COMPLETE
VIOLATION OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT &2! AND ALSO FOR HANDING OVER THE POSSESSION OF THE
SAID FOREST LAND TO THE PETITIONERS
)T MAY BE NOTED THAT THESE PETITIONERS HAD FILED A WRIT PETITION PREVIOUSLY SEEKING
THE SAME RELIEF BUT THE SAME WAS WITHDRAWN WITH PERMISSION TO APPROACH THE
COMPETENT AUTHORITIES UNDER THE &2! 7HEN THE 3TATE AUTHORITIES FAILED TO TAKE ANY
DECISION ON THEIR APPLICATIONS THEY APPROACHED THE (IGH #OURT AGAIN
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
&).$ ) .' 3 /& 4( % #/524
4HE #OURT HELD THAT IT MUST BE ACCEPTED THAT THE LANDS IN QUESTION ARE WITHIN A
NOTIFIED 2ESERVE &OREST WITHIN THE KNOWLEDGE OF THE 3TATE AUTHORITIES INCLUDING
THE 2ESPONDENT
$EPUTY #OMMISSIONER 4HE #OURT FOUND THAT THE &OREST $EPARTMENT
HAD NOT ISSUED ANY ./# FOR GRANTING THE ,0# TO RESPONDENT NO AS REQUIRED BY
3TATE LAW NOR WAS PRIOR APPROVAL OF THE #ENTRAL GOVERNMENT UNDER 3ECTION OF THE
&OREST #ONSERVATION !CT OBTAINED FOR THE CONSTRUCTION OF A TOURIST LODGE ON
THE FOREST LAND
/N THE OTHER HAND THE PETITIONERS WHO ARE ILLITERATE INDIGENOUS PEOPLE AND HAVE
BEEN LIVING ON THE LAND SINCE THE DAYS OF THEIR FOREFATHERS ARE BEING DISPOSSESSED
WHILE A LADY WITH AFFLUENCE AND POLITICAL CLOUT IS MAKING FINANCIAL GAIN )T WAS
OBSERVED THAT
THE COURT CANNOT CLOSE ITS EYES AND EARS TO PROTECT THE UNPRIVILEGED AND
DISADVANTAGED TRIBESMEN LIKE THE PETITIONERS WHO ARE NOT IN A POSITION TO
ESTABLISH THEIR RIGHT AND INTEREST 4HE 3TATE MUST PROVIDE PROTECTION TO THESE
PEOPLE UNDER THE !CT WHICH HAS RECOGNIZED THE RIGHTS OF THE FOREST DWELLING
SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS WHICH HAS COME INTO FORCE
WITH THE PUBLICATION OF THE SAME IN THE OFFICIAL GAZETTE OF THE 'OVT OF )NDIA ON
ND *ANUARY
0LACING THE BURDEN UPON THE 3TATE AUTHORITIES THE #OURT DIRECTED
I 4HE RESPONDENT AUTHORITIES TO CANCEL ALL ,0#S IN FAVOUR OF RESPONDENT WITHIN
DAYS
II 4HE RESPONDENT GOVERNMENT MAY CONSIDER THE CASE OF RESPONDENT FOR THE
GRANT OF ,0# IN STRICT COMPLIANCE WITH THE &#! &2! AND 3TATE LAWS ALONG
WITH THE PETITIONERS
III )F ON ENQUIRY IT IS FOUND THAT THERE HAVE BEEN ANY ILLEGAL DISPOSSESSIONS
THEN THE RESPONDENT AUTHORITIES ARE TO TAKE NECESSARY STEPS TO RESTORE THE
PHYSICAL POSSESSION OF THE SAME FORTHWITH
IV 4HE 3TATE RESPONDENTS ARE TO OBTAIN EXPERT OPINION ON THE ECOLOGICAL IMPACT
OF THE PROJECT
% $ )4/23 . /4%
4AKING A MARKEDLY DIFFERENT APPROACH TO PREVIOUS DECISIONS THE (IGH #OURT IN ITS
DIRECTIONS NOT ONLY EXHIBITED ITS DEPRECATION OF THE CONDUCT OF THE RESPONDENTS
IT ALSO DIRECTED THAT A COPY OF THE JUDGMENT BE FORWARDED TO THE -INISTRY OF
%NVIRONMENT AND &OREST WHICH WAS NOT A PARTY RESPONDENT FOR NECESSARY ACTION
4HIS WAS CLEARLY DONE TO ALERT THE #ENTRAL GOVERNMENT TO THE VIOLATIONS UNDER THE
!CT
* 5$ '-% . 4
4HE PETITIONERS MEMBERS OF INDIGENOUS .YISHI TRIBE OF !RUNACHAL 0RADESH TAKE ON
THE MISPLACED ELITIST DISCRIMINATORY FAVOURISM SHOWN IN THE MATTER OF SETTLEMENT OF
4 / \
SOME PLOTS OF LAND SITUATED IN AND AROUND THE NOTIED 2ESERVED &OREST BY ISSUING ,AND
0OSSESSION #ERTICATE ,0# TO AN AFUENT LADY WHO OFTEN MOVES IN THE CORRIDOR OF POWER
BEING THE ELECTED MEMBER OF THE LOCAL :ILLA 0ARISHAD AND ALSO WIFE OF A POWERFUL MINISTER
IN THE 3TATE AT THE RELEVANT TIME WHO IN HER BID TO PROJECT HERSELF AS A GENEROUS PERSON
DONATED THE LAND TO A 'OVT $EPARTMENT FOR CONSTRUCTION OF TOURIST LODGE NEAR A WILD
LIFE SANCTUARY 4HE SIMPLE LIVING UNSOPHISTICATED POOR TRIBAL COUNTERPART CULTIVATORS LIKE
THE PETITIONERS WHO ARE BORN TO AND LIVING IN THE FOREST FOR GENERATIONS ARE NOW BEING
OUSTED AND UPROOTED FROM THEIR LAND DUE TO ELITIST ANTIPATHY WHILE ALLOWING THE SAID
LADY RESPONDENT FOR NON FOREST USE 4HE PETITIONERS COMPLAIN BLATANT INFRACTION OF FOREST
AND WILD LIFE CONSERVATION LAWS IN THE BACKDROP NARRATED AS UNDER
4HE PETITIONERS HAVE BEEN LIVING IN THE 'OLOSSO VILLAGE FOR LAST YEARS AND THEY HAVE
THEIR CULTIVABLE LAND IN AND AROUND THE 3EIJUSA 2ESERVED &OREST WHICH THEY HAVE BEEN
ENJOYING AS THEIR PRIVATE AS WELL AS COMMUNITY LAND SINCE THE DAYS OF THEIR FOREFATHERS
4HEY ARE DEPENDENT ON THE FOREST LAND AND VARIOUS PROJECTS BY CULTIVATING THE SAID
FOREST LAND FOR THEIR LIVELIHOOD AND VARIOUS OTHER NEEDS 4HE SAID LANDS WERE POSSESSED
BY THE PETITIONERS ALONG WITH OTHER MEMBERS OF THE TRIBE AS CUSTOMARY COMMON FOREST
LAND WITHIN THE TRADITIONAL AND CUSTOMARY BOUNDARIES OF THE VILLAGE FOR SEASONAL USE
FOR CULTIVATION 4HE 6ILLAGE COUNCIL AUTHORITY AND #HAIRPERSON OF LOCAL 'AON 0ANCHAYAT
UNDER WHICHWHOM THE VILLAGE 'OLOSSO FALLS ISSUED CERTICATES TO THE EFFECT THAT THE
PETITIONERS HAVE BEEN POSSESSING THEIR RESPECTIVE PLOTS OF LAND UNDER THE 2ESERVED
&OREST FOR LAST MORE THAN YEARS
4HE 5NION OF )NDIA ENACTED 4HE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT HEREINAFTER REFERRED TO AS THE !CT ONLY
WHICH WAS PUBLISHED IN THE 'AZETTE OF )NDIA DATED TO RECOGNISE AND VEST THE
FOREST RIGHTS AND OCCUPATION IN FOREST LAND IN FOREST DWELLING 3CHEDULED TRIBES AND OTHER
TRADITIONAL FOREST DWELLERS WHO HAVE BEEN RESIDING IN SUCH FORESTS FOR GENERATIONS BUT
WHOSE RIGHTS COULD NOT BE RECORDED AND ALSO TO PROVIDE FOR A FRAME WORK FOR RECORDING
THE FOREST RIGHTS SO VESTED 4HE PETITIONERS UNDER THE PROVISIONS OF THE AFORESAID
!CT APPLIED TO THE 'OVERNMENT OF !RUNACHAL 0RADESH FOR RECOGNITION OF THEIR RIGHTS
OVER THE FOREST LAND 4HEY ALSO APPLIED FOR ISSUANCE OF ,AND 0OSSESSION #ERTICATE ,0#
FURNISHING ALL SUPPORTING DOCUMENTS BUT THE RESPONDENT AUTHORITIES KEPT THE MATTER
PENDING
4HE 3TATE 'OVT ISSUED 'OVERNMENT CIRCULAR AS FAR BACK AS ON
PROVIDING INTER
ALIA THAT NO PERSON WOULD BE GIVEN ,0# IN RESPECT OF LAND POSSESSED BY HIM WHICH
FALLS UNDER THE 2ESERVED &OREST !REA AND WHOEVER DESIRES TO OBTAIN SUCH ,0# HE HAS TO
OBTAIN ./# FROM THE $IVISIONAL &OREST /FCER $&/ CONCERNED
4HE RESPONDENT .O 3MT -AYA $OLO WAS FAVOURED WITH ,0# ISSUED BY THE RESPONDENT
$EPUTY #OMMISSIONER WITHOUT FOLLOWING ANY PROCEDURE PARTICULARLY WITHOUT
OBTAINING ANY ./# FROM THE $&/ CONCERNED "Y ORDER DATED
AND THE $EPUTY #OMMISSIONER %AST +AMENG $ISTRICT
3EPPA SURREPTITIOUSLY ISSUED TEN ,0#S IN FAVOUR OF THE RESPONDENT .O FOR AN AREA
COVERING HECTARES 4HE QUESTION OF GRANTING ,0# IN FAVOUR OF THE RESPONDENT .O
WAS RAISED IN THE OOR OF THE !SSEMBLY ON
4HE RESPONDENT .O AFTER RECEIPT OF THE ,0# DONATED THE AFORESAID LAND IN FAVOUR OF
THE 4OURISM $EPARTMENT AND THE 4OURISM $EPARTMENT IN ITS TURN BY A CORRESPONDENCE
DATED DIRECTED THE %XECUTIVE %NGINEER 723 %AST +AMENG $ISTRICT TO
UNDERTAKE A PROJECT FOR CONSTRUCTION OF A TOURIST LODGE FOR DEVELOPMENT OF TOURISM
INFRASTRUCTURE AT 'OLOSSO VILLAGE NEAR 0HAKUI 7IFE ,IFE 3ANCTUARY AT 3EIJUSA ON THE
FORESAID LAND OF RESPONDENT .O
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4HE PETITIONERS ALONGWITH OTHER VILLAGERS LED REPRESENTATION ON BEFORE THE
3TATE #HIEF 3ECRETARY SEEKING CANCELLATION OF THE ,0# ISSUED IN FAVOUR OF THE RESPONDENT
.O BUT TO NO EFFECT 4HE TOURISM DEPARTMENT FORCIBLY DISPOSSESSED THE PETITIONERS FROM
THEIR LANDS AND STARTED THE CONSTRUCTION WORK OF TOURIST LODGE 4HE PETITIONERS LODGED
AN &)2 ON WITH THE 3EIJUSA 0OLICE 3TATION AGAINST THE ILLEGAL DISPOSSESSION
4HEY ALSO SUBMITTED A JOINT REPRESENTATION BEFORE THE 3$/ 3EIJUSA AGAINST THE SAID
ILLEGAL DISPOSSESSION 4HEY RECEIVED NO PROTECTION FROM THE RESPONDENT AUTHORITIES AND
THEREFORE THEY HAD TO LE WRIT PETITION BEING 70# .O !0 BEFORE THIS #OURT
CHALLENGING THE ILLEGAL DISPOSSESSION AND CONSTRUCTION OF TOURIST LODGE OVER THE LANDS
OF THE PETITIONERS 4HE SAID WRIT PETITION WAS DISMISSED WITH LIBERTY TO THE PETITIONERS
TO APPROACH THE #OURT BY LING AN APPROPRIATE WRIT PETITION CHALLENGING THE VALIDITY OF
ISSUANCE OF THE ,0# IN FAVOUR OF RESPONDENT .O
4HE PETITIONERS HAVE LED THE PRESENT WRIT PETITION FOR SETTING ASIDE AND QUASHING THE
,0#S ISSUED IN FAVOUR OF THE PETITIONERS INASMUCH AS THE SAME HAVE BEEN ISSUED IN
COMPLETE VIOLATION OF THE !CT AND ALSO FOR HANDING OVER THE POSSESSION OF THE SAID
FOREST LAND TO THE PETITIONERS
4HE CLAIMS OF THE PRIVATE RESPONDENT .O ARE AS FOLLOWS
3HE IS A NATIVE OF 'OLOSSO VILLAGE UNDER 3EIJUSA #IRCLE BY VIRTUE OF HER MARRIAGE WITH
3HRI +AMENG $OLO SON OF ,ATE 9APE $OLO WHO EXPIRED IN THE YEAR +AMENG $OLOS
PARENTS HAD VENEERS
CUM
SAW MILL AND IMMOVABLE ASSETS AT 'OLOSSO AND 3EIJUSA #IRCLE
3HE HAS BEEN LIVING AT 'OLOSSO FOR LAST YEARS
4HE 3TATE OF !RUNACHAL 0RADESH BECAME A 5NION 4ERRITORY ON TH *ANUARY AND
BECAME A 3TATE IN THE YEAR !FTER #HINESE AGGRESSION BUT BEFORE EX
ARMY MEN WERE ALSO GIVEN SETTLEMENT AT 3EIJUSA 3OME !RUNACHALEES WERE ALSO SETTLED
AT 3EIJUSA 4HERE ARE MANY PEOPLE WHO ARE IN POSSESSION OF ,0# AT 3EIJUSA AND SHE IS
ONE OF THEM
!CCORDING TO THE RESPONDENT .O IN THE 3TATE OF !RUNACHAL 0RADESH THERE ARE FOUR
TYPES OF LAND NAMELY
0RIVATE LAND OWNED BY INHERITANCE OR BY PURCHASE
#OMMUNITY LAND
'OVERNMENT LAND OWNED BY ACQUISITION OR BY DONATION
&OREST LAND ACQUIRED AS PER PROVISIONS UNDER THE &OREST !CT
4HERE WAS NO SYSTEM IN THE 3TATE FOR ISSUING WRITTEN DOCUMENTS FOR OWNERSHIP OF
PRIVATE LAND BEFORE ATTAINING THE 3TATEHOOD 4HE 'OVERNMENT OF !RUNACHAL 0RADESH
INTRODUCED THE SYSTEM OF ,0# ONLY IN THE YEAR 4HE ,0#S ARE ISSUED ONLY IN RESPECT
OF PRIVATE LANDS
4HE LAND IN QUESTION IS A PRIVATE LAND WHICH THE RESPONDENT .O INHERITED AND SHE
PLANTED BLUE PINE TREES BUT IT BECOME UNSUCCESSFUL
!S A MATTER OF FACT SOME OF THE PETITIONERS WERE BROUGHT BY HER TO THE VILLAGE TO HELP
HER FAMILY TO CULTIVATE ON HER FAMILY LAND AND THE PETITIONERS HAVE NO RIGHT TITLE OR
INTEREST IN THE LAND IN QUESTION
/VER AND ABOVE SHE RAISES PRELIMINARY OBJECTION AS TO THE MAINTAINABILITY OF THE
PRESENT WRIT PETITION AS IT IS HIT BY PRINCIPLE OF RES JUDICATA INASMUCH AS THE PETITIONERS
APPROACHED THIS #OURT EARLIER BY LING 70# !0 WHICH WAS DISMISSED
ON WITH A DIRECTION TO THE #HIEF 3ECRETARY TO THE 'OVERNMENT OF !RUNACHAL
0RADESH TO CONSIDER THE REPRESENTATION MADE BY THE PETITIONERS AND DISPOSE OF THE
4 / \
SAME IN ACCORDANCE WITH LAW
2AISING THE PRELIMINARY ISSUE -R !PANG LEARNED #OUNSEL FOR RESPONDENT .O SUBMITS
THAT THE PRESENT WRIT PETITION IS NOT MAINTAINABLE AS IT INVOLVES DISPUTED QUESTION OF
FACTS WHICH CANNOT BE ENQUIRED INTO BY A WRIT #OURT AND ADJUDICATED UPON 4HE PRESENT
WRIT PETITION IS ALSO PREMATURE AS THE SAME HAS BEEN LED BEFORE ANY ORDER HAS BEEN
PASSED BY THE 3TATE #HIEF 3ECRETARY IN COMPLIANCE TO THE ORDER DATED PASSED
IN 70# !0 2ELIANCE HAS BEEN PUT ON 3TATE OF 50 AND !NR VS 50 2AJYA
+HANIJ 6IKAS .IGAM 3ANGHARSH 3AMITI AND /RS REPORTED IN 3## &URTHER THE
PETITIONERS HAVE NO LOCUS STANDI TO CHALLENGE THE ,0#S ISSUED IN FAVOUR OF RESPONDENT
.O IN RESPECT OF HER PRIVATE LAND OVER WHICH THEY HAVE NO RIGHT TITLE OR INTEREST 4HE
PETITIONERS HAVE LED THIS WRIT PETITION WITHOUT FURNISHING ANY PARTICULARS LIKE LOCATION
BOUNDARY ETC OF THE LAND OVER WHICH THEY WANT TO ESTABLISH THEIR RIGHT TITLE OR INTEREST
AND AS TO HOW THE RESPONDENT .O HAS ENCROACHED UPON THEIR LANDS 4HE PRESENT WRIT
PETITION IS CIVIL IN NATURE AND A 0), IN CHARACTER WHICH CANNOT TIE ENTERTAINED IN THE
PRESENT FROM AND THEREFORE THE SAME IS LIABLE TO THE DISMISSED
#OUNTERING THE PRELIMINARY ISSUES RAISED BY THE RESPONDENT .O AS ABOVE IT HAS
BEEN SUBMITTED BY -R ! +ASHYAP LEARNED #OUNSEL FOR THE PETITIONERS THAT THERE IS
NO DISPUTED QUESTION OF FACTS IN SO FAR AS THE LAND IN QUESTION FALLS UNDER THE NOTIED
2ESERVED &OREST AND THE PETITIONERS HAVE BEEN DISPOSSESSED FROM THE LAND UNDER
THEIR OCCUPATION THEREBY AFFECTING THEIR RIGHT TITLE AND INTEREST OVER THEIR PRIVATE
AND COMMUNITY LAND 4HE PETITIONERS HAD APPROACHED THIS #OURT FOR VENTILATING THEIR
PRIVATE RIGHTS AND INTEREST OVER THE LAND AND AS SUCH IT CANNOT BE SAID THAT THE PRESENT
WRIT PETITION HAS BEEN LED IN THE NATURE OF 0), 7HILE DISPOSING OF THE EARLIER WRIT
PETITION LED BY THE PETITIONERS LIBERTY WAS GRANTED TO THEM TO APPROACH THIS #OURT
WITH SUCH OTHER APPLICATION AS MAY BE PERMISSIBLE IN LAW AND AS SUCH IT IS ARGUED BY
-R +ASHYAP THAT THE PRESENT WRIT PETITION IS NOT HIT BY THE PRINCIPLE OF RES JUDICATA 4HE
PETITION CANNOT BE TERMED AS PREMATURE SIMPLY BECAUSE THE RESPONDENT
#HIEF 3ECRETARY
HAS FAILED TO DISPOSE OF THE REPRESENTATION AS DIRECTED BY THIS #OURT 4HE PRELIMINARY
OBJECTIONS AS RAISED BY RESPONDENT .O ARE NOT SUSTAINABLE UNDER THE LAW INASMUCH AS
THE SAME HAVE BEEN RAISED ONLY TO DEFEAT THE INTEREST OF JUSTICE
"EFORE GOING TO THE MERIT IT IS NECESSARY TO ANSWER THE AFORESAID PRELIMINARY OBJECTIONS
) HAVE PERUSED THE ORDER DATED PASSED BY THIS #OURT IN 70# !0
WHICH HAS BEEN ANNEXED AS !NNEXURE ))) TO THE AFDAVIT
IN
OPPOSITION LED BY THE
RESPONDENT .O 4HE OPERATIVE PORTION OF THE AFORESAID ORDER IS QUOTED BELOW TO
APPROPRIATE THE REAL POSITION
7HAT IS HOWEVER EXTREMELY IMPORTANT TO NOTE IS THAT THE PETITIONERS HAVE NOT
SOUGHT FOR ANY RELIEF AGAINST THE ISSUANCE OF ,AND 0OSSESSION #ERTICATE )N SUCH
CIRCUMSTANCES THE DIRECTIONS WHICH THE PETITIONERS HAVE SOUGHT FOR CANNOT BE
GRANTED IN FAVOUR OF THE PETITIONERS INASMUCH AS GRANTING ANY RELIEF AS HAS BEEN
SOUGHT FOR WOULD AMOUNT TO GIVING THEM A RELIEF WHICH THEY HAVE NOT EVEN
SOUGHT FOR
)N VIEW OF THE ABOVE ) DO NOT ND THAT THIS WRIT PETITION CAN BE MAINTAINED FOR THE
PURPOSE OF MERELY STOPPING CONSTRUCTION OF THE TOURIST LODGE PARTICULARLY WHEN
NO RELIEF AGAINST ISSUANCE OF THE ,AND 0OSSESSION #ERTICATE HAS BEEN SOUGHT FOR
BY THE PETITIONERS IN THIS WRIT PETITION
)N VIEW OF THE ABOVE AND IN THE INTEREST OF JUSTICE THIS WRIT PETITION IS NOT ADMITTED
AND THE SAME SHALL ACCORDINGLY STAND DISMISSED 4HE PETITIONERS SHALL HOWEVER
REMAIN AT LIBERTY TO APPROACH THIS #OURT WITH SUCH OTHER APPLICATIONS AS MAY BE
PERMISSIBLE IN LAW
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
"EFORE PARTING WITH THIS WRIT PETITION THE #HIEF 3ECRETARY TO THE 'OVERNMENT OF
!RUNACHAL 0RADESH IS HEREBY DIRECTED TO CONSIDER THE REPRESENTATION MADE BY THE
PETITIONERS AND DISPOSE OF THE SAME IN ACCORDANCE WITH LAW
"Y VIRTUE OF THE LIBERTY GRANTED IN THE AFORESAID ORDER THE PETITIONERS HAVE LED THE
PRESENT PETITION FOR A DIRECTION TO SET ASIDE AND QUASH THE ,0# ISSUED BY THE RESPONDENT
AUTHORITIES IN FAVOUR OF THE RESPONDENT .O IN VIOLATION OF THE PROVISIONS UNDER
!CT AND PROCEDURE PRESCRIBED BY THE 'OVERNMENT 4HERE IS NO DIFCULTY TO DISCERN THAT
THE PETITIONERS HAVE BEEN ALLOWED BY THE #OURT IN THE EARLIER PROCEEDING TO AGITATE THEIR
GRIEVANCE AGAINST THE ALLEGED ILLEGAL ISSUANCE OF ,0# AND IN THAT VIEW OF THE MATTER THERE
IS NO SCOPE FOR COMING OF A CONCLUSION THAT THE PRESENT WRIT PETITION IS PREMATURE HIT
BY PRINCIPLE OF RES JUDICATA AND WITHOUT ANY LOCUS STANDI !CCORDINGLY THE PRELIMINARY
OBJECTION STANDS REJECTED
/N THE MERIT OF THE CASE -R +ASHYAP LEARNED #OUNSEL FOR THE PETITIONERS MAKES THE
FOLLOWING SUBMISSIONS
I 4HE LAND IN QUESTION FALLS UNDER 3EIJUSA 2ESERVED &OREST WHICH WAS NOTIED
UNDER +HELLONG &OREST $IVISION BY THE 'OVERNMENT AS 2ESERVED &OREST UNDER THE
!SSAM &OREST 2EGULATION READ WITH 3ECTION OF THE .%&! 2EGULATION
II 4HE ,0#S WERE ISSUED IN FAVOUR OF THE RESPONDENT .O WITHOUT ./# FROM THE
&OREST $EPARTMENT WHICH IS IN VIOLATION OF THE !CT AND ALSO PUBLIC POLICY OF
THE 'OVERNMENT BY PLAYING FRAUD IN COLLUSION WITH THE DISTRICT REVENUE AUTHORITIES
WHICH ARE LIABLE TO BE CANCELLED
III 4HE DONATION OF THE LAND IN QUESTION TO A PARTICULAR DEPARTMENT FOR CONSTRUCTION
OF TOURIST LODGE NEAR THE 0HAKUI WILD LIFE SANCTUARY CANNOT BE PERMITTED INASMUCH
AS THE LAND IN QUESTION IS BEING USEDUTILIZED FOR NON
FOREST PURPOSE AND CAUSING
DISTURBANCEPOLLUTION IN THE WIFE LIFE SANCTUARY
!NY ORDER OBTAINED BY PLAYING FRAUD IS NON
EST IN THE EYE OF LAW AND SUCH ORDER IS LIABLE
TO BE CANCELLED AS HELD IN 0APAYA 3HASTRI VS 'OVERNMENT OF !NDHRA 0RADESH REPORTED IN
!)2 3#
#OUNTERING THE ARGUMENTS ADVANCED BY THE PETITIONERS -R !PANG LEARNED #OUNSEL FOR
THE RESPONDENT .O SUBMITS THAT
A 0ETITIONER .O 3HRI 3AKAM 0AFFA HAS WITHDRAWN FROM THIS CASE BY LING -# .O
!0 AND THIS PROVES THAT THE PRESENT PETITION HAS BEEN LED WITH OBLIQUE
MOTIVE -OREOVER MANY OF THE SIGNATORIES OF THE REPRESENTATION SUBMITTED BEFORE
THE #HIEF 3ECRETARY FOR CANCELLATION OF ,0# IN FAVOUR OF THE RESPONDENT .O THAT
THEY HAVE NOT WRITTEN SUCH COMPLAINT 3OME OF THEM HAVE STATED THAT THEY HAVE
BEEN MISGUIDED AND LURED FOR CONTRACT WORK
B !S PER THE RECORDS AVAILABLE IN THE AFDAVIT OF RESPONDENT .OS AND THERE ARE
AS MANY AS INDIVIDUALS WHO HAVE BEEN ISSUED ,0# COVERING THE LAND MEASURING
HECTARES IN THE SAID AREA 4HIS PROVES THAT THE RESPONDENT .O IS NOT THE ONLY
PERSON IN WHOSE FAVOUR THE ,0#S HAVE BEEN ISSUED
C 4HE ,0#S WERE ISSUED IN FAVOUR OF THE PETITIONERS AFTER OBSERVING DUE PROCEDURE
AND ON THE BASIS OF ./# ISSUED BY THE &OREST $EPARTMENT 4HE ,0#S WERE ISSUED IN
A FORM NOT PRESCRIBED UNDER THE NOTICATION OF BUT ON THAT SCORE ONLY THE
,0#S CANNOT BE SAID TO BE ILLEGAL )T IS ONLY AN IRREGULARITY WHICH CAN BE CURED )N
SUPPORT OF THIS SUBMISSIONS HE RELIES ON THE DECISIONS RENDERED BY THE !PEX #OURT IN
3TATE OF -0 AND /RS VS ,ALIT +UMAR 6ERMA REPORTED IN 3## AND 3ECRETARY
4 / \
3TATE OF +ARNATAKA AND /RS VS 5MA $EVI S AND /RS REPORTED IN 3##
D 4HE !CT HAS NOT YET BEEN GIVEN EFFECT IN THE 3TATE OF !RUNACHAL 0RADESH AND
AS SUCH THERE WAS NO QUESTION OF APPLICATION OF THE AFORESAID PROVISIONS OF THE SAID
!CT 4HERE WAS THEREFORE NO ILLEGALITY OR IRREGULARITY IN ISSUING THE ,0#S IN QUESTION
IN FAVOUR OF THE RESPONDENT .O
E 4HE 'OVERNMENT OF )NDIA HAVING NOT BEEN MADE A PARTY NO EFFECTIVE ORDER
DIRECTION COULD BE ISSUED AND AS SUCH THE PRESENT PETITION IS LIABLE TO BE DISMISSED
FOR NONJOINDER OF NECESSARY PARTY )N THIS REGARD HE RELIES ON #+ 0RAHALADA AND /RS
V 3TATE OF +ARNATAKA AND /RS REPORTED IN 3##
-S ' $EKAR LEARNED !DDL 3R 'OVT !DVOCATE SUPPORTING THE IMPUGNED ACTION
OF THE RESPONDENT AUTHORITIES IN ISSUING THE ,0#S IN FAVOUR OF RESPONDENT .O SUBMITS
THAT THE RESPONDENT $&/ +HELLONG &OREST $IVISION ISSUED ./# ON FOR
IMPLEMENTATION OF CERTAIN SCHEMES IN THE FOREST LAND AFTER HAVING MET THE REQUISITE
TERMS AND CONDITIONS "ASED ON ./# ISSUED BY THE RESPONDENT $&/ THE ,0#S
WERE ISSUED IN FAVOUR OF THE RESPONDENT .O AS SHE WAS FOUND TO BE IN POSSESSION OF
THE LAND IN QUESTION AS INHERITED FROM THE PARENTS OF HER HUSBAND 4HE RESPONDENT
.O DONATED THE LAND MEASURING HECTARES FREE OF COST TO THE TOURISM DEPARTMENT
IN THE LARGER INTEREST OF THE PUBLIC AND THE 'OVT HAS UNDERTAKEN CONSTRUCTION OF
TOURIST LODGE AS A MEASURE OF DEVELOPMENT OF TOURISM INFRASTRUCTURE ON THE LAND
DONATED BY THE RESPONDENT .O NEAR 0HAKUI WILD LIFE SANCTUARY AT 3EIJUSA COVERED
BY THE ,0#S IN QUESTION 2EFERRING TO THE AVERMENTS MADE IN PARAGRAPH OF THE
AFDAVIT
IN
OPPOSITION LED BY THE RESPONDENT .OS AND IT IS SUBMITTED THAT THE
LAND IN QUESTION IN THE PRESENT WRIT PETITION DOES NOT FALL UNDER 2ESERVED &OREST
-OREOVER SINCE AS PER THE TRADITIONAL TRIBAL RIGHT THE RESPONDENT .O IS IN POSSESSION
OF THE SAID LAND SHE APPLIED FOR ,0# TO RECORD HER RIGHT IN THE REVENUE RECORDS AS PROVIDED
UNDER THE 'OVERNMENT #IRCULAR ISSUED IN THAT REGARD "ASED ON AVERMENTS MADE
IN PARAGRAPH OF THE SAID AFDAVIT IT IS ALSO SUBMITTED BY -S ' $EKAR LEARNED
!DDL 3ENIOR 'OVT !DVOCATE THAT THE AREA IN QUESTION DOES NOT FALL UNDER 2ESERVED
&OREST AND THERE IS NO CEILING LIMIT FOR ISSUING ,0# BY THE AUTHORITIES CONCERNED
4HE CRUX OF THE MATTER AS COULD BE UNDERSTOOD FROM THE PLEADINGS AND ARGUMENTS
ADVANCED BY THE PARTIES IS WHETHER
4HE LANDS IN QUESTION IN RESPECT OF WHICH ,0#S HAVE BEEN ISSUED IN FAVOUR OF THE
RESPONDENT .O ARE INCLUDED IN THE NOTIED 2ESERVED &OREST
)F THE LANDS IN QUESTION ARE COVERED OR INCLUDED IN THE RESERVED FOREST WHETHER
THE COMPETENTAUTHORIZED &OREST /FCER ISSUED ANY ./# ENABLING THE DISTRICT
REVENUE OFCERDISTRICT AUTHORITY TO ISSUE THE ,0#S IN QUESTION AND
7HETHER THE ,0#S IN QUESTION WERE ISSUED BONA DE AND WITHOUT AFFECTING THE
INTEREST OF THE PETITIONERS
)N REGARD TO RST QUESTION ) WOULD LIKE TO REFER TO NOTICATION .O &/2 DATED
ISSUED BY THE !DVISOR TO THE 'OVERNOR OF !SSAM !NNEXURE
! OF THE REJOINDER
TO AFDAVIT
IN
OPPOSITION OF RESPONDENT .O WHEREBY THE 'OVERNMENT DECLARED
0APUM &OREST AS 2ESERVED &OREST &OR BETTER APPRECIATION OF THE FACTUM OF NOTIFYING THE
SAID &OREST 2ESERVED IT IS NECESSARY TO EXTRACT THE SAID NOTICATION HEREUNDER
! . .% 8 52 % !
4HE ST *ULY
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
.O &/2
)N EXERCISE OF THE POWER CONFERRED BY 3ECTION OF !SSAM &OREST
2EGULATION 6)) OF READ WITH 3ECTION OF THE .ORTH %AST &RONTIER !GENCY
#ONSTRUCTION OF 2EFERENCES TO 3TATE 'OVERNMENT 2EGULATION .O OF THE
'OVERNMENT OF !SSAM HEREBY DECLARES THAT THE LAND DESCRIBED IN THE 3CHEDULE HERETO
ANNEXED SHALL BE A 2ESERVED &OREST FROM THE DATE OF PUBLICATION OF THIS .OTICATION
3#( % $5,%
$)342)#4 + !-% .' .% &!
.!-% /& !002/8)-!4% !2%! ). !#2%3 $%3#2)04)/. /& "/5.$!2)%3
&/2%34
0APUM !CRES OR .ORTH &ROM THE CONUENCE OF 0APUM 0ANI
(ECTARE AS 2IVER AND ONE OF ITS TRIBUTARIES ABOUT TH
#OMMUNICATED VIDE ##& -ILE %AST OF THE *UNCTION OF 0APUM 0ANI
.O 3TAT AND -IRI)PATHAR RIVERS %AST WARD ALONG THE
$T RIGHT BANK OF THE 0ASSU 0ANI RIVER TO ITS
SOURCE AND ACROSS THE RIDGE %AST WARD TO
THE SOURCE OF 0AR RIVER 4HENCE ALONG THE
LEFT BANK OF THE 0AR .ADI TO ITS CONUENCE
WITH ONE OF ITS TRIBUTARIES BETWEEN 4ANI
AND ,EGI VILLAGE
ILLEGABLE %AST 4HENCE SOUTH WARD ALONG THIS
TRIBUTARY TO ITS SOURCE AND ACROSS THE RIDGE
3OUTH WARDS TO PEAK 4HENCE
SOUTHWARDS ALONG THE RIDGE TO THE
CONUENCE OF 0OMA AND 0APUM RIVERS
4HENCE ALONG THE "URAI RIVER TO THE POINT
WHERE IT CROSSES THAT INNER LINE
3OUTH
4HENCE ALONG THE INNER LINE
7ESTWARD TO THE POINT WHERE IT CROSSES THE
0HAKUI RIVER NEAR 3EIJUSA
#ORRECTED AS PER 7EST 4HENCE ALONG THE RIGHT BACK OF
#ORRESPONDENCE THE 0AKHUI RIVER TILL IT REACHES THE
.O &/2 CONUENCE WITH ONE OF ITS TRIBUTARIES
$T WHICH CROSSES THE 3EMA +ALANGGANIA
0 # OF LE +$ 0AKHUI RIVER 4HENCE .ORTH WARD ALONG THE
RIGHT BANK OF THIS TRIBUTARY TO ITS SOURCE
AND ACROSS THE RIDGE TO THE SOURCE OF ONE OF
ILLEGABLE THE TRIBUTARIES OF THE 0ASSU 0ANI RIVER
4HENCE ALONG THE RIGHT BACK OF THIS
TRIBUTARY TO THE STARTING POINT
3D
0. ,UTHRA
!DVISER TO THE 'OVERNOR OF !SSAM
4HE SAID NOTIED AREA PREVIOUSLY COME UNDER THE TERRITORIAL JURISDICTION OF $&/
+HELLONG &OREST $IVISION "HALUKPONG AND THE LAND IN QUESTION IN RESPECT OF WHICH
THE ,0#S HAVE BEEN ISSUED TO RESPONDENT .O COMES UNDER 3EIJUSA &OREST 2ANGE 4HE
SAID 3EIJUSA &OREST 2ANGE WAS BIFURCATED INTO TWO INDEPENDENT &OREST 2ANGES NAMELY
4 / \
3EIJUSA 2ANGE AND .AMORAH 2ANGE VIDE 'OVERNMENT /RDER .O &/2 DATED
ISSUED BY THE !DVISOR TO THE 'OVERNOR OF !SSAM 3HILLONG !NNEXURE ! TO THE
AFORESAID REJOINDER 4HE OFCIAL RESPONDENTS INCLUDING THE RESPONDENT $&/ CONCERNED
HAVE NOT DENIED THE ISSUANCE OF THE AFORESAID NOTICATION CONSTITUTING THE 0APUM
FOREST AS 2ESERVED &OREST )T IS RATHER STATED IN PARAGRAPH OF THE COUNTER AFDAVIT LED
ON BEHALF OF THE RESPONDENT .OS AND THAT 2ESERVED &ORESTS ARE CONSTITUTED THROUGH
NOTICATION UNDER 3ECTION OF THE !SSAM &OREST 2EGULATION )T IS STATED THEREIN
THAT NO LAND UNDER DULY NOTIED 2ESERVED &OREST COULD BE ALLOTTED FOR NON FORESTRY USE
WITHOUT DE RESERVATION AND NO ./# FOR THE PURPOSE OF GRANTING ,0# COULD BE ISSUED
IN RESPECT OF THE LAND WITHIN THE NOTIED 2ESERVED &OREST
)T MUST THEREFORE BE ACCEPTED THAT THE LANDS IN QUESTION ARE WITHIN THE AFORESAID
NOTIED 2ESERVED &OREST AND THE RESPONDENT
$EPUTY #OMMISSIONER AS WELL AS THE
RESPONDENT .O WERE WELL AWARE ABOUT THE SAME 4HEY WERE ALSO WELL AWARE ABOUT
THE REQUIREMENT OF ./# FROM THE &OREST $EPARTMENT AND AS SUCH THE $EPUTY
#OMMISSIONER AFTER RECEIPT OF APPLICATIONS FROM THE RESPONDENT .O FOR GRANTING HER
,0#S MADE CORRESPONDENCE WITH THE RESPONDENT &OREST /FCIALS REQUESTING THEM TO
ISSUE ./# FROM THEIR END &ROM THE CONDUCT OF THE RESPONDENT
$EPUTY #OMMISSIONER
AND RESPONDENT .O IT BECOMES CLEAR THAT THEY ACCEPTED THE STATUS OF THE LANDS IN
QUESTION AS PART OF THE 2ESERVED &OREST &ROM THE AFORESAID DISCUSSIONS THERE WOULD
BE NO DIFCULTY IN COMING TO A CONCLUSION THAT THE LANDS IN QUESTION FALL UNDER THE
2ESERVED &OREST
4HE QUESTION AS TO WHETHER ANY ./# WAS ISSUED BY THE &OREST $EPARTMENT HAS
BEEN ANSWERED IN PARAGRAPH OF THE COUNTER
AFDAVIT LED FOR AND ON BEHALF OF THE
RESPONDENT .OS AND ! CATEGORICAL DENIAL HAS BEEN MADE BY THE &OREST OFCERS
CONCERNED MAKING AVERMENTS AS FOLLOWS
4HAT WITH REGARD TO THE STATEMENT MADE IN PARAGRAPH OF THE WRIT PETITION
YOUR HUMBLE DEPONENT BEGS TO STATE THAT SINCE THE $EPARTMENT OF %NVIRONMENT
&OREST HAS NOT ISSUED ANY ./# FOR ISSUANCE OF ,AND 0OSSESSION #ERTICATE ,0# BY
THE COMPETENT AUTHORITY FROM THE NOTIED 2ESERVED &OREST THE $EPARTMENT HAS
NO DETAILS OF ,0# ISSUED TO ANY INDIVIDUAL
)T HAS BEEN MADE CLEARER IN PARAGRAPH OF THE SAID COUNTER AFDAVIT WHICH READS AS
FOLLOWS
4HAT WITH REGARD TO THE STATEMENT MADE IN PARAGRAPH OF THE WRIT PETITION
YOUR HUMBLE DEPONENT BEGS TO STATE THAT AS THE FOREST LAND WITHIN THE NOTIED
2ESERVED &OREST HAS NOT BEEN DE NOTIED UNDER THE &OREST #ONSERVATION !CT
AND ./# FOR ,AND 0OSSESSION #ERTICATE ,0# HAS NOT ISSUED BY THE CONCERNED $&/
HENCE THE QUESTION OF HANDING OVER THE FOREST LAND IN QUESTION TO ANY INDIVIDUAL
FOR POSSESSION DOES NOT ARISE
&ROM THE ABOVE IT HAS BECOME CLEAR THAT THE &OREST $EPARTMENT DID NOT ISSUE ANY ./# FOR
GRANTING ,0# TO RESPONDENT .O INASMUCH THE LANDS IN QUESTION COME UNDER THE NOTIED
2ESERVED &OREST AND THE SAID AREA WAS NOT DE
NOTIED UNDER THE &OREST #ONSERVATION !CT
HEREINAFTER REFERRED TO AS THE !CT
4HE QUESTION AS TO WHETHER THE ,0#S WERE ISSUED IN FAVOUR OF THE RESPONDENT .O
BONA DE IS TO BE EXAMINED &ROM THE MATERIALS PLACED BEFORE THIS #OURT IT HAS BEEN
DISCLOSED IN THE AFDAVIT LED ON BEHALF OF THE RESPONDENT .OS AND THAT THE 'OVT
OF )NDIA -INISTRY OF 4OURISM VIDE LETTER .O .% DATED INFORMED
THE #OMMISSIONER
CUM
3ECRETARY 4OURISM 'OVT OF !RUNACHAL 0RADESH ABOUT THE
SANCTION OF 2S LAKHS 2UPEES CORES LAKHS AND THOUSAND FOR THE PURPOSE
OF DEVELOPMENT OF TOURISM INFRASTRUCTURES NEAR 0AKOI 7ILD ,IFE 3ANCTUARY AT 3EIJUSA
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
IN %AST +AMENG $ISTRICT /UT OF THE ABOVE SANCTIONED AMOUNT AN AMOUNT TO THE TUNE
OF 2S LAKHS WAS RELEASED ON AS RST INSTALMENT FOR CONSTRUCTION OF THE
PROJECT )N THE SAID AFDAVIT IT HAS ALSO BEEN DISCLOSED THAT RESPONDENT .O DONATED
SOME LANDS TO THE 'OVERNMENT FREE OF COST FOR CONSTRUCTION OF TOURIST LODGE 4HERE IS A
BACKGROUND HOW IT WAS PROCESSED WITH THE 'OVT OF )NDIA FOR DEVELOPMENT OF TOURISM
INFRASTRUCTURES AT THE SAID PLACE )T CAN BE TRACED OUT FROM THE COMMUNICATION DATED
MADE BY THE RESPONDENT .O IN THE CAPACITY OF :0- OF %AST +AMENG
:ILLA #ONSTITUENCY WITH THE #HIEF -INISTER STATING INTER ALIA THAT HER PREDECESSOR -R
4ARAM .YARI PROCESSED THE CASE IN THE YEAR WITH THE THEN $&/ 0AKKE 7ILD ,IFE
3ANCTUARY AND ACCORDINGLY THE SAID $&/ WROTE A LETTER TO THE $IRECTOR 4OURISM 'OVT
OF !RUNACHAL 0RADESH ON /N THE BASIS OF THE SAID PROPOSAL IT WAS TAKEN UP
WITH THE $IRECTOR 4OURISM 'OVT OF )NDIA AND ACCORDINGLY TWO TOURIST CENTRES FOR THE
.% 2EGION ONE AT 0HAKUI 7ILD ,IFE 3ANCTUARY IN !RUNACHAL 0RADESH AND ANOTHER IN
!SSAM WERE SANCTIONED
!FTER THE SANCTION OF TOURIST CENTRE IN !RUNACHAL 0RADESH THE 'OVT SELECTED A SITE
WHICH WAS NOT FOUND SUITABLE DUE TO EROSION BY OOD !T THAT STAGE RESPONDENT .O
WROTE A LETTER TO THE #HIEF -INISTER TO CHANGE THE TOURIST CENTRE SITE TO HER LAND IE THE
PRESENT LAND IN QUESTION WHICH SHE WAS READY TO DONATE FOR CONSTRUCTION OF TOURIST
LODGE 4HIS LETTER DATED IS AVAILABLE IN THE REJOINDER AFDAVIT LED BY THE
PETITIONERS TO THE AFDAVIT
IN
OPPOSITION OF RESPONDENT .OS AND !NNEXURE
!
4HE RESPONDENT .O WITH INTENTION TO GET THE TOURIST CENTRE SITE SHIFTED TO HER LAND
MADE APPLICATION BEFORE THE RESPONDENT
$EPUTY #OMMISSIONER FOR GRANTING HER ,0#S
AND SHE BECAME SUCCESSFUL IN GETTING THE ,0#S IN QUESTION GRANTED IN HER FAVOUR
DURING /CTOBER AND &EBRUARY 4HE RESPONDENT .O AS IT APPEARS FROM THE
VARIOUS CORRESPONDENCE MADE BY HER IS A REGISTERED #LASS
)) CONTRACTOR OF THE #07$
3HE ALSO RUNS AN .'/ KNOWN AS $$$7/ AT 3EIJUSA 3HE MADE APPLICATION IN THE
CAPACITY OF -EMBER :0- BEFORE THE #HIEF -INISTER ON FOR AWARDING THE WORK
OF DEVELOPMENT OF TOURISM INFRASTRUCTURES NEAR 0HAKUI 7ILD ,IFE 3ANCTUARY 3HE ALSO
MADE SIMILAR APPLICATION BEFORE THE 3ECRETARY 72$ ON AND ALSO BEFORE THE
$IRECTOR 4OURISM FOR AWARDING THE CONTRACT WORK TO HER (ER HUSBAND 3HRI +AMENG
$OLO IN THE CAPACITY OF THE -,! AS HE WAS THEN ALSO REQUESTED THE #HIEF -INISTER VIDE
HIS NOTE DATED FOR EARLY EXECUTION OF SCHEME OF TOURISM INFRASTRUCTURES NEAR
0HAKUI 7ILD ,IFE 3ANCTUARY AT 3EIJUSA #OPIES OF ALL THOSE CORRESPONDENCES REFERRED TO
ABOVE ARE AVAILABLE IN THE AFORESAID REJOINDER LED BY THE PETITIONERS 4HE LETTER DATED
AFORESAID IS REPRODUCED
)TANAGAR
4O
4HE (ONOURABLE #HIEF -INISTER
!RUNACHAL 0RADESH
)TANAGAR
3UBJECT !WARD OF WORK $EVELOPMENT OF 4OURISM )NFRASTRUCTURE NEAR 0AKHUI 7ILD
,IFE 3ANCTUARY AT 3EIJOSA IN %AST +AMENG $ISTRICT
(ONBLE 3IR
7ITH DUE REGARD ) AM TO INFORM YOU THAT ) HAD BEEN ELECTED AS :ILLA 0ARISHAD
-EMBER FROM %AST +AMENG :ILLA #ONSTITUENCY 3EIJOSA RECENTLY )T HAS COME TO
MY KNOWLEDGE THAT A SCHEME
$EVELOPMENT OF 4OURISM )NFRASTRUCTURE NEAR 0AKHOI
7ILD ,IFE 3ANCTUARY AT 3EIJOSA IN %AST +AMENG $ISTRICT !RUNACHAL 0RADESH FOR AN
AMOUNT OF 2S LAKHS BY -INISTRY OF 4OURISM 'OVT OF )NDIA VIDE THEIR LETTER .O
4 / \
.% DATED COPY OF THE SANCTION ORDER IS ENCLOSED HEREWITH
)T IS UNDERSTOOD THAT THE WORK HAS YET TO BE AWARDED TO ANYBODY 4HE %XECUTING
!GENCY OF THE ABOVE PROPOSED WORK IS THE 7ATER 2ESOURCE $EPARTMENT OF !RUNACHAL
0RADESH
) AM HAVING VAST EXPERIENCE FOR CONSTRUCTION OF ROAD BUILDINGS BRIDGES ETC
AS WELL AS MY NAME IS ENLISTED IN TO #LASS )) #ONTRACTOR LIST OF #07$ HAVING THE
VAST EXPERIENCE FOR CONSTRUCTION OF SIMILAR NATURE OF WORK 3INCE THE PUBLIC HAS
APPROACHED ME TO UNDERTAKE THE WORK IN THE NAME OF AN .'/ $$$77/ 3EIJOSA
WHICH IS RUN BY THE PUBLIC OF 3EIJOSA AREA ) SHALL BE EXTREMELY GRATEFUL IF YOU COULD
KINDLY AWARD THE AFORESAID WORK IN THE ABOVE REGISTERED RM
)N THIS CONNECTION ) ALREADY APPROACHED 3ECRETARY 72$ TO AWARD THIS WORK AND
ACCORDINGLY THE 3ECRETARY 72$ VIDE HIS 5/ .O 3ECY72$$TD
HIS COMMENTS HAS BEEN CONVEYED TO #HIEF %NGINEER 72$ TO ALLOT THE WORK IN
FAVOUR OF $$$77/ 3EIJOSA ! COPY IS ENCLOSED HEREWITH
!BOVE ALL ) VERY FERVENTLY REQUEST YOU TO KINDLY INSTRUCT #HIEF %NGINEER 72$ TO
AWARD THE ABOVE WORK IN FAVOUR OF $$$77/ 3EIJOSA SO THAT LARGE NUMBER OF
PUBLIC CAN BE BENETED ACCORDINGLY
4HANKING YOU 3IR
9OURS FAITHFULLY
3D -RS -AYA $OLO
:0- %LECT 3EIJOSA
#AMP
LTANAGAR
)T HAS THUS BECOME CLEAR THAT THE RESPONDENT .O USED HER OFCIAL POWER AND INUENCE
BACKED BY HER HUSBAND WHO WAS AT TIMES POWERFUL CABINET MINISTER IN THE 3TATE IN
GETTING THE ,0#S ISSUED IN HER FAVOUR EXPEDITIOUSLY WITHOUT ANY ./# FROM THE &OREST
$EPARTMENT IN VIOLATION OF THE PROVISIONS UNDER THE &OREST !CT2EGULATION AND ALSO IN
VIOLATION OF THE EXISTING PROCEDURES PRESCRIBED BY THE 'OVT "ESIDES SHE PUT TREMENDOUS
PRESSURE ON THE #HIEF -INISTER THROUGH THE -INISTER ,AND -ANAGEMENT ETC AND HER
HUSBAND TO GET THE AFORESAID WORK SETTLED IN FAVOUR OF THE $$$7/ AN .'/ RUN
BY HER "EHIND THE DONATION OF THE LAND SHE HAD AN OBJECT OF GETTING THE 'OVT CONTRACT
WORK AWARDED IN THE NAME OF AN .'/ RUN BY HER )T IS TOTALLY UNBECOMING OF AN
ELECTED PUBLIC REPRESENTATIVE LIKE RESPONDENT .O TO INTRODUCE HERSELF AS A REGISTERED
CONTRACTOR AND SEEK 'OVT CONTRACT WORK HOLDING SUCH IMPORTANT PUBLIC OFCE 4HERE
IS NO DIFCULTY IN UNDERSTANDING THAT SHE OBTAINED ,0#S FROM THE DISTRICT AUTHORITY BY
PLAYING FRAUD IN COLLUSION WITH SOME OFCIALS CONCERNED IN VIOLATION OF THE EXISTING LAW
AND PROCEDURES PRESCRIBED FOR ISSUANCE OF ,0#S AND AS SUCH THE ,0#S IN QUESTION ARE
LIABLE TO BE CANCELLED
4HE PETITIONERS ON THE CONTRARY ARE ORDINARY CITIZENS AND DISADVANTAGED PEOPLE WHO
ALSO APPLIED FOR ,0# BEFORE THE RESPONDENT
$EPUTY #OMMISSIONER BUT WERE DENIED OF
THE SAME 4HEY HAVE BEEN DENIED ,0# ON THE BASIS OF A SO CALLED REPORT OF SOME OFCIALS
WHO REPORTED THAT THE PETITIONERS HAVE NO POSSESSION OVER THE LAND AND THEY WERE NOT
FOUND AT THE PLACE WHEN A SPOT VERICATION WAS MADE 4HERE IS NO RECORD TO SHOW THAT
ANY NOTICE WAS ISSUED TO THE PETITIONER ABOUT THE PROPOSED SPOT VERICATION BY THE
OFCIALS CONCERNED 4HE PETITIONERS WERE NOT SERVED WITH ANY NOTICE AS CLAIMANTS OF
THE LAND IN QUESTION BEFORE THE ,0#S WERE ISSUED IN FAVOUR OF THE RESPONDENT .O
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
)T IS THEREFORE EASY TO UNDERSTAND THAT THE INTEREST OF THE PETITIONERS WERE AFFECTED
BY THE IMPUGNED ACTION OF THE RESPONDENT AUTHORITIES IN ISSUING THE ,0#S IN QUESTION
WITHOUT CONSIDERING THE CLAIM OF THE PETITIONERS WHO ARE ALSO SIMILARLY INDIGENOUS
TRIBE OF THE LOCALITY LIVING SINCE THE DAYS OF THEIR FOREFATHERS IF NOT TIME IMMEMORIAL OR
GENERATIONS 4HE !PEX #OURT ON SEVERAL OCCASIONS HAS BEEN EXPRESSING SERIOUS CONCERN
IN SEVERAL CASES OVER THE WANTON DESTRUCTION OF FOREST AFFECTING THE ECOLOGICAL BALANCE
4HE !CT WAS ENACTED TO PROVIDE FOR CONSERVATION OF FOREST AND FOR MATTER CONNECTED
THERE WITH OR ANCILLARY OR INCIDENTAL THERETO 4HE OBJECT AND REASONS FOR ENACTMENT OF
THE SAID !CT IS TO CHECK DE
FORESTATION AND SAVE ECOLOGICAL BALANCE AND ENVIRONMENTAL
DETERIORATION &OR THIS PURPOSE RESTRICTIONS HAVE BEEN IMPOSED ON DE
FORESTATION OF
FOREST OR USE OF FOREST LAND FOR NON
FOREST PURPOSE UNDER 3ECTION OF THE SAID !CT &OR
THE PURPOSE OF PROPERLY APPRECIATING THE CASE AT HAND IT IS NECESSARY TO HAVE A CLOSE
LOOK AT THE PROVISION UNDER 3ECTION OF THE SAID !CT WHICH IS QUOTED BELOW
2ESTRICTION ON THE DE
RESERVATION OF FORESTS OR USE OF FOREST LAND FOR NON
FOREST
PURPOSE .OTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER LAW FOR THE TIME BEING
IN FORCE IN A 3TATE NO 3TATE 'OVERNMENT OR OTHER AUTHORITY SHALL MAKE EXCEPT WITH
THE PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT ANY ORDER DIRECTING
I 4HAT ANY RESERVED FOREST WITHIN THE MEANING OF THE EXPRESSION RESERVED
FOREST IN ANY LAW FOR THE TIME BEING IN FORCE IN THAT 3TATE OR ANY PORTION THEREOF
SHALL CEASE TO BE RESERVED
II 4HAT ANY FOREST LAND OR ANY PORTION THEREOF MAY BE USED FOR ANY NON FOREST
PURPOSE
III 4HAT 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 ORGANISATION NOT OWNED MANAGED OR CONTROLLED BY 'OVERNMENT
IV 4HAT 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
A 4HE CULTIVATION OF TEA COFFEE SPICES RUBBER PALMS OIL BEARING PLANTS
HORTICULTURAL CROPS OR MEDICINAL PLANTS
B !NY PURPOSE OTHER THAN REAFFORESTATION
"UT DOES NOT INCLUDE ANY WORK RELATING OR ANCILLARY TO CONSERVATION DEVELOPMENT
AND MANAGEMENT OF FORESTS AND WILD LIFE NAMELY THE ESTABLISHMENT OF CHECK
POSTS RE LINES WIRELESS COMMUNICATIONS AND CONSTRUCTION OF FENCING BRIDGES
AND CULVERTS DAMS WATER HOLES TRENCH MARKS BOUNDARY MARKS PIPELINES OR
OTHER LIKE PURPOSES
)N THE PRESENT CASE THE 3TATE 'OVERNMENT AFTER OBTAINING SANCTION FOR SETTING UP
TOURISM INFRASTRUCTURES WITH HUGE FUND STARTED CONSTRUCTION OF TOURIST LODGE NEAR THE
0HAKUI 7ILD ,IFE 3ANCTUARY &ROM THE PLEADINGS OF THE RESPONDENT AUTHORITIES IT DOES
NOT APPEAR THAT A PRIOR APPROVAL OF THE #ENTRAL 'OVT PARTICULARLY FROM THE $EPARTMENT
OF %NVIRONMENT AND &OREST HAS BEEN OBTAINED FOR CONSTRUCTION OF SUCH TOURIST LODGE
INSIDE OR NEAR THE 0HAKUI 7ILD ,IFE 3ANCTUARY AS REQUIRED UNDER 3ECTION OF THE !CT 4HE
3TATE 'OVERNMENT OR ANY AUTHORITY CANNOT ESCAPE FROM OBTAINING SUCH PRIOR APPROVAL
FOR USING THE LAND IN THE 2ESERVED &OREST PARTICULARLY FOR NON
FOREST PURPOSE )T HAS
BEEN HELD IN 4ARUN "HARAT 3ANGH VS 5NION OF )NDIA REPORTED IN 3UPP 3##
THAT ONCE AN AREA IS DECLARED AS A PROTECTED FOREST IT COMES WITHIN THE PURVIEW OF THE
!CT AND IT BECOMES A FOREST LAND WITHIN THE MEANING OF 3ECTION OF THE !CT 4HE
4 / \
EFFECT OF THIS DECISION IS THAT NO NON FOREST ACTIVITY CAN BE CARRIED ON IN AND ON THE SAID
AREA WITHOUT THE PRIOR APPROVAL OF THE #ENTRAL 'OVT %VEN THE 3TATE 'OVERNMENT CANNOT
CARRY ON ANY SUCH NON FOREST ACTIVITY IN THE SAID AREA WITHOUT PRIOR APPROVAL FROM THE
#ENTRAL 'OVT 4HE !PEX #OURT IN .ATURE ,OVERS -OVEMENT VS 3TATE OF +ERALA AND /RS
REPORTED IN 3## FURTHER HELD THAT THE RATIO OF RELEVANT JUDGMENT OF THE
3UPREME #OURT THE !CT IS APPLICABLE TO ALL FORESTS IRRESPECTIVE OF THE OWNERSHIP OR
CLASSICATION THEREOF AND AFTER THE DATE OF ENFORCEMENT OF THE SAID !CT IE
NEITHER THE 3TATE 'OVERNMENT NOR CAN ANY OTHER AUTHORITY MAKE AN ORDER OR ISSUE
DIRECTION FOR DE RESERVATION OF RESERVED FOREST OR ANY PORTION THEREOF OR PERMIT USE TO
ANY FOREST LAND OR ANY PORTION THEREOF FOR ANY NON FOREST PURPOSE OR ASSIGN ANY FOREST
LAND OR ANY PORTION THEREOF BY WAY OF LEASE OR OTHERWISE TO ANY PRIVATE PERSON OR TO ANY
AUTHORITY CORPORATION AGENCY OR ORGANISATION NOT OWNED MANAGED OR CONTROLLED BY
THE 'OVT EXCEPT AFTER OBTAINING PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT
4HE RESPONDENTS HAVING NOT SHOWN BY SUFCIENT MATERIALS THAT THE PRIOR APPROVAL
FROM THE #ENTRAL 'OVT HAS BEEN OBTAINED THE RESPONDENT AUTHORITIES HAVE VIOLATED THE
PROVISIONS UNDER 3ECTION OF THE !CT )T MAY BE RECALLED THAT IN 4. 'ODAVARMAN
4HIRUMULKPAD VS 5NION OF )NDIA AND /RS REPORTED IN 3## THE !PEX #OURT
EXPRESSED SERIOUS CONCERN OVER FELLING OF TREES IN CERTAIN DISTRICTS OF !RUNACHAL 0RADESH
AND IT DIRECTED STOPPAGE OF FELLING OF TREES FORTHWITH )T IS WORTH QUOTING THE DIRECTION
ISSUED BY THE 3UPREME #OURT IN PARA OF THE SAID JUDGMENT
7E FURTHER DIRECT AS UNDER
'%.%2!,
)N VIEW OF THE MEANING OF THE WORD FOREST IN THE !CT IT IS OBVIOUS THAT PRIOR
APPROVAL OF THE #ENTRAL 'OVERNMENT IS REQUIRED FOR ANY NON
FOREST ACTIVITY WITHIN
THE AREA OF ANY FOREST )N ACCORDANCE WITH 3ECTION OF THE !CT ALL ON
GOING ACTIVITY
WITHIN ANY FOREST IN ANY 3TATE THROUGHOUT THE COUNTRY WITHOUT THE PRIOR APPROVAL
OF THE #ENTRAL 'OVERNMENT MUST CEASE FORTHWITH )T IS THEREFORE CLEAR THAT THE
RUNNING OF SAW MILLS OF ANY KIND INCLUDING VENEER OR PLYWOOD MILLS AND MINING
OF ANY MINERAL ARE NON
FOREST PURPOSES AND ARE THEREFORE NOT PERMISSIBLE WITHOUT
PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT !CCORDINGLY ANY SUCH ACTIVITY IS PRIMA
FACIE VIOLATION OF THE PROVISIONS OF THE &OREST #ONSERVATION !CT %VERY 3TATE
'OVERNMENT MUST PROMPTLY ENSURE TOTAL CESSATION OF ALL SUCH ACTIVITIES FORTHWITH
)N ADDITION TO THE ABOVE IN THE TROPICAL WET EVERGREEN FORESTS OF 4IRAP AND
#HANGLANG IN THE 3TATE OF !RUNACHAL 0RADESH THERE WOULD BE A COMPLETE BAN
ON FELLING OF ANY KIND OF TREES THEREIN BECAUSE OF THEIR PARTICULAR SIGNICANCE
TO MAINTAIN ECOLOGICAL BALANCE NEEDED TO PRESERVE BIODIVERSITY !LL SAW MILLS
VENEER MITTS AND PLYWOOD MILLS IN 7RAP AND #HANGLANG IN !RUNACHAL 0RADESH
AND WITHIN A DISTANCE OF KMS FROM )TS BORDER IN !SSAM SHOULD ALSO BE CLOSED
IMMEDIATELY 4HE 3TATE 'OVERNMENTS OF !RUNACHAL 0RADESH AND !SSAM MUST
ENSURE COMPLIANCE OF THIS DIRECTION
4HE FELLING OF TREES IN ALL FORESTS IS TO REMAIN SUSPENDED EXCEPT IN ACCORDANCE
WITH THE WORKING PLANS OF THE 3TATE 'OVERNMENTS AS APPROVED BY THE #ENTRAL
'OVERNMENT IN THE ABSENCE OF ANY WORKING PLAN IN ANY PARTICULAR 3TATE SUCH AS
!RUNACHAL 0RADESH WHERE THE PERMIT SYSTEM EXISTS THE FELLING UNDER THE PERMITS
CAN BE DONE ONLY BY THE &OREST $EPARTMENT OF THE 3TATE 'OVERNMENT OR THE 3TATE
&OREST #ORPORATION
4HERE SHALL BE A COMPLETE BAN ON THE MOVEMENT OF CUT TREES AND TIMBER FROM ANY
OF THE SEVEN .ORTH %ASTERN 3TATES TO ANY OTHER 3TATE OF THE COUNTRY EITHER BY RAIL
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
ROAD OR WATERWAYS 4HE )NDIAN 2AILWAYS AND THE 3TATE 'OVERNMENTS ARE DIRECTED
TO TAKE ALL MEASURES NECESSARY TO ENSURE STRICT COMPLIANCE OF THIS DIRECTION 4HIS
BAN WILL NOT APPLY TO THE MOVEMENT OF CERTIED TIMBER REQUIRED FOR DEFENCE OR
OTHER GOVERNMENT PURPOSES 4HIS BAN WILL ALSO NOT AFFECT FELLING IN ANY PRIVATE
PLANTATION COMPRISING OF TREES PLANTED IN ANY AREA WHICH IS NOT A FOREST
.OW THE QUESTION ARISES AS TO WHETHER THE CONSTRUCTION OF A TOURIST LODGE FOR
DEVELOPMENT OF TOURISM INFRASTRUCTURES NEAR THE 0HAKUI 7ILD ,IFE 3ANCTUARY CAN BE
SAID TO BE FOR FOREST PURPOSE OR NON
FOREST PURPOSE !S PER THE EXPLANATION TO 3ECTION
OF THE !CT NON
FOREST PURPOSE MEANS THE BREAKING UP AND CLEARANCE OF ANY
FOREST LAND OR PORTION THEREOF FOR THE CULTIVATION OF TEA COFFEE SPICES ETC AND FOR ANY
PURPOSE OTHER THAN RE
FORESTATION 4HE CONSTRUCTION OF TOURIST LODGE FOR DEVELOPMENT
OF TOURIST INFRASTRUCTURES IS A LONG TERMS PLAN )T INVOLVES CONSTRUCTION OF HOUSES FOR
THE VISITING TOURISTS AND ALSO RESIDENTIAL HOUSES FOR THE STAFF )N SUCH CONSTRUCTION OF
HOUSES INCLUDING THE ROAD AND OTHER FACILITIES THERE WOULD BE CUTTING DOWN OF TREES
BREAKING UP OR CLEARANCE OF THE FOREST LAND WHICH WOULD AMOUNT TO DE
FORESTATION
IN THE SAID AREA !FTER ALL IN THE PRESENT DAYS TOURISM IS AN INDUSTRY AND IT WOULD
LIKE TO EXPAND ITS INDUSTRY IN FUTURE WHICH WOULD AMOUNT TO FURTHER DESTRUCTION OR
DEFORESTATION IN THE SAID AREA 4HERE IS EVERY POSSIBILITY OF CAUSING DISTURBANCE TO THE
WILD LIVES AND THE FOREST ORA AND FAUNA AND ALSO CAUSING SERIOUS ECOLOGICAL IMBALANCE
AND ENVIRONMENTAL DETERIORATION /F COURSE THIS IS ONLY AN APPREHENSION OF THE #OURT
WITHOUT ANY EXPERT OPINION BUT IT MUST BE SAID THAT BEFORE ALLOWING CONSTRUCTION OF
THE TOURIST LODGE THE RESPONDENT AUTHORITIES SHOULD HAVE TAKEN STEPS TO OBTAIN EXPERT
OPINION FROM ANY CORNER IN SPITE OF SERIOUS CONCERN EXPRESSED BY THE 3UPREME #OURT
IN SUCH MATTER AND ALSO OBJECTION RAISED BY THE CONSCIOUS CITIZENS INCLUDING THE LOVERS
OF WILD LIFE AND NATURE /F COURSE IT IS NOT TO SPEAK AGAINST THE PRINCIPLE OF SUSTAINABLE
DEVELOPMENT IN THE BACKWARD 3TATE LIKE !RUNACHAL 0RADESH
4HERE AGAIN SPEAKING FOR THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT THE !PEX #OURT
LAID DOWN THE NECESSARY CONSIDERATION TO BE MADE IN 4. 'ODAVARMAN 4HIRUMULKPAD
VS 5NION OF )NDIA REPORTED IN 3## 4HE SAME IS QUOTED FROM 0ARA AS UNDER
!S A MATTER OF PREFACE WE MAY STATE THAT ADHERENCE TO THE PRINCIPLE OF
SUSTAINABLE DEVELOPMENT IS NOW A CONSTITUTIONAL REQUIREMENT (OW MUCH
DAMAGE TO THE ENVIRONMENT AND ECOLOGY HAS GOT TO BE DECIDED ON THE FACTS OF
EACH CASE 7HILE APPLYING THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT ONE MUST
BEAR IN MIND THAT DEVELOPMENT WHICH MEETS THE NEEDS OF THE PRESENT WITHOUT
COMPROMISING THE ABILITY OF THE FUTURE GENERATIONS TO MEET THEIR OWN NEEDS IS
SUSTAINABLE DEVELOPMENT 4HEREFORE #OURTS ARE REQUIRED TO BALANCE DEVELOPMENT
NEEDS WITH THE PROTECTION OF THE ENVIRONMENT AND ECOLOGY )T IS THE DUTY OF THE
3TATE UNDER OUR #ONSTITUTION TO DEVISE AND IMPLEMENT A COHERENT AND COORDINATED
PROGRAMME TO MEET ITS OBLIGATION OF SUSTAINABLE DEVELOPMENT BASED ON INTER
GENERATIONAL EQUITY SEE !0 0OLLUTION #ONTROL "OARD VS 0ROF -6 .AYUDU
-INING IS AN IMPORTANT REVENUE
GENERATING INDUSTRY (OWEVER WE CANNOT ALLOW
OUR NATIONAL ASSETS TO BE PLACED INTO THE HANDS OF COMPANIES WITHOUT A PROPER
MECHANISM IN PLACE AND WITHOUT ASCERTAINING THE CREDIBILITY OF THE USER AGENCY
!S REGARD THE PETITIONERS IT HAS BEEN ABUNDANTLY MADE CLEAR THAT THEY ARE ILLITERATE OR
HALF LITERATE INDIGENOUS TRIBAL PEOPLE OF THE 3TATE WHO HAVE BEEN LIVING IN THE AFORESAID
AREA UNCONCERNED ABOUT THEIR RIGHTS PRIVILEGE AND SECURITY 4HEY WERE EQUALLY
CONCERNED ABOUT THE NECESSITY OF OBTAINING ANY DOCUMENT FOR OCCUPYING THE LANDS IN
THE 2ESERVED &OREST SINCE THE DAYS OF THEIR FOREFATHERS 4HEY ARE NOT INSTRUCTED ABOUT
THE EXISTING STATUTORY PROVISIONS AND THEY HAVE BEEN USED BY SOME VESTED INTERESTS TO
SERVE THEIR PURPOSE $UE TO PREVAILING INNER LINE PERMIT SYSTEM THERE HAS BEEN A LITTLE
CHECK ON SETTLING DOWN OF GENERAL PEOPLE IN THE SAID AREA BUT AMONGST THEIR TRIBESMEN
4 / \
WHO HAVE ATTAINED AFUENCY HAVE BEEN ENJOYING THE LAND AND OTHER FACILITIES AT THE
COST OF THE FELLOW BACKWARD DISADVANTAGED TRIBESMEN /NE CAN SEE IN THE PRESENT CASE
HOW THE AFUENT PERSON LIKE RESPONDENT .O HAS BEEN ACTIVE IN EXPLOITING THE FELLOW
TRIBESMEN LIKE THE PETITIONERS BY WAY OF DEPRIVING THEM IN GETTING THE ,0#S IN THE AREA
WHERE THEY HAVE BEEN LIVING FOR LONG 3HE BECAME MORE ACTIVE WHEN SHE FOUND THAT
SHE CAN EARN HUGE NANCIAL GAINS IF THE CONSTRUCTION WORKS OF TOURIST LODGE COULD BE
GRABBED BY HER 3HE USED ALL HER POWER AND INUENCE FOR OBTAINING THE ,0#S GRANTED
WITHIN A SHORT PERIOD OF TIME BY CIRCUMVENTING AND VIOLATING ALL PREVAILING PROVISIONS
OF LAW AND PROCEDURE PRESCRIBED BY THE 3TATE )N SUCH CASES THE #OURT CANNOT CLOSE
ITS EYES AND EARS TO PROTECT THE UNPRIVILEGED AND DISADVANTAGED TRIBESMEN LIKE THE
PETITIONERS WHO ARE NOT IN A POSITION TO ESTABLISH THEIR RIGHT AND INTEREST 4HE 3TATE
MUST PROVIDE PROTECTION TO THESE PEOPLE UNDER THE PROVISIONS OF !CT WHICH HAS
RECOGNISED THE RIGHTS OF THE FOREST DWELLING SCHEDULED TRIBES AND OTHER TRADITIONAL
FOREST DWELLERS WHICH HAS COME INTO FORCE WITH THE PUBLICATION OF THE SAME IN THE
OFCIAL GAZETTE OF THE 'OVT OF )NDIA ON ND *ANUARY 4HE 'OVERNMENT IS BOUND
TO CONSIDER THE APPLICATIONS IF SO SUBMITTED BY THE PETITIONERS FOR PROTECTING THEIR
RIGHTS AND PRIVILEGES UNDER THE SAID !CT )T IS THE DUTY OF THE 'OVERNMENT TO INFORM AND
EDUCATE THE INDIGENOUS TRIBAL PEOPLE DWELLING IN THE FOREST ABOUT THEIR RIGHTS GRANTED
UNDER THE SAID !CT AND TO TAKE NECESSARY ACTIONMEASURE SO AS TO ENABLE THEM TO ENJOY
THE SAID RIGHTS AND PRIVILEGES
&OR THE FOREGOING DISCUSSIONS MADE AND REASONS GIVEN IN THE LIGHT OF THE OBSERVATIONS AND
RULINGS OF THE !PEX #OURT ) DIRECT THE RESPONDENT AUTHORITIES PARTICULARLY RESPONDENT
.O $EPUTY #OMMISSIONER %AST +AMENG $ISTRICT TO PASS NECESSARY ORDERS CANCELLING
ALL ,0#S IN QUESTION ISSUED IN FAVOUR OF THE RESPONDENT .O FORTHWITH WITHIN A PERIOD
OF DAYS FROM THE DATE OF RECEIPT OF THIS ORDER 4HE RESPONDENT
'OVERNMENT MAY IF
SO ADVISED CONSIDER HER CASE FOR GRANTING THE ,0#S UNDER THE STRICT PROVISIONS OF
!CT AND !CT AND OFCE MEMORANDUM .O ,2
DATED AND -EMO .O
+$4%#( DATED
ALONG WITH THE PRESENT PETITIONERS AND OTHER
SIMILARLY SITUATED PERSONS IF SUCH APPLICATIONS ARE MADE BY THEM AFTER SPOT VERICATION
IN PRESENCE OF ALL THE PARTIES CONCERNED AND PROVIDING THEM WITH DUE OPPORTUNITY OF
HEARING !ND IF ON ENQUIRY AND VERICATION IT IS FOUND THAT THE RESPONDENT .O OR ANY
OTHER PERSONPERSONS HAD ILLEGALLY DISPOSSESSED THE PETITIONERS FROM ANY LAND OVER
WHICH THEY HAVE RIGHTFUL CLAIM AND INTEREST AS FOREST DWELLERS UNDER THE !CT THE
RESPONDENT AUTHORITIES SHALL TAKE NECESSARY STEPS TO RESTORE THE PHYSICAL POSSESSION
OF THE SAME TO THE PETITIONERS FORTHWITH )T IS ALSO DIRECTED THAT THE 3TATE RESPONDENTS
SHALL OBTAIN EXPERT OPINION ABOUT THE APPREHENDED DESTRUCTION TO FOREST AND CAUSING
ECOLOGICAL IMBALANCE AND ENVIRONMENTAL DETERIORATION IN THE AREA IN QUESTION DUE
TO CONSTRUCTION OF TOURIST LODGE FOR SO CALLED DEVELOPMENT OF TOURISM INFRASTRUCTURES
NEAR THE 7ILD ,IFE 3ANCTUARY AND TAKE APPROPRIATE DECISION AS TO WHETHER SUCH PROJECT
SHOULD CONTINUE OR NOT ON THE BASIS OF THE EXPERT OPINION
7ITH THE AFORESAID REASONS OBSERVATIONS AND DIRECTIONS THIS WRIT PETITION STANDS
ALLOWED 4HERE SHALL BE NO ORDER AS TO COST
4HE 2EGISTRY SHALL SEND TRUE COPY OF THIS JUDGMENT AND ORDER TO ALL THE OFCIAL
RESPONDENTS AND ALSO TO THE 3ECRETARY -INISTRY OF %NVIRONMENT &OREST 'OVERNMENT
OF )NDIA .EW $ELHI IMMEDIATELY FOR TAKING NECESSARY STEPS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
3HRI .UNEY 4AYANG VS 5NION OF )NDIA
/RS
70 # ./ !0 /&
()'( #/524 /& '!5(!4) )4!.!'!2 "%.#(
#/2!- !# 50!$(9!9 *
3 5--!29
"2 )% & &! #43
4HE WRIT PETITION WAS FILED IN A REPRESENTATIVE CAPACITY ON BEHALF OF TWO TRIBAL
VILLAGES "ODARY AND #HITTANGAM IN !RUNACHAL 0RADESH )T CHALLENGED THE
LEGALITY AND VALIDITY OF THE FOLLOWING NOTIFICATIONS ISSUED UNDER THE !SSAM &OREST
2EGULATION
'AZETTE .OTIFICATION .O PROPOSING TO CONSTITUTE $ENNING 2ESERVE &OREST
UNDER 3ECTION OF THE 2EGULATION AND
'AZETTE .OTIFICATION .O DATED UNDER 3ECTION OF SAID
2EGULATION DECLARING THE $ENNING 2ESERVE &OREST
"Y THESE NOTIFICATIONS APPROXIMATELY HECTARES OF LAND WAS DECLARED AS
$ENNING 2ESERVE &OREST INCLUDING HECTARES OF ANCESTRAL LAND BELONG TO THE
TWO VILLAGES 4HE NOTIFICATIONS WERE ISSUED WITHOUT THE KNOWLEDGE OF THE ACTUAL
LAND OWNERS IN VIOLATION OF THE PROVISIONS OF THE I !SSAM &OREST 2EGULATION
II THE "ALIPARA 4IRAP 3ADIYA &RONTIER 4RACT *HUM ,AND 2EGULATION III THE
!RUNACHAL 0RADESH ,AND 2ECORDS AND 3ETTLEMENT !CT AND IV THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2! 4HE VILLAGERS CAME TO KNOW ABOUT THE FORMATION OF THE 2ESERVE &OREST
ONLY THREE DECADES LATER WHEN THE 3TATE 'OVERNMENT TRANSFERRED THE FOREST TO THE
)NDIAN !RMY FOR A SUM OF 2S CRORES
4HE QUESTION FOR CONSIDERATION WAS WHETHER THE 3TATE 'OVERNMENT COMPLIED WITH
THE MANDATORY REQUIREMENT OF THE PROVISION OF THE !SSAM &OREST 2EGULATION BEFORE
CONSTITUTION OF THE $ENNING 2ESERVE &OREST IN RESPECT OF THE COMMUNITY LAND
BELONGING TO THE TRIBAL VILLAGERS OF "ODARY AND #HITTANGAM
)N RESPONSE TO THE PETITIONERS ARGUMENTS THE 3TATE 'OVERNMENT ARGUED THAT
4 / \
THE PROCESS OF LAW HAD BEEN OBSERVED AND IN ANY CASE THE CLAIMS RAISED BY THE
PETITIONERS AFTER MORE THAN YEARS WERE BASELESS
& ) . $ ).' 3 /& 4( % #/52 4
4HE #OURT AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES HELD THAT THE DELAY IN
APPROACHING THE WRIT #OURT WHICH HAS BEEN PROPERLY EXPLAINED SHALL NOT TAKE
AWAY THE EQUITABLE RELIEF THAT MAY BE AVAILABLE TO THE PETITIONERS 4HIS WAS A CASE
WHERE THERE WAS APPARENTLY NO KNOWLEDGE ON THE PART OF THE 3TATE !UTHORITY THAT
THEIR ACTION HAD TAKEN AWAY THE RIGHTS OF THE VILLAGERS AND THE VILLAGERS HAD NO
KNOWLEDGE THAT THEIR RIGHT TO LIVE IN THE VILLAGE HAD BEEN EXTINGUISHED DUE TO STATE
ACTION UNTIL THE )NDIAN !RMY ENTERED THE PICTURE
4HE #OURT HELD THAT THOUGH THE PETITIONERS LIVING IN THE VILLAGES BORDERING #HINA
ARE AWARE OF THEIR DUTIES AND RESPONSIBILITIES TOWARDS .ATION BUILDING AND THEY
ARE AGREEABLE TO GIVE AWAY THEIR RIGHT OVER THEIR !NCESTRAL LAND FOR BEING UTILIZED
BY THE )NDIAN !RMY NONETHELESS THE VILLAGERS WERE ENTITLED TO LAND COMPENSATION
AS ENVISAGED UNDER DIFFERENT !CTS 2ULES AND POLICY GOVERNING THE FIELD TO ENABLE
THEM TO DECENTLY REHABILITATE IN ANOTHER LOCATION
!CCORDINGLY THE #OURT DIRECTED THE RESPONDENT AUTHORITIES TO RISE TO THE OCCASION
AND TO MAKE AN EFFORT TO SETTLE THE DISPUTE WITH THE TRIBAL VILLAGERS BY WAY OF
AMICABLE SETTLEMENT BY MAKING PAYMENT OF ADEQUATE LAND COMPENSATION TO THE
INDIVIDUAL LAND OWNERS OR BY RELOCATING THE 4RIBAL VILLAGERS TO A SUITABLE LOCATION TO
ENABLE THEIR REHABILITATION 4HIS PROCESS WAS TO BE COMPLETED WITHIN FOUR MONTHS
7ITH THIS ORDER THE WRIT PETITION WAS DISPOSED OF
% $ ) 4 /23 . /4%
!LTHOUGH THE CASE WAS ARGUED AND DECIDED SUBSEQUENT TO THE ENACTMENT OF THE
&2! THE SAID STATUTE HAS NOT BEEN REFERRED TO NOR RELIED UPON APART FROM THE
SUPERFICIAL MENTION AT THE OUTSET 4HIS IS DESPITE THE FACT THAT THIS SITUATION IS THE
LOCUS CLASSICUS SCENARIO THE &2! SEEKS TO ADDRESS 4HE IMBALANCE IN POWER DYNAMICS
BETWEEN THE TRIBAL PETITIONERS AND THE 3TATE MACHINERY IN THIS CASE THE 5NION
$EFENCE -INISTRY AS WELL AS THE 3TATE 'OVERNMENT IS PAINFULLY APPARENT IN THE
ACCEPTANCE OF COMPENSATION BY THE 0ETITIONERS EVEN THOUGH THE JUDGMENT OF THE
#OURT IS DELIVERED IN THEIR FAVOUR
* 5 $ ' -% . 4
4HE WRIT PETITIONER HAS CHALLENGED THE LEGALITY AND VALIDITY OF THE 'AZETTE .OTICATION
.O DATED PROPOSING TO CONSTITUTE $ENNING 2ESERVE &OREST UNDER 3ECTION
OF THE !SSAM &OREST 2EGULATION AND SUBSEQUENT 'AZETTE .OTICATION .O
DATED ISSUED UNDER 3ECTION OF THE !SSAM &OREST 2EGULATION DECLARING
APPROXIMATELY HECTARES OF LAND DESCRIBED IN THE SCHEDULE AS $ENNING 2ESERVE
&OREST BY INCLUDING THERETO HECTARES OF ANCESTRAL LAND BELONG TO THE PETITIONER
WITHIN THE RESERVE FOREST 4HE PETITIONER ALLEGED THAT THE NOTICATION CONSTITUTING THE
$ENNING 2ESERVE &OREST WAS ISSUED BY THE 3TATE 'OVERNMENT WITHOUT THE KNOWLEDGE OF
THE ACTUAL LAND OWNERS IN VIOLATION OF THE PROVISIONS OF THEI !SSAM &OREST 2EGULATION
II THE "ALIPARA 4IRAP 3ADIYA &RONTIER 4RACT *HUM ,AND 2EGULATION III THE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
!RUNACHAL 0RADESH ,AND 2ECORDS AND 3ETTLEMENT !CT AND THE 3CHEDULE 4RIBES
AND OTHER 4RADITIONAL $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
4HE PETITIONER HAS ALSO CHALLENGED THE LEGALITY AND VALIDITY OF THE 4RIPARTITE -EMORANDUM
OF 5NDERSTANDING -O5 DATED BY WHICH THE VILLAGERS OF THE $ENNING FOREST
AREA WERE MADE TO AGREE AND PART AWAY WITH THEIR ANCESTRAL LAND IN QUESTION AND THE
CONSEQUENT ORDER ISSUED VIDE .O ,2%
DATED PASSED BY THE $EPUTY
#OMMISSIONER 4EZU ,OHIT $ISTRICT REJECTING THE REPRESENTATION LED BY THE PETITIONER
4HE FACTS LEADING TO THE LING OF THIS WRIT PETITION MAY BE STATED IN BRIEF AS FOLLOWS
4HE TRIBAL POPULATION OF !RUNACHAL 0RADESH HAVE BEEN ENGAGING IN *HUM CULTIVATION
FROM TIME IMMEMORIAL ON THEIR COMMUNITY LAND 4HE PRIVATE INDIVIDUAL AND
COMMUNITY COMMON OWNERSHIP OF LAND IS WELL ACCEPTED IN THE 3TATE OF !RUNACHAL
0RADESH AMONG THE VILLAGERS !CCORDINGLY DIFFERENT CLANS AND TRIBES IN THE 3TATE HAVE
INDIVIDUAL AS WELL AS COMMON RIGHT OF OWNERSHIP AND TITLE OVER THEIR LAND
)T HAS BEEN STATED IN THE WRIT PETITION THAT THE VILLAGERS OF "ODARU AND #HITTANGAM
VILLAGES ARE LOCAL -ISHMI TRIBE OF ,OHIT $ISTRICT AND THEY ARE LIVING IN THE AFORESAID
AREA AND SUSTAINING THEIR LIVELIHOOD BY DOING CULTIVATION INCLUDING *HUM OVER THEIR
ANCESTRAL LAND 4HE "ODARU AND #HITTANGAM VILLAGES ARE NOW SPREAD OVER MORE THAN
HECTARES OF LAND FROM VERY LONG TIME
,EARNED COUNSEL FOR THE PETITIONER RELIED ON A DECISION CITED IN ',4 "EDANG
!PUM /RS VS 3TATE OF !RUNACHAL 0RADESH /RS TO EXPLAIN THE *HUM LAND AND THE
RIGHTS OF THE TRIBAL PEOPLE OVER SUCH COMMUNITY LAND WHICH MAY BE GAINFULLY QUOTED
AS FOLLOWS
)N THE AREAS WHERE THE SHIFTING METHOD OF *HUM CULTIVATION IS FOLLOWED ALL LAND AS
A PRINCIPLE BELONGS TO THE CLAN OR VILLAGE 3UCH LAND BEGIN WITH CLEARING OPERATION
OF TREES ALONG WITH UNDER GROWN TREES WHICH ARE CUT DOWN AND LEFT IT ON THE ELD
TO DRY 4HEREAFTER RE IS SET TO THOSE TRESS AND CLEARED AND THE ASHES ARE LEFT ON THE
GROUND 4HEREAFTER SOWING STARTS AND THE CULTIVATION DEPENDS UPON WHAT IS KNOWN
AS 0ATAT 4HE ENTIRE AGRICULTURAL LAND OF A VILLAGE IS DIVIDED INTO A NUMBERS OF BLOCKS
WHICH ARE EARMARKED FOR VILLAGE AFTER A DENITE NUMBER OF YEARS OF FALLOW AND SUCH
BLOCKS ARE KNOWN AS 0ATATS 4HE 0ATATS ARE DEMARCATED BY STONE PILLARS KNOWN AS
,)3)+ 4ABA AND 3ODAK FOR PROPER IDENTICATION )F FOR A PARTICULAR PERIOD ONE 0ATAT
IS USED IT IS KEPT FELLOW AFTER SOME PERIOD OF TIME AND CULTIVATION IS MADE ON THE
OTHER AREA IN A ROTATING MANNER 4HE INDIVIDUAL RIGHT OF CULTIVATION AND POSSESSION
CONTINUES THROUGH THE CYCLE OF AGRICULTURAL OPERATION AND REMAINS SUSPENDED
DURING FALLOW PERIODS 4HUS THERE IS NO SPECIC AND ABSOLUTE INDIVIDUAL CLAIM OF
RIGHT OF A CULTIVATOR OVER SUCH PORTION OF LAND WHICH CAN BE CLAIMED FOR EVER BY HIM
ON THE GROUND OF CULTIVATION FOR A PERIOD
4HIS SYSTEM OF CULTIVATION IS RECOGNIZED AS *HUM CULTIVATION *HUM LAND HAS BEEN
DENED IN THE "ALIPARA 4IRAP 3ADIYA &RONTIER 4RACT *HUM LAND 2EGULATION FOR
SHORT 2EGULATION IS AS FOLLOWS
B *(5- ,!.$3 MEANS AND INCLUDES ALL LANDS WHICH ANY MEMBER OR MEMBERS
OF A VILLAGE OR COMMUNITY HAVE CUSTOMARY RIGHTS TO CULTIVATE BY MEANS OF SHIFTING
CULTIVATION OR TO UTILIZE BY CLEARING JUNGLE OR GRAZING LIVESTOCK PROVIDED THAT SUCH
VILLAGE OR COMMUNITY IS IN A PERMANENT LOCATION BUT DOES NOT INCLUDE
I ANY LAND WHICH HAS BEEN OR IS UNDER PROCESS OF BEING TERRACED FOR THE PURPOSE
OF PERMANENT OR SEMI
PERMANENT CULTIVATION WHETHER BY MEANS OF IRRIGATION OR
NOR
II !NY LAND ATTACHED OR APPURTENANT TO A DWELLING HOUSE AND USED FOR THE
4 / \
PURPOSE OF PERMANENT CULTIVATION OR
III !NY LAND WHICH IN THE OPINION OF THE $EPUTY COMMISSIONER IS SUBJECTED TO
PERMANENT CULTIVATION %XPLANATION
!NY LAND WHICH IS OTHERWISE *HUM LAND ACCORDING TO THE ABOVE DENITION
SHALL BE DEEMED TO BE SO NOTWITHSTANDING THE FACT THAT A PART OR THE WHOLE
THEREOF MAY HAVE BEEN PLANTED WITH FRUIT TREES BAMBOOS OR FTUNG OR RESERVED
FOR GROWING REWOOD
!NY VILLAGE OR COMMUNITY SHALL BE HELD TO BE IN PERMANENT LOCATION OF IT
ALWAYS REMAINS WITHIN A SPECIC AREA ALTHOUGH PART OR THE WHOLE OF SUCH VILLAGE
OR COMMUNITY MAY MIGRATE FROM TIME TO TIME TO DIFFERENT LOCALITIES WITHIN THAT
AREA
3ECTION OF THE 2EGULATION PROVIDES ACCRUAL PROCEDURE RIGHTS OVER *HUM
AND SECTION OF THE !CT PROVIDES FOR TRANSFER OF *HUM LAND 5NDER 3ECTION
A CUSTOMARY RIGHT TO *HUM LAND IS ESTABLISHED IN FAVOUR OF A COMMUNITY WHEN
SUCH COMMUNITY HAS ENJOYED THE RIGHT TO CULTIVATE TO SUCH LAND FOR NOT LESS THAN
YEARS PRIOR TO THE MAKING OF THE REGULATION
5NDER 3ECTION OF THE !CT A CUSTOMARY RIGHT TO *HUM LAND IN FAVOUR OF AN
INDIVIDUAL CULTIVATOR ARISES
A IF HE INHERITED THE LAND IN ACCORDANCE WITH A LOCAL CUSTOM
B IF HE PURCHASED THE LAND PRIOR TO THE MAKING OF THIS 2EGULATION AND SUCH
PURCHASE WAS NOT CONTRARY TO LOCAL CUSTOM OR
C IF HE HAS PURCHASED THE LAND AT ANY DATE SUBSEQUENT TO MAKING OF THIS
2EGULATION PROVIDED SUCH PURCHASE WAS NOT CONTRARY TO ANY LOCAL CUSTOM OR ANY
PROVISIONS OF THIS 2EGULATION OR IF BEING A RESIDENT OF PERMANENT VILLAGE HE HAS
BROUGHT THE LAND UNDER CULTIVATION AND THE LAND HAS NOT BEEN CULTIVATED AT ANY
TIME WITHIN YEARS PRECEDING HIS BRINGING THE SAME INTO CULTIVATION
3ECTION OF THE 2EGULATION PROVIDES THAT *HUM LAND TO WHICH A COMMUNITY
HAS A CUSTOMARY RIGHT MAY NOT BE TRANSFERRED TO ANOTHER COMMUNITY OR TO ANY
INDIVIDUAL EXCEPT WITH THE PERMISSION OF THE ,AND #ONSERVATOR 4HE AFORESAID
PROVISIONS WERE MADE WITH A VIEW TO SAFE GUARD AND REGULATE THE RIGHTS OF THE
TRIBES INDIGENOUS TO THE AREA OVER THE *HUM LAND 3UCH COMMUNITY LAND HAS ALSO
BEEN STATUTORILY RECOGNIZED BY THE 3TATE WHICH CAN BE SEEN FROM THE 3 OF THE
!RUNACHAL 0RADESH ,AND 3ETTLEMENT AND 2ECORDS !CT DEALING WITH ACCRUAL
OF RIGHTS OVER LAND 3 OF THE !CT OF IS QUOTED HEREIN BELOW
!LL LANDS PUBLIC ROADS LANDS AND PATHS AND BRIDGES DITCHES DIKES AND
FENCES ON OR BESIDE THE SAME THE BEDS OF RIVERS STREAMS NALLAHS LAKES AND TANKS
AND ALL CANALS AND WATER COURSES AND ALL STANDING AND OWING WATER AND RIGHTS
IN OR OVER THE SAME OR APPERTAINING THERETO WHICH ARE NOT THE PROPERTY OF ANY
PERSON OR COMMUNITY ARE HEREBY DECLARED TO BE THE PROPERTY OF THE 'OVERNMENT
5NLESS IT IS OTHERWISE EXPRESSLY PROVIDED IN THE TERMS OF A GRANT MADE BY THE
'OVERNMENT THE RIGHT TO MINES QUARRIES MINERAL PRODUCTS INCLUDING MINERAL
OIL NATURAL GAS AND PETROLEUM SHALL VEST IN THE 'OVERNMENT AND IT SHALL HAVE ALL
THE POWERS NECESSARY FOR THE PROPER ENJOYMENT OF SUCH RIGHTS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
4HUS THE COMMUNITY LAND IS NOT DECLARED AS 'OVT LAND IN VIEW OF THE SPECIAL STATUS
ATTACHED IN SUCH LAND SINCE TIME IMMEMORIAL 5NDER 3ECTION OF THE SAID !CT THE
DENITION OF *HUM LAND IS DECLARED TO BE SAME AS DENED IN THE 2EGULATION ABOVE
!S PER !NNEXURE ANNEXED WITH THE WRIT PETITION THE 0ANCHAYAT MEMBERS AND 'AON
"URAS OF DIFFERENT VILLAGES OF ,OHIT $ISTRICT HAVE UNANIMOUSLY CERTIED THAT THE PRESENT
PETITIONERS ARE THE OWNERS OF THE LANDS SITUATED AT "ODARU AND #HITTANGAM VILLAGES
)N THE YEAR THE THEN #HIEF #ONSERVATOR OF &ORESTS %X /FCIO 3ECRETARY &ORESTS
!RUNACHAL 0RADESH !DMINISTRATION 3HILLONG ISSUED A GAZETTE .OTICATION VIDE .O &/2
DATED UNDER 3ECTION OF THE !SSAM &ORESTS 2EGULATION PROPOSING
TO CONSTITUTE A RESERVE FORESTS CALLED $ENNING 2ESERVE &ORESTS CONSISTING OF
HECTARE APPROX OF LAND IN ,OHIT $ISTRICT OF !RUNACHAL 0RADESH AND SUBSEQUENTLY THE
RESPONDENT AUTHORITIES ISSUED NOTICATION AND DECLARED THE $ENNING 2ESERVE &ORESTS
UNDER 3ECTION OF THE !SSAM &ORESTS 2EGULATION
4HE PETITIONER SPECICALLY STATED THAT THE RESPONDENT AUTHORITIES HAD NOT COMPLIED WITH
THE MANDATORY PROVISIONS OF !SSAM &ORESTS 2EGULATION WHILE CONSTITUTING THE
$ENNING 2ESERVE &ORESTS )N SUPPORT OF THE ALLEGATION AFORESAID IT HAS BEEN CONTENDED
ON BEHALF OF THE PETITIONER THAT THE ACTUAL LAND OWNERS WHO WERE FOREST VILLAGERS WERE
NOT AT ALL INFORMED OR ISSUED WITH ANY SHOW CAUSE NOTICE BEFORE CONSTITUTION OF THE
2ESERVE &OREST AND THE REQUIRED .OTICATION IN TERMS OF 3ECTION AND OF THE !SSAM
&OREST 2EGULATION WAS ISSUED CLANDESTINELY IN AN ARBITRARY EXERCISE OF POWER BY THE
AUTHORITY CONCERNED
,EARNED COUNSEL FOR THE PETITIONER POINTED OUT THAT THE REQUIREMENT OF LAW UNDER
3ECTIONS AND OF THE AFORESAID 2EGULATION WAS NOT AT ALL COMPLIED WITH AND
NO PROCEEDING AS ENVISAGED UNDER THE AFORESAID PROVISIONS OF LAW WAS EVER DRAWN
UP BY THE RESPONDENT 3TATE )T HAS BEEN CONTENDED ON BEHALF OF THE PETITIONER THAT THE
PROVISION OF THE !SSAM &OREST 2EGULATION HEREINAFTER THE !CT HAS BEEN VIOLATED BY
THE 3TATE AUTHORITY IN CONSTITUTING THE $ENNING 2ESERVE &OREST WHICH HAS RENDERED THE
EXERCISE OF DECLARATION OF $ENNING 2ESERVE &OREST NON
EST IN THE EYE OF LAW
!CCORDING TO THE WRIT PETITIONER THE PROCLAMATION MADE BY &ORESTS 3ETTLEMENT /FCE
UNDER 3ECTION OF THE !CT INQUIRY CARRIED OUT BY THE &OREST 3ETTLEMENT /FCER UNDER
3ECTION OF THE !CT TREATMENT OF CLAIMS RELATING TO PRACTICE OF *HUM CULTIVATION BY THE
RESIDENT OF THE LOCALITY UNDER 3ECTION OF THE !CT AND POWER TO ACQUIRE LAND OVER WHICH
RIGHT IS CLAIMED WITHOUT ADMITTING THE QUANTUM OF COMPENSATION UNDER 3ECTION OF
THE !CT AS WELL AS THE ENTIRE EXERCISE CARRIED OUT WITHOUT AFFORDING THE OPPORTUNITY TO
PREFER APPEAL FROM ORDERS UNDER 3ECTION OF THE !CT WAS ILLEGAL AND THUS THE SO CALLED
.OTICATION ISSUED UNDER 3ECTION OF THE !SSAM &OREST 2EGULATION COULD NOT HAVE
BEEN ISSUED AND THE SAME IS NON
EST IN THE EYE OF LAW
4HE PETITIONER CLAIMS FOR QUASHING THE AFORESAID ORDERS AND NOTICATIONS FOR BEING
ILLEGAL AND VOID AND THEREFORE RENDERED THE CONSTITUTION OF $ENNING 2ESERVE &ORESTS
AS ILLEGAL AND ARBITRARY IN THE EYE OF LAW FOR NON
COMPLIANCE OF THE PROVISIONS OF
3ECTIONS AND AND OTHER PROVISIONS OF THE !SSAM &ORESTS 2EGULATION
BY THE RESPONDENT AUTHORITIES
,EARNED COUNSEL FOR THE PETITIONER SUBMITTED THAT THE FACTUM OF DECLARATION OF $ENNING
2ESERVE &ORESTS UNDER 3ECTION OF THE !SSAM &OREST 2EGULATION AND INCLUSION OF
HECTARES OF THE LAND BELONGING TO THE PETITIONERS AND OTHER LAND OWNERS WAS NEVER
KNOWN BY THE ACTUAL LAND OWNERS IE TRIBAL VILLAGERS 4HE POOR TRIBAL VILLAGERS HAD NO
INKLING WHATSOEVER FROM ANY SOURCE THAT THEIR LANDS WERE INCLUDED IN THE $ENNING
4 / \
2ESERVE &ORESTS AND THEREFORE THEY ALSO COULD NOT RAISE THEIR OBJECTIONS AGAINST
CONSTITUTIONDECLARATION OF $ENNING 2ESERVE &ORESTS BECAUSE THE 3TATE RESPONDENTS
AT NO POINT OF TIME HAD INFORMED THE PETITIONER AND THE OTHER LAND OWNERS ABOUT THE
PUBLICATION OF AFOREMENTIONED NOTICATION UNDER 3ECTION AND OF THE 2EGULATION
!S A RESULT OF WHICH THE PETITIONER AND OTHER LAND OWNERS OF "ODARU AND #HITTANGAM
VILLAGES REMAINED IGNORANT OF THE ABOVE FACTS AND PEACEFULLY CONTINUED TO OCCUPY AND
POSSESSION BY GROWING CULTIVATION OVER THEIR ANCESTRAL LAND WITHOUT ANY INTERFERENCE
FROM THE 3TATE 'OVERNMENT TILL DATE
!T THIS STAGE IT WOULD BE PERTINENT TO EXTRACT HEREIN BELOW THE RELEVANT PROVISIONS OF
!SSAM &OREST 2EGULATION WHICH PROVIDES PROVISIONS RELATING TO DECLARATION OF 2ESERVE
&OREST WHICH READS AS UNDER
.OTICATION BY 3TATE 'OVERNMENT OF PROPOSAL TO CONSTITUTE A RESERVED FOREST
7HENEVER IT IS PROPOSED TO CONSTITUTE ANY LAND A RESERVED FOREST THE 3TATE
'OVERNMENT SHALL PUBLISH A NOTICATION IN THE OFCIAL 'AZETTE
A 3PECIFYING
AS NEARLY AS POSSIBLE THE SITUATION AND LIMIT OF SUCH LAND B $ESCRIBE THAT IT IS
PROPOSED TO CONSTITUTE SUCH LAND A RESERVED FOREST AND C !PPOINTING AN OFCER
HEREINAFTER CALLED THE &OREST 3ETTLEMENT /FCER TO ENQUIRE INTO AND DETERMINE
EXISTENCE NATURE AND EXTENT OF ANY RIGHT CLAIMED BY OR ALLEGED TO EXIST IN FAVOUR OF
ANY PERSON IN OR OVER ANY LAND COMPRISED WITHIN SUCH LIMIT AND ANY CLAIMS RELATING
TO THE PRACTICE WITHIN SUCH LIMITS OF *HUM CULTIVATION AND TO DEAL WITH THE SAME
AS PROVIDED IN THIS CHAPTER
4HE &OREST 3ETTLEMENT /FCER SHALL ORDINARILY BE A PERSON OTHER THAN A &OREST
/FCER BUT A &OREST /FCER MAY BE APPOINTED BY THE 3TATE 'OVERNMENT TO ASSIST THE
&OREST 3ETTLEMENT OFCER IN THE ENQUIRY PRESCRIBED IN THIS #HAPTER
0ROCLAMATION BY &OREST 3ETTLEMENT /FCER 7HEN A NOTICATION HAS BEEN
PUBLISHED UNDER 3 THE &OREST 3ETTLEMENT /FCER SHALL PUBLISH IN THE LANGUAGE
OF THE COUNTRY AT THE HEADQUARTERS OF EACH DISTRICT AND SUB DIVISION IN WHICH ANY
PORTION OF THE LAND COMPRISED IN SUCH NOTICATION IS SITUATED AND IN EVERY TOWN
AND VILLAGE IN THE NEIGHBOURHOOD OF SUCH LAND A PROCLAMATION
A 3PECIFYING AS NEARLY AS POSSIBLE THE SITUATION AND LIMITS OF THE PROPOSED
FOREST
B 3ETTING FORTH THE SUBSTANCE OF PROVISIONS OF THE NEXT FOLLOWING SECTION
C %XPLAINING THE CONSEQUENCES WHICH AS HEREINAFTER PROVIDED WILL ENSUE ON
THE RESERVATION OF SUCH FOREST AND
D &IXING A PERIOD OF NOT LESS THAN THREE MONTHS FROM THE DATE OF THE
PUBLICATION OF SUCH PROCLAMATION AND REQUIRING EVERY PERSON CLAIMING ANY
RIGHT OR MAKING ANY CLAIM REFERRED TO OR MENTIONED IN 3 EITHER TO PRESENT TOP
SUCH OFCER WITHIN SUCH PERIOD A WRITTEN NOTICE SPECIFYING OR TO APPEAR BEFORE
HIM WITHIN SUCH PERIOD AND STATE THE NATURE OF SUCH RIGHT OR CLAIM
)NQUIRY BY &OREST 3ETTLEMENT /FCER 4HE &OREST 3ETTLEMENT /FCER SHALL TAKE
DOWN IN WRITING ALL STATEMENTS MADE UNDER 3 AND SHALL INQUIRE INTO ALL CLAIM
MADE UNDER THE SECTION AND EXISTENCE OF ANY RIGHT OR PRACTICE MENTIONED IN 3 IN
RESPECT OF WHICH NO CLAIM IS MADE
4HE &OREST 3ETTLEMENT /FCER SHALL AT THE TIME CONSIDER AND RECORD ANY
OBJECTION WHICH THE &OREST /FCER IF ANY APPOINTED UNDER 3 TO ASSIST HIM
MAY MAKE TO ANY SUCH CLAIM OR WITH RESPECT TO EXISTENCE OF ANY SUCH RIGHT OR
PRACTICE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4REATMENT OF CLAIMS RELATING TO PRACTICE OF *HUM CULTIVATION
)N THE CASE OF A CLAIM RELATING TO THE PRACTICE OF *HUM
CULTIVATION THE &OREST
3ETTLEMENT /FCER SHALL RECORD A STATEMENT SETTING FORTH THE PARTICULARS OF
THE CLAIM AND OF ANY LOCAL RULE OR ORDER UNDER WHICH THE PRACTICE IS ALLOWED
OR REGULATED AND SUBMIT THE STATEMENT TO THE 3TATE 'OVERNMENT TOGETHER
WITH HIS OPINION AS TO WHETHER THE PRACTICE SHOULD BE PERMITTED OR PROHIBITED
WHOLLY OR IN PART
/N RECEIPT OF THE STATEMENT AND OPINION THE 3TATE 'OVERNMENT MAY MAKE
AN ORDER PERMITTING OR PROHIBITING THE PRACTICE WHOLLY OR IN PART
)F SUCH PRACTICE IS PERMITTED WHOLLY OR IN PART THE &OREST 3ETTLEMENT /FCER
MAY ARRANGE FOR ITS EXERCISE
A "Y ALTERING THE LIMITS OF THE LAND UNDER SETTLEMENT SO AS TO EXCLUDE
LAND OF SUFCIENT EXTENT OF A SUITABLE KIND AND IN A LOCALITY REASONABLY
CONVENIENT FOR THE PURPOSES OF THE CLAIMANTS OR
B "Y CAUSING CERTAIN PORTION OF THE LAND UNDER SETTLEMENT TO BE
SEPARATELY DEMARCATED AND GIVING PERMISSION TO THE CLAIMANT TO PRACTICE
*HUM CULTIVATION THEREIN UNDER SUCH CONDITIONS AS HE MAY PRESCRIBE
!LL ARRANGEMENTS MADE UNDER THIS SUB
SECTION SHALL BE SUBJECT TO THE
PREVIOUS SANCTION OF THE 3TATE 'OVERNMENT
4HE PRACTICE OF *HUM CULTIVATION SHALL IN ALL CASES TO BE A PRIVILEGE SUBJECT TO
CONTROL RESTRICTION AND ABOLITION BY THE 3TATE 'OVERNMENT AND NOT TO BE A RIGHT
0OWER TO ACQUIRE LAND OVER WHICH RIGHT IS CLAIMED )N THE CASE OF CLAIM TO A RIGHT
IN OR OVER ANY LAND OTHER THAN THE FOLLOWING RIGHTS NAMELY
A A RIGHT OF WAY
B A RIGHT TO WATER
COURSE OR TO USE OF WATER
C A RIGHT OF PASTURE OR TO FOREST
PRODUCE
4HE &OREST 3ETTLEMENT /FCER SHALL PASS AN ORDER SPECIFYING THE PARTICULARS OF
SUCH CLAIM AND ADMITTING OR REJECTING THE SAME WHOLLY OR IN PART
)F SUCH CLAIM IS ADMITTED WHOLLY OR IN PART THE &OREST 3ETTLEMENT /FCER MAY
A COME TO AN AGREEMENT WITH THE CLAIMANT FOR THE SURRENDER OF THE RIGHT OR
B EXCLUDE THE LAND FROM THE LIMITS OF THE PROPOSED FOREST OR
C PROCEED TO ACQUIRE SUCH LAND IN THE MANNER PROVIDED BY THE LAND !CQUISITION
!CT
&OR THE PURPOSE OF SO ACQUIRING SUCH LAND
I THE &OREST 3ETTLEMENT /FCER SHALL BE DEEMED TO BE A #OLLECTOR PROCEEDING
UNDER THE ,AND !CQUISITION !CT
II THE CLAIMANT SHALL BE DEEMED TO BE A PERSON INTERESTED AND APPEARING
BEFORE HIM IN PURSUANCE OF A NOTICE GIVEN UNDER 3 OF THAT !CT
III THE PROVISIONS OF THE PRECEDING SECTIONS OF THAT !CT SHALL BE DEEMED TO
HAVE BEEN COMPLIED WITH AND
IV THE #OLLECTOR WITH THE CONSENT OF THE CLAIMANT MAY AWARD COMPENSATION
IN LAND OR IN MONEY OR PARTLY IN LAND AND PARTLY IN MONEY
4 / \
!PPEAL FROM ORDER PASSED UNDER FOREGOING SECTIONS !NY PERSON WHO HAS MADE
A CLAIM UNDER THIS #HAPTER OR ANY &OREST /FCER OR OTHER PERSON GENERALLY OR
SPECIALLY EMPOWERED BY THE 3TATE 'OVERNMENT IN THIS BEHALF MAY WITHIN THREE
MONTHS FROM THE DATE OF ANY ORDER PASSED ON SUCH CLAIM BY THE &OREST 3ETTLEMENT
/FCER UNDER 3 OR PRESENT AN APPEAL FROM SUCH ORDER TO SUCH OFCER OF
THE 2EVENUE $EPARTMENT OF RANK NOT LOWER THAN THAT OF A $EPUTY #OMMISSIONER
AS THE 3TATE 'OVERNMENT MAY BY NOTICATION IN THE OFCIAL 'AZETTE APPOINT BY
NAME OR AS HOLDING AN OFCE TO HEAR APPEALS FROM SUCH ORDERS
.OTICATION DECLARING FOREST RESERVE 7HEN THE FOLLOWING EVENTS HAVE OCCURRED
NAMELY
A THE PERIOD XED UNDER 3 FOR PREFERRING CLAIM HAS ELAPSED AND ALL CLAIMS
IF ANY MADE WITHIN SUCH PERIOD HAS BEEN DISPOSED OF BY THE &OREST 3ETTLEMENT
/FCER AND
B IF SUCH CLAIMS HAVE BEEN MADE THE PERIOD XED BY 3 FOR APPEALING FROM
THE ORDERS PASSED ON SUCH CLAIMS HAS ELAPSED AND ALL APPEALS IF ANY PRESENTED
WITHIN SUCH PERIOD HAVE BEEN DISPOSED OF BY THE APPELLATE OFCER AND
C ALL LANDS IF ANY TO BE INCLUDED IN THE PROPOSED RESERVED FOREST WHICH THE
&OREST 3ETTLEMENT /FCER HAS UNDER 3 ELECTED TO ACQUIRE UNDER THE LAND
!CQUISITION !CT HAVE BECOME VESTED IN THE 'OVERNMENT UNDER ,AND
!CQUISITION !CT 8 OF
4HE 3TATE 'OVERNMENT MAY PUBLISH A NOTICATION IN OFCIAL 'AZETTE SPECIFYING
THE LIMITS OF THE FOREST WHICH IT IS INTENDED TO RESERVE AND DECLARING THE SAME
TO BE RESERVED FROM A DATE XED BY SUCH NOTICATION
&ROM THE DATE SO XED SUCH FOREST SHALL BE DEEMED TO BE RESERVED FOREST
4HE 3TATE RESPONDENT LED THEIR COUNTER AFDAVIT CONTENDING THEREIN THAT THE $ENNING
2ESERVE &ORESTS WAS DULY CONSTITUTED BY OBSERVING THE PROCESS OF LAW AS PROVIDED UNDER
THE !SSAM &OREST 2EGULATION AND ISSUED .OTICATION DATED 4HE CLAIM RAISED
BY THE PETITIONER ACCORDING TO THE RESPONDENT AFTER MORE THAN YEARS OF CONSTITUTION
OF THE 2ESERVE &OREST IS BASELESS )T HAS BEEN FURTHER CONTENDED IN PARAGRAPH OF THE
COUNTER AFDAVIT THAT AFTER ISSUING OF PRELIMINARY NOTICATION PROCLAMATION WAS
ISSUED UNDER 3ECTION OF THE !SSAM &ORESTS 2EGULATION AND AFTER DUE PROCESS NAL
NOTICATION WAS PUBLISHED IN THE OFCIAL GAZETTE 4HE 3TATE AUTHORITIES HOWEVER FAILED
TO ANNEX ANY DOCUMENTS TO SUBSTANTIATE THE CLAIM OF HAVING ISSUED THE PROCLAMATION
UNDER 3ECTION OR THAT ANY PROCEEDING WAS EVER TAKEN UP OR INITIATED IN ACCORDANCE WITH
LAW &URTHER THE 3TATE RESPONDENTS HAVE NOT COME FORWARD TO EXPLAIN THE ALLEGATIONS OF
VIOLATION OF PROVISIONS OF SECTIONS AND OF THE 2EGULATION
.OW QUESTION WHICH ARISES FOR CONSIDERATION IS WHETHER THE 3TATE 'OVERNMENT
COMPLIED WITH THE MANDATORY REQUIREMENT OF THE PROVISION OF THE !SSAM &OREST
2EGULATION BEFORE CONSTITUTION OF THE $ENNING 2ESERVE &OREST IN RESPECT OF THE
COMMUNITY LAND BELONGING TO THE 4RIBAL VILLAGERS OF "ODARU AND #HITTANGAM )T WOULD
BE PERTINENT TO DEPICT HEREIN THE REPLY OF THE 3TATE RESPONDENT IN THIS REGARD
/N BARE PERUSAL OF THE AFORESAID PROVISIONS REVEAL REQUIREMENT OF STRICT COMPLIANCE OF
THE PROVISIONS OF THE 2EGULATION 4HE 3TATE 'OVERNMENT EXCEPT MAKING BARE STATEMENT
IN THE AFDAVIT REGARDING PUBLICATION OF NOTICATION IN ACCORDANCE WITH LAW DID NOT PUT
FORWARD TO PLACE ANY DOCUMENT TO PRIMA FACIE SHOW THAT SUCH COMPLIANCE WAS EFFECTED
IN ACCORDANCE WITH LAW AND THE ACTUAL LAND OWNERS HAD DUE NOTICE OF THE PROPOSED
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
CONSTITUTION OF THE 2ESERVE &OREST )NFERENCE CAN BE DRAWN THAT THE ALLEGATIONS MADE BY
THE PETITIONER OF NOT FOLLOWING THE DUE PROCESS OF LAW IN DECLARING THE 2ESERVE &OREST IS
APPARENTLY NOT WITHOUT BASIS
4HE 3TATE RESPONDENTS IN THEIR AFDAVIT CONTENDED THAT THE $ENNING 2ESERVE &OREST
AREA HAS BEEN CONSTITUTED WITH DUE PROCESS OF LAW VIDE NOTICATION DATED
AND THE CLAIM OF THE PETITIONER AFTER YEARS OF THE CONSTITUTION OF THE $ENNING 2ESERVE
&OREST FOR HAVING INCLUDED HECTARES OF LAND BELONGING TO THE FOREST VILLAGERS ARE
BASELESS 4HE PRIVATE RESPONDENT .OS IE THE 'AON "URAHS WHO HAD
SIGNED THE -O5 DATED ALSO LED THEIR AFDAVIT IN THIS PROCEEDING TO STATE
THAT THEY WERE SIMPLY CALLED IN THE MEETING AND ASKED TO SIGN THE PAPERS BY THE $EPUTY
#OMMISSIONER WITHOUT INFORMING THE CONTENT OF THE PAPERS !PPARENTLY THE AFDAVIT
INDICATES THAT THE INNOCENT ILLITERATE VILLAGERS WERE TAKEN FOR A RIDE BY OBTAINING THEIR
CONSENT IN AN OBLIQUE WAY TO SIGN THE -EMORANDUM OF 5NDERSTANDING
4HE $EPUTY #OMMISSIONER ,OHIT $ISTRICT AFRMED EXISTENCE OF THE "ODARU AND
#HITTANGAM VILLAGES DURING THE CENSUS OPERATION OF AND CENSUS 4HE
RESPONDENT
3TATE 'OVERNMENT DENIED THE CLAIM OF CONSTITUTION OF RESERVE FOREST
WITHOUT FOLLOWING THE PROCEDURE PROVIDED IN THE !SSAM &OREST 2EGULATION
4HOUGH THE 3TATE RESPONDENT ANNEXED COPIES OF THE NOTICATION UNDER 3ECTION READ
WITH 3ECTION OF THE 2EGULATION AND ALSO THE NOTICATION ISSUED UNDER 3ECTION OF THE
2EGULATION TO SHOW CONSTITUTION OF 2ESERVE &OREST IN ACCORDANCE WITH LAW BUT THE MOOT
QUESTION FOR CONSIDERATION IS WHETHER SUCH BARE NOTICATION WITHOUT FOLLOWING OTHER
REQUIREMENTS OF LAW WOULD INCLUDE THE AREAS UNDER OCCUPATION OF THE &OREST VILLAGERS
!PPARENTLY THERE IS NO DOCUMENT OR REPORT FROM THE SIDE OF THE 3TATE 'OVERNMENT TO
SHOW THAT THE VILLAGERS OF "ODARU AND #HITTANGAM WERE NOTIED IN ACCORDANCE WITH
LAW 1UESTION WHICH NOW ARISES FOR CONSIDERATION IS WHETHER CONSTITUTION OF THE
2ESERVE &OREST WOULD INCLUDE THE TWO VILLAGES NAMELY "ODARU AND #HITTANGAM IF DUE
NOTICE WAS NOT SERVED ON THE RESIDENTS IN COMPLIANCE OF THE PROVISIONS OF LAW
/N PERUSAL OF THE AFDAVIT LED BY THE 3TATE RESPONDENT IT APPEARS THAT THERE IS NO
REFERENCE OF THE ENQUIRY MADE BY THE &OREST 3ETTLEMENT /FCER APPOINTED IN TERMS OF
THE IMPUGNED NOTICATIONS !PPARENTLY EITHER THE &OREST 3ETTLEMENT /FCER COULD NOT
LOCATE THE FOREST VILLAGES OR THE VILLAGERS COULD NOT ND THE &OREST 3ETTLEMENT /FCER
ELSE THERE WOULD HAVE BEEN SOME REFERENCE OF THE EXISTENCE OF SUCH A VILLAGES WHEN
THE EXERCISE WAS CARRIED OUT 4HERE IS ALSO NO REFERENCE OF ANY CLAIM MADE BY ANY OF
THE RESIDENTS OF THE &OREST VILLAGE TO TRIGGER LAND ACQUISITION PROCESS AS PER PROVISION OF
3ECTION OF THE 2EGULATION
4HE PETITIONER FURTHER STATED THAT AFTER DECLARING THE $ENNING 2ESERVE &ORESTS THE
$EPUTY #OMMISSIONER 4EZU ,OHIT SUBMITTED A PROPOSAL TO THE 3ECRETARY $EPARTMENT OF
&ORESTS )TANAGAR VIDE LETTER DATED FOR DE
RESERVATION FORESTS LAND AT ,OHITPUR
FOR ESTABLISHMENT OF +,0 !RMY "RIGADE /N THE !SSISTANT )NSPECTOR 'ENERAL
OF &ORESTS -INISTRY OF %NVIRONMENT &ORESTS&# $IVISION 'OVERNMENT OF !RUNACHAL
0RADESH APPROVED THE DIVERSIONDE
RESERVATION OF HECTARES OF THE $ENNING 2ESERVE
&ORESTS FOR ESTABLISHMENT OF +,0 "RIGADE (EAD 1UARTERS AT ,OHITPUR $ISTRICT ,OHIT 4HE
AREAS WHICH WERE INITIALLY PROPOSED FOR RESERVED FORESTS FOR DE
RESERVATION BY THE 3TATE
RESPONDENTS ARE AS FOLLOWS
5DIO
-AJUM 2ESERVE &ORESTS
HAC
4EZU 3TATION 2ESERVE &OREST
HEC
$ENNING 2ESERVE &ORESTS
HEC
$ENNING 2ESERVE &ORESTS
HEC
,EARNED COUNSEL FOR THE PETITIONER POINTED OUT THAT IN THE INSTANT WRIT PETITION THE
4 / \
PETITIONER IS CONCERNED WITH THE DE
RESERVATION OF HECTARES OF THE $ENNING 2ESERVE
&ORESTS LAND MENTIONED AT 3L .O ABOVE WHICH BELONGED TO THE VILLAGERS OF "ODARU
AND #HITTANGAM
4HE PETITIONER POINTED OUT THAT IN THE YEAR THE OFCE OF THE $EPUTY #OMMISSIONER
4EZU STARTED SURVEYING THE LAND OF THE PETITIONERS 5PON ENQUIRY THE PETITIONER AND THE
OTHER LAND OWNERS OF "ODARU AND #HITTANGAM VILLAGES WERE INFORMED THAT THE LAND WAS
BEING SURVEYED FOR ALLOTMENT TO THE !RMY AUTHORITIES
7HEN THE 3TATE 'OVERNMENT OF !RUNACHAL 0RADESH PROPOSED TO ALLOT THE LAND
BELONGING TO THE PETITIONER AND OTHER VILLAGERS TO THE !RMY AUTHORITIES THE VILLAGERS
OF "ODARU #HITTANGAM $IBANGGAM $INNINGAM #HEPAILANG ,OILANG #HETANGAM AND
,OHITPUR VILLAGES TO THEIR UTTER SURPRISE CAME TO KNOW THAT THEIR LANDS HAVE ALREADY
BEEN INCLUDED INTO A 2ESERVE &ORESTS !LL OF THEM VEHEMENTLY OPPOSED THE ALLOTMENT OF
THEIR LAND TO THE !RMY AUTHORITIES
"EING AGGRIEVED BY SUCH ACTION OF THE 3TATE 'OVERNMENT THE PETITIONERS ALSO LED
REPRESENTATION DATED BEFORE THE $EPUTY #OMMISSIONER 4EZU OBJECTING
DECLARATION OF THEIR LAND AS 2ESERVE &ORESTS AND ALLOTMENT OF THE SAME TO THE ARMY
AUTHORITIES 4HE AFOREMENTIONED VILLAGERS ALSO SOUGHT FOR PERMISSION TO HOLD A PEACEFUL
PROCESSION AGAINST THE 3TATE 'OVERNMENT FOR ALIENATING THEM FROM THEIR ANCESTRAL
LAND WITHOUT ANY AUTHORITY OF LAW 4HE PETITIONERS STATED THAT ON THE LAND
OWNERS OF "ODARU #HITANGAM $IBANGAM AND $ENNINGAM CONDUCTED MASS PUBLIC
PROCESSION AT 4EZU ,OHIT $ISTRICT AFTER DUE PERMISSION FROM THE RESPONDENT AUTHORITY
4HE 'AON "URAHS AND 0ANCHAYAT6ILLAGE #OUNCIL MEMBERS HAVE ALSO SUBMITTED
REPRESENTATION
DATED TO THE $EPUTY #OMMISSIONER 4EZU TO REFRAIN HIS STAFF
FROM SURVEYING THE LAND OF THE AFORESAID VILLAGERS FOR THE PURPOSE OF ALLOTMENT TO THE
!RMY AUTHORITY
4HE PETITIONER STATED THAT THE ATTEMPTS TO DEPRIVE THE PETITIONER AND OTHER LAND
OWNERS OF "ODARU AND #HITTANGAM VILLAGES FROM THEIR ANCESTRAL LAND CONTINUED AND
NALLY IN THE YEAR THE 'OVERNMENT OF !RUNACHAL 0RADESH IN CONNIVANCE WITH
SOME 'AON "URAHS OF THE ,OILANG AND 4AFROGAM VILLAGES WHO HAD NO AUTHORITY FROM
THE LOCAL -ISHMI VILLAGERS OF "ODARU AND #HITTANGAM VILLAGES EXECUTED THE IMPUGNED
4RIPARTITE -EMORANDUM OF 5NDERSTANDING DATED 4RIPARTITE !GREEMENT
WITH THE ARMY AUTHORITIES AND 'OVERNMENT OF )NDIA #ONSEQUENTLY IN TERMS OF THE
-EMORANDUM OF 5NDERSTANDING DATED THE 'AON "URAHS OF ,OILANG AND
4AFRAGAM VILLAGE REPRESENTING THE "ODARU AND #HITTANGAM VILLAGERS AGREED TO PART
AWAY WITH HECTARES OF LAND OF THE PETITIONER AND OTHER LANDOWNERS FOR ALLOTMENT
TO THE !RMY AUTHORITIES 4HE PETITIONERS ALLEGED THAT THE ENTIRE PROCESS OF DECLARING AND
NOTIFYING $ENNING 2ESERVE &OREST WAS KEPT A CLOSELY GUARDED SECRET AND NO NOTICES
WERE ISSUED TO THE PETITIONER AND OTHER LANDOWNERS OF "ODARU AND #HITTANGAM VILLAGES
,EARNED COUNSEL FOR THE PETITIONER SUBMITTED THAT THE -EMORANDUM OF 5NDERSTANDING
DATED BEING DEVOID OF ANY LEGAL SANCTITY IS LIABLE TO BE DECLARED AS NULL AND
VOID
4HE PETITIONER SUBMITTED REPRESENTATION DATED TO THE $EPUTY #OMMISSIONER
4EZU ,OHIT $ISTRICT BEING AGGRIEVED BY THE INCLUSION OF HECTARES OF ANCESTRAL LAND
OF "ODARU AND #HITTANGAM AREA INTO THE $ENNING 2ESERVE &ORESTS IN A SURREPTITIOUS
MANNER WITHOUT FOLLOWING DUE PROCESS OF LAW AND SUBSEQUENT DE
RESERVATION AND
ALLOTMENT OF THE SAID LAND TO THE !RMY AUTHORITIES 3INCE THE REPRESENTATION DATED
WAS NOT CONSIDERED BY THE 3TATE AUTHORITY THE PETITIONER PREFERRED 70#
.O !0 OF BEFORE THIS #OURT /N THIS #OURT DISPOSED OF THE AFORESAID
WRIT PETITION BY DIRECTING THE $EPUTY #OMMISSIONER 4EZU ,OHIT $ISTRICT TO CONSIDER
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
AND DISPOSE OF THE REPRESENTATION OF THE PETITIONER DATED
4HE $EPUTY #OMMISSIONER 4EZU CONSIDERED THE AFORESAID REPRESENTATION DATED
AND REJECTED IT VIDE ORDER DATED ON THE FOLLOWING GROUNDS
3INCE $ENNING RESERVE &OREST HAD BEEN NOTIED VIDE 3ECRETARY &ORESTS 'OVT
OF !RUNACHAL 0RADESH )TANAGAR .OTICATION .O &/2 DATED
(A OF LAND ACQUIRED BY !RMY AT "ODARU AND #HITTANGAM AREAS$ENNING
,OHITPUR IS CONSIDERED TO BE FALLING WITHIN $ENNING 2& AREA
(A OF LAND ACQUIRED BY !RMY AT ABOVE MENTIONED AREA SHALL STAND
AS IT IS NON
RESTORABLE EITHER TO &OREST $EPARTMENT OR LOCAL -ISHMI PEOPLE AS
!RMY HAD ALREADY PAID 2S
2UPEES TWO CRORES FORTY EIGHT LAKHS
SIXTY THOUSAND ONLY TO THE STATE 'OVT FOR THE COST OF LAND TRANSFER VALUE AND 2S
2UPEES ONE CRORE EIGHTY FOUR LAKHS SIXTY FOUR THOUSAND ONLY TO
THE &OREST $EPARTMENT FOR THE COST OF .06#! CONSIDERING IT A PART OF $ENNING
2ESERVE &OREST AREA
2EGARDING BENETS OF LOCAL PEOPLE UNDER THE 3CHEDULE 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS2ECOGNITION OF &OREST 2IGHTS !CT THIS !CT
WAS NOT IN FORCE WHILE SIGNINGEXECUTING THE 4RIPARTITE !GREEMENT-O5 ON
)T MAY BE MENTIONED HERE THAT THE PETITIONER PREFERRED 70# .O !0 OF
CHALLENGING THE REJECTION OF THE REPRESENTATION DATED ASSAILING THE LEGALITY
AND VALIDITY OF THE ORDER DATED PASSED BY THE $EPUTY #OMMISSIONER 4EZU
AND IN THE AFORESAID WRIT PETITION THE 3TATE RESPONDENTS HAVE LED THEIR AFDAVIT
IN
OPPOSITION ON (OWEVER THE PETITIONER WITH A LIBERTY TO LE AFRESH WITHDREW
THE SAID WRIT PETITION
)N THE AFOREMENTIONED ORDER DATED THE $EPUTY #OMMISSIONER 4EZU ,OHIT
$ISTRICT ADMITTED THAT THE LOCAL -ISHMI PEOPLE ARE THE ORIGINAL LAND OWNERS OF "ODARU
AND #HITTANGAM AREA AND THEY HAD SETTLEMENT IN "ODARU AND #HITTANGAM AREA EVEN
PRIOR TO THE YEAR )N THE AFORESAID ORDER THE $EPUTY #OMMISSIONER 4EZU ALSO
ADMITTED THAT DUE TO OBJECTION FROM THE ORIGINAL LAND OWNERS PETITIONER AND THE OTHER
VILLAGERS OF "ODARU AND #HITTANGAM AREAS THEIR LAND COULD NOT BE HANDED OVER TO
!RMY AUTHORITIES
-R ! -ANNAN LEARNED #'# APPEARING ON BEHALF OF THE RESPONDENT .OS TO SUBMITTED
THAT THE 5NION OF )NDIA HAS NOT LED ANY AFDAVIT IN THIS WRIT PETITION BUT SUBMITTED
THAT THE )NDIAN !RMY HAS ALREADY PAID AN AMOUNT OF 2S BEING THE COST
VALUE OF THE LAND TO THE 3TATE 'OVERNMENT OF !RUNACHAL 0RADESH AND 2S
BEING THE COST OF .06#!#OMPENSATORY !FFORESTATION TO THE &ORESTS $EPARTMENT
'OVT OF !RUNACHAL 0RADESH
4HE PETITIONER BY LING AFDAVIT
IN
REPLY TO THE AFDAVIT
IN
OPPOSITION LED BY THE
RESPONDENT .OS TO EXPLAINED THE DELAY IN APPROACHING THE #OURT AS FOLLOWS
4HERE IS NO DELAY IN APPROACHING THIS (ONBLE #OURT BECAUSE THE ENTIRE ACTION
OF THE RESPONDENT AUTHORITIES IN CONVERTING THE LAND OF THE PETITIONER AS A 2ESERVE
&OREST AND SUBSEQUENT E
RESERVATION WAS DONE SURREPTITIOUSLY WITHOUT THE
KNOWLEDGE OF THE PETITIONER AND OTHER VILLAGERS OF "ODARU AND #HITANGAM AREA
4HE PETITIONER HAS SUFCIENTLY EXPLAINED THE REASONS OF DELAY IF ANY !S STATED IN
PARAGRAPH OF THE WRIT PETITION IT WAS FOR THE RST TIME IN THE YEAR WHEN THE
OFCE OF THE $EPUTY #OMMISSIONER 4EZU WAS SURVEYING THE LAND OF THE PETITIONER
FOR ALLOTMENT TO THE !RMY AUTHORITIES THAT THE PETITIONER AND OTHER LAND OWNERS
4 / \
CAME TO KNOW THAT THEIR ANCESTRAL LAND HAS BEEN INCLUDED INTO A 2ESERVE &OREST
!LL THE AFOREMENTIONED VILLAGERS OF "ODARU #HITTANGAM $IBANGGAM $INNINGAM
#HEPAILANG ,OILANG #HETANGAM AND ,OHITPUR VILLAGES VEHEMENTLY OPPOSED
ALLOTMENT OF THEIR LAND TO THE !RMY AUTHORITY BY THE 3TATE 'OVERNMENT AND THEY
JOINTLY LED A REPRESENTATION DATED BEFORE THE $EPUTY #OMMISSIONER
4EZU OBJECTING DECLARATION OF THEIR LAND AS 2ESERVE &OREST AND ALLOTMENT OF THE
SAME TO THE !RMY AUTHORITIES 4HE EFFECTED PEOPLE HAS BEEN AGITATING AND RAISING
THE ISSUE SINCE THEN 4HE AFOREMENTIONED VILLAGERS ALSO HELD PEACEFUL PROCESSION
AND AGITATED THE MATTERS BY SUBMITTING REPRESENTATIONS WHICH CULMINATED IN THE
REPRESENTATION DATED SEEKING LAND COMPENSATION !NNEXURE AND
ALSO LED A WRIT PETITION BEFORE THIS (ONBLE #OURT 70# !0 WHICH WAS
DISPOSED OF ON WHEREIN THE $EPUTY #OMMISSIONER 4EZU WAS GIVEN LIBERTY
TO DISPOSE OF THE REPRESENTATION DATED 4HE GROUND OF DELAY WAS NOT AT
ALL RAISED IN 70# !0 )T IS STATED THAT THE REPRESENTATION DATED
WAS DISPOSED OF BY THE $EPUTY #OMMISSIONER ONLY ON !NNEXURE
AND BEING AGGRIEVED ANOTHER WRIT PETITION BEING 70# .O !0 WAS LED
(OWEVER THE AFORESAID 70# .O !0 WERE WITHDRAWN ON WITH
LIBERTY TO LE A FRESH PETITION 4HE PRESENT WRIT PETITION WAS LED ON IN
WHICH AMONGST OTHER GROUNDS THE REJECTION ORDER OF THE $EPUTY #OMMISSIONER ONLY
ON !NNEXURE IS IMPUGNED 4HEREFORE THERE IS NO DELAY IN MOVING THE
PRESENT PETITION AND HENCE THE GROUND OF DELAY IS NOT TENABLE
4HAT IN REGARDS TO THE STATEMENTS MADE IN PARAGRAPH OF THE AFDAVIT IN OPPOSITION
THE PETITIONER BEGS TO STATE THAT THE ENTIRE PROCESS WAS CARRIED OUT IN SURREPTITIOUS
MANNER WITHOUT LETTING THE LAND OWNERS KNOW ABOUT THE PROCESS )T IS REITERATED THAT
THE LANDS INCLUDED IN THE $ENNING 2ESERVE &OREST ARE BEING CULTIVATED BY THE LAND
OWNERS SINCE TIME IMMEMORIAL TO TILL DATE BY THE RESPECTIVE LAND OWNERS THROUGH
WET RICE CULTIVATION HORTICULTURE GARDEN AND BAMBOO PLANTATIONS )F THE LAND WAS
DECLARED AS RESERVE FOREST THROUGH DUE PROCESS OF LAW THE LAND OWNERS WOULD
HAVE BEEN STOPPED FROM CULTIVATION AND NECESSARY LEGAL PROCESS FOR UNAUTHORISED
OCCUPATION OUGHT TO HAVE BEEN INITIATED BUT TILL DATE NOTHING OF THAT SORT HAS COME
UP WHICH SHOWS THAT THE ENTIRE PROCESS WAS DONE IN A SURREPTITIOUS MANNER )T IS
NOT THE CASE OF THE RESPONDENT AUTHORITIES THAT THE PETITIONER AND OTHER LAND OWNERS
HAVE COME AND OCCUPIED THE LAND IN QUESTIONS RECENTLY AFTER DECLARATION OF $ENNING
2ESERVE &OREST
4HE PETITIONER BY SHOWING THE PHOTOGRAPHS OF THE VILLAGES HAS SUBMITTED THAT IT IS STILL
UNDER THE OCCUPATION OF THE PETITIONER AND OTHER LANDOWNERS AND ARE BEING USED FOR
CULTIVATION BY *HUMMING ,EARNED COUNSEL FOR THE PETITIONER SUBMITTED THAT IF AT ALL THE
$ENNING 2ESERVE &OREST WAS DULY CONSTITUTED THEN NECESSARY LEGAL PROCESS TO EVICT
THE VILLAGERS AND LAND OWNERS COULD HAVE BEEN TAKEN LONG BEFORE FOR UNAUTHORISED
OCCUPATION BUT NO ACTION WAS EVEN TAKEN TILL DATE WHICH ACCORDING TO THE PETITIONER
IS AN INDIRECT ADMISSION OF THE FACT THAT THE LAND HAS BEEN INCLUDED IN THE $ENNING
2ESERVE &ORESTS SURREPTITIOUSLY BY SIMPLY PREPARING PAPER DOCUMENTS AND NOTIFYING
IT 4HE PETITIONER EMPHASIZED ON THE FACT THAT THE LANDS ARE STILL UNDER THE LAWFUL
OCCUPATION OF THE PETITIONER AND OTHER LANDOWNERS
&URTHER THE PETITIONERS HAVE LED ADDITIONAL
AFDAVIT TO BRING ON RECORD THE 8EROX
COPY OF BRIEF HISTORY DATED AND THE 8EROXED COPY OF THE PARA WISE REPLIES
ADDRESSED TO THE 3R 'OVT !DVOCATE DATED BOTH UNDER THE SIGNATURE OF THE $Y
#OMMISSIONER ,OHIT $ISTRICT 4EZU HAVE BEEN BROUGHT ON RECORDS 4HE AFORESAID RECORDS
REVEAL AS FOLLOWS
4HE PROPOSAL FOR HANDING OVER OF (A OF +EY ,OCATION 0OINT+,0 LAND FOR
LOCATING !RMY "RIGADE (1 IN $ENNING ,OHITPUR COULD NOT MATERIALIZE DUE TO STRONG
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
OBJECTIONS FROM THE ORIGINAL LAND OWNERS OF SAID AREA 4HE LAND ORIGINALLY BELONGS TO
-ISHMI 0EOPLE OF "ODARU #HITTANGAM ETC VILLAGES WHERE CLANS LIKE 4AYANG 4INDYA
4AILU ETC WERE SETTING PRIOR TO
4HE AREA WAS PROPOSED FOR ACQUISITION BY !RMY AFTER )NDO
#HINESE WAR BUT
DUE TO STRONG PROTEST FROM THE VILLAGERS THE SAME COULD NOT BE INITIATED -EANWHILE
IN THE ABOVE MENTIONED LAND WAS NOTIED VIDE .OTICATION .O &/2
$TD AS $ENNING 2ESERVE &OREST IGNORING THE OBJECTIONS OF THE PEOPLE
4HEREAFTER IN PROCESS WAS STARTED FOR ACQUISITION OF SAID LAND TO SET UP !RMY
"RIGADE (1
-EANWHILE AS IT WAS DECLARED AS A RESERVE FOREST AREA PROPOSAL WAS SENT FOR DE
RESERVATION OF (A OF LAND TO 0##& !S PER RECORDS (A OF LAND FALLS UNDER
$ENNING 2& WHEREAS (A OF LAND FALLS UNDER 53& AREA "UT DE RESERVATION FOR
(A OF LAND WAS TAKEN UP 4HE THEN $EPUTY #OMMISSIONER MERELY ISSUED AN ./#
ALLOWING FOREST LAND TO BE ACQUIRED BY ARMY !CCORDINGLY -INISTRY OF %NVIRONMENT
'OVT OF )NDIA APPROVED DE RESERVATION OF (A OF SAID DISPUTED FOREST LAND IN
PRINCIPLE SUBJECT TO PAYMENT OF THE COST OF .06 AND #! VIDE THEIR .O &#
$TD !CCORDINGLY !RMY PAID 2S 2UPEES ONE CRORE EIGHTY
FOUR LAKHS SIXTY FOUR THOUSAND ONLY TO THE &OREST $EPARTMENT
4HE SAID LAND IN QUESTION WAS A COMMUNITY LAND PRIOR TO ISSUE OF NOTICATION
OF &OREST $EPARTMENT DECLARING IT AS $ENNING 2ESERVE &OREST AS PER !SSAM &OREST
2EGULATION 7HETHER SECTIONS OF THE !SSAM &OREST 2EGULATION WERE
MAINTAINED WHILE CONSTITUTING IT AS A 2ESERVE &OREST OR NOT MAY BE KNOWN TO THE
$IVISIONAL &OREST /FCER 4EZU
4HOUGH IT IS CONSIDERED AS 2ESERVE &OREST YET *HUM CULTIVATION IS PRACTISED BY
LOCAL PEOPLE IN THIS AREALAND FROM TIME TO TIME
,EARNED COUNSEL FOR THE PETITIONER HAS ALSO DRAWN THE ATTENTION OF THIS #OURT TO A BRIEF
HISTORY OF THE DISPUTED LAND PREPARED BY THE $EPUTY #OMMISSIONER ,OHIT $ISTRICT
WHICH READS AS FOLLOWS
'/64 /& !25.!#(!, 02!$%3(
/&&)#% /& 4(% $%0549 #/--)33)/.%2
,/()4 $)342# 4%:5
"2)%& ()34/29 /& $)3054%$ +,0 ,!.$ &/2 !2-9 "2)'!$% !4 $%..).'
,/()4052 ). ,/()4 $)342# !25.!#(!, 02!$%3(
4HE HANDING OVER OF ACRES OF +,0 LAND FOR LOCATING !RMY "RIGADE (1 IN
$ENNING ,OHITPUR COULD NOT BE MATERIALIZED DUE TO STRONG OBJECTION FROM THE
ORIGINAL LAND OWNERS OF SAID AREA 4HE LAND ORIGINALLY BELONGS TO -ISHMI PEOPLE OF
$INGBOM 4ABANGAM 3IOLIANG #HINGRING #HEPPAGAM 0ARLALIANG "ADARO WHERE
CLANS LIKE "OO +ATHAK $RAI 4AYENG 4INDYA WERE SETTLING
4HE !2%! 7!3 02/0/3%$ &/2 !#1534)/. "9 !RMY AFTER WAR BUT DUE
TO STRONG PROTEST FROM THE VILLAGERS SAME COULD NOT BE INITIATED -EANWHILE IN
THE ABOVE MENTIONED LAND WAS NOTIED VIDE .OTICATION ./ &/2
DATED AS $ENNING 2ESERVED &OREST IGNORING THE OBJECTIONS OF THE PEOPLE
4HEREAFTER IN PROCESS WAS STARTED BY THE THEN $EPUTY #OMMISSIONER 3MTI
0- 3INGH FOR ACQUISITION OF THOSE LAND TO SET UP "RIGADE (1 2EPRESENTATIONS WERE
4 / \
SUBMITTED TO 3MTI 0- 3INGH THE THEN $EPUTY #OMMISSIONER BY PUBLIC LEADERS LAND
OWNERS ETC BUT THE $EPUTY #OMMISSIONER REFUSED TO HEAR THE PLEA OF THE PEOPLE
AND WENT AHEAD FOR ACQUIRING THE SAID LAND ! DRAFT .OTICATION WAS SENT TO THE
3TATE 'OVT UNDER 3ECTION OF ,AND !CQUISITION !CT ON "UT SAID DRAFT
.OTICATION WAS NOT PUBLISHED IN OFCIAL 'AZETTE AND THEREAFTER PROCESS UNDER THE
LAND ACQUISITION ACT WAS IGNORED
-EANWHILE AS IT WAS DECLARED AS RESERVED FOREST AREA PROPOSAL WAS SENT FOR
DE
RESERVATION OF ACRES OF LAND TO 0##& 4HE $&/ PROCESSED DE
RESERVATION OF
ACRES LAND UNDER $ENNING 2& AND ASKED THE $EPUTY #OMMISSIONER TO PROCESS
ACQUISITION OF ACRES OF LAND FALLING UNDER 53& "UT THE $EPUTY #OMMISSIONER
DIRECTED $&/ TO PROCESS DE
RESERVATION OF ACRES OF 53& LAND ALSO ALONG WITH
ACRES OF 2& LAND AND AS PER DIRECTION OF $# DE
RESERVATION OF (ECT IE
ACRES OF LAND WAS TAKEN UP 4HE $EPUTY #OMMISSIONER MERELY ISSUED AN ./#
ALLOWING FOREST LAND TO BE ACQUIRED BY !RMY !CCORDINGLY -INISTRY OF %NVIRONMENT
'OVT OF )NDIA APPROVED DE
RESERVATION OF (ECT IE ACRES OF SAID DISPUTED
FOREST LAND IN PRINCIPLE SUBJECT TO THE CONDITION OF PAYMENT OF COMPENSATION VIDE
THEIR .O
&# DATED !CCORDINGLY !RMY PAID 2S
TO
THE &OREST DEPARTMENT
#ONSEQUENT UPON IT SURVEY WAS PROPOSED FOR HANDING OVER LAND TO !RMY "UT
SURVEY COULD NOT BE CONDUCTED DUE TO OBJECTION RAISED BY THE ORIGINAL LAND OWNERS
&ROM RECORDS IT IS SEEN THAT PROPER PROCEDURE FOR ACQUISITION OF VILLAGE LAND WAS
NOT ADOPTED BY THE $ISTRICT !UTHORITY IGNORING THE PLEA OF THE PEOPLE 4HE LAND
OWNERS WERE RAISING OBJECTIONS FOR ACQUISITION SINCE LAND YEARS FOR WHICH $#S
COULD NOT PROCESSED THE SAME %VEN 53& ARE WHICH DID NOT FALL UNDER THE FOREST AREA
WAS SHOWN AS FOREST LAND AND COMPENSATION WAS PAID TO FOREST DEPARTMENT FOR
AFFORESTATION INSTEAD TO LAND OWNERS 4HE $ISTRICT !UTHORITY WAS ASKED AGAIN TO EAR
MARKED DOUBLE OF THE LAND FOR RESERVATION LIEU OF THE ARE DE
RESERVED !CCORDINGLY
$ALAI 2ESERVE &OREST WAS PROPOSED WHICH AGAIN DEPRIVES THE TRADITIONAL RIGHTS OF
THE PEOPLE OVER THEIR TRADITIONAL *HUM AND HUNTING LAND
&ROM THE RECORDS IT REVEALS THAT $# HAD ONLY ISSUED ./# TO ACQUIRE THE SAID
DISPUTED FOREST LAND AND SINCE THE LAND HAS NOT ACQUIRED AS PER PROCEDURE HANDING
OVER OF SAID LAND TO !RMY BY $# DOES NOT ARISE
4HE PLEA OF LAND OWNERS WERE IGNORED BY THE $ISTRICT !UTHORITY IN THE PAST FOR
WHICH LAND OWNERS ARE AGITATING OVER PROPOSED HANDING OVER OF THE SAID LAND TO
!RMY 4HERE ARE HUMAN HABITATIONS AND CULTIVATION ELDS IN THE AREA AND IF THEY ARE
EVICTED FROM THE SAID LAND WITHOUT PAYMENT OF COMPENSATION IT WILL RENDER THEM
HOMELESS AND LANDLESS
3INCE THE LAND IN QUESTION WAS SHOWN AS &OREST LAND AND &OREST DEPARTMENT WAS
PAID COMPENSATION THE ONUS OF HANDING OVER SAID LAND FALLS WITH FOREST DEPARTMENT
9$ 4HONGCHI )!3
$EPUTY #OMMISSIONER
,OHIT $ISTRICT 4EZU
&ACTS AND CIRCUMSTANCES REVEAL THAT THE FOREST VILLAGERS OF "ODARU AND #HITTANGAM
VILLAGE WHO WERE LIVING IN DEEP FOREST FOR CENTURIES TOGETHER WERE OBLIVIOUS OF ANY
DECLARATION OF 2ESERVE &OREST AND WERE HAPPILY LIVING IN THEIR ANCESTRAL DWELLINGS
WITHOUT ANY DISTURBANCE WHATSOEVER !PPARENTLY THE 3TATE 'OVERNMENT ALSO DID NOT
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
TAKE INTO NOTICE THE &OREST VILLAGERS OF "ODARU AND #HITTANGAM VILLAGE WHILE TAKING
NECESSARY STEPS FOR CONSTITUTION OF THE $ENNING 2ESERVE &OREST )N THE VAST AREA OF
THE $ENNING 2ESERVE &OREST AROUND HECTARES OF LAND DECLARED AND NOTIED BY
THE 3TATE 'OVERNMENT APPARENTLY VILLAGE "ODARU AND #HITTANGAM GOT INCLUDED IN THE
NOTIED AREA BY DEFAULT
/N BARE PERUSAL OF THE ABOVE DOCUMENTS IT CLEARLY REVEAL THAT THE 3TATE 'OVERNMENT
ADMITS THE EXISTENCE OF &OREST VILLAGE IN THE $ENNING 2ESERVES &OREST BUT VERY
SURPRISINGLY THE 3TATE 'OVERNMENT COULD NOT RISE TO THE OCCASION EITHER TO ADDRESS THE
ISSUE BY REHABILITATING THE FOREST VILLAGERS BY DULY COMPENSATING THEM OR BY AWARDING
DUE COMPENSATION IN TERMS OF THE ,AND !CQUISITION !CT
4HE TROUBLE STARTED BREWING WHEN THE 3TATE 'OVERNMENT ON THE REQUEST OF THE #ENTRAL
'OVERNMENT DECIDED TO DIVERT HECTARES OF LAND OF THE 2ESERVE &OREST FOR SETTLEMENT
OF +,0 +EY ,OCATION 0OINT "RIGADE (1 AT ,OHITPUR FOR THE )NDIAN !RMY
4HE !RMY AUTHORITY AS THE USER AUTHORITY AGREED TO ABIDE BY THE CONDITION IMPOSED
BY THE -INISTRY OF %NVIRONMENT AND &OREST AS PER PROVISION OF THE &OREST #ONSERVATION
!CT 4HE !RMY AUTHORITY ALSO DEPOSITED 2S ON BEING THE
COSTS OF COMPENSATORY !FFORESTATION 0LANTATION TO BE CREATED OVER EQUIVALENT AREA "UT
UNFORTUNATELY THE FOREST VILLAGERS OF "ODARU AND #HITTANGAM VILLAGE WERE JUST IGNORED
AND FORGOTTEN WHILE DOING THE GROUNDWORK FOR HANDING OVER THE &OREST LAND AREA TO THE
)NDIAN !RMY
4HE PETITIONER HAS SOUGHT FOR QUASHING AND SETTING ASIDE THE 'AZETTE .OTICATION .O
DATED ISSUED UNDER 3ECTION OF THE !SSAM &ORESTS 2EGULATION
BY THE #HIEF #ONSERVATOR OF &ORESTS %X
/FCIO 3ECRETARY&ORESTS !RUNACHAL 0RADESH
!DMINISTRATION 3HILLONG AND THE 'AZETTE .OTICATION .O DATED
ISSUED UNDER 3ECTION OF THE !SSAM &ORESTS 2EGULATION BY THE 3ECRETARY&ORESTS
'OVERNMENT OF !RUNACHAL 0RADESH )TANAGAR DECLARING THE $ENNING 2ESERVE &ORESTS
IN SO FAR AS IT INCLUDES HECTARES OF LAND OF THE PETITIONER AND OTHER LAND OWNERS
OF "ODARU AND #HITTANGAM VILLAGE WITH PRAYERS FOR QUASHING THE SUBSEQUENT ORDERS
INCLUDING THE -EMORANDUM OF 5NDERSTANDING DATED AND THE /RDER .O ,2%
DATED PASSED BY THE $EPUTY #OMMISSIONER 4EZU ,OHIT $ISTRICT
-R 0ERTIN LEARNED COUNSEL FOR THE PETITIONER SUBMITTED THAT THE PETITIONERS WHO ARE
SIMPLE TRIBAL VILLAGERS RESIDING IN DEEP FOREST FROM TIME IMMEMORIAL WERE EITHER
IGNORED OR CONVENIENTLY FORGOTTEN WITH A DESIGN TO DENY THEM THEIR LEGITIMATE RIGHTS
AS CITIZEN OF THE COUNTRY AND THE LAW OF THE LAND WAS NEVER EVER APPLIED TO GIVE THEM
THE BENET OF ADEQUATE COMPENSATION FOR ACQUIRING THEIR HEARTH AND HOME 4HE POOR
VILLAGERS ARE NOW GOING TO BE UPROOTED FROM THEIR LAND WITHOUT CONSIDERING THEIR
REHABILITATION
-R 0ERTIN LEARNED COUNSEL FOR THE PETITIONER CONTENDED THAT THE POOR TRIBAL VILLAGERS
LIVING IN THE REMOTE BORDER AREAS OF THE COUNTRY MAY BE RUSTIC AND TRIBAL BUT AS CITIZEN
OF )NDIA THEY ARE AWARE OF THE REQUIREMENT OF THE !RMY AND THE STRATEGIC IMPORTANCE
OF THE LOCATION OF THE LAND BELONGING TO THEM ,EARNED COUNSEL FOR THE PETITIONER
SUBMITTED THAT HE HAS INSTRUCTIONS TO SUBMIT THAT THE PETITIONERS WOULD NOT HAVE
ANY OBJECTION IF THE RESPONDENT AUTHORITIES RISE TO THE OCCASION TO RESOLVE THE ISSUE BY
MAKING PAYMENT OF ADEQUATE COMPENSATION FOR THE LAND BELONGING TO THE VILLAGERS
4HE PETITIONER RELYING ON THE PROVISIONS OF #/-0%.34!4)/. AS PROVIDED UNDER
3ECTION IV OF THE !SSAM &ORESTS 2EGULATION THE "ALIPARE 4IRAP 3ADIYA &RONTIER
4RACT *HUM ,AND 2EGULATION AND ALSO THE !RUNACHAL 0RADESH,AND 2ECORDS AND
4 / \
3ETTLEMENT !CT HAS MADE ALTERNATIVE PRAYER FOR COMPENSATION ,EARNED COUNSEL
FOR THE PETITIONER POINTED OUT THAT IN TERMS OF THE ACCRUED RIGHT OF THE TRIBAL PEOPLE
UNDER THE 3CHEDULE 4RIBES AND OTHER 4RADITIONAL $WELLERS2ECOGNITION OF &ORESTS
2IGHTS !CT THE PETITIONER HAS ALSO MADE AN ALTERNATIVE PRAYER SEEKING A WRIT OF
-ANDAMUS DIRECTING THE RESPONDENT AUTHORITIES TO PAY ADEQUATE LAND COMPENSATION
TO THE PETITIONER AND OTHER LAND OWNERS OF "ODARU AND #HITTAGAM AREA FOR HAVING
ACQUIRED HECTARES OF THEIR ANCESTRAL LAND SITUATED AT "ODARU AND #HITTANGAM
AREVILLAGE IN TERMS THE RECENT POLICY GUIDELINES FOR PAYMENT OF COMPENSATION IE
2EHABILITATION AND 2ESETTLEMENT 0OLICY
-S ' $EKA LEARNED !DDL 3ENIOR 'OVT !DVOCATE REPRESENTING THE 3TATE RESPONDENTS
CONTENDED THAT THE $ENNING 2ESERVE &ORESTS WAS CONSTITUTED IN THE YEAR IN TERMS OF
THE PROVISIONS OF 3ECTIONS AND OF THE !SSAM &ORESTS 2EGULATION 4HE PETITIONER
HAS APPROACHED THIS #OURT FOR SETTING ASIDE THE .OTICATION DATED AFTER A
LAPSE OF YEARS 4HEREFORE SHE SUBMITTED THAT THE WRIT PETITION IS BARRED UNDER THE
DOCTRINE OF ESTOPPELS ACQUIESCES AND THE INSTANT WRIT PETITION IS LIABLE TO BE DISMISSED
ON THE SOLE GROUND OF DELAY AND LACHES IN SEEKING RELIEF SOUGHT FOR )N SUPPORT OF HER
CONTENTION LEARNED 3TATE 'OVERNMENT COUNSEL RELIED ON THE FOLLOWING DECISIONS
I 3## #ITY )NDUSTRIAL $EVELOPMENT #ORPORATION VS $OSU AND
II 3## 0ARAG #ONSTRUCTION VS 3TATE OF -AHARASHTRA
)N #ITY AND )NDUSTRIAL $EVELOPMENT #ORPN VS $OSU !ARDESHIR "HIWANDIWALA SUPRA
(ONBLE 3UPREME #OURT OBSERVED AS FOLLOWS
)T IS WELL SETTLED AND NEEDS NO RESTATEMENT AT OUR HANDS THAT UNDER !RTICLE
OF THE #ONSTITUTION THE JURISDICTION OF A (IGH #OURT TO ISSUE APPROPRIATE
WRITS PARTICULARLY A WRIT OF MANDAMUS IS HIGHLY DISCRETIONARY 4HE RELIEF CANNOT
BE CLAIMED AS OF RIGHT /NE OF THE GROUNDS FOR REFUSING RELIEF IS THAT THE PERSON
APPROACHING THE (IGH #OURT IS GUILTY OF UNEXPLAINED DELAY AND THE LACHES
)NORDINATE DELAY IN MOVING THE COURT FOR A WRIT IS AN ADEQUATE GROUND FOR REFUSING
A WRIT 4HE PRINCIPLE IS THAT THE COURTS EXERCISING PUBLIC LAW JURISDICTION DO NOT
ENCOURAGE AGITATION OF STALE CLAIMS AND EXHUMING MATTERS WHERE THE RIGHTS OF
THIRD PARTIES MAY HAVE ACCRUED IN THE INTERREGNUM
)N 0ARAG #ONSTRUCTION VS 3TATE OF -AHARASHTRA 3## (ONBLE 3UPREME
#OURT ANALYSING THE ATTENDANT FACT OF THE CASE HELD AS FOLLOWS
7E ND THAT THE 403 WAS NALISED ON
AND RIGHT FROM TO THE
PROCEEDINGS BEFORE THE ARBITRATOR WERE IN PROGRESS )F THE APPELLANT
PETITIONERS
CLAIMED TO HAVE COME ON THE PROPERTY BY WAY OF AN AUCTION
PURCHASE IN THE YEAR
WHICH INCLUDED &INAL 0LOT .O IT CANNOT BE BELIEVED THAT THE APPELLANT
PETITIONERS WOULD HAVE NO IDEA ABOUT THE STATE OF AFFAIRS REGARDING THE 3CHEME
WHICH WAS ALREADY NALISED IN
4HERE IS A CLEAR REFERENCE TO THE 4OWN 0LANNING 3CHEME )) OF "ORIVALI IN THE
CERTICATE DATED
WHICH IS A BASIC DOCUMENT OF THE APPELLANT
PETITIONERS
)T IS AGAIN DIFCULT TO BELIEVE THAT THE APPELLANT
PETITIONERS DID NOT HAVE IDEA THAT
THE POSSESSION OF THIS PLOT WAS ALREADY TAKEN BY THE ARBITRATOR IN THE YEAR
ITSELF FROM THE 6ELKARS !T ANY RATE AT THAT STAGE WHEN THE POSSESSION WAS TAKEN
IF AT ALL ANYBODY HAD ANY GRIEVANCE IT WAS THE 6ELKARS AND NOT THE APPELLANT
PETITIONERS BECAUSE THE APPELLANT
PETITIONERS WERE NOWHERE ON THE SCENE ON THAT
DATE 4HEREFORE IT COULD NOT LIE IN THE MOUTH OF THE APPELLANT
PETITIONERS THAT THE
POSSESSION WAS ILLEGALLY TAKEN FROM THE 6ELKARS OR WAS NOT TAKEN AT ALL 4HERE ARE
ENOUGH DOCUMENTS ON RECORD TO PROVE THAT THE POSSESSION WAS ACTUALLY TAKEN AND
WAS THEREAFTER HANDED OVER TO THE #ORPORATION
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
)N BOTH THE ABOVE DECISIONS #ITY AND )NDUSTRIAL $EVELOPMENT #ORPN VS $OSU
!ARDESHIR "HIWANDIWALA 0ARAG #ONSTRUCTION VS 3TATE OF -AHARASHTRA SUPRA THE
WRIT PETITIONERS HAD THE KNOWLEDGE OF THE 'OVERNMENT ACTION 4O REFUSE RELIEF TO THE
PERSON APPROACHING THE (IGH #OURT FOR UNEXPLAINED DELAY AND THE LACHES THERE HAS TO
BE INORDINATE DELAY IN MOVING THE COURT FOR A WRIT )N ORDINATE DELAY IN ACTION WOULD BE
COUNTED FROM THE DATE OF KNOWLEDGE 5NFORTUNATELY IN THIS CASE THE 3TATE RESPONDENT
COULD NOT PLACE ANY RECORD TO SHOW THAT THE POOR 4RIBAL VILLAGERS HAD THE KNOWLEDGE
OF THE 3TATE ACTION !PPARENTLY THE VILLAGERS WHO WERE LIVING PEACEFULLY EVER BEFORE
UNMINDFUL OF 3TATE ACTION GOT THE MESSAGE OF BEING THROWN AWAY WHEN THE 3TATE
DECIDED TO GIVE THEIR LAND TO THE !RMY #ONSEQUENTLY THIS ACTION OF THE 3TATE TRIGGERED
CAUSE OF ACTION FOR THE ENTIRE EXERCISE BY THE VILLAGERS
)N SUPPORT OF HIS CONTENTION LEARNED COUNSEL FOR THE PETITIONER RELIED ON THE DECISIONS
REPORTED IN ',4 $HIRENDRA #H 2OY VS 5NION /F )NDIA WHERE IN IT HAS BEEN
HELD AS FOLLOWS
)T HAS BEEN HELD IN 3ETHI VS 5NION OF )NDIA !)2 S # PARA THAT THE
DELAY CANNOT BE A BAR WHERE THE 'OVERNMENT HAVE BEEN HOLDING OUT HOPES TO THE
PETITIONER FROM TIME TO TIME )N THIS CASE THIS #OURT RST ISSUED A .OTICE OF MOTION
CALLING UPON THE 2ESPONDENTS TO SHOW
CAUSE AS TO WHY A WRIT SHOULD NOT BE ISSUED
AND THEN AFTER HEARING THE LEARNED COUNSELS FOR THE PETITIONER AND THE RESPONDENTS
THIS #OURT ISSUED A 2ULE AND NOW AT THE HEARING STAGE ) WOULD NOT THROW TOUT THIS
PETITION ON THE GROUND OF DELAY IN THE FACTS AND CIRCUMSTANCES OF THIS CASE AS STATED
ABOVE
)N YET ANOTHER DECISION REPORTED IN 3## PARA !SHOK +UMAR VS 3TATE OF
"IHAR IT HAS BEEN HELD AS FOLLOWS
)N OUR VIEW THE (IGH #OURT HAD FALLEN INTO ERROR IN NOT HOLDING THAT THE APPELLANT
HAD SUFCIENTLY EXPLAINED WHY THE WRIT PETITION COULD NOT BE MOVED OR WHY IT WAS
MOVED AFTER YEARS OF THE DECISION OF THE 3TATE 'OVERNMENT 3INCE THE APPELLANT
HAD LED A REPRESENTATIONREVIEW OF THE DECISION OF THE 3TATE 'OVERNMENT IT WAS
EXPECTED BY HIM THAT AN ORDER SHOULD BE PASSED ON THE SAID REPRESENTATIONREVIEW
4HEREFORE IN OUR VIEW THE DELAY IN MOVING THE WRIT APPLICATION AGAINST THE DECISION
OF THE 3TATE 'OVERNMENT WAS SUFCIENTLY EXPLAINED BY THE APPELLANT AND THEREFORE
THE WRIT PETITION OUGHT NOT TO HAVE BEEN DISMISSED ON THE GROUND OF DELAY AND
LACHES !CCORDINGLY WE SET ASIDE THE IMPUGNED ORDERS OF THE $IVISION "ENCH AS WELL
AS OF THE LEARNED 3INGLE *UDGE
4HE PETITIONERS WERE PURSUING WITH THE MATTER DILIGENTLY IMMEDIATELY AFTER COMING TO
KNOW THAT HEARTH AND HOME BELONGING TO THEM HAVE BEEN TAKEN AWAY SURREPTITIOUSLY
#ONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THE DELAY IN APPROACHING THE WRIT
COURT WHICH HAS BEEN PROPERLY EXPLAINED SHALL NOT TAKE AWAY THE EQUITABLE RELIEF THAT
MAY BE AVAILABLE TO THE PETITIONERS -ORE SO WHEN THE FACT OF STEALING AWAY OF THEIR
RIGHTS WERE NOT WITHIN THE KNOWLEDGE OF THE PETITIONERS 4O NEGATE OR DEBAR A RELIEF
BY A WRIT COURT FOR DELAY IN TAKING APPROPRIATE ACTION KNOWLEDGE OF BOTH SIDES ABOUT
ARISING OF A RIGHT TO RELIEF DUE TO ILLEGAL STATE ACTION AND CONSEQUENT LACHES OR INACTION
TO TAKE RESORT TO APPROPRIATE LEGAL RELIEF SHALL BE NECESSARY 4HIS IS A CASE WHERE THERE
WAS APPARENTLY NO KNOWLEDGE ON THE PART OF THE 3TATE AUTHORITY THAT THEIR ACTION HAS
TAKEN AWAY THE RIGHTS OF THE VILLAGERS SO ALSO THE VILLAGERS HAD NO KNOWLEDGE THAT THEIR
RIGHT TO LIVE IN THE VILLAGE GOT EXTINGUISHED DUE TO 3TATE ACTION
-ORE SO IF THE 3TATE WOULD HAVE KNOWLEDGE OF THE EXISTENCE OF &OREST VILLAGERS AND
HAD TAKEN COGNIZANCE OF SUCH EXISTENCE DENITELY THERE WOULD HAVE BEEN SOME
NEGOTIATION WITH THE VILLAGERS 3OME ACTION FOR RELIEF OR REHABILITATION WOULD HAVE
BEEN FORTHCOMING IN THIS REGARD !BSOLUTE INACTION AND NO KNOWLEDGE SYNDROME OF THE
4 / \
3TATE REGARDING THE EXISTENCE OF THE &OREST VILLAGERS REECTS EITHER THE STATE AUTHORITY
IGNORED THEIR EXISTENCE OR DID NOT CONVENIENTLY NOTICE THEIR EXISTENCE 4HOUGH OFCIAL
HANDING OVER OF THE LAND TO THE !RMY WAS GIVEN ON BUT ACTUAL POSSESSION
IS YET TO BE GIVEN EFFECT
4HIS IS A CASE WHERE NEITHER THE 3TATE AUTHORITY APPARENTLY HAD THE KNOWLEDGE THAT A
LARGE NUMBERS OF FOREST VILLAGERS WERE PEACEFULLY RESIDING INSIDE THE $ENNING 2ESERVE
&OREST NOR THE POOR FOREST VILLAGERS HAD THE INFORMATION EITHER FORMALLY OR INFORMALLY
THAT ILLEGAL STATE ACTION HAS STOLEN AWAY THEIR ANCESTRAL DWELLINGS )N THE CIRCUMSTANCES
IT WOULD NOT BE FAIR TO ATTRIBUTE KNOWLEDGE OF THE 3TATE ACTION ON THE POOR VILLAGERS
FROM THE DATE OF NOTICATION TO CAST OF THE RELIEF SOUGHT FOR 4HEREFORE IN MY CONSIDERED
OPINION THE QUESTION OF DELAY DEPARTING EQUITY WOULD NOT ARISE IN THE INSTANT CASE
#ONSEQUENTLY WITHOUT LINGERING THE DISCUSSIONS ANY FURTHER IN VIEW OF THE ABOVE )
ND THAT THE 'AZETTE .OTICATION .O DATED ISSUED UNDER 3ECTION
OF THE !SSAM &OREST 2EGULATION AND THE 'AZETTE .OTICATION .O DATED
ISSUED UNDER SECTION OF THE !SSAM &ORESTS 2EGULATION PROPOSING AND
CONSTITUTING THE $ENNING 2ESERVE &OREST COVERING THE AREA OF "ODARU AND #HITTAMGAM
VILLAGES IS IN VIOLATION OF PROVISIONS OF THE !SSAM &ORESTS 2EGULATION AND THE
"ALIPARA 4IRAP 3ADIYA &RONTIER 4RACT *HUM ,AND 2EGULATION AND SUCH OTHER
RELATED NOTICATIONS ARE LIABLE TO BE DECLARED NULL AND VOID (OWEVER LEARNED COUNSEL
FOR THE PETITIONER ON INSTRUCTIONS HAS SUBMITTED THAT THE PETITIONER AND OTHER LAND
OWNERS WHO ARE PATRIOTIC )NDIAN CITIZENS LIVING IN THE VILLAGES BORDERING #HINA ARE
AWARE OF THEIR DUTIES AND RESPONSIBILITIES TOWARDS .ATION BUILDING AND THEY ARE
AGREEABLE TO GIVE AWAY THEIR RIGHTS OVER THEIR ANCESTRAL LAND FOR BEING UTILIZED FOR
+EY ,OCATION 0OINT +,0 BY THE )NDIAN !RMY FOR THE SERVICE OF THE .ATION ,EARNED
COUNSEL SUBMITTED THAT NONETHELESS THE VILLAGERS ARE ENTITLED TO LAND COMPENSATION AS
ENVISAGED UNDER DIFFERENT !CTS 2ULES AND POLICY GOVERNING THE ELD TO ENABLE THEM TO
DECENTLY REHABILITATE IN ANOTHER LOCATION
4HEREFORE IN VIEW OF THE ABOVE DEVELOPMENT ) PROPOSE TO DIRECT THE RESPONDENT
AUTHORITIES TO RISE TO THE OCCASION TO MAKE AN EFFORT TO SETTLE THE DISPUTE WITH THE
4RIBAL VILLAGERS BY WAY OF AMICABLE SETTLEMENT BY MAKING PAYMENT OF ADEQUATE
LAND COMPENSATION TO THE INDIVIDUAL LAND OWNERS OR BY RELOCATING THE 4RIBAL VILLAGES
OF "ODARU AND #HITTANGAM TO A SUITABLE LOCATION TO ENABLE THEM TO REHABILITATE )N
THE FACTS AND CIRCUMSTANCES ) FURTHER DIRECT THAT THE ENTIRE PROCESS SHALL BE COMPLETED
WITHIN A PERIOD OF FOUR MONTHS FROM THE DATE OF RECEIPT OF CERTIED COPY OF THIS ORDER
/RDERED ACCORDINGLY
7ITH THE ABOVE OBSERVATIONS AND DIRECTIONS THIS WRIT PETITION STANDS DISPOSED OF
(OWEVER ) PASS NO ORDER AS TO COSTS
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
3MT -AYA $OLO VS 6IJOY 4ACHANG
/RS
2%6)%7 0%4)4)/. ./ /&
'!5(!4) ()'( #/524
#/2!- 0+ -53!(!29 *
#)4!4)/. '!5 ,2 3## /.,).% 'AU
3 5--!29
0REVIOUSLY IN A JUDGMENT DT THIS #OURT HAD ALLOWED A WRIT PETITION
CHALLENGING THE GRANT OF LAND POSSESSION CERTIFICATE TO THIS PETITIONER -S -AYA
$OLO 3HE FILED A REVIEW PETITION AGAINST THAT JUDGMENT ON A VARIETY OF GROUNDS
/NE SUCH GROUND WHICH HAD ALSO BEEN URGED BY HER IN THE PREVIOUS ROUND WAS THAT
THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! DOES NOT APPLY TO THE 3TATE OF !RUNACHAL 0RADESH BECAUSE IT
HAS NOT BEEN NOTIFIED BY THE 3TATE GOVERNMENT
!LL THE ARGUMENTS OF THE REVIEW PETITIONER INCLUDING THIS ONE WERE CITED BY THE
#OURT ONLY TO BE REJECTED 4HE #OURT OBSERVED THAT THE &2! CAME INTO EFFECT ON THE
DATE AS NOTIFIED IN THE 'AZETTE OF )NDIA FROM WHICH DATE IT WAS APPLICABLE TO THE
WHOLE OF )NDIA EXCEPT THE 3TATE OF *AMMU AND +ASHMIR AS STATED UNDER 3ECTION
OF THE SAID !CT
* 5$ '-% . 4
(EARD -R .. 3AIKIA LEARNED 3ENIOR #OUNSEL ASSISTED BY -R .* $UTTA LEARNED #OUNSEL
FOR THE REVIEW PETITIONER -RS - "ORA LEARNED 'OVT !DVOCATE FOR RESPONDENT .OS TO
AND -R ! +ASHYAP LEARNED #OUNSEL APPEARING FOR RESPONDENT .OS TO
4HIS APPLICATION HAS BEEN LED SEEKING REVIEW OF THE JUDGMENT AND ORDER DATED
PASSED BY THIS #OURT IN 70 # .O !0 BY WHICH THE AFORESAID WRIT PETITION WAS
3HRI 6IJOY 4ACHANG /RS VS 3TATE OF !RUNACHAL 0RADESH /RS *UDGMENT DT IN 70 # .O !0
'AUHATI (IGH #OURT 4HIS JUDGMENT HAS BEEN EXTRACTED ELSEWHERE IN THIS COMPENDIUM
4 / \
ALLOWED AND THE RESPONDENT $EPUTY #OMMISSIONER %AST +AMENG $ISTRICT WAS DIRECTED
TO CANCEL THE LAND POSSESSION CERTICATES ISSUED TO THE RESPONDENT .O THE PRESENT
REVIEW PETITIONER WITHIN DAYS FROM THE DATE OF RECEIPT OF THE JUDGMENT AND ORDER
PRESENTLY SOUGHT TO BE REVIEWED 4HE WRIT PETITION WAS CONTESTED BY THE RESPONDENT
.O 2EVIEW PETITIONER BY LING AFDAVIT IN OPPOSITION AND THE JUDGMENT AND ORDER
WAS PASSED AFTER HEARING THE PARTIES CONCERNED 4HE REVIEW HAS BEEN SOUGHT FOR ON THE
FOLLOWING GROUND
A 4HE REVIEW PETITIONER REALIZED THAT CERTAIN VITAL ISSUES WERE NOT POINTED OUT BY
THE LEARNED #OUNSEL DURING THE COURSE OF HEARING 4HERE WAS AN OMISSION ON THE
PART OF THE REVIEW PETITIONER TO POINT OUT THAT IN TERMS OF THE 2ULE OF #HAPTER
)6 OF THE 'AUHATI (IGH #OURT 2ULES ALL MATTERS PERTAINING TO #USTOMARY ,AWS
ARE TO BE HEARD ORDINARILY BY A $IVISION "ENCH 4HE REVIEW PETITIONER AS WELL
AS THE 2ESPONDENTS7RIT PETITIONERS BELONG TO .ISHI 4RIBE WHICH IS A NOTIED
3CHEDULED 4RIBE IN THE 3TATE OF !RUNACHAL 0RADESH AND THE LAND IN QUESTION IS A
PRIVATE LAND INHERITED BY THE REVIEW PETITIONER AND THE QUESTION OF INHERITANCE
OF PRIVATE LAND IS GOVERNED BY THE #USTOMARY LAW OF THE .ISHI 4RIBE
B 4HE WRIT PETITION WAS LED INITIALLY BY VE WRIT PETITIONERS AND ONE OF THEM
WHO WAS SHOWN AS 0ETITIONER .O WITHDREW FROM THE SAID WRIT PROCEEDING AND
HIS NAME WAS DELETED 0URSUANT TO THE WITHDRAWAL AND DELETION OF THE NAME OF
PETITIONER .O NO FURTHER AFDAVIT SUPPORTING THE SAID WRIT PROCEEDING WAS
SWORN BY ANY OF THE REMAINING OTHER PETITIONERS 5NDER SUCH CIRCUMSTANCES
THE AFORESAID 70 # .O !0 WAS HEARD AND DISPOSED OF VIDE JUDGMENT
AND ORDER UNDER REVIEW WITHOUT HAVING AFRMED BY AN AFDAVIT WHICH IS IN
CONTRAVENTION OF THE #ODE OF #IVIL 0ROCEDURE AS WELL AS 2ULE #HAPTER )6 OF THE
'AUHATI (IGH #OURT 2ULES
C 7HILE ALLOWING THE WRIT PETITION AND CANCELLING THE LAND POSSESSION CERTICATES
GRANTED BY THE 2ESPONDENT
$EPUTY #OMMISSIONER IN FAVOUR OF THE REVIEW
PETITIONER COMPLETELY IGNORED THE ELD VERICATION REPORT PASSED BY THE
#IRCLE /FCER CONCERNED AND NO REASON HAS BEEN RECORDED FOR NOT TAKING INTO
CONSIDERATION THE #IRCLE /FCERS REPORT ALTHOUGH A #O
ORDINATE "ENCH RELIED ON
THE SAID REPORT AT THE TIME OF PASSING THE INTERIM ORDERS
D 4HE WRIT PETITIONERS EARLIER LED 70 # .O !0 FOR THE SAME CAUSE OF
ACTION WHICH WAS DISMISSED AND AS SUCH LING OF ANOTHER 70 # .O !0
WAS BARRED UNDER THE PRINCIPLE OF CONSTRUCTIVE RES JUDICATA AND AS SUCH THE
AFORESAID 70 # .O !0 WHICH WAS LED SUBSEQUENTLY OUGHT NOT TO
HAVE BEEN ALLOWED
E 4HE EARLIER WRIT PETITION BEING 70 # .O !0 WAS LED WITH A SPECIC
PRAYER FOR STOPPAGE OF CONSTRUCTION OF TOURIST LODGE ON THE LAND DONATED BY THE
REVIEW PETITIONER WHEREAS IN THE WRIT PETITION NAMELY 70 # .O !0
THE PRAYER WAS FOR QUASHING THE LAND POSSESSION CERTICATES ISSUED IN FAVOUR
OF THE REVIEW PETITIONER 4HERE WAS NO PRAYER FOR STOPPAGE FOR CONSTRUCTION OF
TOURIST LODGE IN THE SUBSEQUENT 70 # .O !0 BUT WHILE PASSING THE
JUDGMENT AND ORDER DATED DIRECTION WAS ISSUED FOR CANCELLATION OF THE
LAND POSSESSION CERTICATES AMOUNTING TO STOPPAGE OF CONSTRUCTION ANDOR USAGE
OF THE TOURIST LODGE WHICH IS BEYOND THE RELIEF SOUGHT FOR IN THE WRIT PETITION
F 4HE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT HEREINAFTER CALLED IN SHORT &OREST $WELLERS !CT ONLY WAS NOT
IMPLEMENTED AT THE RELEVANT TIME AND THE 'OVERNMENT WAS IN THE PROCESS OF
CONSTITUTION OF VARIOUS "ODIES#OMMITTEES CONTEMPLATED UNDER THE SAID !CT FOR ITS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
DUE IMPLEMENTATION 5NDER SUCH CIRCUMSTANCES THE LAND POSSESSION CERTICATES
WHICH WERE ISSUED BY THE 2ESPONDENT $EPUTY #OMMISSIONER IN FAVOUR OF THE
REVIEW PETITIONER COULD NOT BE SAID TO BE IN CONTRAVENTION OF THE &OREST $WELLERS
!CT -OREOVER THERE IS NO PROVISION UNDER THE SAID !CT WHICH EXPRESSLY STIPULATES
THAT THE LAND POSSESSION CERTICATES ISSUED PRIOR TO IMPLEMENTATION OF THE !CT
WOULD BE IN CONTRAVENTION OF THE PROVISIONS UNDER THE &OREST $WELLERS !CT AND
2ULES
G %VEN ASSUMING BUT NOT ADMITTING THAT THE &OREST $WELLERS !CT IS APPLICABLE IN THE
3TATE OF !RUNACHAL 0RADESH THE OBJECTS AND REASONS OF THE SAID !CT PRESUPPOSES
ACCEPTANCE OF ALL #USTOMARY ,AWS PERTAINING TO THE LAND RIGHTS OF THE INDIGENOUS
3CHEDULED 4RIBES AND OTHER &OREST $WELLERS AND AS SUCH THE JUDGMENT AND ORDER
UNDER REVIEW APPEARS TO BE TOTALLY OBLIVIOUS OF THE PREVAILING #USTOMARY ,AWS
OF THE 3CHEDULED 4RIBES GOVERNING INHERITANCE OF LAND WHICH IS AGAINST THE SPIRIT
OF THE #ONSTITUTION OF )NDIA AND THE RIGHTS OF THE INDIGENOUS 3CHEDULED 4RIBES
H .O NOTICATION WAS BROUGHT ON RECORD BY THE WRIT PETITIONERS OR THE 2ESPONDENT
'OVERNMENT THAT THE AFORESAID &OREST $WELLERS !CT HAS BEEN ENFORCE AND THE
#OURT PROCEEDED ONLY ON THE SUBMISSIONS AND CONTENTIONS MADE BY THE WRIT
PETITIONERS -OREOVER THE 5NION OF )NDIA WAS NOT ARRAYED AS NECESSARY PARTY
ALTHOUGH DIRECTIONS WERE ISSUED TO THE 'OVERNMENT OF )NDIA $EPARTMENT OF
&ORESTS FOR TAKING NECESSARY STEPS
-R 3AIKIA LEARNED 3ENIOR #OUNSEL IN SUPPORT OF HIS SUBMISSIONS THAT THE MATTER
INVOLVING QUESTION OF #USTOMARY ,AW IS TO BE HEARD BY A $IVISION "ENCH HAS CITED THE
CASE OF "OKEN *OPIR VS 4ABUR *OPIR )N SUPPORT OF HIS FURTHER SUBMISSIONS THAT THE ORDER
PASSED BY THE #OORDINATE "ENCH SHOULD BE GIVEN DUE CONSIDERATION HE HAS REFERRED
ME TO 50 'RAM 0ANCHAYAT !DHIKARI 3ANGHA VS $AYA 2AM 3ORAJ "EFORE MAKING ANY
CONSIDERATION AS TO THE APPLICABILITY OF THE AFORESAID CITED CASES IT WOULD BE APPROPRIATE
TO DISCUSS ABOUT THE SETTLED POSITION OF LAW IN REGARD TO SCOPE FOR REVIEW OF JUDGMENT
AND ORDER PASSED BY THIS #OURT 2EVIEW HAS BEEN PROVIDED UNDER SECTION OF THE #0#
!PPLICATION FOR REVIEW OF JUDGMENT CAN BE MADE UNDER /RDER 8,6)) OF THE #0# )T WOULD
BE APPROPRIATE TO REPRODUCE THE PROVISION UNDER /RDER 8,6)) 2ULE OF THE #ODE OF #IVIL
0ROCEDURE HEREIN UNDER
!PPLICATION FOR REVIEW OF JUDGMENT !NY PERSON CONSIDERING HIMSELF
AGGRIEVED
A BY A DECREE OR ORDER FROM WHICH AN APPEAL IS ALLOWED BUT FROM WHICH NO
APPEAL HAS BEEN PREFERRED
B BY A DECREE OR ORDER FROM WHICH NO APPEAL IS ALLOWED OR
C BY A DECISION ON A REFERENCE FROM A #OURT OF 3MALL #AUSES AND WHO FROM THE
DISCOVERY OF NEW AND IMPORTANT MATTER OF EVIDENCE WHICH AFTER THE EXERCISE
OF DUE DILIGENCE WAS NOT WITHIN HIS KNOWLEDGE OR COULD NOT BE PRODUCED BY
HIM AT THE TIME WHEN THE DECREE WAS PASSED OR ORDER MADE OR ON ACCOUNT
OF SOME MISTAKE OR ERROR APPARENT ON THE FACE OF THE RECORD OR FOR ANY OTHER
SUFCIENT REASON DESIRES TO OBTAIN A REVIEW OF THE DECREE PASSED OR ORDER MADE
AGAINST HIM MAY APPLY FOR A REVIEW OF JUDGMENT TO THE #OURT WHICH PASSED
THE DECREE OR MADE THE ORDER
',4
3##
4 / \
! PARTY WHO IS NOT APPEALING FROM A DECREE OR ORDER MAY APPLY FOR A REVIEW
OF JUDGMENT NOTWITHSTANDING THE PENDENCY OF AN APPEAL BY SOME OTHER PARTY
EXCEPT WHERE THE GROUND OF SUCH APPEAL IS COMMON TO THE APPLICANT AND THE
APPELLANT OR WHEN BEING RESPONDENT HE CAN PRESENT TO THE !PPELLATE #OURT THE
CASE ON WHICH HE APPLIES FOR THE REVIEW
)N THE PRESENT REVIEW PETITION THERE IS NO PLEADING TO THE EFFECT THAT THERE WAS DISCOVERY
OF NEW AND IMPORTANT MATTER OR EVIDENCE OR SOME MISTAKE OR ERROR APPARENT ON THE
FACE OF THE RECORD 7HAT HAS BEEN PLEADED IS THAT THERE WAS AN OMISSION IN POINTING OUT
BEFORE THE #OURT AT THE TIME OF HEARING TO THE NECESSITY OF PLACING THE MATTER BEFORE A
$IVISION "ENCH AS IT INVOLVES #USTOMARY ,AW OF A LOCAL 4RIBE THE #OURT FAILED TO TAKE
NOTICE THAT THE &OREST $WELLERS !CT WAS NOT IN FORCE AS NO NOTICATION WAS ISSUED BY
THE 'OVERNMENT ENFORCING THE SAME IN THE 3TATE OF !RUNACHAL 0RADESH AND IT FAILED TO
GIVE DUE REGARD TO THE CERTAIN ORDERS OF A #OORDINATE "ENCH )N MY CONSIDERED VIEW
THESE ARE NOT THE REQUIREMENTSCONDITIONS FOR MAKING AN APPLICATION FOR REVIEW OF A
JUDGMENT RENDERED BY A #OURT NOR ARE THEY MISTAKE OR ERROR APPARENT ON THE FACE OF THE
RECORD )F THE MATTER INVOLVES QUESTION OF #USTOMARY ,AW AND THERE WAS AN OMISSION
ON THE PART OF THE REVIEW PETITIONER TO BRING THE SAME TO THE NOTICE OF THE #OURT AT THE
TIME OF HEARING IT IS TO BE AGITATED BY LING AN APPEAL BEFORE THE $IVISION "ENCH AND
IN THAT CASE THE REVIEW PETITIONER WOULD HAVE BETTER SCOPE AND GET THE JUDGMENT SET
ASIDE OR MODIED )T HAS BEEN HELD IN SEVERAL CASES THAT THE POWER OF REVIEW IS NOT AN
INHERENT POWER IN AS MUCH AS REVIEW IS THE CREATION OF STATUTE 4HE SCOPE OF REVIEW IS
ONLY FOR CORRECTION OF MISTAKE AND NOT TO SUBSTITUTE THE VIEWS TAKEN BY THE #OURT AND
THE MISTAKE MUST BE ONE WHICH IS APPARENT ON THE FACE OF THE RECORD
! MISTAKE APPARENT ON THE FACE OF THE RECORD CANNOT MEAN ERROR WHICH HAS TO BE SHED
OUT AND SEARCHED AS DECLARED IN ,ILY 4HOMAS VS 5NION OF )NDIA )T HAS ALSO BEEN HELD
IN .ORTHERN )NDIA #ATERERS )NDIA ,IMITED VS ,T 'OVERNOR OF $ELHI THAT A PARTY IS NOT
ENTITLED TO SEEK A REVIEW OF A JUDGMENT DELIVERED BY THE #OURT MERELY FOR THE PURPOSE
OF A REHEARING AND A FRESH DECISION OF THE CASE 4HE NORMAL PRINCIPLE IS THAT A JUDGMENT
PRONOUNCED BY THE #OURT IS NAL AND DEPARTURE FROM THAT PRINCIPLE IS JUSTIED ONLY WHEN
CIRCUMSTANCES OF A SUBSTANTIAL AND COMPELLING CHARACTER MAKE IT NECESSARY TO DO SO 4HE
#OURT MAY REOPEN ITS JUDGMENT IF A MANIFEST WRONG HAS BEEN DONE AND IT IS NECESSARY TO
PASS AN ORDER TO DO FULL AND EFFECTIVE JUSTICE
)F ONE CAREFULLY GOES THROUGH THE CONTENTIONS AND GROUNDS TAKEN IN THE REVIEW PETITION
HE WOULD EASILY UNDERSTAND THAT THE REVIEW PETITIONER IS TRYING TO SH OUT MATERIAL
TO SUBSTANTIATE HER CLAIM THAT ALLOTMENT OF LAND AND ISSUANCE OF LAND POSSESSION
CERTICATES ARE MATTERS COVERED BY THE #USTOMARY ,AW WHICH WERE NOT PLEADED IN THE
WRIT PETITION !BOUT THE ENFORCEMENT OF THE &OREST $WELLERS !CT THE 7RIT #OURT CAME
TO A CONCLUSION THAT IT CAME IN TO FORCE WITH EFFECT FROM ND *ANUARY THE DATE ON
WHICH THE 'OVERNMENT OF )NDIA PUBLISHED THE SAID !CT IN THE 'AZETTE OF )NDIA %XTRA
/RDINARY AND UNDER SECTION OF THE AFORESAID &OREST $WELLERS !CT IT IS PROVIDED THAT
IT SHALL COME INTO FORCE ON SUCH DATE AS THE #ENTRAL 'OVERNMENT MAY BY NOTICATION
IN THE /FCIAL 'AZETTE APPOINT 5NDER SECTION IT IS ALSO PROVIDED THAT IT EXTENDS TO
THE WHOLE OF )NDIA EXCEPT THE 3TATE OF *AMMU AND +ASHMIR 4HE DECISION IN "OKEN *OPIR
SUPRA RELATES TO DISPUTE OVER LAND BETWEEN THE LOCAL PARTIES WHICH WAS ORIGINATED
IN THE +EBANG INVOLVING #USTOMARY RIGHTS AND LAWS AND AS SUCH IT WAS A CLEAR CASE
INVOLVING #USTOMARY ,AW AND IT WAS THEREFORE HELD THAT IT SHOULD BE HEARD BY A $IVISION
"ENCH
3## !)2 3#
3##
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
)N THE PRESENT CASE THE REVIEW PETITIONER NEVER TOOK THE PLEA OF APPLICABILITY OF #USTOMARY
,AW AND AS SUCH IN MY CONSIDERED VIEW THE CASE OF "OKEN *OPIR SUPRA WOULD NOT AT ALL
BE APPLICABLE TO THE PRESENT CASE
&ROM THE GROUNDS TAKEN IN THIS REVIEW PETITION IT IS APPARENT THAT THE REVIEW PETITIONER
IN FACT IS SEEKING REHEARING OF THE ENTIRE MATTER IN THE GARB OF SEEKING REVIEW OF THE
JUDGMENT WHICH IS NOT AT ALL PERMISSIBLE UNDER THE LAW 4HE 7RIT #OURT AFTER TAKING
INTO CONSIDERATION THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE THE MATERIALS PLACED
BEFORE IT AND UPON HEARING THE LEARNED #OUNSEL FOR THE PARTIES TOOK SOME VIEWS AND
ARRIVED AT A CONCLUSION 3UCH VIEWS CANNOT BE SUBSTITUTED BY OTHER VIEWVIEWS IN THE
REVIEW PETITION 4HE SUBSTITUTION OF A VIEW IS POSSIBLE ONLY IN APPEAL )T IS BECAUSE IN
NO CASE REVIEW CANNOT BE TREATED AS AN APPEAL IN DISGUISE )T HAS BEEN CLEARLY HELD IN
,ILY 4HOMASS CASE SUPRA THAT MERE POSSIBILITY OF SECOND VIEWS ON THE SUBJECT IS NOT A
GROUND FOR REVIEW
,AST OF ALL ) MAY REFER TO THE CASE OF 0ROMOTERS AND "UILDERS !SSOCIATION OF 0UNE VS 0UNE
-UNICIPAL #ORPORATION WHEREIN IT HAS BEEN HELD THAT REVIEW OF AN EARLIER ORDER IS NOT
A ROUTINE PROCEDURE ! REVIEW OF AN EARLIER ORDER IS NOT PERMISSIBLE UNLESS THE #OURT IS
SATISED THAT MATERIAL ERROR MANIFEST ON THE FACE OF THE ORDER UNDERMINES ITS SOUNDNESS
OR RESULTS IN MISCARRIAGE OF JUSTICE )T HAS ALSO BEEN HELD THAT A REVIEW OF JUDGMENT IN A
CASE IS A SERIOUS STEP AND RELUCTANT RESORT TO IT IS PROPER ONLY WHERE A GLARING OMISSION
OR MISTAKE OR LIKE GRAVE ERROR HAS CREPT IN EARLIER BY JUDICIAL FALLIBILITY )T IS BECAUSE AS
HELD THEREIN THAT THE STAGE OF REVIEW IS NOT A VIRGIN GROUND BUT REVIEW OF AN EARLIER ORDER
WHICH IS THE NORMAL FEATURE OF NALITY &OR THE SAID REASON *USTICE 62 +RISHNA )YER * AS
HIS ,ORDSHIP WAS THEN OBSERVED IN .ORTHERN )NDIA #ATERERS )NDIA ,IMITED CASE SUPRA
THAT ! PLEA OF REVIEW UNLESS THE RST JUDICIAL VIEW IS MANIFESTLY DISTORTED IS LIKE ASKING
FOR THE MOON ! FORENSIC DEFEAT CANNOT BE AVENGED BY AN INVITATION TO HAVE A SECOND
LOOK HOPEFUL OF DISCOVERY OF AWS AND REVERSAL OF RESULT
)N THE AFORESAID PREMISES ) AM OF THE RM VIEW THAT THE GROUNDS TAKEN BY THE REVIEW
PETITIONER IN HER PETITION ARE NOT GOOD GROUNDS FOR REVIEW OF THE JUDGMENT AND ORDER
AND NO CASE COULD BE MADE OUT FOR SUCH REVIEW
4HERE IS NO MERIT IN THIS REVIEW PETITION AND AS SUCH IT IS LIABLE TO BE DISMISSED )T IS
ACCORDINGLY DISMISSED
0ETITION $ISMISSED
3##
4 / \
.AGA 5NITED)NAVI 6ILLAGE VS 3TATE OF
.AGALAND /RS
70 # + /& %4#
()'( #/524 /& '!5(!4) +/()-! "%.#(
#/2!- -!$!. " ,/+52 #* !.$ !250 +5-!2 '/37!-) *
#)4!4)/. '!5 ,2 ',$'!5
3 5 - -!29
4HE QUESTION WAS WHETHER THE APPELLANTS WHO ARE THE ORIGINAL WRIT PETITIONERS
AND ARE IN POSSESSION OF FOREST LANDS WITHIN THE )NTANGKI .ATIONAL 0ARK WERE
ENTITLED TO THE BENEFIT OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! )N ADDITION AN ISSUE WAS
RAISED WHETHER THE &2! IS APPLICABLE TO THE 3TATE OF .AGALAND IN VIEW OF !RTICLE
! OF THE #ONSTITUTION OF )NDIA
!CCORDING TO THE PETITIONERS THEY HAD SETTLED DOWN IN THE AREA OF )NTANGKI .ATIONAL
0ARK BUT WERE ILLEGALLY EVICTED FROM THE LAND BY THE 'OVERNMENT OF .AGALAND 4HEY
CLAIM TO BELONG TO A FOREST DWELLING 3CHEDULED 4RIBE WITHIN THE MEANING OF 3ECTION
C OF THE &2! %VEN IF THEY DO NOT COME WITHIN THE DEFINITION OF FOREST DWELLING
3CHEDULED 4RIBES THEY WOULD CERTAINLY COME WITHIN THE DEFINITION OF OTHER
TRADITIONAL FOREST DWELLERS AS DEFINED UNDER 3ECTION O OF &2!
4HE STAND OF THE 3TATE OF .AGALAND WAS THAT THE )NAVI 6ILLAGE AND .AGA 5NITED WAS
NOT A RECOGNIZED VILLAGE UNDER PROVISIONS OF THE .AGALAND 6ILLAGE AND !REA #OUNCILS
!CT !DDITIONALLY THE VILLAGERS HAD BEEN ENCROACHING THE )NTANGKI .ATIONAL
0ARK AND IT WAS FOR THIS REASON THAT THEY HAVE BEEN FORCIBLY EVICTED AS MANY AS
TIMES BUT THEY KEEP COMING BACK TO ENCROACH UPON THE )NTANGKI .ATIONAL 0ARK
& ) . $ ).' 3 /& 4( % #/52 4
4HE #OURT EXAMINED THE PROVISIONS OF &2! AND CONCLUDED THAT THE PETITIONERS
APPELLANTS DO NOT FALL WITHIN THE DEFINITION OF FOREST DWELLING 3CHEDULED 4RIBES
IN 3ECTION C SINCE THEY CAME TO THE )NTANGKI .ATIONAL 0ARK AS RECENTLY AS
FROM THEIR ORDINARY PLACE OF RESIDENCE MORE THAN KMS AWAY 4HE &2! IN THE
#OURTS VIEW APPLIES ONLY TO BONA FIDE FOREST DWELLERS WHICH THE PETITIONERS ARE
NOT 2ATHER THERE IS CLEAR EVIDENCE THEY ARE ENCROACHERS ON THE .ATIONAL 0ARK
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
HAVING BEEN EVICTED TIMES
4HE #OURT FURTHER ACCEPTED THE CONTENTION OF THE !DVOCATE
'ENERAL THAT THE
DECISION OF THE 3UPREME #OURT IN THE 'ODAVARMAN CASE REGARDING THE POLLUTER
PAYS PRINCIPLE IS APPLICABLE IN PROTECTED AREAS 4HE #OURT WAS OF THE VIEW THAT
ALTHOUGH IN THE PRESENT CASE THE ENCROACHMENT WAS NOT FOR COMMERCIAL PURPOSES
NEVERTHELESS THE ENCROACHMENT RESULTED IN DESTRUCTION OF THE )NTANGKI .ATIONAL
0ARK WHICH IS AN ASSET OF THE 3TATE OF .AGALAND 4HEREFORE SUCH ENCROACHMENT
CAN BE HELD TO BE ON THE SAME FOOTING
$ISMISSING THE WRIT APPEAL THE #OURT ISSUED DIRECTIONS TO THE PETITIONERSAPPELLANTS
TO VACATE THE .ATIONAL 0ARK AND HAND OVER POSSESSION AND OCCUPATION TO THE 3TATE
'OVERNMENT WITHIN MONTHS &AILURE TO DO SO WOULD RESULT IN DAMAGES OF 2S LAKH
PER HECTARE PER MONTH PAYABLE TO THE 3TATE OF .AGALAND
% $ )4/23 . /4%
)T IS INTERESTING TO NOTE THAT NO FINDING WAS GIVEN BY THE #OURT ON THE ISSUE RELATING
TO !RTICLE ! OF THE #ONSTITUTION OF )NDIA AND TILL THE DATE OF WRITING THE .AGALAND
,EGISLATIVE !SSEMBLY HAS NOT ADOPTED THE &2! FOR THE 3TATE 4HEREFORE THE #OURTS
LENGTHY EXAMINATION OF THE FACT SITUATION BEFORE IT WITHIN THE FRAMEWORK OF THE
&2! ITSELF APPEARS TO BE SOMEWHAT SUPERFLUOUS .OT SURPRISINGLY THIS DECISION WAS
APPEALED IN THE 3UPREME #OURT AND THE FINAL ORDER PASSED IS EXTRACTED ELSEWHERE
IN THIS COMPENDIUM
* 5$ '-% . 4
THE JUDGMENT OF THE #OURT WAS DELIVERED BY -ADAN " ,OKUR #*
4HE QUESTION FOR CONSIDERATION IS WHETHER THE !PPELLANTS ARE ENTITLED TO THE BENET
OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT FOR SHORT THE &OREST $WELLERS !CT 3INCE WE ANSWER THIS QUESTION IN
THE NEGATIVE THE SECOND QUESTION
WHETHER THE &OREST $WELLERS !CT IS APPLICABLE TO THE
3TATE OF .AGALAND IN VIEW OF THE PROVISIONS OF !RTICLE ! OF THE #ONSTITUTION
DOES NOT
ARISE
4HE !PPELLANTS ARE THE )NAVI 6ILLAGE AND THE .AGA 5NITED)NAVI 6ILLAGE 4HE RESIDENTS
OF THE )NAVI 6ILLAGE AND THE .AGA 5NITED)NAVI 6ILLAGE ARE HEREINAFTER REFERRED TO AS THE
6ILLAGERS 4HEY CHALLENGE THE JUDGMENT AND ORDER DATED
PASSED BY A LEARNED
3INGLE *UDGE IN 70# .O + AND IN 70# .O +
,ATE -R )NAVI ORIGINALLY A RESIDENT OF )PHONUMI VILLAGE IN THE 0UGHOBOTO SUB DIVISION
OF :UNHEBOTO $ISTRICT SEEING THE PLIGHT OF LANDLESS PERSONS AND ALSO THE AVAILABILITY OF
LARGE TRACTS OF VACANT AND UNOCCUPIED LAND NEAR )NTANGKI FOREST DECIDED TO MIGRATE OVER
THERE WITH HIS FOLLOWERS AND ESTABLISH A VILLAGE IN THE DEFORESTED AREA WITH THE APPROVAL
OF THE 3TATE 'OVERNMENT
4. 'ODAVARAM 4HIRUMALPAD VS 5NION OF )NDIA /RS *UDGMENT DT IN )! .OS WITH
IN 70 # .O OF 3UPREME #OURT OF )NDIA
4 / \
!T THIS STAGE IT MAY BE STATED THAT WE HAVE BEEN TOLD THAT THE DISTANCE BETWEEN
)PHONUMI VILLAGE IN :UNHEBOTO $ISTRICT AND THE AREA WHERE LATE -R )NAVI AND HIS
FOLLOWERS DECIDED TO SETTLE DOWN IS ABOUT KMS )T IS ALSO NECESSARY TO MENTION AT THIS
STAGE THAT THE )NTANGKI FOREST WAS DECLARED A 2ESERVE &OREST BY A NOTICATION ISSUED ON
)T WAS THEREAFTER DECLARED A 7ILD ,IFE 3ANCTUARY BY A NOTICATION DATED
%VENTUALLY IT WAS DECLARED A .ATIONAL 0ARK BY A NOTICATION DATED
,ATE -R )NAVI AND HIS FOLLOWERS CAME TO )NTANGKI FOREST SOME TIME IN WHEN IT WAS
A .ATIONAL 0ARK
/N OR ABOUT LATE -R )NAVI SUBMITTED AN APPLICATION TO THE #HIEF 3ECRETARY TO
THE 'OVERNMENT OF .AGALAND FOR PERMISSION TO ESTABLISH A NEW VILLAGE 4HE APPLICATION
WAS CONSIDERED AND LATE -R )NAVI AND HIS FOLLOWERS WERE ALLOWED TO SETTLE DOWN IN
THE (AZATISA AREA OF )NTANGKI .ATIONAL 0ARK BY AN ORDER DATED FOR DEVELOPING
THE LAND FOR CULTIVATION PEACEFULLY AND WITHOUT DISTURBING THE RIGHTFUL OCCUPANTS 7E
HAVE BEEN TOLD BY LEARNED #OUNSEL FOR THE PARTIES THAT THE (AZATISA AREA IS ABOUT
KMSOUTSIDE )NTANGKI .ATIONAL 0ARK AND IS NOT A PART THEREOF 4HIS IS IMPORTANT BECAUSE
PERMISSION WAS NOT GRANTED TO LATE -R )NAVI AND HIS FOLLOWERS TO SETTLE DOWN WITHIN
)NTANGKI .ATIONAL 0ARK
!CCORDING TO THE 6ILLAGERS THEY HAVE SETTLED DOWN IN THE (AZATISA AREA OF )NTANGKI
.ATIONAL 0ARK AND HAVE BEEN CULTIVATING THE LAND PEACEFULLY BUT WERE ILLEGALLY EVICTED
FROM THE LAND BY THE 'OVERNMENT OF .AGALAND AS MANY AS TIMES
/N THE OTHER HAND THE STAND OF THE 3TATE OF .AGALAND IS THAT )NAVI 6ILLAGE AND .AGA
5NITED)NAVI 6ILLAGE IS NOT A RECOGNIZED VILLAGE UNDER THE PROVISIONS OF THE .AGALAND
6ILLAGE #OUNCIL !CT 4HAT APART THE 6ILLAGERS HAVE BEEN ENCROACHING INTO THE )NTANGKI
.ATIONAL 0ARK AND IT IS FOR THIS REASON THAT THEY HAVE BEEN FORCIBLY EVICTED AS MANY AS
TIMES BUT THEY KEEP COMING BACK TO ENCROACH UPON THE )NTANGKI .ATIONAL 0ARK
)T IS ALSO THE CONTENTION OF THE 3TATE THAT "EISUMPUIKAM VILLAGE WAS THE ORIGINAL OWNER OF
THE LAND COVERING )NTANGKI .ATIONAL 0ARK TILL IT WAS DONATED TO THE 'OVERNOR
IN
#OUNCIL
IN FOR DECLARATION AS A 2ESERVE &OREST 4HE VILLAGERS OF "EISUMPUIKAM VILLAGE ARE
THEREFORE THE ACTUAL OWNERS OF THE )NTANGKI .ATIONAL 0ARK AND HAVE BEEN DONATING
ACRES AND HECTORS OF LAND FROM TIME TO TIME FOR THE USE OF THE )NTANGKI 2ESERVE &OREST
)NTANGKI 7ILD ,IFE 3ANCTUARY AND )NTANGKI .ATIONAL 0ARK
)T IS THE SUBMISSION OF THE 3TATE THAT )NTANGKI .ATIONAL 0ARK WAS FREE FROM ENCROACHMENT
BUT SOME TIME IN SOME ENCROACHMENT TOOK PLACE BY THE RESIDENTS OF "EISUMPUIKAM
VILLAGE AND THIS GAVE AN OCCASION TO THE RESIDENTS OF OTHER NEIGHBOURING AREAS INCLUDING
THE 6ILLAGERS TO ENCROACH INTO )NTANGKI .ATIONAL 0ARK 4HE 3TATE IS DOING ITS BEST TO
ENSURE THAT )NTANGKI .ATIONAL 0ARK REMAINS FREE OF ALL ENCROACHMENTS AND THE 6ILLAGERS
WHO HAVE ENCROACHED INTO )NTANGKI .ATIONAL 0ARK DESERVE TO BE EVICTED AND EVICTION
DRIVES HAVE BEEN CARRIED OUT FROM TIME TO TIME
/N THESE BROAD FACTS THE 6ILLAGERS LED WRIT PETITIONS IN THIS #OURT CONTENDING THAT
THEY WERE ENTITLED TO THE BENET OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT IN MATTERS RELATING TO THE RECOGNITION
AND PROTECTION OF THEIR RIGHTS )T WAS PRAYED THAT THEREFORE THE 3TATE OF .AGALAND BE
PREVENTED FROM CARRYING OUT ANY EVICTION OF THE 6ILLAGERS AND TO COMPENSATE THEM
FOR THEIR ILLEGAL EVICTION FROM TIME TO TIME WHICH HAS RESULTED IN DESTRUCTION OF THEIR
PROPERTIES AND MEANS OF LIVELIHOOD ! DIRECTION WAS ALSO SOUGHT AGAINST THE 3TATE TO
ENFORCE THE PROVISIONS OF .AGALAND ,AND AND 2EVENUE !MENDMENT !CT AND TO
PREVENT ILLEGAL SETTLERS INTO )NTANGKI .ATIONAL 0ARK FROM INTERFERING WITH THE RIGHTS OF
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
THE 6ILLAGERS
,EARNED #OUNSEL FOR THE PARTIES BEFORE US ADMITTED THAT 7ILD ,IFE 3ANCTUARY WHICH IS
NOW A .ATIONAL 0ARK IS A GREAT ASSET TO THE 3TATE OF .AGALAND AND ITS CHARACTER AS SUCH
SHOULD BE PRESERVED AND PROTECTED AT ALL COSTS
!CCORDING TO THE 6ILLAGERS SINCE THEY BELONG TO A &OREST $WELLING 3CHEDULED 4RIBE
WITHIN THE MEANING OF 3ECTION C OF THE &OREST $WELLERS !CT THEY ARE ENTITLED TO THE
PROTECTION THEREOF AND ARE ENTITLED TO THE VARIOUS RIGHTS GIVEN TO THEM UNDER #HAPTER ))
OF THE &OREST $WELLERS !CT
4O BETTER APPRECIATE THE CONTROVERSY BEFORE US IT IS NECESSARY TO GIVE THE 3TATEMENT OF
/BJECTS AND 2EASONS FOR ENACTING THE &OREST $WELLERS !CT 4HE 3TATEMENT OF /BJECTS AND
2EASONS READS AS FOLLOWS
&OREST DWELLING TRIBAL PEOPLE AND FORESTS ARE INSEPARABLE /NE CANNOT SURVIVE
WITHOUT THE OTHER 4HE CONSERVATION OF ECOLOGICAL RESOURCES BY FOREST DWELLING
TRIBAL COMMUNITIES HAVE BEEN REFERRED TO IN ANCIENT MANUSCRIPTS AND SCRIPTURES
4HE COLONIAL RULE SOMEHOW IGNORED THIS REALITY FOR GREATER ECONOMIC GAINS AND
PROBABLY FOR GOOD REASONS PREVALENT AT THAT TIME !FTER INDEPENDENCE IN OUR
ENTHUSIASM TO PROTECT NATURAL RESOURCES WE CONTINUED WITH COLONIAL LEGISLATION
AND ADOPTED MORE INTERNATIONALLY ACCEPTED NOTIONS OF CONSERVATION RATHER THAN
LEARNING FROM THE RICH TRADITIONS OF THE COUNTRY WHERE CONSERVATION IS EMBEDDED )
THE ETHOS OF TRIBAL LIFE 4HE RESERVATION PROCESSES FOR CREATING WILDERNESS AND FOREST
AREAS FOR PRODUCTION FORESTRY SOMEHOW IGNORED THE BONA DE INTERESTS OF THE TRIBAL
COMMUNITY FROM LEGISLATIVE FRAMEWORK IN THE REGIONS WHERE TRIBAL COMMUNITIES
PRIMARILY INHABIT 4HE SIMPLICITY OF TRIBALS AND THEIR GENERAL IGNORANCE OF MODERN
REGULATORY FRAMEWORKS PRECLUDED THEM FROM ASSERTING THEIR GENUINE CLAIMS TO
RESOURCES IN AREAS WHERE THEY BELONG AND DEPENDED UPON 4HE MODERN CONSERVATION
APPROACHES ALSO ADVOCATE EXCLUSION RATHER THAN INTEGRATION )T IS ONLY RECENTLY THAT
FOREST MANAGEMENT REGIMES HAVE INITIATED ACTION TO RECOGNIZE THE OCCUPATION AND
OTHER RIGHTS OF THE FOREST DWELLERS AND HAVE IN THEIR POLICY PROCESSES REALIZED THAT
TRIBAL COMMUNITIES WHO DEPEND PRIMARILY ON THE FOREST RESOURCE CANNOT BUT BE
INTEGRATED IN THEIR DESIGNED MANAGEMENT PROCESSES 4HERE IS A RECOGNITION OF THE
FACT THAT FORESTS HAVE THE BEST CHANCE TO SURVIVE IF COMMUNITIES PARTICIPATE IN ITS
CONSERVATION AND REGENERATION MEASURES )NSECURITY TO 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 FORESTS AND FOREST LANDS 4HIS HISTORICAL INJUSTICE NOW NEEDS CORRECTION
BEFORE IT IS TOO LATE TO SAVE OUR FORESTS FROM BECOMING ABODE OF UNDESIRABLE ELEMENTS
)T IS THEREFORE PROPOSED TO ENACT A LAW LAYING DOWN A PROCEDURE FOR RECOGNITION
AND VESTING OF FOREST RIGHTS IN FOREST DWELLING 3CHEDULED 4RIBES 4HIS "ILL IS A LOGICAL
CULMINATION OF THE PROCESS OF RECOGNITION OF FOREST RIGHTS 4HE RECOGNITION OF FOREST
RIGHTS ENJOYED BY THE FOREST DWELLING 3CHEDULED 4RIBES ON ALL KINDS OF FOREST LANDS
FOR GENERATIONS WHICH INCLUDES FOREST LAND FOR SUSTENANCE AND USUFRUCTS FROM FOREST
BASED RESOURCES IS THE FUNDAMENTAL BASIS ON WHICH THE PROPOSED LEGISLATION STANDS
4HE "ILL INTER ALIA PROVIDES FOR THE FOLLOWING MATTERS NAMELY
I IT REINFORCES AND UTILIZES THE RICH CONSERVATION ETHOS THAT TRIBAL COMMUNITIES
HAVE TRADITIONALLY SHOWN AND CAUTIONS AGAINST ANY FORM OF UNSUSTAINABLE OR
DESTRUCTIVE PRACTICES
II IT LAYS DOWN A SIMPLE PROCEDURE FOR RECOGNITION AND VESTING OF FOREST RIGHTS IN
THE FOREST DWELLING 3CHEDULED 4RIBES SO THAT RIGHTS WHICH STAND VESTED IN FOREST
4 / \
DWELLING TRIBAL COMMUNITIES BECOME LEGALLY ENFORCEABLE THROUGH CORRECTIVE
MEASURES IN THE FORMAL RECORDING SYSTEM OF THE EXECUTIVE MACHINERY
III IT PROVIDES FOR ADEQUATE SAFEGUARDS TO AVOID ANY FURTHER ENCROACHMENT OF
FORESTS AND SEEKS TO INVOLVE THE DEMOCRATIC INSTITUTIONS AT THE GRASS ROOTS LEVEL IN
THE PROCESS OF RECOGNITION AND VESTING OF FOREST RIGHTS
IV IT ADDRESSES THE LONG STANDING AND GENUINE FELT NEED OF GRANTING A SECURE AND
INALIENABLE RIGHT TO THOSE COMMUNITIES WHOSE RIGHT TO LIFE DEPENDS ON RIGHT TO
FORESTS AND THEREBY STRENGTHENING THE ENTIRE CONSERVATION REGIME BY GIVING A
PERMANENT STAKE TO THE 3CHEDULED 4RIBES DWELLING IN THE FORESTS FOR GENERATIONS
IN SYMBIOTIC RELATIONSHIP WITH THE ENTIRE ECOSYSTEM
4HE "ILL SEEKS TO ACHIEVE THE ABOVE OBJECTS
!T THIS STAGE IT IS NECESSARY TO PLACE TWO FACTS ON RECORD &IRSTLY EVEN THOUGH THE &OREST
$WELLERS !CT WAS PASSED IN IT CAME INTO FORCE WHEN IT WAS PUBLISHED IN THE
OFCIAL GAZETTE ON 3ECONDLY DURING THE PENDENCY OF THE WRIT PETITIONS BEFORE
THE LEARNED 3INGLE *UDGE AN ORDER WAS PASSED ON IN 70# .O + FOR
CARRYING OUT A SURVEY OF THE LAND OCCUPIED BY THE 6ILLAGERS
0URSUANT TO THE DIRECTIONS OF THE LEARNED 3INGLE *UDGE A REPORT WAS PREPARED BY THE
$EPUTY #OMMISSIONER OF 0EREN $ISTRICT THE 3UPERINTENDENT OF 0EREN $ISTRICT THE
7ILD ,IFE 7ARDEN OF $IMAPUR THE 4RAINING /FCER ,AND 2ECORDS AND 3URVEY OF THE
'OVERNMENT OF .AGALAND AND ENDORSED BY SEVERAL OTHER PERSONS INCLUDING THE (EAD
'AON "URAH AND 'AON "URAH OF )NAVI 6ILLAGE REPRESENTING THE 6ILLAGERS )T WAS NOTED
THAT THE ENCROACHMENT BY )NAVI 6ILLAGE FALLS WITHIN THE TOURIST ZONE OF )NTANGKI
.ATIONAL 0ARK 4HE TOURIST ZONE IS INSIDE THE .ATIONAL 0ARK AND IS AN AREA WHERE TOURISTS
ARE ALLOWED FOR A VISIT ONLY AND TO OBSERVE THE HABITAT AND FAUNA WITHOUT DISTURBING
THE ECOSYSTEM AND RAISING ANY OTHER ADVERSE IMPACT ON THE PARK .O UNAUTHORISED
ACTIVITIES SETTLEMENT GRAZING IS ALLOWED IN THE TOURIST ZONE OR IN THE CORE ZONE OR THE
BUFFER ZONE OF )NTANGKI .ATIONAL 0ARK
!S MENTIONED ABOVE ACCORDING TO LEARNED #OUNSEL FOR THE 6ILLAGERS HIS CLIENTS ARE
&OREST $WELLING 3CHEDULED 4RIBES AS DENED IN 3ECTION C OF THE &OREST $WELLERS !CT
!LTERNATIVELY IT IS SUBMITTED THAT THEY ARE /THER 4RADITIONAL &OREST $WELLERS AS DENED
IN 3ECTION O OF THE &OREST $WELLERS !CT &OR EASY REFERENCE BOTH THESE PROVISIONS ARE
REPRODUCED HEREIN BELOW
)N THIS !CT UNLESS THE CONTEXT OTHERWISE REQUIRES
A
B
C FOREST DWELLING 3CHEDULED 4RIBES MEANS THE MEMBERS OR COMMUNITY OF THE
3CHEDULED 4RIBES WHO PRIMARILY RESIDE IN AND WHO DEPEND ON THE FORESTS OR FOREST
LANDS FOR BONA DE LIVELIHOOD NEEDS AND INCLUDES THE 3CHEDULED 4RIBE PASTORALIST
COMMUNITIES
D
E
F
G
H
I
J
K
L
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
M
N
O OTHER TRADITIONAL FOREST DWELLER MEANS ANY MEMBER OR COMMUNITY WHO HAS
FOR AT LEAST THREE GENERATIONS PRIOR TO THE TH DAY OF $ECEMBER PRIMARILY
RESIDED IN AND WHO DEPEND ON THE FOREST OR FORESTS LAND FOR BONA DE LIVELIHOOD
NEEDS
%XPLANATION
&OR THE PURPOSE OF THIS CLAUSE GENERATION MEANS A PERIOD
COMPRISING OF TWENTY
VE YEARS
,EARNED !DVOCATE
'ENERAL APPEARING ON BEHALF OF THE 3TATE OF .AGALAND SUBMITTED THAT
THE 6ILLAGERS ARE NOT ENTITLED TO THE BENET OF THE &OREST $WELLERS !CT SINCE THEY DO NOT
FALL WITHIN THE DENITIONS GIVEN IN 3ECTION C OR 3ECTION O OF THE &OREST $WELLERS !CT
)T IS ALSO SUBMITTED THAT )NAVI 6ILLAGE OR .AGA 5NITED)NAVI 6ILLAGE IS NOT A RECOGNIZED
VILLAGE WHILE "EISUMPUIKAM IS A RECOGNIZED VILLAGE )N SUPPORT OF THIS RELIANCE HAS
BEEN PLACED ON A NOTICATION DATED
ISSUED BY THE 'OVERNOR OF .AGALAND 4HE
CONTENTS OF THE NOTICATION HAVE NOT BEEN DISPUTED BY LEARNED #OUNSEL APPEARING ON
BEHALF OF THE 6ILLAGERS
!S MENTIONED ABOVE THE PRINCIPAL QUESTION BEFORE US IS WHETHER THE 6ILLAGERS ARE
ENTITLED TO THE BENET OF THE &OREST $WELLERS !CT OR NOT
! PLAIN AND SIMPLE READING OF 3ECTION C OF THE &OREST $WELLERS !CT CLEARLY SUGGESTS
THAT THE 6ILLAGERS CANNOT FALL WITHIN THE CATEGORY OF &OREST $WELLING 3CHEDULED 4RIBES
4HE 6ILLAGERS RST CAME TO (AZATISA NEAR )NTANGKI .ATIONAL 0ARK AS RECENTLY AS IN
FROM THEIR PLACE OF ORDINARY RESIDENCE AT A DISTANCE OF ABOUT KMS 7HAT PROMPTED
THEM TO COME TO )NTANGKI .ATIONAL 0ARK IS OF NO CONSEQUENCE "UT IT CANNOT REASONABLY
BE STATED BY ANY STRETCH OF IMAGINATION THAT THEY PRIMARILY RESIDE IN OR DEPEND ON THE
FOREST OR THE FOREST LAND OF )NTANGKI .ATIONAL 0ARK
4HE &OREST $WELLERS !CT RECOGNIZES AND VESTS VARIOUS RIGHTS ON PERSONS WHO ARE BONA DE
FOREST DWELLERS 4HE 6ILLAGERS CANNOT REASONABLY BE DESCRIBED AS BONA DE RESIDENTS OF
)NTANGKI .ATIONAL 0ARK 4HEY ARE ONLY ENCROACHERS THEREIN 4HEY WERE ENTITLED TO RESIDE
IF AT ALL ONLY IN (AZATISA AREA WHICH IS ABOUT KMSAWAY FROM )NTANGKI .ATIONAL 0ARK
4HEY WERE NOT PERMITTED OR ENTITLED TO EXPAND THEIR POSSESSION AND OCCUPATION TO AREAS
CLOSE TO )NTANGKI .ATIONAL 0ARK AND CERTAINLY NOT IN AREAS WITHIN )NTANGKI .ATIONAL
0ARK 5NDER THE CIRCUMSTANCES IT IS NOT POSSIBLE TO ACCEPT THE CONTENTION OF LEARNED
#OUNSEL FOR THE 6ILLAGERS THAT THEY PRIMARILY RESIDE IN AND DEPEND ON THE FORESTS OR
FOREST LANDS FOR THEIR BONA DE LIVELIHOOD NEEDS SO AS TO COME WITHIN THE DENITION OF
&OREST $WELLING 3CHEDULED 4RIBES
4HIS BEING THE POSITION AND IN VIEW OF THE ENCROACHMENTS BY THE 6ILLAGERS THE
'OVERNMENT OF .AGALAND HAD NO OPTION BUT TO RESORT TO EVICTING THEM FROM )NTANGKI
.ATIONAL 0ARK ON AS MANY AS OCCASIONS "UT THEY WERE DETERMINED TO SETTLE IN )NTANGKI
.ATIONAL 0ARK AND DESPITE REPEATED EVICTIONS THEY KEEP COMING BACK TO RM UP THEIR
ENCROACHMENT WITHIN THE )NTANGKI .ATIONAL 0ARK 3URELY THIS IS NOT PERMISSIBLE
)T IS ADMITTED ON ALL HANDS THAT )NTANGKI .ATIONAL 0ARK IS AN ASSET WHICH BELONGS TO
THE ENTIRE 3TATE OF .AGALAND AND THE 6ILLAGERS ARE NO EXCEPTION /N THE CONTRARY THEY
WOULD BE WISE TO COOPERATE WITH THE 'OVERNMENT OF .AGALAND TO PRESERVE THAT ASSET
RATHER THAN TO DESTROY IT THROUGH UNCONTROLLED ENCROACHMENT AND ALSO DESTROY THE ORA
AND FAUNA OF THE AREA
,EARNED #OUNSEL FOR THE 6ILLAGERS THEN SUBMITTED THAT IF HIS CLIENTS CANNOT COME WITHIN
4 / \
THE DENITION OF &OREST $WELLING 3CHEDULED 4RIBES THEY WOULD CERTAINLY COME WITHIN
THE DENITION OF OTHER TRADITIONAL FOREST DWELLERS AS DENED UNDER 3ECTION O OF THE
&OREST $WELLERS !CT 4HIS ARGUMENT IS MERELY STATED TO BE REJECTED
4O COME WITHIN THE DENITION OF OTHER TRADITIONAL FOREST DWELLERS THE 6ILLAGERS SHOULD
HAVE FOR AT LEAST THREE GENERATIONS PRIOR TO TH $ECEMBER PRIMARILY RESIDED IN
OR DEPENDED ON THE FOREST LAND OF )NTANGKI .ATIONAL 0ARK FOR THEIR BONA DE LIVELIHOOD
NEEDS 4HE EXPLANATION TO 3ECTION O OF THE &OREST $WELLERS !CT DENES GENERATION
TO MEAN A PERIOD OF YEARS )T IS NOBODYS CASE THAT THE 6ILLAGERS HAVE BEEN BONA
DE RESIDENTS FOR THREE GENERATIONS IN )NTANGKI .ATIONAL 0ARK )N FACT IF THEIR PRESENCE
IN (AZATISA IS TAKEN FROM NOT EVEN ONE GENERATION HAS GONE BY 5NDER NO
CIRCUMSTANCES THEREFORE CAN THE 6ILLAGERS CLAIM THE BENET OF THE DENITION OF OTHER
TRADITIONAL FOREST DWELLERS AS DENED UNDER 3ECTION O OF THE &OREST $WELLERS !CT
7HICHEVER WAY WE LOOK AT THE PROBLEM THERE IS NO DOUBT THAT THE 6ILLAGERS ARE RANK
ENCROACHERS IN )NTANGKI 7ILD ,IFE 3ANCTUARY AND )NTANGKI .ATIONAL 0ARK AND THE 3TATE
OF .AGALAND IS FULLY ENTITLED TO EVICT THEM THERE FROM AND TO ENSURE THAT THEY DO NOT
CONTINUE WITH THEIR ENCROACHMENT IN THE )NTANGKI 7ILD ,IFE 3ANCTUARY OR THE )NTANGKI
.ATIONAL 0ARK
,EARNED #OUNSEL FOR THE 6ILLAGERS PLACED RELIANCE ON -OHD .OOR AND /RS VS -OHD
)BRAHIM AND /RS 3## IN SUPPORT OF HIS CONTENTION THAT A PERSON CAN BE
THE OWNER OF A THING ONLY IF HE HAS ABSOLUTE DOMAIN OVER IT IN ALL RESPECTS AND IS
CAPABLE OF TRANSFERRING SUCH OWNERSHIP 4HE REASON FOR ADVANCING THIS CONTENTION
IS THAT ACCORDING TO LEARNED #OUNSEL THE 6ILLAGERS HAD NO OWNERSHIP RIGHTS OVER THE
LAND UNDER THEIR CONTROL AND POSSESSION IN THE )NTANGKI .ATIONAL 0ARK AND THEREFORE
IT WAS NOT NECESSARY FOR THE 3TATE ,EGISLATURE TO ADOPT THE &OREST $WELLERS !CT SINCE IT
WAS NOT COVERED BY THE PROVISIONS OF !RTICLE ! A IV OF THE #ONSTITUTION 7E DO NOT
SEE THE RELEVANCE OF THIS DECISION INSOFAR AS THE PRESENT CASE IS CONCERNED BUT EVEN IF
THE DECISION IS RELEVANT SINCE WE ARE OF THE OPINION THAT THE 6ILLAGERS CANNOT CLAIM
THE BENET OF THE &OREST $WELLERS !CT THE QUESTION OF ITS APPLICABILITY TO THE 3TATE OF
.AGALAND DOES NOT ARISE
2ELIANCE WAS ALSO PLACED BY LEARNED #OUNSEL ON 3TATE "ANKS 3TAFF 5NION -ADRAS
#IRCLE VS 5NION OF )NDIA /RS 3## IN SUPPORT OF HIS CONTENTION THAT THE
/BJECTS AND 2EASONS OF A STATUTE ARE TO BE LOOKED INTO AS AN EXTRINSIC AID TO ND OUT
THE LEGISLATIVE INTENT ONLY WHEN THE MEANING OF THE STATUTE BY ITS ORDINARY LANGUAGE
IS OBSCURE OR AMBIGUOUS )F THE WORDS IN A STATUTE ARE CLEAR AND UNAMBIGUOUS THEN THE
STATUTE ITSELF MAKES CLEAR THE INTENTION OF THE ,EGISLATURE AND IN SUCH A CASE IT WOULD
NOT BE PERMISSIBLE FOR A #OURT TO INTERPRET THE STATUTE BY EXAMINING ITS /BJECTS AND
2EASONS
4HERE CAN BE NO QUARREL WITH THE PROPOSITION CANVASSED BY LEARNED #OUNSEL (OWEVER
WE WISH TO MAKE IT CLEAR THAT IN OUR OPINION THE PLAIN AND ORDINARY LANGUAGE OF
THE &OREST $WELLERS !CT IS QUITE LUCID
THE 6ILLAGERS CANNOT GET THE BENET OF THE
&OREST $WELLERS !CT WHICHEVER WAY ONE LOOKS AT THEIR CONTENTIONS 7E HAVE MADE A
REFERENCE TO THE 3TATEMENT OF /BJECTS AND 2EASONS OF THE &OREST $WELLERS !CT ONLY TO
HIGHLIGHT THE OCCASION FOR ENACTING THE &OREST $WELLERS !CT AND NOT FOR THE PURPOSES
OF UNDERSTANDING ITS PROVISIONS WHICH AS WE HAVE ALREADY MENTIONED ABOVE ARE QUITE
CLEAR AND UNAMBIGUOUS
&INALLY LEARNED #OUNSEL FOR THE 6ILLAGERS RELIED UPON ,ALAPPA ,INGAPPA AND /RS VS
,AXMI 6ISHNU 4EXTILE -ILLS ,TD 3## TO CONTEND THAT IN CONSIDERING A SOCIAL
WELFARE LEGISLATION THE #OURT SHOULD ADOPT THE BENECIAL RULE OF CONSTRUCTION )F A
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
SECTION IS CAPABLE OF TWO CONSTRUCTIONS THAT CONSTRUCTION SHOULD BE PREFERRED WHICH
FULLS THE POLICY OF THE &OREST $WELLERS !CT AND IS MORE BENECIAL TO THE PERSONS IN
WHOSE INTEREST IT HAS BEEN PASSED
)NSOFAR AS THE &OREST $WELLERS !CT IS CONCERNED AS WE HAVE ALREADY NOTED THE VARIOUS
PROVISIONS THEREOF ARE NOT CAPABLE OF HAVING TWO MEANINGS 4HE LANGUAGE OF THE
VARIOUS PROVISIONS IS CLEAR AND UNAMBIGUOUS AND AS HELD BY THE 3UPREME #OURT IN THE
CITED JUDGMENT WHEN THE LANGUAGE IS EXPLICIT IT MUST BE GIVEN EFFECT TO WHATEVER BE
THE CONSEQUENCES FOR THE WORDS OF THE STATUTE SPEAK THE INTENTION OF THE ,EGISLATURE
7E DO NOT SEE HOW THIS DECISION HELPS THE 6ILLAGERS
,EARNED !DVOCATE
'ENERAL RELIED UPON A DECISION RENDERED BY THE 3UPREME #OURT IN
4. 'ODAVARMAN 4HIRUMULKPAD VS 5NION OF )NDIA AND /RS )! .OS WITH )! .OS
AND DECIDED ON IN SUPPORT OF HIS CONTENTION THAT SINCE THE
6ILLAGERS ARE DESTROYING )NTANGKI .ATIONAL 0ARK OR THE 7ILD ,IFE 3ANCTUARY THROUGH THEIR
ENCROACHMENT AND ARE DEPRIVING .AGALAND OF A VALUABLE ASSET MERELY DISMISSING THEIR
WRIT APPEAL WOULD NOT BE ENOUGH (E SUBMITTED THAT THE 6ILLAGERS HAVE ADMITTEDLY
BEEN EVICTED TIMES BUT THEY KEEP COMING BACK 4HEREFORE THE EQUIVALENT OF THE
POLLUTER MUST PAY PRINCIPLE MUST BE APPLIED TO THE FACTS OF THE CASE
7E ARE IN AGREEMENT WITH THE LEARNED !DVOCATE
'ENERAL )N THE CITED DECISION THE
#ENTRAL %MPOWERED #OMMITTEE HAD RECOMMENDED THE PAYMENT OF COMPENSATION FOR
ENCROACHMENT OF LAND FOR COMMERCIAL PURPOSES AT LAKHS PER HECTARE )N THE PRESENT
CASE THE ENCROACHMENT IS NOT FOR COMMERCIAL PURPOSES BUT THE ENCROACHMENT IS ON AN
ADMITTED ASSET OF THE 3TATE OF .AGALAND 7E PLACE THESE ON AN EQUAL FOOTING AND DIRECT
THAT IF THE 6ILLAGERS VOLUNTARILY VACATE THE )NTANGKI .ATIONAL 0ARK AND PEACEFULLY HAND
OVER THE LAND IN THEIR POSSESSION AND OCCUPATION TO THE 3TATE 'OVERNMENT WITHIN THREE
MONTHS FROM TODAY AND IN ANY CASE OF ON OR BEFORE ST $ECEMBER THEY WILL NOT
BE LIABLE TO PAY ANY COMPENSATION (OWEVER IF THEY CONTINUE TO REMAIN IN OCCUPATION
THEN THEY WILL HAVE TO PAY @ LAKHS PER HECTARE PER MONTH TO THE 3TATE OF .AGALAND 4HE
AMOUNT WILL BE RECOVERED FROM -R 3 +HCHOI -R +IVITO .EKHA AND -R (ONITO 9EPTHO
THE !PPELLANTS IN 7RIT !PPEAL .O + OF AND FROM -R (EVITO SON OF ,ATE
+HAZEVI THE !PPELLANT IN 7RIT !PPEAL .O + OF 4HE AMOUNTS RECOVERED SHALL
BE KEPT IN A SEPARATE ACCOUNT AND SHALL BE USED BY THE 3TATE 'OVERNMENT EXCLUSIVELY
FOR FOREST PROTECTION AND REHABILITATION OF THE ENCROACHED AREA
"OTH THE WRIT APPEALS ARE DISMISSED 4HERE WILL BE NO ORDER AS TO COSTS !LL PENDING -ISC
#ASES ALSO STAND DISPOSED OF
4 / \
)N 2E +AZIRANGA .ATIONAL 0ARK VS
5NION OF )NDIA /RS
0), 35/ -/45 /& %4#
()'( #/524 /& '!5(!4)
#/2!- + 3(2%%$(!2 2!/ !#* !.$ 0+ 3!)+)! *
#)4!4)/. 3## /.,).% '!5
3 5 - -!29
4HE #OURT REGISTERED A 0), SUO MOTU AFTER SEVERAL NEWSPAPERS REPORTED THE ILLEGAL
POACHING OF RHINOCEROS AND OTHER ANIMALS IN +AZIRANGA .ATIONAL 0ARK +.0
4HEREAFTER ADDITIONAL WRIT PETITIONS WERE FILED SEEKING DIFFERENT RELIEFS /NE WRIT
PETITION 70 SOUGHT REMOVAL OF HUMAN ENCROACHMENTS IN THE ANIMAL
CORRIDORS IN AND AROUND THE +.0 /THER WRIT PETITIONS CLAIMED TO REPRESENT THE
RESIDENTS OF THE +.0 AND ITS SUBSEQUENT ADDITIONS AND CONTENDED THAT THE DUE
PROCESS OF LAW UNDER THE 7ILDLIFE 0ROTECTION !CT !CT AND THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2! MUST BE COMPLIED WITH 4HESE PETITIONS SOUGHT THE SETTLEMENT OF RIGHTS
UNDER THE !CT AND CONSTITUTION OF STATUTORY #OMMITTEES UNDER THE &2! TO
ENSURE THAT NO EVICTION TOOK PLACE WITHOUT THE DUE PROCESS OF LAW
(EARING THE MATTER AT REGULAR INTERVALS OVER SEVERAL YEARS THE #OURT ISSUED VARIOUS
DIRECTIONS )T DIRECTED THE $IRECTOR +.0 TO SUBMIT A DETAILED REPORT ON VARIOUS
FACTORS WHICH AID POACHING AND ILLEGAL ACTIVITIES WITHIN AND AROUND THE +.0 ,ATER
A HIGH POWER COMMITTEE WAS FORMED TO LOOK INTO THE MATTER 4HE REPORT OF THE HIGH
POWER COMMITTEE SHOWED AN INCREASE IN THE NUMBER OF PATTA HOLDERS IN THE ND
AND RD ADDITION TO THE +.0 &INDING SOME IMPROPRIETIES AND ILLEGALITIES THE #OURT
DIRECTED THE CONCERNED #OLLECTORS TO VERIFY THE PATTA HOLDERS AND TAKE NECESSARY
ACTION TO EVICT ILLEGAL OCCUPANTS FROM THE .ATIONAL 0ARK AND ITS ADDITIONS
! VARIETY OF ARGUMENTS WERE RAISED BY THE WRIT PETITIONERS SEEKING PROTECTION OF
THEIR RIGHTS INSIDE THE +.0 PLACING HEAVY RELIANCE UPON THE ARGUMENT THAT THE
LANDS HAVE BEEN ACQUIRED IN VIOLATION OF 3ECTION ! AND OF THE !CT 4HEY
ARGUED THAT PROCEDURE FOR ACQUISITION OF RIGHTS IN AND OVER THE LAND TO BE INCLUDED
IN A .ATIONAL 0ARK HAS TO BE FOLLOWED BEFORE A FINAL NOTIFICATION UNDER THE !CT
)T WAS ALSO ARGUED THAT TWO VILLAGES HAVE BEEN DECLARED AS REVENUE VILLAGES AND DO
NOT FALL WITHIN THE AREA OF THE .ATIONAL 0ARK !N ADDITIONAL ARGUMENT REGARDING
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
NON
IMPLEMENTATION OF &2! WAS ALSO RAISED
&).$ ) .' 3 /& 4( % #/524
!FTER STUDYING THE REPORT OF THE EXPERT COMMITTEE THE #OURT HELD THAT THE
PETITIONERS HAVE NO RIGHT OVER THE LAND AS THE MATERIAL FACTS CLEARLY SHOW THAT THE
CONSTRUCTIONS WERE RECENTLY MADE 4HE ARGUMENTS RELATING TO NON
COMPLIANCE WITH
THE !CT WERE REJECTED ON THE GROUND THAT THE ,AND !CQUISITION !CT HAS
BEEN DULY COMPLIED WITH
2EGARDING THE REVENUE VILLAGES THE #OURT HELD THAT FOREST LAND UNDER THE
&OREST #ONSERVATION !CT NOT ONLY INCLUDES ANY AREA RECORDED AS FOREST IN
THE 'OVERNMENT RECORD IRRESPECTIVE OF THE OWNERSHIP BUT ALSO THE FOREST AS
UNDERSTOOD IN THE DICTIONARY SENSE !CCORDINGLY THESE VILLAGES COULD NOT HAVE BEEN
CONVERTED INTO REVENUE VILLAGES WITHOUT COMPLIANCE WITH THE &OREST #ONSERVATION
!CT
4HE #OURT ALSO REJECTED THE CONTENTION OF THE PETITIONERS THAT THE FORMALITIES
UNDER THE &OREST 2IGHTS !CT ARE NOT COMPLETED ON A PRELIMINARY GROUND THAT THE
PETITIONERS DID NOT ASSERT OR DISCLOSE THAT THEY ARE OTHER TRADITIONAL FOREST DWELLERS
OR FOREST DWELLING 3CHEDULED 4RIBES IN THEIR PLEADINGS
4HE #OURT DISMISSED THE PETITION BY STATING THAT IN VIEW OF THE LARGER INTERESTS OF THE
PUBLIC AND THE #ONSTITUTIONAL MANDATE THE CLAIMS OF THE PETITIONERS ARE UNTENABLE
4HE #OURT OBSERVED
4HE INDIVIDUAL CLAIMS FOR A HANDFUL OF PERSONS IS IN CONFLICT WITH THE PUBLIC AND
NATIONAL INTEREST 4HERE HAVE BEEN PERSISTENT AND REPEATED REPORTS OF POACHING
OF RHINOCEROS ELEPHANTS AND OTHER WILD ANIMALS )T IS IRRESISTIBLE INFERENCE THAT
THE HABITANTS IN ++0 AREA WOULD FALL IN SUSPECT GROUP AND THEY WOULD BE WELL
ACQUAINTED WITH THE AREAS AND ANIMAL MOVEMENTS THEREFORE THEY WOULD ALONE
BE IN A POSITION TO DO POACHING SUCCESSFULLY OR ABET POACHING BY OTHERS 4HE
CONCEPT OF NATIONAL PARK IN THE 7ILD ,IFE !CT CONTEMPLATES THAT THERE SHOULD BE
NO HUMAN HABITATION PARA
% $ )4/23 . /4%
4HE PRESENT JUDGMENT IS IN STARK CONTRAST WITH THAT RENDERED BY THE -ADRAS (IGH
#OURT IN THE %LEPHANT #ORRIDOR #ASE !LTHOUGH REPRESENTATIVES OF VILLAGERS RESIDING
IN AND AROUND THE +.0 APPROACHED THE #OURT WITH SUBSTANTIVE WRIT PETITIONS POINTING
OUT MULTIPLE VIOLATIONS OF LAW BY THE 3TATE AUTHORITIES SIMILAR TO THE -ADRAS CASE
THE 'AUHATI (IGH #OURT SEEMED DETERMINED NOT TO ALLOW THE INDIVIDUAL CLAIMS OF
A HANDFUL OF PERSONS TO STAND IN THE WAY OF PUBLIC AND NATIONAL INTEREST STATING
THAT A RIGID AND TECHNICAL VIEW WOULD ONLY HARM ENDANGER THE WILDLIFE OF THE
+.0 (OWEVER WHEN IT CAME TO COMPLIANCE WITH THE FORMALITIES UNDER &2! THE
#OURT WAS QUICK TO ADOPT JUST SUCH A RIGID AND TECHNICAL APPROACH AND REJECT THE
ARGUMENT IN ITS ENTIRETY DUE TO A FAULT IN THE PLEADINGS
)T IS ONLY A MATTER OF TIME BEFORE THIS JUDGMENT IS CHALLENGED ESPECIALLY IN LIGHT
)N $EFENCE OF %NVIRONMENT &ORESTS VS 4HE 0RINCIPAL #HIEF #ONSERVATOR OF &OREST /RS *UDGMENT DATED
IN 70 OF %XTRACTED ELSEWHERE IN THIS COMPENDIUM
4 / \
OF THE FACT THAT THE +.0 IS CLOSE TO AN INTERNATIONAL BORDER AND THE SOCIOPOLITICAL
DYNAMICS RELATING TO MINORITY COMMUNITIES ARE QUITE COMPLEX IN THE AREA
* 5 $ ' -% . 4
THE *UDGMENT OF THE #OURT WAS DELIVERED BY + 3REEDHAR 2AO !#*
4HE NEWS CONCERNING THE ILLEGAL POACHING OF RHINOCEROS AND OTHER WILD ANIMALS IN
THE +AZIRANGA .ATIONAL 0ARK+.0 WAS WIDELY REPORTED IN THREE %NGLISH DAILIES ^
4HE 4ELEGRAPH DATED TH AND TH 3EPTEMBER 4HE )NDIAN %XPRESS DATED TH
3EPTEMBER AND 4HE (INDU DATED TH 3EPTEMBER
4HIS #OURT SUO MOTU REGISTERED A 0), .O TO INQUIRE INTO THE NEWS REPORT
REGARDING ILLEGAL POACHING AND KILLING OF WILD ANIMALS IN THE +.0 0), IS LED
BY ONE -RINAL 3AIKIA ON THE SAME SUBJECT MATTER WITH AN ADDITIONAL RELIEF OF REMOVAL OF
HUMAN HABITATION AND ENCROACHMENT IN THE ANIMAL CORRIDORS IN AND AROUND THE +.0
4HE EIGHT RESIDENTS OF THE SECOND ADDITION OF THE +.0 LED CONTENDING THAT
BEFORE THE SECOND ADDITION IS ADDED TO +.0 THE REQUISITE FORMALITIES AS REQUIRED UNDER
3ECTIONS ! AND OF THE 7ILD ,IFE0ROTECTION !CT AND THE PROVISIONS OF THE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS2ECOGNITION OF &OREST 2IGHTS
!CT IN SHORT THE &OREST 2IGHTS !CT OF HAVE NOT BEEN COMPLIED )N THAT VIEW IT
IS SUBMITTED THAT WITHOUT FORMAL COMPLIANCE OF THE REQUISITES OF LAW THE EVICTION OF THE
RESIDENTS IS ILLEGAL 4HEREFORE THEY SEEK A WRIT OF MANDAMUS DIRECTING THE RESPONDENTS
TO COMPLETE THE PROCESS OF SETTLEMENT OF RIGHTS UNDER THE 7ILDLIFE 0ROTECTION !CT IN
PURSUANCE OF THE NOTICATIONS ISSUED AS ADDITIONS UNDER THE 7ILDLIFE 0ROTECTION !CT
AND TO CONSTITUTE STATUTORY COMMITTEES UNDER THE &OREST 2IGHTS !CT TO ENSURE THAT NO
EVICTION TAKES PLACE WITHOUT THE DUE PROCESS OF LAW
4HIS #OURT BY ORDER DATED TH -ARCH PASSED THE FOLLOWING ORDER ON DIRECTING
THE $IRECTOR OF +.0 TO SUBMIT A DETAILED REPORT ABOUT THE GEOGRAPHICAL FEATURES THE
ORA AND FAUNA THE ANIMAL LIFE THE CONTRIBUTORY REASONS WHICH IS AIDING THE POACHING
AND ILLEGAL ACTIVITIES AND ALSO TO GIVE LONG
TERM SOLUTIONS TO REMEDY THE ILLS AFFECTING THE
0ARK
"%&/2% (/.",% -2 *534)#% !- 3!02% 4(% #()%& *534)#% (/.",% -2 *534)#%
!+ '/37!-) !- 3APRE #*
4ODAY WE HAVE HEARD THE VIEWS OF -R -+ 9ADAV $IRECTOR +AZIRANGA .ATIONAL
0ARK WHO IS PRESENT IN PERSON AND ALSO HEARD THE VIEWS OF SEVERAL LEARNED COUNSEL
APPEARING FOR VARIOUS ORGANISATIONS AND STAKEHOLDERS ON THE VARIOUS PROBLEMS FACED
BY +AZIRANGA .ATIONAL 0ARK AND IN PARTICULAR WITH REGARD TO POACHING OF RHINOS
WHICH HAS CAUSED SERIOUS CONCERN TO ALL
-R 9ADAV $IRECTOR +AZIRANGA .ATIONAL 0ARK SUBMITTED THAT SINCERE STEPS ARE BEING
TAKEN TO CURB POACHING AT ANY COST (E ALSO SUBMITS THAT 'OVERNMENT BE GRANTED
AROUND TWO MONTHS TIME TO PREPARE HIGH QUALITY METHODICAL REPORT TO SUGGEST
VARIOUS PROPOSALS FOR CURBING POACHING ON A PERMANENT BASIS AND ALSO ON RELATED
ISSUES DEALING WITH THE 0ARK AND TO PRESERVE THE ENDANGERED SPECIES 2HINO
7E EXPRESS OUR SERIOUS CONCERN ABOUT THE INCIDENCES OF POACHING IN +AZIRANGA
.ATIONAL 0ARK WHICH HAVE RECENTLY TAKEN PLACE AND ARE TAKING PLACE FROM TIME TO
TIME WE VIEW IT SERIOUSLY !T ANY COST IN OUR VIEW THE SAME MUST BE STOPPED AT
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
THE EARLIEST TO SAVE THE NATURES MOST PRICELESS AND PRECIOUS ENDANGERED SPECIES
2HINO )NDEED IT IS OUR DUTY TO PRESERVE THIS 'ODS GIFT TO THIS WORLD AT ANY COST
7E GRANT TWO MONTHS TIME TO THE $IRECTOR +AZIRANGA .ATIONAL 0ARK TO SUBMIT THE
DETAIL REPORT ON OR BEFORE THE NEXT DATE OF HEARING SUGGESTING THEREIN THE EFFECTIVE
AND REMEDIAL STEPS FOR IMPLEMENTATION TO CURB POACHING OF RHINOS IN THE +AZIRANGA
.ATIONAL 0ARK (E IS AT LIBERTY TO TAKE HELP OF ALL STAKEHOLDERS ORGANISATIONS PARKS ALL
OVER THE WORLD FOR PREPARATION OF REPORT
7E REQUEST -R 9ADAV $IRECTOR +AZIRANGA .ATIONAL 0ARK TO REMAIN PRESENT ON EVERY
DATE OF HEARING TO FACILITATE THE HEARING ON THE MATTER
,IST ON TH OF -AY
4HE $IRECTOR OF THE +.0 PURSUANT TO THE SAID ORDER HAS GONE INTO THE ISSUE AND SUBMITTED
A DETAILED REPORT IN A BOOK FORM CONTAINING PAGES 4HE BRIEF DESCRIPTION OF THE
CONTENTS OF THE BOOK IS AS FOLLOWS
+AZIRANGA THE HOME OF THE 'REATER /NE (ORNED 2HINOCEROS FACES CERTAIN THREATS
WHICH IF NOT ADEQUATELY MITIGATED TODAY WOULD BECOME THE CAUSE OF EXTINCTION
OF THE RHINOCEROS IN TIMES OF COME 4HE 2EPORT DWELLS UPON THE CAUSE AND POSSIBLE
SOLUTIONS IN SOME DETAILS 4HE FACTORS IDENTIED AS THREAT TO THE SURVIVAL OF THE RHINOS
OTHER THAN POACHING ARE LOSS AND FRAGMENTATION OF HABITAT LACK TO TECHNOLOGY
AND STRATEGIC ADVANTAGE OVER POACHERS CERTAIN LACUNA IN POLICY AND LAW AND THEIR
IMPLEMENTATION CHALLENGES OF GROWTH AND DEVELOPMENT ON THE FRINGES OF THE PARK
AND POSSIBLE IMPACTS OF CLIMATE CHANGE AND CLIMATE VARIATIONS 4HE APPROACH TO
MITIGATE THE THREATS AND ENSURE LONG TERM SURVIVAL OF +AZIRANGA IS MULTI
PRONGED
AND MULTI
DISCIPLINARY WITH A SERIES OF IMMEDIATE SHORT TERM MEDIUM TERM AND LONG
TERM MEASURES TO BE UNDERTAKEN 3OME OF THE SUGGESTED MEASURES INCLUDE EROSION
CONTROL HABITAT IMPROVEMENT EXTENSION OF HABITAT CORRIDORS RETROTTING UP SCALING
OF ANTI POACHING INFRASTRUCTURE SECURITY AND SURVEILLANCE IN AND AROUND THE 0ARK
ADOPTING A LANDSCAPE BASED APPROACH AND CONSTITUTION OF A LANDSCAPE AUTHORITY
FOR CONSERVATION AND DEVELOPMENT OF THE AREAS ADOPTING A GREEN GROWTH APPROACH
FOR DEVELOPMENT IN THE LANDSCAPE ADOPTING BETTER MANAGEMENT STRATEGIES SUCH AS
ORGANISATIONAL RESTRUCTURING INCREASED STAFF STRENGTH STAFF WELFARE AND CREATING
SOME KEY AND NECESSARY INFRASTRUCTURE ADOPTING BETTER POLICIES AND STRENGTHENING
FURTHER THE LEGAL PROVISIONS AND ABOVE ALL CREATING SEVERAL SECURE HABITATS OUTSIDE
+AZIRANGA FOR THE RHINOS 4HE 2EPORT ALSO IDENTIES THE ACTIONABLES AND CLASSIES
THEM INTO IMMEDIATE SHORT TERM MEDIUM TERM AND LONG TERM TIME FRAMES !
TENTATIVE BUDGETARY ESTIMATE OF THE MEASURES SUGGESTED IS ALSO PROVIDED AT THE END
ALONG WITH POSSIBLE SOURCES OF FUNDING 4HE 2EPORT PROJECTS NANCIAL ESTIMATES FOR
A PERIOD OF YEARS
4HE 2EPORT IS DIVIDED INTO THREE PARTS 0ART ) OF THE 2EPORT EXAMINES THE KEY ISSUES
AND CHALLENGES BEING FACED IN RHINO PROTECTION )T ALSO CONTAINS A BRIEF DESCRIPTION
OF THE EXISTING SET UP AND PROVIDES THE BACKGROUND INFORMATION REQUIRED FOR FURTHER
ANALYSIS 0ART ) IS DIVIDED INTO CHAPTERS DEALING WITH HABIT ISSUES HUMAN INTERFACE
ISSUES POLICY AND LAW RHINO POPULATION DYNAMICS RHINO POACHING STAKEHOLDERS
ANALYSIS AND IN BRIEF ABOUT +AZIRANGA
0ART )) OF THE 2EPORT CONTAINS THE PROPOSED SOLUTION FRAMEWORK AND CONSISTS OF
CHAPTERS 4HE SOLUTION FRAMEWORK IS DIVIDED INTO HABITAT STRATEGIES UP SCALING ANTI
POACHING INFRASTRUCTURE +AZIRANGA ,ANDSCAPE #ONSERVATION AND $EVELOPMENT
!UTHORITY -ANAGEMENT STRATEGIES +AZIRANGA ,ANDSCAPE 'REEN 'ROWTH &RAMEWORK
0OLICY ,AW PROTOCOLS AND PROGRAMME STRATEGIES 4IME BUDGET AND LASTLY "UDGET
4 / \
AND NANCES )T ALSO CONTAINS THE REFERENCES SOME WEBSITE LINKS AND BIBLIOGRAPHY
ALONG WITH CITATIONS FOR FURTHER READING
0ART ))) OF THE 2EPORT CONTAINS THE ANNEXURES SUCH AS TABLES PHOTO
PLATES SOFT
VERSION MINUTES OF VARIOUS MEETINGS HELD AND COMMENTS AND SUGGESTIONS RECEIVED
FROM VARIOUS EXPERTS AND STAKEHOLDERS AND OTHER ANNEXURES
4HE 2EPORT NDS THAT OTHER THAN THE POACHING THERE ARE OTHER THREATS TO THE
SURVIVAL OF RHINO SUCH AS LACK OF ADEQUATE AND SECURE HABITAT WHICH IS VERY BADLY
IN NEED OF EXTENSION RETROTTING OF THE EXISTING CORRIDORS INTRODUCING 3-!24
'5!2$ AND 3-!24 #OMMUNICATION AND A SERIES OF TECHNOLOGY INTERVENTIONS IN
SHORT AND MEDIUM TERM GREEN GROWTH AND GREEN DEVELOPMENT OPPORTUNITIES
FOR THE FRINGE VILLAGES /N THE POLICY SIDE IT RECOMMENDS AMENDMENTS IN THE
7ILDLIFE0ROTECTION !CT CHALLENGES IN THE WAYS WILDLIFE CRIME INVESTIGATION
IS HANDLED ORGANISATIONAL MODICATIONS CONSTITUTION OF A +AZIRANGA ,ANDSCAPE
#ONSERVATION AND $EVELOPMENT !UTHORITY TO MANAGE THE ENTIRE LANDSCAPE AS A
SINGLE UNIT CONSISTING OF THE CORE BUFFER AND ALL THE CORRIDORS AND WATERSHEDS 4HE
2EPORT RECOMMENDS INITIATION OF THE 2HINO 2ANGE %XPANSION 0ROJECT SETTING UP OF
KEY INFRASTRUCTURE AND WELFARE OF STAFF
4HE ACTUAL IMPLEMENTATION OF THE RECOMMENDATIONS WOULD REQUIRE A SERIES OF
GROUND SURVEYS IN DEPTH STUDY EXECUTION OF 0ROOF OF #ONCEPTS PREPARATION OF $02S
AND 4ECHNICAL &EASIBILITY 2EPORTS 4HE IMPLEMENTATION WOULD LARGELY DEPEND UPON
HOW STRONG IS THE INSTITUTIONAL FRAMEWORK AVAILABILITY OF FUNDS SUPPORT OF THE
STAKEHOLDERS ESPECIALLY THE LOCAL STAKEHOLDERS AND THE MONITORING AND FEEDBACK
MECHANISMS PUT IN PLACE
4HIS #OURT PASSED THE FOLLOWING ORDER ON
"%&/2% (/.",% 4(% #()%& *534)#%!#4).' -2 + 32%%$(!2 2!/ (/.",% -2
*534)#% 0 + 3!)+)!
#HIEF *USTICE!CTING
4HE MEMBERS OF THE HIGH
POWER COMMITTEE VIZ 3RI -UKTI 'OGOI #OMMISSIONER
(OME 'OVERNMENT OF !SSAM 3RI 0+ 4IWARI 2EVENUE 3ECRETARY 'OVERNMENT OF
!SSAM 3RI !NURAG !GARWAL )NSPECTOR
'ENERAL OF 0OLICE"ORDER !SSAM 3RI !JAY
+ANOJIA $IRECTOR.%
)) MINISTRY OF (OME !FFAIRS AND 3RI $0 "ANKHWAL )NSPECTOR
'ENERAL&OREST .4#! 2EGIONAL /FCE ARE DIRECTED TO BE PRESENT BEFORE THIS #OURT
ON
! COPY EACH OF THIS ORDER BE HAND DELIVERED TO 3RI 3# +EYAL !SSTT 3OLICITOR 'ENERAL
AND 3RI 2+ "ORA GOVT ADVOCATE
4HIS #OURT PASSED THE FOLLOWING ORDER ON
"%&/2% (/.",% 4(% #()%& *534)#%!#4).' -2 + 32%%$(!2 2!/ (/.",% -2
*534)#% 0+ 3!)+)!
#HIEF *USTICE!CTING
4HE MEMBERS OF THE HIGH
POWER COMMITTEE ARE PRESENT BEFORE THIS #OURT 4HE
MEMBERS ARE TOLD TO DO THE COUNTING OF RESIDENCES IN THE +AZIRANGA .ATIONAL 0ARK
AREA WHICH WOULD INCLUDE THE RST !DDITION TO SIXTH !DDITION AND ALSO TO SURVEY
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
THE POPULATION IN THE RESIDENTIAL BUILDINGS HUTS ETC 4HE COMMITTEE SHALL ALSO TAKE
BIOMETRICS OF THE PEOPLE RESIDING IN THE AREA AND SUBMIT THE REPORT BY TH *UNE
(AND
DELIVER THE COPY OF THIS ORDER TO THE STANDING COUNSEL FOR THE &OREST $EPARTMENT
AND THE GOVT ADVOCATE FOR COMPLIANCE OF THIS ORDER
4HE HIGH POWER COMMITTEE HAS GONE INTO THE ISSUES AND HAS LED A REPORT WHICH IS AS
FOLLOWS
-).54%3 /& 4(% 2$ -%%4).' !.$ &)%,$ 6)3)4 /& 4(% ()'( 0/7%2%$
#/.34)454%$ "9 4(% (/.",% '!5(!4) ()'( #/524 ). 0), (%,$ /.
4( -!9 !4 !- !4 +/(/2! +!:)2!.'! .!4)/.!, 0!2+
-EMBERS PRESENT
,IST OF THE MEMBERS PRESENT IS ANNEXED HEREWITH
4HE #OMMISSIONER 3ECRETARY 2EVENUE $- $EPARTMENT 'OVT OF !SSAM CHAIRED
THE MEETING AND THE ELD VISIT 4HE ELD VISIT IN ORDER TO COVER MAXIMUM AREA
STARTED RIGHT AT !- IN THE MORNING STARTING FROM THE RD !DDITION TO +AZIRANGA
.ATIONAL 0ARK FOLLOWED BY THE ND !DDITION TO THE +AZIRANGA .ATIONAL 0ARK PART OF
THE CORE AREAS OF +AZIRANGA .ATIONAL 0ARK TH !DDITION TO +AZIRANGA .ATIONAL 0ARK
ST !DDITION TO +AZIRANGA .ATIONAL 0ARK AND THE TH !DDITION TO +AZIRANGA .ATIONAL
0ARK ALONG WITH A VIEW OF THE CORE OF THE +AZIRANGA .ATIONAL 0ARK AT PLACES 4HE
#OMMITTEE ALSO TOOK STOCK OF GOVT LAND AT "ANDERDUBI AND $EOSUR AREAS AS WELL
4HE #OMMITTEE WAS ACCOMPANIED AMONG OTHERS BY THE MEMBERS OF THE 'AUHATI
(IGH #OURT "AR !SSOCIATION AND THE LEARNED #OUNSELS APPEARING ON BEHALF OF THE
0ETITIONERS AND $EFENDANTS AND OFCIALS FROM THE &OREST 2EVENUE AND 0OLICE AND
(OME $EPARTMENTS
4HE MEMBERS ALSO INTERACTED WITH THE PEOPLE RESIDING IN THE ADDITION AREAS AND
VISITED THE ACTUAL HABITATION SITES WHERE THE PEOPLE WERE CURRENTLY RESIDING OR
HAD ERECTED HUTS ETC 4HE #OMMITTEE VISITED 3ILJURIGAON -ETHONI "AGICHA .O
3ILDUBIGAON .O 3ILDUBIGAON 0ERIPHERY OF +AZIRANGA .ANKEGAON (ATIKHULI 4%
AREAS AND THE (ALDIBARI IN THE ND RD AND TH !DDITIONS TO +.0 AND KHUTIES IN THE
TH !DDITION AREAS !FTER TAKING THE STOCK OF THE GROUND SITUATION AND AFTER MUCH
DELIBERATION THE FOLLOWING DECISIONS WERE ARRIVED AT
,IST OF THE ENCROACHERSSETTLERS ON THE GOVERNMENT LAND IN THE VICINITY OF
+AZIRANGA .ATIONAL 0ARK ITS TH !DDITIONS AND THE .( *AKHLABANDHA TO
"OKAKHAT TO BE PREPARED BY THE RESPECTIVE $EPUTY #OMMISSIONERS AND IT SHOULD
BE GIVEN TO 30 BORDER WITHIN ONE MONTH 4HE 30 "ORDER SHALL EXAMINE THE
SAME AND TAKE APPROPRIATE ACTION WITHIN DAYS SUCH AS HANDING OVER CASES TO
THE (ONBLE &OREIGNERS 4RIBUNAL IF REQUIRED
6ILLAGE ,AND "ANK MUST BE RE
VERIED WITHIN DAYS IE TILL TH OF *UNE
BY THE RESPECTIVE 2EVENUE /FCERS AS PER DIRECTION ALREADY ISSUED BY THE
2EVENUE $- $EPARTMENT ON PRIORITY FOR ALL THE AREAS FALLING IN THE VICINITY OF
THE +AZIRANGA .ATIONAL 0ARK AND ITS !DDITIONS
"ANDERDUBI AND $EOSUR ! DETAILED IN DEPTH SURVEY OF INDIVIDUALSFAMILIES
OCCUPYING 'OVERNMENT LAND ALONG WITH LAND STATUS REPORT IS TO BE PREPARED BY
THE CONCERNED $#3$/ #IVIL AND IT SHOULD BE PROVIDED TO POLICE WITHIN ONE
MONTH FOR TAKING FURTHER ACTION
4 / \
4HE #OMMITTEE OBSERVED THAT THE GENERAL IMPRESSION AFTER THE ELD VISIT IN THE
ND !DDITION AREAS WAS THAT MOST OF THE CONSTRUCTIONS WERE NEW DATING BACK
FROM LAST ONE TO TEN YEARS AND TEMPORARY AND SEMI PERMANENT IN NATURE WHICH
HAVE BEEN ERECTED WITH AN APPARENT INTENTION OF BARGAINING FOR LAND ELSEWHERE
4HE #OMMITTEE OBSERVED THAT PERSONS MOSTLY IN THE RD !DDITION AREAS WERE
SHARE CROPPERS FROM ACROSS THE .( AND OTHER NEARBY AREAS AND SETTLED IN LAST
YEARS IN TEMPORARY STRUCTURES 4HE LAND MOSTLY BELONGED TO PERSONS FAR AWAY
FROM THE !DDITION AREAOBSERVED THAT A LARGE NUMBERS OF ANNUAL PATTA HAD BEEN
ISSUED IN ND !DDITION TO +.0 RD !DDITION
4HE #OMMITTEE TO +.0 AND THE TH !DDITION TO +.0 4HE $# 'OLAGHAT SHALL
LAUNCH AN INTENSIVE DRIVE TO VERIFY EACH AND EVERY ANNUAL PATTA HOLDER AND
SUBMIT REPORT WITHIN DAYS WHETHER THEY ARE STILL IN POSSESSION OF THE LAND .2
CASES SHOULD BE REGISTERED AGAINST THE NON OCCUPANT 0ATTA HOLDERS
4HE #OMMITTEE OBSERVED THAT IN THE ND !DDITION TO +.0 LAND WAS ALSO
PROCURED BY THE 'OVERNMENT FROM THE (ATIKHULI 4EA %STATE TO MAKE IT PART OF THE
+AZIRANGA .ATIONAL 0ARK AND THE 4EA %STATES WAS PAID TOO FOR THIS TRANSACTION
(ATIKHULI HAS NOT REMOVED THE STRUCTURES OR ITS PERSONS FROM THE SAID PORTION OF
THE ND !DDITION 4HE $# 'OLAGHAT WAS DIRECTED TO VERIFY THE RECORDS AND TAKE
IMMEDIATE ACTION TO FREE THE LAND FROM ENCROACHMENT BY THE 4EA %STATE AND THE
MANAGEMENT OF THE 4EA %STATE IF NECESSARY
)N THE TH !DDITION THE SEMI
PERMANENT MAKE
SHIFT BAMBOO STRUCTURES
CALLED KHUTIS WERE OBSERVED TO HAVE BEEN PUT UP RECENTLY )T COULD BE SENSED ON
TALKING TO THE ENCROACHERS THAT MANY OF THEM HAD MISCHIEVOUSLY BEEN PLANTED
BY SOME VESTED INTERESTS 4HE $# 3ONITPUR WAS DIRECTED TO REMOVE THEM FROM
THE !DDITION AREAS WITHOUT ANY FURTHER DELAY
4HE #OMMITTEE NOTICED THAT A COMPENSATION PACKAGE TO THE PERMANENT 0ATTA
HOLDERS IN THE ND RD AND THE TH !DDITIONS TO +.0 HAS BEEN SUBMITTED TO THE
2$- $EPARTMENT IN 3INCE TWO YEARS HAVE PASSED THE $# 'OLAGHAT WAS
ASKED TO VERIFY THE LIST OF THE PATTA HOLDERS IN THESE ADDITION AREAS TO FACILITATE THE
DECISION AND REHABILITATION PACKAGE
!FTER THE !DDITION AREAS ARE MADE ENCROACHMENT FREE THE &OREST $EPARTMENT
WOULD CONSTRUCT APPROPRIATE STRUCTURE TO MARK THE AREAS "OUNDARY PILLARS
WHICH CAN BE SPOTTED FROM A DISTANCE SHOULD BE XED ON ALL CORNER POINTS OF THE
0ARK BOUNDARY AND THE !DDITION AREAS IMMEDIATELY AFTER JOINT SURVEY WITH THE
2EVENUE AUTHORITIES
4HE #OMMITTEE DECIDED THAT IT WILL REVIEW THE PROGRESS OF THE WORK IN THE LAST
WEEK OF *UNE
4HE MEETING ENDED WITH VOTE OF THANKS FROM THE #HAIR
0+ 4IWARI )!3
#OMMISSIONER 3ECRETARY TO THE 'OVT OF !SSAM
2EVENUE $- $EPARTMENT
#HAIRMAN (IGH 0OWERED #OMMITTEE
)T IS SAID THAT THE ENTIRE AREA OF +.0 INCLUDING ST TO TH ADDITIONS MEASURES AT
SQUARE KILOMETRES AND THE POSSESSION OF THE LAND IN ND ADDITION HAS ALSO BEEN HANDED
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
OVER BUT THERE ARE SOME ENCROACHMENTS 7ITH REGARD TO THE RD AND TH !DDITIONS THE
PRELIMINARY NOTICATION AND INQUIRIES REQUIRED UNDER THE LAW ARE HELD BUT NO NAL
NOTICATION IS ISSUED
4HIS #OURT PASSED THE FOLLOWING ORDER ON
"%&/2% (/.",% 4(% #()%& *534)#%!#4).' -2 + 32%%$(!2 2!/ (/.",% -2
*534)#% 0+ 3!+)!
/2$%2
+ 3REEDHAR 2AO #* !CTING
-R . $UTTA LEARNED 3ENIOR #OUNSEL FOR THE PETITIONERS SUBMITTED THAT IN THE
RD !DDITION VIDE REPORT DATED THE NUMBER OF FAMILIES LIVING BY
ENCROACHMENT WAS )N THE CURRENT REPORT FAMILIES ARE SHOWN TO BE NOW
PATTADARS )T IS SUBMITTED THAT FROM THE REPORT IT IS SEEN THAT THE 'OVERNMENT IS
ENCOURAGING THE ENCROACHERS BY GRANTING PATTAS
)T IS SAID THAT THE "ANDARDUBI VILLAGE FAMILIES ARE LIVING AS ENCROACHERS AND IN
$EUCHUR #HANG VILLAGE FAMILIES ARE LIVING AS ENCROACHERS THUS TOTAL FAMILIES
ARE LIVING AS ENCROACHERS 4HE SAID FAMILIES HAVE BEEN GIVEN THE BUILDING MATERIALS
UNDER )NDIRA !WAS 9OJANA A 'OVERNMENT 3CHEME FOR BUILDING HOUSES )T IS ALSO SAID
THAT ,0 3CHOOLS -ADRASSAS )DDGAH AND -ASJIDS ARE CONSTRUCTED IN THE VILLAGES )T
IS ARGUED THAT THE 'OVERNMENT IS ENCOURAGING THE ENCROACHMENTS AND FACILITATING
THEIR PERMANENT SETTLEMENT
4HE ABOVE MATERIAL DISCLOSES THAT THERE APPEARS TO BE SOME IMPROPRIETIES AND
ILLEGALITIES IN GRANTING PATTAS AND LEGALIZING THE ENCROACHMENTS )T IS THEREFORE
DIRECTED THAT THE 2EVENUE !UTHORITY PARTICULARLY THE $EPUTY #OMMISSIONERS OF
.AGAON 3ONITPUR AND 'OLAGHAT TO FURNISH THE COPIES OF ALL THE PATTAS GRANTED TO THE
PERSONS IN RD !DDITION
)N SO FAR AS THE "ANDARDUBI AND $EUCHUR #HANG VILLAGES ARE CONCERNED THE $EPUTY
#OMMISSIONER .AGAON SHALL EVICT THE ENCROACHMENT OF 'OVERNMENT LAND FROM THE
SAID TWO VILLAGES ON OR BEFORE
IF NECESSARY WITH EFFECTIVE POLICE ASSISTANCE
4HE 3UPERINTENDENT OF 0OLICE"ORDER .AGAON SHALL ALSO MAKE VERICATION OF THE
.ATIONALITY OF THE ENCROACHERS IN THE ND RD AND TH !DDITIONS 4HE COMPLIANCE
REPORT TO BE SUBMITTED BY
4HE BIOMETRIC OF ALL THE RESIDENCES IN ND RD AND TH !DDITIONS IS TO BE TAKEN AND
REPORT TO BE SUBMITTED BY
(AND DELIVERY OF THE ORDER TO BE GIVEN TO THE !SSISTANT 3OLICITOR 'ENERAL OF )NDIA
'OVERNMENT !DVOCATE !SSAM THE 3TANDING #OUNSEL &OREST $EPARTMENT AND THE
$IRECTOR +AZIRANGA .ATIONAL 0ARK
#ALL THE MATTER ON
4HIS #OURT HAS DIRECTED THE $EPUTY #OMMISSIONERS TO EVICT THE RESIDENTS FROM THE PARK
AREA INCLUDING THE ND RD TH TH ADDITIONS AND ALSO THE RESIDENTS OF "ANDARDUBI
$EUCHUR #HANG AND 0ALKHOWA
4HE PETITIONERS IN 70# CONTEND THAT THE PETITIONERS ARE GRAZING CATTLE IN THE
4 / \
LANDS IN THE SIXTH ADDITION AND WITHOUT SETTLEMENT OF COMPENSATION THEY SHOULD NOT
BE EVICTED
)! AND ARE LED BY THE APPLICANTS TO BE IMPLEADED IN 0), )T
IS THE CONTENTION OF THE APPLICANTS THAT THEY ARE PATTA
HOLDERS AND LAWFUL RESIDENTS IN
"ANDARDUBI AND $EUCHUR #HANG VILLAGES 4HE SAID VILLAGES ARE REVENUE VILLAGE WHICH
DO NOT FORM PART OF THE +.0 THEREFORE THEY CANNOT BE EVICTED
7 0 #
3HRI 3 5PADHAY THE LEARNED COUNSEL FOR THE PETITIONER IN 70# URGED THE
FOLLOWING CONTENTIONS TO RESIST THE EVICTION PROCESS AGAINST THE PETITIONERS
A 4HERE HAS BEEN NO VALID ACQUISITION OF THE SAID VILLAGES AS CONTEMPLATED
UNDER 3ECTION ! AND OF THE 7ILD ,IFE0ROTECTION !CT BESIDES THERE IS NO
COMPLIANCE OF THE REQUIREMENTS OF THE &OREST 2IGHTS !CT OF 4HE AUTHORITIES ARE
EVICTING THE PETITIONERS WHO ARE THE LAWFUL RESIDENTS AND PATTA HOLDERS OF THE LANDS
B 4HE PROVISIONS OF SUB 3ECTION OF 3ECTION ! OF THE 7ILD ,IFE0ROTECTION !CT
EARLIER TO THE AMENDMENT DATED ST !PRIL INSISTED THAT THERE SHOULD BE
A RESOLUTION PASSED BY THE LEGISLATURE TO AUTHORISE FOR ADDITION OR ALTERATION OF THE
BOUNDARIES OF A .ATIONAL 0ARK AS A CONDITION PRECEDENT )N THIS CASE THE UNAMENDED
PROVISIONS PRIOR TO ST !PRIL WILL APPLY 3INCE THERE IS NO RESOLUTION PASSED BY
THE ,EGISLATURE THE ENTIRE ACQUISITION PROCEEDINGS ARE ILLEGAL
C 3ECTION OF THE 7ILD ,IFE0ROTECTION !CT DECLARES THAT NO ALTERATION OF
THE BOUNDARIES OF AT .ATIONAL 0ARK BY THE 3TATE 'OVERNMENT SHALL BE MADE EXCEPT ON
A RECOMMENDATION OF THE .ATIONAL "OARD )N THIS CASE THERE IS NO RECOMMENDATION
OF THE .ATIONAL "OARD IS OBTAINED (ENCE THE ACQUISITION PROCEEDINGS ARE ILLEGAL
D 4HERE HAS BEEN NO NAL NOTICATION ISSUED AS REQUIRED UNDER SUB 3ECTION OF
3ECTION OF THE 7ILD ,IFE0ROTECTION !CT IN RESPECT OF THE SECOND THIRD AND
FTH !DDITIONS OF THE +.0
E 4HE DENITION OF FOREST LAND UNDER THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT INCLUDES THE 3ANCTUARIES AND
.ATIONAL 0ARKS 3ECTION OF THE !CT PROTECTS THE RIGHTS OF THE 3CHEDULED 4RIBES AND
OTHER TRADITIONAL FOREST DWELLERS 4HE !CT CONTEMPLATES CONSTITUTION OF GRAM SABHAS
AND FOREST RIGHTS COMMITTEES 4HE SAID GRAM SABHAS AND FOREST RIGHTS COMMITTEES
HAVE TO SCRUTINISE AND RECORD THE RIGHTS OF FOREST DWELLERS AND 3CHEDULED 4RIBES
LIVING IN THE FOREST )N THE PRESENT CASE NO SUCH GRAM SABHAS OR FOREST COMMITTEES
ARE CONSTITUTED 4HE PETITIONERS ARE ALL RESIDENTS OF THE FOREST AREA SINCE THE S
AND PATTAS HAVE BEEN GRANTED IN THEIR FAVOUR IN THE YEAR 4HE SUMMARY EVICTION
OF THE PETITIONERS CANNOT BE DONE WITHOUT INQUIRY AND WITHOUT ASCERTAINING THEIR
RIGHTS OVER THE LAND IN QUESTION
F 4HE AFDAVIT OF THE $IRECTOR LED BEFORE THE 3UPREME #OURT IN 70# NO
DATED RD *ANUARY IT IS MENTIONED THAT FOR THE PROPOSED THIRD ADDITION
OF +AZIRANGA .ATIONAL 0ARK THE PRELIMINARY NOTICATION UNDER SECTION HAS
BEEN ISSUED 4HE PROVISIONS OF 3ECTION PERTAINS THE ACQUISITION OF LAND FOR THE
PURPOSE OF SANCTUARY AND NOT FOR THE .ATIONAL 0ARK 4HEREFORE WITHOUT THERE BEING
PROPER NOTICATION FOR ACQUISITION OF LAND FOR .ATIONAL 0ARK THE ENTIRE ACQUISITION
PROCEEDINGS ARE ILLEGAL
G 4HE MINUTES OF THE MEETING HELD ON PURSUANT TO THE ORDER OF THIS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
#OURT DATED TH *ANUARY WHEREIN THERE IS A MENTION THAT THE !$# 2EVENUE
'OLAGHAT HAS STATED THAT SINCE NO MONEY HAS BEEN ACCEPTABLEHANDED
OVER BYTO
ANYONE THE LAND ACQUISITION PROCESS IN RESPECT OF THE PATTA LANDS UNDER THE ND RD
AND TH ADDITION AREA IS NOT DEEMED AS COMPLETED AS PER THE LAND ACQUISITION !CT
H 4HE SUB
3ECTION OF 3ECTION OF THE !CT CONTEMPLATES THAT BEFORE EVICTION
ALL CLAIMS OF THE PETITIONERS HAVE TO BE DISPOSED OF BY THE STATE GOVERNMENT AND
THEREAFTER THE NAL NOTICATION HAS TO BE PUBLISHED REGARDING THE VESTING OF THE
LAND 3INCE NO SUCH PROCEDURES HAVE TAKEN PLACE WITHOUT A VALID ACQUISITION THE
PETITIONERS CANNOT BE EVICTED
4HE PETITIONERS AND CLAIM THAT THEIR ANCESTORS AND THEY ARE RESIDING IN 3ILJURI VILLAGE
SINCE THE TIME OF INDEPENDENCE AND THEY HAVE BEEN GRANTED THE MYADIPATTA 0ETITIONER
AND ALSO CLAIM THAT THEY ARE RESIDING SINCE THE S ON THE LAND COVERED UNDER THE
FTH ADDITION BY PAYING TOUZI TO THE GOVERNMENT )N THE LIGHT OF THE STATEMENTS MADE BY
THE !DDITIONAL $EPUTY #OMMISSIONER 'OLAGHAT THE PROCESS OF ACQUISITION AS REQUIRED
UNDER 3ECTION OF THE ,AND !CQUISITION !CT HAVING NOT BEEN COMPLETE ANY
PREMATURE EVICTION WOULD BE ILLEGAL
4HE LEARNED COUNSEL RELIED ON THE DECISIONS OF THE 3UPREME #OURT IN 0RADEEP +RISHEN
VS 5NION OF )NDIA AND OTHERS !)2 3# )N PARAS AND OF THE JUDGMENT THE
FOLLOWING OBSERVATIONS ARE MADE
4HE DEPONENT FURTHER STATES THAT THERE ARE .ATIONAL 0ARKS AND 3ANCTUARIES IN
THE 3TATE OF -ADHYA 0RADESH OUT OF WHICH .ATIONAL 0ARKS ARE NALLY NOTIED UNDER
THE .ATIONAL 0ARK !CT AND ONE 3ANCTUARY IS NOTIED UNDER THE !CT AS AMENDED IN
BUT THE NAL NOTICATION IS YET TO BE ISSUED 4HE REMAINING .ATIONAL 0ARKS AND
3ANCTUARIES WERE NOTIED FROM TIME TO TIME UNDER THE !CT PRIOR TO ITS AMENDMENT
IN )N THESE .ATIONAL 0ARKS AND 3ANCTUARIES PROCEEDINGS UNDER 3ECTIONS TO
OF THE !CT WERE NOT TAKEN TO ACQUIRE THE RIGHTS OF THE PEOPLE 4HAT IS WHY THEY WERE
NOT NALLY NOTIED 4HE 3TATE 'OVERNMENT COULD NOT HAVE TAKEN AWAY THE RIGHTS
OF THE TRIBALS AND VILLAGERS DEPENDENT ON MINOR FOREST PRODUCE WITHOUT ACQUISITION
OF THOSE RIGHTS AFTER PAYMENT OF COMPENSATION )T IS FOR THIS REASON THAT THE NAL
NOTICATION UNDER 3ECTION ! COULD NOT BE ISSUED UNLESS PROVISION FOR PAYMENT OF
COMPENSATION AND REHABILITATION WERE SIMULTANEOUSLY MADE 3O ALSO IN REGARD TO
.ATIONAL 0ARKS THE NAL DECLARATION COULD NOT BE ISSUED UNDER 3ECTION OF THE !CT
FOR THE SAME REASON
/N A PLAIN READING OF THESE PROVISIONS IT IS THEREFORE OBVIOUS THAT THE PROCEDURE IN
REGARD TO ACQUISITION OF RIGHTS IN AND OVER THE LAND TO BE INCLUDED IN A 3ANCTUARY OF
.ATIONAL 0ARK HAS TO BE FOLLOWED BEFORE A NAL NOTICATION UNDER 3ECTION ! OR 3ECTION
IS ISSUED BY THE 3TATE 'OVERNMENT )N THE INSTANT CASE IT IS NOT THE CONTENTION
OF THE PETITIONER THAT THE PROCEDURE FOR THE ACQUISITION OF RIGHTS IN OR OVER THE LAND
OF THOSE LIVING IN THE VICINITY OF THE AREAS PROPOSED TO BE DECLARED AS 3ANCTUARIES AND
.ATIONAL 0ARKS UNDER 3ECTION ! AND OF THE !CT HAS BEEN UNDERTAKEN )T WAS FOR THIS
REASON THAT THE ORDER OF IN TERMS STATED THAT SINCE NO NAL NOTICATION WAS
ISSUED UNDER THE SAID PROVISIONS THE 3TATE 'OVERNMENT WAS NOT IN A POSITION TO BAR THE
ENTRY OR VILLAGERS LIVING IN AND AROUND THE 3ANCTUARIES AND THE .ATIONAL 0ARKS SO LONG
AS THEIR RIGHTS WERE NOT ACQUIRED AND NAL NOTICATIONS UNDER THE AFORESAID PROVISIONS
WERE ISSUED )T IS THEREFORE NOT POSSIBLE TO CONCLUDE THAT THE 3TATE 'OVERNMENT HAD
VIOLATED ANY PROVISION OF LAW IN ISSUING THE NOTICATION DATED
4HE LEARNED COUNSEL RELIED ON THE DECISION OF THIS #OURT IN *ALADHAR #HAKMA AND ETC ETC
VS 4HE $EPUTY #OMMISSIONER !IZAWL -IZORAM AND OTHERS!)2 'AU
4 / \
7 0 #
4HE LEARNED COUNSEL FOR THE PETITIONER IN 70# HAS SUBMITTED THAT THE
DOCUMENTS PRODUCED BY THE PETITIONER DISCLOSE THAT THEY HAVE BEEN PERMITTED TO GRAZE
AND THEY HAVE PAID THE REVENUE TO THE GOVERNMENT 0ETITIONERS ARE EXERCISING RIGHTS FOR
THE PAST TO YEARS 4HEREFORE WITHOUT PAYMENT OF COMPENSATION THEY CANNOT BE
SUMMARILY EVICTED
4HE COUNSEL FOR THE INTERVENING APPLICANTS IN )! AND HAS SUBMITTED
THAT "ANDURDUBI AND $EURCHUR #HAN VILLAGES ARE THE TWO VILLAGES THAT HAVE BEEN
DECLARED AS REVENUE VILLAGE BY THE GOVERNMENT THEREFORE IT DOES NOT FALL WITHIN THE
AREA OF THE .ATIONAL 0ARK HENCE THE EVICTION OF ANY VILLAGER FROM THE REVENUE VILLAGES
IS ILLEGAL )N THIS REGARD THE LEARNED !DVOCATE
'ENERAL HAS SUPPORTED THE CONTENTION OF
THE APPLICANTS THAT AS PER THE REVENUE RECORDS THE SAID TWO VILLAGES ARE REVENUE VILLAGE
AND NOT PART OF THE .ATIONAL 0ARK )N RESPECT OF OTHER AREAS IT IS SUBMITTED THAT THE 3TATE
WILL TAKE NECESSARY ACTION TO EVICT PERSONS IN ACCORDANCE WITH LAW
4HE COUNSEL FOR THE FOREST DEPARTMENT HAS SUBMITTED SATELLITE IMAGE OF +AZIRANGA
.ATIONAL 0ARK TAKEN ON LATITUDE DEGREE AND LONGITUDE
DEGREE FROM THE 'OOGLE %ARTH WHICH SHOWS THAT THERE IS NO HABITATION IN THE THIRD
!DDITION 4HE IMAGE TAKEN ON LATITUDE DEGREE AND LONGITUDE
DEGREE SHOWS THAT THERE IS NO HABITATION IN THE TH !DDITION 4HE IMAGE
TAKEN ON LATITUDE DEGREE AND LONGITUDE DEGREE SHOWS
THAT THERE IS HABITATION IN THE FTH !DDITION WHILE IMAGE TAKEN ON LATITUDE
DEGREE AND LONGITUDE DEGREE SHOWS THAT THERE IS HABITATION IN
THE THIRD !DDITION
7ITH REGARD TO $EURCHUR #HAN VILLAGE IT IS SUBMITTED THAT A NOTICATION WAS ISSUED BY
THE 'OVERNMENT IN THE YEAR DECLARING THAT THE ENTIRE AREA OF $EURCHUR #HAN AS
RESERVE FOREST
7ITH REGARD TO "ANDERDUBI VILLAGE IT IS SUBMITTED THAT THE REPORT OF THE $IRECTOR DISCLOSES
THAT THE 'OVERNMENT HAD GIVEN THE LAND FOR SOCIAL FORESTRY FOR RAISING PLANTATION IN THE
YEAR 4HERE HAS BEEN NO DEVELOPMENT OF SOCIAL FORESTRY )N THE BEGINNING THERE
WERE ONLY FAMILIES LIVING AS ENCROACHERS AND AS OF NOW IT IS SAID THAT THE WHOLE
VILLAGE HAS COME UP 4HE "ANDERDUBI AREA IS PART OF SOCIAL FOREST LAND AND ALSO A TIGER
RESORT AND ANIMAL CORRIDOR
0ER CONTRA THE LEARNED !DVOCATE
'ENERAL HAS SUBMITTED THAT SINCE NO SOCIAL FOREST WAS
DEVELOPED THE FOREST DEPARTMENT GAVE THE LAND TO THE GOVERNMENT AND ACCORDINGLY IT
HAS BECOME THE REVENUE VILLAGE
,EARNED SENIOR COUNSEL 3HRI +. #HOUDHURY RELIED ON THE DECISION OF THE 3UPREME #OURT
IN 4. 'ODAVARMAN 4HIRUMULKPAD V 5NION OF )NDIA AND OTHERS; 3## = )N
PARA OF THE JUDGMENT THE FOLLOWING OBSERVATIONS ARE MADE
4HE &OREST #ONSERVATION !CT WAS ENACTED WITH A VIEW TO CHECK FURTHER
DEFORESTATION WHICH ULTIMATELY RESULTS IN ECOLOGICAL IMBALANCE AND THEREFORE THE
PROVISIONS MADE THEREIN FOR THE CONSERVATION OF FORESTS AND FOR MATTERS CONNECTED
THEREWITH MUST APPLY TO ALL FORESTS IRRESPECTIVE OF THE NATURE OF OWNERSHIP OR
CLASSICATION THEREOF 4HE WORD FOREST MUST BE UNDERSTOOD ACCORDING TO ITS
DICTIONARY MEANING 4HIS DESCRIPTION COVERS ALL STATUTORILY RECOGNISED FORESTS
WHETHER DESIGNATED AS RESERVED PROTECTED OR OTHERWISE FOR THE PURPOSE OF 3ECTION
I OF THE &OREST #ONSERVATION !CT 4HE TERM FOREST LAND OCCURRING IN 3ECTION
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
WILL NOT ONLY INCLUDE FOREST AS UNDERSTOOD IN THE DICTIONARY SENSE BUT ALSO ANY
AREA RECORDED AS FOREST IN THE 'OVERNMENT RECORD IRRESPECTIVE OF THE OWNERSHIP
4HIS IS HOW IT HAS TO BE UNDERSTOOD FOR THE PURPOSE OF 3ECTION OF THE !CT 4HE
PROVISIONS ENACTED IN THE &OREST #ONSERVATION !CT FOR THE CONSERVATION OF
FORESTS AND THE MATTERS CONNECTED THEREWITH MUST APPLY CLEARLY TO ALL FORESTS SO
UNDERSTOOD IRRESPECTIVE OF THE OWNERSHIP OR CLASSICATION THEREOF 4HIS ASPECT
HAS BEEN MADE ABUNDANTLY CLEAR IN THE DECISIONS OF THIS #OURT IN !MBICA 1UARRY
7ORKS V 3TATE OF 'UJARAT 2URAL ,ITIGATION AND %NTITLEMENT +ENDRA V 3TATE OF 50
AND RECENTLY IN THE ORDER DATED
3UPREME #OURT -ONITORING #OMMITTEE
V -USSOORIE $EHRADUN $EVELOPMENT !UTHORITY 4HE EARLIER DECISION OF THIS
#OURT IN 3TATE OF "IHAR V "ANSHI 2AM -ODI HAS THEREFORE TO BE UNDERSTOOD IN
THE LIGHT OF THESE SUBSEQUENT DECISIONS 7E CONSIDER IT NECESSARY TO REITERATE THIS
SETTLED POSITION EMERGING FROM THE DECISIONS OF THIS #OURT TO DISPEL THE DOUBT IF
ANY IN THE PERCEPTION OF ANY 3TATE 'OVERNMENT OR AUTHORITY 4HIS HAS BECOME
NECESSARY ALSO BECAUSE OF THE STAND TAKEN ON BEHALF OF THE 3TATE OF 2AJASTHAN
EVEN AT THIS LATE STAGE RELATING TO PERMISSIONS GRANTED FOR MINING IN SUCH AREA
WHICH IS CLEARLY CONTRARY TO THE DECISIONS OF THIS #OURT )T IS REASONABLE TO ASSUME
THAT ANY 3TATE 'OVERNMENT WHICH HAS FAILED TO APPRECIATE THE CORRECT POSITION
IN LAW SO FAR WILL FORTHWITH CORRECT ITS STANCE AND TAKE THE NECESSARY REMEDIAL
MEASURES WITHOUT ANY FURTHER DELAY
4HE COUNSEL ALSO REFERRED TO THE PROVISIONS OF 3ECTION OF THE &OREST #ONSERVATION !CT
WHICH READS AS FOLLOWS
2ESTRICTION ON THE DERESERVATION OF FORESTS OR USE OF FOREST LAND FOR NON
FOREST
PURPOSE
.OTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER LAW FOR THE TIME
BEING IN FORCE IN A 3TATE NO 3TATE 'OVERNMENT OR OTHER AUTHORITY SHALL MAKE
EXCEPT WITH THE PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT MAY ORDER DIRECTING
I THAT ANY RESERVED FORESTWITHIN THE MEANING OF THE EXPRESSION RESERVED
FOREST IN ANY LAW FOR THE TIME BEING IN FORCE IN THAT 3TATE 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 ORGANISATION 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
%XPLANATION
&OR THE PURPOSES OF THIS SECTION NON
FOREST PURPOSE MEANS THE
BREAKING UP OR CLEARING OR ANY FOREST LAND OR POTION THEREOF FOR
A THE CULTIVATION OF TEA COFFEE SPICES RUBBER PALMS OIL
BEARING PLANTS
HORTICULTURE 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 WILD
LIFE NAMELY THE ESTABLISHMENT OF CHECK
POSTS RE LINES WIRELESS
COMMUNICATIONS AND CONSTRUCTION OF FENCING BRIDGES AND CULVERTS DAMS
WATERHOLES TRENCH MARKS BOUNDARY MARKS PIPELINES OR OTHER LIKE PURPOSES
4 / \
)N THE LIGHT OF THE DECISION OF THE 'ODAVARMAN CASE SUPRA IT IS ARGUED THAT THE DENITION
OF FOREST LAND ELUCIDATED BY THE 3UPREME #OURT NOT ONLY INCLUDES FOREST BUT ALSO ANY
AREA RECORDED AS FOREST IN THE GOVERNMENT RECORD IRRESPECTIVE OF THE OWNERSHIP AND
THIS HAS TO BE UNDERSTOOD FOR THE PURPOSE OF 3ECTION OF THE &OREST #ONSERVATION !CT
AND THAT THE PROVISIONS OF THE &OREST #ONSERVATION !CT MUST APPLY CLEARLY TO
ALL FORESTS SO UNDERSTOOD IRRESPECTIVE OF THE OWNERSHIP OR CLASSICATION )N THAT VIEW IT
IS ARGUED THAT THE "ANDERDUBI VILLAGE WHICH IS DECLARED TO BE SOCIAL FORESTRY CANNOT BE
DE RESERVED AND CONVERTED TO REVENUE VILLAGE )N THAT VIEW OF THE MATTER THE QUESTION
OF PERMITTING ANY HABITATION IN THE SAID AREAS DOES NOT ARISE
4HE GOVERNMENT HAS PRODUCED THE NAL NOTICATION ISSUED IN RESPECT OF THE SECOND
!DDITION WHICH IS DATED TH *ULY AND THE NAL NOTICATION ISSUED IN RESPECT OF
THE FOURTH !DDITION DATED TH !PRIL AND RESPECT OF THIRD FTH AND SIXTH !DDITIONS
NAL NOTICATION IS YET TO BE ISSUED
4HE REPORT OF THE #OLLECTOR FOR THE SECOND ADDITION OF THE +.0 IS AS FOLLOWS
2EPORT OF THE #OLLECTOR FOR ND !DDITION TO THE +AZIRANGA .ATIONAL 0ARK
)N RESPONSE TO OUR PROCLAMATION CLAIMS WERE RECEIVED $URING THE COURSE OF
HEARING OF THESE CLAIMS SOME MORE PEOPLE HAD APPROACHED STATING THAT THEY COULD
NOT LE THE CLAIM IN TIME 4HEY WERE ALLOWED TO LE THE SAME EVEN AT A SUBSEQUENT
DATE MUCH BEYOND THE TIME XED BY THE PROCLAMATION %LEVEN CLAIMS WERE RECEIVED
THEREAFTER MAKING A TOTAL OF CLAIMANTS !LL THESE CLAIM FORMS WERE REGISTERED
AS INDIVIDUAL CASES OF EACH CLAIMANT AND NOTICES WERE ISSUED TO EACH OF THEM
INDIVIDUALLY TO APPEAR BEFORE THE UNDERSIGNED WITH THE REQUIRED EVIDENCE IN
SUPPORT OF THEIR CLAIM &OR THE CONVENIENCE OF THE CLAIMANTS THE HEARING WAS XED
AT THE 2ANGE /FCE +AZIRANGA 2ANGE AT +OHORA &OUR CLAIMANTS WHO DID NOT APPEAR
ON THE RST OCCASION WERE GIVEN ANOTHER NOTICE TO GIVE THEM A SECOND OPPORTUNITY
OF PRESENTING THEIR CASES 7HATEVER EVIDENCE WAS FURNISHED BY EACH CLAIMANT WAS
RECORDED IN THE ORDER SHEET OF EACH INDIVIDUAL CASE WHERE AFTER BASED ON THESE
CLAIMS AND THE EVIDENCE FURNISHED NDINGS ON ALL THESE CLAIMS HAS BEEN RECORDED IN
EACH INDIVIDUAL CASE AND ALL CLAIMS HAVE BEEN DISPOSED OF
4HE INITIAL CLAIM OF A GROUP OF CLAIMANTS WAS THAT THEY ARE EROSION
AFFECTED PEOPLE
AND LAND HAD BEEN ALLOTTED TO THEM BY WAY OF REHABILITATION 4HEY COULD NOT
HOWEVER SHOW ANY PAPER ISSUED BY ANY 'OVERNMENT FUNCTIONARY MAKING SUCH AN
ALLOTMENT OF LAND AS CLAIMED BY THEM 4HE MATTER WAS FURTHER CHECKED FROM THE
#IRCLE /FCER "OKAKHAT #IRCLE WHO STATED THAT NO SUCH ALLOTMENT WAS EVER MADE IN
THE GIVEN AREA %VEN THE PATTERN OF OCCUPATION OF LAND DOES NOT SUPPORT THE CLAIM
THAT THIS LAND WAS EVER ALLOTTED TO THE CLAIMANTS BY WAY OF RESETTLEMENT .ORMALLY
RESETTLEMENT IS DONE IN SYMMETRICAL PLOTS EITHER OF BIGHAS OR BIGHAS FOR EACH
INDIVIDUAL FAMILY WHICH ARE DEMARCATED IN A BIGGER PIECE OF LAND 4HE LAND HELD
BY EACH FAMILY IS THUS EQUAL AND SIDE BY SIDE )N THE PRESENT SITUATION THE AREA OF
LAND OCCUPIED VARIES FROM PERSON TO PERSON AND IS SCATTERED ALL OVER THE PLACE 4HIS
CLEARLY INDICATES THAT THE CLAIM THAT THE LAND WAS ALLOTTED BY WAY OF RESETTLEMENT IS
NOT CORRECT
/UT OF THE CASES THE CLAIMANTS IN CASES AS LISTED OUT IN !NNEXURE PRODUCED
RECEIPTS OF PAYMENT OF 4OUZI "AHIRA 3OME OF THESE RECEIPTS WERE TAMPERED WHILE
IN ALL CASES ONLY THE AMOUNT AND THE NAME OF THE PERSON MAKING THE PAYMENT WAS
RECORDED IN THE RECEIPT .ORMALLY EVEN IN 4OUZI "AHIRA THE -OUZADAR ALLOTS A 4OUZI
NUMBER TO EACH OCCUPANT OF THE LAND AND RECORDS THE NAME OF THE ENCROACHERS 4HE
RECEIPTS FOR PAYMENT OF 4OUZI "AHIRA NORMALLY INDICATE THE 4OUZI NUMBER AND THE
PERSON ON WHOSE BEHALF THE MONEY HAS BEEN PAID BY THE PERSON PAYING THE SAME
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4HIS ISSUE IS HOWEVER ONLY OF ACADEMIC INTEREST 4OUZI "AHIRA IS A NE LAID DOWN
UNDER THE 2EVENUE ,AWS FOR ENCROACHMENT AND IS NOT AN EVIDENCE OF TITLE OVER THE
OCCUPIED LAND )N VIEW OF THIS ALL CLAIMS WHEREIN THE CLAIMANTS HAD PRODUCED
RECEIPTS OF PAYMENT OF 4OUZI "AHIRA HAVE BEEN REJECTED
4WENTY SEVEN CLAIMANTS AS LISTED IN !NNEXURE )) HAVE NO PAPER IN SUPPORT OF THEIR
CLAIM OVER THE LAND THAT THEY ARE OCCUPYING 4HEY DO NOT HAVE EVEN A 4OUZI "AHIRA
RECEIPT %VIDENTLY THEY HAVE NO TITLE OVER THE LAND THEY ARE OCCUPYING AND THE CLAIMS
WERE HENCE REJECTED
.INE CLAIMANTS AS LISTED IN !NNEXURE ))) ARE OF CLAIMS WHEREIN LAND HAS BEEN USED
FOR NON
!GRICULTURAL PURPOSES /NE OF THEM IS FOR A TEMPLE TWO ARE SELF
STYLED PUBLIC
SHERIES ONE IS A PRIMARY SCHOOL ONE IS AN ANGANWADI +ENDRA TWO ARE SELF
HELP
GROUPS AND TWO ARE PUBLIC ORGANIZATIONS .ONE OF THEM HAD ANY DOCUMENT TO SHOW
THAT THEY HAVE ANY TITLE OVER THE LAND THAT HAS BEEN OCCUPIED BY THEM 4HE CLAIMS
WERE HENCE REJECTED
3IX CASES AS LISTED IN !NNEXURE )6 WERE EITHER DUPLICATE CTITIOUS OR THE CLAIMANT
DID NOT APPEAR 4WO CASES ARE OF CLAIMANTS WHO DID NOT APPEAR DESPITE TWO NOTICES
HAVING BEEN ISSUED TO THEM 4HREE CASES WERE FOUND TO BE WHERE CLAIMS WERE LED
TWICE AND SEPARATE CASES HAD BEEN REGISTERED /NE CASE WAS FOUND TO BE CTITIOUS
.OTICES WERE ISSUED TWICE IN THIS BUT ON NEITHER OCCASION THE PERSON WAS FOUND 4HE
'AON "URAH HAS REPORTED THAT THERE IS NO SUCH PERSON
)N CONCLUSION THE CLAIMS IN ALL CASES HAVE BEEN REJECTED AS NO CLAIMANT HAD
ANYTHING TO ESTABLISH TITLE OVER THE LAND
!PART FROM THE EXERCISE TAKEN UP IN RESPONSE TO THE CLAIMS RECEIVED THE STATUS OF
LAND WAS CHECKED FROM THE LAND REVENUE RECORD OF THE AREA 4HE LAND INVOLVED IN
THE ND !DDITION IS SPREAD OVER FOUR 2EVENUE 6ILLAGES OF "OKAKHAT #IRCLE 4HESE ARE
3ILDUBI )
3ILDUBI ))
+AZIRANGA .ANKE 'AON
(ATIKHULI "AGICHA 'AON
)N VILLAGE 3ILDUBI .O ) THERE WAS "
+
, OF LAND COVERED BY ANNUAL PATTAS 4HIS
LAND WAS ACQUIRED VIDE ,AND !CQUISITION #ASE .O OF
OF 'OLAGHAT 3INCE THIS
LAND HAS BEEN ACQUIRED BY THE ABOVE MENTIONED ,AND !CQUISITION PROCEEDINGS
THE SAID LAND HAS BECOME SARKARI AND ALL RIGHTS AND TITLE OF THE PATTADARS HAS BEEN
EXTINGUISHED (OWEVER "
+
, OF LAND OUT OF THIS HAS NOT BEEN HANDED OVER AS THE
PATTADARS HAVE REFUSED TO LEAVE THEIR LAND 4HIS IS AN UNAUTHORISED OCCUPATION AND
NO RIGHT OR TITLE ON THE LAND HAS REMAINED AFTER THE ACQUISITION !N AREA OF "
+
, BEING PART OF THE ACQUIRED LAND WAS HANDED OVER TO THE $&/ %ASTERN !SSAM 7ILD
,IFE $IVISION "OKAKHAT ON
)N THE SAME VILLAGE "
+
, OF LAND WAS
COVERED BY PERIODIC PATTAS 4HIS LAND HAS ALSO BEEN ACQUIRED BY THE ABOVE MENTIONED
,AND !CQUISITION CASE OF 'OLAGHAT 4HOUGH THE LAND HAS NOT BEEN HANDED OVER AS
THE PATTADARS HAVE REFUSED TO LEAVE IT THE LAND IN QUESTION HAS BECOME 3ARKARI AS
THE SAME HAS BEEN ACQUIRED BY A ,AND !CQUISITION 0ROCEEDINGS AND NOBODY HAS ANY
TITLE OVER THE SAME "
+
, OF LAND IN VILLAGE 3ILDUBI .O ) IS 6'2 AND 0'2 LAND
4HE ENTIRE LAND IS ALREADY IN THE POSSESSION OF THE $&/ %ASTERN !SSAM 7ILD ,IFE
$IVISION "OKAKHAT "
+
, IS 'OVERNMENT LAND OF WHICH "
+
, HAS BEEN
HANDED OVER TO THE $&/ %ASTERN !SSAM 7ILD ,IFE $IVISION "OKAKHAT ON
WHILE "
+
, IS UNDER ENCROACHMENT
4 / \
4HE SECOND VILLAGE INVOLVED IS 3ILDUBI .O 4HIS HAS " + , OF LAND WHICH
ENTIRELY IS 'OVERNMENT LAND AS PER 2EVENUE RECORDS AND IS UNDER ENCROACHMENT !LL
CLAIMS THAT HAVE BEEN RECEIVED ARE FROM THIS VILLAGE ALONE !S ALREADY STATED THESE
CLAIMS HAVE BEEN EXAMINED AND REJECTED AS IT HAS BEEN FOUND THAT THE CLAIMANTS
HAVE NO RIGHT OR TITLE OVER THE LAND AND THEY ARE ONLY ENCROACHERS
4HE THIRD VILLAGE INVOLVED IS +AZIRANGA .ANKE 'AON 4HIS HAS "
+
, 4HE
ENTIRE LAND IS 'OVERNMENT LAND OUT OF WHICH "
+
, IS UNDER ENCROACHMENT
4HE REMAINING "
+
, WAS HANDED OVER TO THE $&/ %ASTERN !SSAM 7ILD ,IFE
$IVISION ON
AND IS WITH THE &OREST $EPARTMENT
4HE FOURTH VILLAGE INVOLVED IS (ATIKHULI "AGICHA 'AON )N THIS VILLAGE "
+
, WAS
PERIODIC PATTA LAND WHICH WAS ACQUIRED UNDER THE ,AND !CQUISITION !CT VIDE
,AND !CQUISITION #ASE .O
OF 'OLAGHAT 4HIS LAND HAS BEEN ACQUIRED AND
POSSESSION HANDED OVER TO THE $&/ %ASTERN !SSAM 7ILD ,IFE $IVISION "OKAKHAT ON
2EVENUE RECORDS IN THE #HITA HAD BEEN CORRECTED ON
!PART
FROM THIS THERE IS 'OVERNMENT LAND MEASURING "
+
, POSSESSION OF WHICH HAS
BEEN HANDED OVER TO THE $&/ %ASTERN !SSAM 7ILD ,IFE $IVISION "OKAKHAT ON
AND 2EVENUE RECORDS HAVE BEEN CORRECTED ACCORDINGLY
)T IS THUS CLEAR FROM EXAMINATION OF 2EVENUE RECORDS AS WELL AS AFTER CONSIDERATION
AND DISPOSAL OF ALL CLAIMS RECEIVED IN RESPECT OF THE ND !DDITION TO THE +AZIRANGA
.ATIONAL 0ARK THAT NOBODY HAS ANY LEGAL RIGHT OR TITLE OVER ANY LAND THAT HAS BEEN
NOTIED UNDER 3ECTION FOR THE ND !DDITION TO THE +AZIRANGA .ATIONAL 0ARK
4HE ENTIRE AREA INVOLVED IS "
+
, OF WHICH "
+
, IS ALREADY IN THE
POSSESSION OF THE +AZIRANGA .ATIONAL 0ARK "
+
, IS REMAINING WHICH HAS
SOME ENCROACHERS /NCE THE NOTICATION CONSTITUTING THE .ATIONAL 0ARK IS ISSUED
STEPS WOULD NEED TO BE TAKEN TO REMOVE THESE ENCROACHMENTS )T IS RECOMMENDED
THAT THE NAL NOTICATION UNDER 3ECTION BE ISSUED BY THE 'OVERNMENT
CONSTITUTING THE ND !DDITION TO THE +AZIRANGA .ATIONAL 0ARK UNDER THE 7ILD ,IFE
0ROTECTION !CT #ENTRAL !CT ./ OF
4HE CASE RECORDS OF ALL CLAIM CASES AND THE LE CONCERNING THE CORRESPONDENCES
IN CONNECTION WITH THE ND !DDITION TO THE +AZIRANGA .ATIONAL 0ARK ARE BEING
TRANSFERRED TO THE $IRECTOR +AZIRANGA .ATIONAL 0ARK "OKAKHAT FOR SAFE CUSTODY
(- #AIRAE
0RINCIPAL 3ECRETARY TO THE 'OVERNMENT OF !SSAM
(IGHER %DUCATION $EPARTMENT #OLLECTOR FOR ND !DDITION TO THE +AZIRANGA
.ATIONAL 0ARK $ISPUR
/ 0 ) .)/.
7 0 #
4HE PETITIONERS AND CLAIM TO BE RESIDENTS OF 3ILDUBI ) AND )) VILLAGES 4HEY CONTEND
THAT THEY ARE PATTA HOLDERS AND THEIR CLAIM HAS NOT BEEN SETTLED 4HE SAID CONTENTION
APPEARS TO BE PALPABLY UNTENABLE 4HE REPORT OF THE #OLLECTOR EXTRACTED SUPRA DISCLOSE
THAT ENQUIRY WAS HELD IN RESPECT OF SECOND ADDITION 4HERE WERE CLAIMS !LL THE
CLAIMS HAVE BEEN DECIDED )T WAS FOUND IN THE INQUIRY THAT NOBODY HAD ANY RIGHT OR
TITLE OVER THE LAND 4HE LANDS WERE TAKEN OVER VIDE LAND ACQUISITION CASE OF
4HE POSSESSION WAS DELIVERED TO THE FOREST WILDLIFE DIVISION /N AND
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
4HE REPORT FURTHER DISCLOSES THAT SOME OF THE RESIDENTS DESPITE THE ADJUDICATION OF
THEIR CLAIMS REFUSED TO LEAVE 4HE EXPERT COMMITTEE REPORT ALSO CORROBORATES THIS FACT
THAT IN THE AREAS IN THE SECOND ADDITION THERE WERE TEMPORARY STRUCTURES AND RECENTLY
CONSTRUCTED ONE 4HIS MATERIAL CLEARLY INDICATES THAT THE PETITIONERS TO HAVE NO RIGHT
OVER THE LAND IN ANY MANNER
4HE PETITIONERS AND ARE SAID TO BE THE RESIDENTS OF TO THE THIRD AND FTH ADDITIONS
4HE CONTENTION OF THE FOREST DEPARTMENT THAT THE CLAIMS ARE ADJUDICATED BY THE INQUIRY
AUTHORITY 4HE AVERMENTS MADE IN PARA OF THE WRIT PETITION CORROBORATE THE CONTENTION
THAT THE CLAIMS ARE ADJUDICATED SINCE THE PARA STATES THAT THE COMPENSATION AMOUNT OF
2S
IS DEPOSITED WITH THE 3UB
DIVISIONAL /FCER 4HE SAID AVERMENTS SUGGEST
THAT THE PETITIONERS HAVE KNOWLEDGE OF THE INQUIRY
4HE PETITIONER TO ARE SAID TO BE RESIDENTS OF (ALDIBARI VILLAGE WHICH IS A PART OF THE
FTH ADDITION 4HE AUTHORITIES HAVE FULLY COMPLIED WITH THE REQUIREMENTS OF LAW AND
CLAIMS HAVE BEEN SETTLED /NLY FORMAL ISSUANCE OF NAL NOTICATION FOR THIRD AND FTH
EDITIONS REMAINS 4HE PETITIONERS CANNOT CLAIM ANY RIGHT OVER THE LAND THAT HAS BEEN
ACQUIRED AND COMPENSATION IS DETERMINED AND DEPOSITED 0ETITIONERS HAVE SUPPRESSED
THE MATERIAL FACT 4HEY HAVE NOT STATED ANYTHING ABOUT THEIR PARTICIPATION IN THE
INQUIRY AND THE RIGHTS THEY HAVE OVER THE LAND IN QUESTION
4HE CONTENTION THAT FOR ACQUISITION BEFORE AMENDMENT OF 3ECTION ! IN THE YEAR
A RESOLUTION BY THE LEGISLATURE WAS MANDATORY FOR ISSUANCE OF PRELIMINARY NOTICATION
(ENCE THE ENTIRE PROCEEDING IS BAD IN LAW 4HE PROCEEDINGS FOR ACQUISITION BE IT UNDER
THE 7ILD ,IFE !CT OR THE ,AND !CQUISITION !CT ARE ONE AND THE SAME 4HE PETITIONERS OF
THE SECOND ADDITION AFTER CONCLUSION OF THE PROCEEDINGS AND HANDING OVER POSSESSION
BELATEDLY AFTER NINE YEARS CANNOT CHALLENGE THAT THEIR CLAIMS ARE NOT ADJUDICATED AND
THERE IS NO VALID NOTICATION FOR ACQUISITION
7ITH REGARD TO THE CONTENTION THAT FORMALITIES UNDER THE &OREST !CT IS NOT COMPLETED
DOES NOT HOLD WATER BECAUSE THE PETITION AVERMENTS DO NOT ANYWHERE ASSERT OR DISCLOSE
THAT THE PETITIONERS ARE 3CHEDULED 4RIBES OR OTHER TRADITIONAL DWELLERS OF THE FOREST )N
THE ABSENCE OF SUCH PLEADINGS THE CLAIM OF RIGHTS UNDER THE &OREST 2IGHTS !CT DOES NOT
ARISE
4HE DECISIONS CITED BY THE COUNSEL FOR THE PETITIONERS HAVE NO APPLICATION TO THE FACTS
SITUATION OF THE INSTANT CASE )N THE CITED CASE THE PETITIONERS HAVE ASSERTED THEIR RIGHTS
TO COLLECT TENDU LEAVES )N THIS CASE THE FACT SITUATION IS TOTALLY DIFFERENT 4HE ACQUISITION
AND EVICTION OF HUMAN HABITATION IS BEING DONE FOR PROTECTING THE WILDLIFE WHICH IS
EXPOSED TO RAMPANT POACHING 4HE AUTHORITIES HAVE COMPLIED WITH ALL THE FORMALITIES
-AYBE THERE MAY BE SOME TECHNICAL LAPSES BUT NONETHELESS THE PROCEDURES OF INQUIRY
CONDUCTED BY THE #OLLECTOR IS IN FULL CONSONANCE WITH PROCEDURES LAID DOWN UNDER
THE ,AND !CQUISITION !CT -ERELY BECAUSE THERE ARE SOME TECHNICAL LAPSES IN ISSUING
PRELIMINARY NOTICATION SHOULD NOT BE A CAUSE TO UNDOING THE RESULT OF THE ACQUISITION
PROCEEDINGS )F TECHNICAL VIEWS ARE TAKEN THERE WOULD BE SUBSTANTIAL DAMAGE TO THE
WILDLIFE AND NATIONAL INTERESTS
7ITH REGARD TO THE CONTENTION OF THE PETITIONERS IT IS SUBMITTED THAT THE PETITIONERS
HAVE ONLY GRAZING RIGHTS AND THEY ARE SAID TO BE RESIDENTS OF THE SIXTH ADDITION
4HE RIGHTS GRANTED TO THEM ARE ONLY IN THE NATURE OF LICENCE AND FOR A LARGER PUBLIC
INTEREST PETITIONERS ARE PREVENTED FROM GRAZING 4HEY CANNOT HAVE ANY LEGAL RIGHT
0ETITIONERS CAN APPROACH THE COMPETENT AUTHORITY TO ESTABLISH THEIR RIGHTS FOR SEEKING
COMPENSATION )N THE INQUIRY TO BE CONDUCTED BEFORE ISSUANCE OF THE NAL NOTICATION
THE PETITIONERS CAN PARTICIPATE AND SEEK COMPENSATION (ENCE THE RELIEF SOUGHT IN THE
4 / \
PETITION THAT THEY SHOULD NOT BE PREVENTED UNTIL COMPENSATION IS PAID IS UNTENABLE
4HE APPLICANTS ARE SEEKING TO GET IMPLEADED TO CHALLENGE THE EVICTION PROCEEDINGS )T
IS THE CASE OF THE APPLICANTS THAT THEY ARE RESIDENTS OF $EOCHARCHANG AND "ANDARDUBI
WHICH ARE REVENUE VILLAGES WITHIN THE TERRITORY OF +.0 4HE CLAIM OF THE PETITIONERS
IS ALSO SUPPORTED BY THE GOVERNMENT (OWEVER WE ARE UNABLE TO AGREE WITH THE
SUBMISSIONS SINCE $EOCHARCHANG IS DECLARED BY NOTICATION IN THAT IT IS A RESERVE
FOREST 4HE GOVERNMENT GAVE THE LANDS IN "ANDARDUBI FOR SOCIAL FORESTRY IN THE YEAR
4HERE WAS NO DEVELOPMENT OF SOCIAL FORESTRY 4HE ILLEGAL ENCROACHMENT STARTED
AND A VILLAGE HAS COME UP BY ENCROACHMENT )T IS THE STAND OF THE GOVERNMENT THAT
SINCE SOCIAL FORESTRY IS NOT DEVELOPED THE LANDS OF "ANDARDUBI WAS GIVEN BACK TO THE
GOVERNMENT AND THE LANDS ARE DERESERVED AND SHOWN AS REVENUE VILLAGE
4HE 3UPREME #OURT IN 'ODAVARMAN CASE SUPRA HAS LAID DOWN A RATIO THAT THE FOREST
LAND OCCURRING IN 3ECTION OF THE &OREST #ONSERVATION !CT NOT ONLY INCLUDES
FOREST AS UNDERSTOOD IN THE DICTIONARY SENSE BUT ALSO ANY AREA RECORDED AS FOREST IN THE
'OVERNMENT RECORD IRRESPECTIVE OF THE OWNERSHIP 4HIS IS HOW IT HAS BEEN UNDERSTOOD
FOR THE PURPOSE OF 3ECTION 4HE PROVISIONS OF 3ECTION I OF THE &OREST #ONSERVATION
!CT MANDATES THAT NO 3TATE 'OVERNMENT OR OTHER AUTHORITY SHALL MAKE EXCEPT
WITH PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT DE
RESERVE ANY FOREST AREA 7HEN
ONCE THE 'OVERNMENT HAS GIVEN THE LAND FOR SOCIAL FORESTRY IT IS IMPERMISSIBLE FOR THE
'OVERNMENT TO DERESERVE AND MAKE IT A REVENUE VILLAGE WITHOUT CONSENT OF THE #ENTRAL
'OVERNMENT BESIDES THE SAID AREA IS TIGER RESERVE AND ANIMAL CORRIDOR
4HE REPORT SUBMITTED BY $IRECTOR +AZIRANGA .ATIONAL 0ARK ON THE ORDERS OF THIS #OURT
ALSO STATES AT PAGE THAT "ANDARDUBI VILLAGE IS ANIMAL CORRIDOR )N THAT VIEW THE
CLAIM OF THE PERSONS WHO WANT TO GET IMPLEADED THAT THEY SHOULD NOT BE EVICTED
FROM "ANDARDUBI AND $EOCHARCHANG IS UNTENABLE )N SO FAR AS THESE TWO VILLAGES ARE
CONCERNED ONE IS DECLARED TO BE RESERVED FOREST AND OTHER IS DECLARED TO BE THE SOCIAL
FORESTRY AND ANIMAL CORRIDORS 4HE HUMAN HABITANTS OF THOSE AREAS CANNOT CLAIM RIGHT
OF OCCUPATION OR POSSESSION
4HE INDIVIDUAL CLAIMS FOR A HANDFUL OF PERSONS IS IN CONICT WITH THE PUBLIC AND NATIONAL
INTEREST 4HERE HAVE BEEN PERSISTENT AND REPEATED REPORTS OF POACHING OF RHINOCEROS
ELEPHANTS AND OTHER WILD ANIMALS )T IS IRRESISTIBLE INFERENCE THAT THE HABITANTS IN ++0
AREA WOULD FALL IN SUSPECT GROUP AND THEY WOULD BE WELL
ACQUAINTED WITH THE AREAS
AND ANIMAL MOVEMENTS THEREFORE THEY WOULD ALONE BE IN A POSITION TO DO POACHING
SUCCESSFULLY OR ABET POACHING BY OTHERS 4HE CONCEPT OF NATIONAL PARK IN THE 7ILD ,IFE
!CT CONTEMPLATES THAT THERE SHOULD BE NO HUMAN HABITATION
!RTICLE
! OF THE $IRECTIVE 0RINCIPLES OF THE #ONSTITUTION OF )NDIA MANDATES THAT THE
3TATE SHALL ENDEAVOUR TO PROTECT AND IMPROVE THE ENVIRONMENT AND TO SAFEGUARD THE
FORESTS AND WILDLIFE OF THE COUNTRY !RTICLE
!G FASTENS THE FUNDAMENTAL DUTIES ON
THE CITIZENS TO PROTECT AND IMPROVE THE NATURAL ENVIRONMENT INCLUDING FORESTS LAKES
RIVERS AND WILD LIFE AND TO HAVE COMPASSION FOR LIVING CREATURES
)N THE FACE OF THE #ONSTITUTIONAL OBLIGATIONS ON THE PART OF THE 3TATE WITH A CORRESPONDING
DUTY ON THE PART OF THE CITIZENS IT WOULD BE HIGHLY UNTENABLE ON THE PART OF THE PETITIONERS
TO TAKE TECHNICAL PLEAS AND EXPOSE THE WILD LIFE TO A GREAT DANGER OF EXTINCTION
4HE 3UPREME #OURT IN 5NION OF )NDIA AND ANOTHER VS 2EDEPPA AND !NOTHER R;
3## = HAS LAID DOWN THE FOLLOWING RATIO
4RUE THE JURISDICTION EXERCISED BY THE (IGH #OURT UNDER !RTICLE OR THE TRIBUNAL IS
NOT AS WIDE AS IT IS IN APPEAL OR REVISION BUT ONCE THE #OURT IS SATISED OF INJUSTICE OR
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
ARBITRARINESS THEN THE RESTRICTION SELF IMPOSED OR STATUTORY STANDS REMOVED AND NO
RULE OR TECHNICALITY ON EXERCISE OF POWER CAN STAND IN WAY OF RENDERING JUSTICE
)N THE INSTANT CASE ANY RIGID AND TECHNICAL VIEW WOULD ONLY HARM AND ENDANGER THE
WILDLIFE OF THE +.0 4HE JURISDICTION OF THIS #OURT UNDER OF THE #ONSTITUTION IS QUITE
WIDE 4HE PETITIONERS WHO HAVE APPROACHED THIS #OURT HAVE NO RIGHT OVER THE LAND AND
THEIR CLAIMS HAVE BEEN ADJUDICATED 4HE FACT THAT THE NAL NOTICATION IN RESPECT OF
THE RD AND FTH ADDITIONS IS NOT ISSUED IS NOT A GROUND FOR THE PETITIONERS TO OVERSTAY
ON THE LAND WHEN THEIR CLAIMS ARE ADJUDICATED 4HERE IS ALSO PROVISION UNDER THE ,AND
!CQUISITION !CT THAT IN URGENT SITUATIONS THE POSSESSION OF LAND IS TAKEN AND LATER ON
ADJUDICATION OF COMPENSATION PROCEDURES ARE FOLLOWED )N THAT VIEW OF THE MATTER EVEN
IF THE NAL NOTICATION IS NOT ISSUED SINCE THE CLAIMS OF THE PERSONS OF THIRD AND FTH
ADDITIONS ARE ADJUDICATED THEY CANNOT CLAIM RIGHT TO STAY IN THE LAND )F THE #OURT AS
ARGUED BY THE PETITIONERS TAKES A TECHNICAL VIEW IT WOULD ONLY ENDANGER THE WILDLIFE
IN THE +.0 AND THERE WOULD BE UNABATED ACTS OF POACHING (ENCE KEEPING IN VIEW THE
INTERESTS OF THE +.0 WHICH IS A 7ORLD (ERITAGE 3ITE WE ARE NOT INCLINED TO ACCEPT THE
CONTENTION OF THE PETITIONERS
)T MAY BE THAT THE RECOMMENDATION OF THE .ATIONAL "OARD IS TO BE TAKEN STILL IT IS OPEN
TO THE GOVERNMENT TO APPROACH THE .ATIONAL "OARD FOR ITS APPROVAL 7E DONT THINK THAT
THE .ATIONAL "OARD CAN TAKE ANY DIFFERENT VIEW THAN THE ONE TAKEN BY THE GOVERNMENT
FOR EXPANDING THE AREA OF THE +.0 +EEPING IN VIEW THE LARGER INTERESTS OF THE PUBLIC
AND THE #ONSTITUTION MANDATES THE CLAIM OF THE PETITIONERS IN 70# IS HELD
TO BE UNTENABLE AND ACCORDINGLY THE WRIT PETITION IS DISMISSED 3IMILARLY THE CLAIM OF
THE APPLICANTS IN )! AND FOR THE REASONS STATED ABOVE ARE DISMISSED
4HE CLAIM OF THE PETITIONERS IN 70# IS REJECTED 4HE $EPUTY #OMMISSIONERS
OF 'OLAGHAT 3ONITPUR AND .AGAON ARE DIRECTED TO TAKE EXPEDITIOUS STEPS TO EVICT THE
INHABITANTS IN THE SECOND THIRD FTH AND AS WELL THE SIX ADDITIONS OF THE +AZIRANGA
.ATIONAL 0ARK INCLUDING $EURCHUR #HANG "ANDERDUBI AND 0ALKHOWA WITHIN ONE
MONTH
4 / \
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
'5*!2!4 ()'(
#/524
4!",% /& *5$'%-%.43 !.$ /2$%23
'
ANPAT $ 0ARMAR !NR VS 3TATE OF 'UJARAT /RS
3## /NLINE 'UJ \
* AN !DHIKAR 3ANGH /RS VS 3TATE OF 'UJARAT /RS
3## /N,INE 'UJ \
4
ARABEN 2USPING 6ASAVA /RS VS 3TATE OF 'UJARAT /RS
3#! .O OF \
+AVSING VS $EPUTY OF &ORESTS /RS
3#! .O OF ETC \
"
ANSIABHAI 6ADIABHAI "AGUL VS 3TATE OF 'UJARAT /RS
3#! .O OF \
!
BHESING +ALIYABHAI $AMOR VS 3TATE OF 'UJARAT /RS
3## /NLINE 'UJ \
2
AMBHAI "HIKHABHAI -AKWANA VS 3TATE OF 'UJARAT /RS
3#! .O OF \
!
CTION 2ESEARCH IN #OMMUNITY (EALTH $EVELOPMENT !2#( /RS VS 3TATE OF
'UJARAT /RS
3## /N,INE 'UJ \
"
ARIYA -ONGHIBEN 3HANABHAI /RS VS 0ROGRAMME !DMIN /RS
3## /N,INE 'UJ \
"ARIYA 0ARVATSINH 3HANKARBHAI /RS VS 0ROGRAMME !DMIN /RS
3## /N,INE 'UJ \
4 / \
0RAHLADBHAI -AGANLAL *ANI #HUNRIWALA -ATAJI VS !CTION 2ESEARCH IN
#OMMUNITY (EALTH AND $EVELOPMENT
3## /N,INE 'UJ \
3
AURASHTRA $ALIT 3ANGATHAN /RS VS 3TATE OF 'UJARAT /RS
70 0), .O /F \
!
MRABHAI -AGANBHAI 0ATEL VS 0ROGRAMME !DMINISTRATOR
3#! .O OF \
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
'ANPAT $ 0ARMAR !NR VS 3TATE OF
'UJARAT /RS
30%#)!, #)6), !00,)#!4)/. ./ /&
'5*!2!4 ()'( #/524
#/2!- !+), +52%3() *
#)4!4)/. 3## /.,).% '5*
3 5--!29
4HIS IS A WRIT PETITION FILED BY TRIBALS OCCUPYING FOREST LAND FOR PERSONAL CULTIVATION
AS FAR BACK AS 4HEY WERE ABLE TO OBTAIN AN INTERIM ORDER PROTECTING THEM
FROM DISPOSSESSION DURING THE PENDENCY OF THE PETITION "Y THE TIME THE PETITION
CAME UP FOR HEARING THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT &2! HAD COME INTO FORCE 2ELYING UPON THE
THEN RECENTLY ENACTED LAW THE PETITIONERS SOUGHT PERMISSION TO FILE APPLICATIONS
UNDER THE SAID LAW FOR RECOGNITION OF RIGHTS WHICH THE #OURT READILY GRANTED
4HE #OURT ALSO DIRECTED THAT UNTIL THE APPLICATION OF THE PETITIONERS IS DISPOSED OF
THE STATUS QUO SHALL BE MAINTAINED MEANING THEREBY THAT IF THE PETITIONERS ARE IN
POSSESSION OF THE LAND IN QUESTION THEIR POSSESSION SHALL NOT BE DISTURBED
/2!, * 5$ '-% . 4
0ETITIONERS ARE TRIBALS OCCUPYING FOREST LAND FOR PERSONAL CULTIVATION SINCE YEARS 4HEY
LED THIS PETITION SEEKING REGULARIZATION OF SUCH OCCUPATION )NTERIM RELIEF WAS GRANTED
IN THEIR FAVOUR DURING THE PENDENCY OF THE PETITION ,EARNED ADVOCATE FOR THE PETITIONERS
SUBMITTED THAT AFTER LING OF THE PETITION THE 'OVERNMENT HAS FRAMED A LAW NAMELY
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT GIVING CERTAIN PRIVILEGES AND GRANTING PROTECTION TO SUCH TRIBALS (E SUBMITTED
THAT THE 'OVERNMENT HAS ALSO ISSUED CIRCULARS FROM TIME TO TIME TO CONSIDER SUCH CASES
#OUNSEL FOR THE PETITIONERS SUBMITTED THAT THE PETITIONERS WILL MAKE A REPRESENTATION
IN THIS REGARD TO THE $ISTRICT #OLLECTOR )F SUCH REPRESENTATION IS MADE WITHIN A PERIOD OF
FOUR WEEKS FROM TODAY THE SAME SHALL BE CONSIDERED IN ACCORDANCE WITH LAW BEARING
IN MIND THE STATUTES APPLICABLE AND THE 'OVERNMENT POLICY PREVAILING )F THE ULTIMATE
4 / \
DECISION OF THE #OLLECTOR IS ADVERSE TO THE PETITIONERS IT WILL BE OPEN TO THEM TO CHALLENGE
THE SAME IN ACCORDANCE WITH LAW 4ILL THE REPRESENTATION IS DISPOSED OF STATUS QUO SHALL
BE MAINTAINED BY BOTH SIDES
7ITH THE ABOVE DIRECTIONS THE PETITION IS DISPOSED OF 2ULE IS MADE ABSOLUTE TO THE ABOVE
EXTENT
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
*AN !DHIKAR 3ANGH /RS VS 3TATE OF
'UJARAT /RS
3#! ./ /&
()'( #/524 /& '5*!2!4
#/2!- 3* -5+(/0!$(!9! #* !.$ - 4(!+%2 *
#)4!4)/. 3## /.,).% '5*
3 5--!29
4HE WRIT PETITION HAD BEEN FILED BY THE MEMBERS OF THE 2ABARI 4RIBE WHICH HAVE
MIGRATED FROM 'IR !LECH AND "ARODA FOREST AREAS 4HEY SUBMITTED THAT ALTHOUGH
A 3TATE GOVERNMENT CIRCULAR WAS ISSUED AS FAR BACK AS TO RECOGNIZE THEIR
3CHEDULED 4RIBE STATUS EVEN IN SPITE OF THEIR MIGRATION TO ANOTHER PART OF THE
3TATE THIS HAD NOT BEEN DONE !S A RESULT THE PETITIONERS WERE NOT BEING ABLE TO
ENJOY THEIR FOREST RIGHTS UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! 4HE PETITIONERS SOUGHT
GRANT OF CERTIFICATE IN FAVOUR OF THE 3CHEDULED 4RIBE COMMUNITY PERSONS IN FORESTS
OF !LECH 'IR AND "ARODA UNDER THE 3CHEDULED #ASTES AND 3CHEDULED 4RIBES ,ISTS
-ODIFICATION /RDER
4HE 3TATE GOVERNMENT BROUGHT TO THE NOTICE OF THE #OURT THAT THE #OMMITTEES AS
REQUIRED UNDER THE &2! HAVE BEEN CONSTITUTED TO DETERMINE THE 3CHEDULED 4RIBES
OF FOREST AREA WHO ARE ENTITLED FOR SUCH BENEFIT
4HE #OURT HELD THAT MEMBERS OF THE 2ABARI "HARWAD AND #HARAN TRIBES IF THEY WERE
RESIDING IN THE FOREST AREA OF 'IR !LECH AND "ARODA AND EVEN IF THEY SUBSEQUENTLY
MIGRATED THEY ARE ENTITLED TO GET THE STATUS OF A 3CHEDULED 4RIBE 4HE STATUS OF THOSE
MEMBERS BORN THEREAFTER WOULD BE DETERMINED ON THE BASIS OF THE DOMICILE OF THE
PARENTS 4HE #OURT DIRECTED THAT IF ACTION HAD NOT BEEN TAKEN WITH REGARD TO ANY
MEMBER OF THE 2ABARI "HARWAD AND #HARAN COMMUNITY WHOSE ANCESTORS WERE
RESIDING IN THE MENTIONED FOREST AREAS ON OR BEFORE THE AUTHORITIES WERE
BOUND TO CONSIDER THEIR APPLICATIONS UNDER &2! ON THE BASIS THAT THEY ARE 34S AND
PASS APPROPRIATE ORDERS )F ANY SUCH ORDERS HAD NOT BEEN PASSED IN RESPECT OF SUCH
PERSONS THEY WOULD BE ENTITLED TO MOVE THE #OMMITTEE UNDER &2! WHICH WAS TO
PASS ORDERS WITHIN MONTHS
4 / \
% $ ) 4 /23 . /4%
)T IS SEEN FROM THIS JUDGMENT THAT THROUGH THE SIMPLE METHOD OF APPROACHING THE
ISSUE FROM THE PERSPECTIVE OF THE OBJECTIVE OF THE &2! NAMELY THE CORRECTION OF
HISTORICAL WRONG AGAINST FOREST DWELLERS THE #OURT WAS ABLE TO ISSUE DIRECTIONS
WHICH WHILE OUTSIDE THE STRICTLY TECHNICAL FRAMEWORK OF THE LAW NEVERTHELESS
SERVED THE ENDS OF JUSTICE 4HIS APPROACH IS DEFINITELY ONE WHICH DESERVES EMULATION
IN OTHER 3TATES WHERE COMMUNITIES WHICH OUGHT TO HAVE THE 3CHEDULED 4RIBE STATUS
HAVE BEEN DENIED THE BENEFIT OF THE &2! DUE TO ADMINISTRATIVE INERTIA
/2$%2
THE /RDER OF THE #OURT WAS PRONOUNCED BY 3* -UKHOPADHAYA #*
4HIS WRIT PETITION IN THE INTEREST OF 3CHEDULED 4RIBES HAS BEEN PREFERRED BY THE PETITIONERS
ALLEGING INACTION ON THE PART OF THE RESPONDENTS NOT IMPLEMENTING ITS CIRCULARS AND
GUIDELINES &URTHER PRAYER HAS BEEN MADE TO ALLOW APPROPRIATE CERTICATE IN FAVOUR OF THE
PETITIONERS WHO BELONG TO !LECH &OREST NESSES OF +UTIYANA 4ALUKA IN 0ORBANDAR $ISTRICT
4HE LEARNED COUNSEL FOR THE PETITIONERS WOULD SUBMIT THAT THE RESPONDENTS HAVE NOT
ISSUED APPROPRIATE CERTICATE IN FAVOUR OF THE 3CHEDULED 4RIBES THOUGH THE CIRCULAR WAS
SO ISSUED AS FAR BACK AS ON FOR VERICATION OF THE 3CHEDULED 4RIBE STATUS OF
2ABARI "HARWARD WHO HAVE MIGRATED FROM THE 'IR !LECH AND "ARDA FOREST AREAS
0ER CONTRA ACCORDING TO THE COUNSEL FOR THE 3TATE THE PETITIONERS HAVING SOUGHT FOR
CERTICATE SHOWING THEM AS A TRIBE OF !LECH THE PETITION CANNOT BE ENTERTAINED AS A
PUBLIC INTEREST LITIGATION
7E HAVE HEARD THE LEARNED COUNSEL FOR THE PARTIES AND PERUSED THE RECORD
)N THE PRESENT CASE AS WE ND THAT THE PETITIONERS HAVE MADE A PRAYER FOR GRANT OF
CERTICATE IN FAVOUR OF THE 3CHEDULED 4RIBE COMMUNITY PERSONS AND HAVE ALSO CLAIMED
TO BE MEMBERS OF THE SAID 4RIBE WE ARE NOT INCLINED TO REJECT THE WRIT PETITION ON THE
GROUND THAT THIS IS A PERSON INTERESTED LITIGATION 'RANT OF CERTICATE IN FAVOUR OF THE
3CHEDULED 4RIBES IS IN THE INTEREST OF THE PUBLIC 4HEREFORE WE ARE INCLINED TO ISSUE THE
APPROPRIATE DIRECTIONS ON THE RESPONDENTS
7E HAVE ALREADY NOTICED THAT THE #ENTRAL 'OVERNMENT HAS ENACTED THE !CT KNOWN AS
3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT 5NDER THE SAID !CT VARIOUS TRIBES OF 3CHEDULED 4RIBES AND OTHER TRADITIONAL
FOREST DWELLERS HAVE BEEN MENTIONED 4HE RESPONDENT
3TATE HAVE ALREADY BROUGHT TO
THE NOTICE OF THE #OURT THAT THE #OMMITTEES AS REQUIRED UNDER THE SAID !CT HAVE BEEN
CONSTITUTED TO ND OUT THE 3CHEDULED 4RIBES OF FOREST AREA WHO ARE ENTITLED FOR SUCH
BENET 4HEREFORE IF ONE OR OTHER PETITIONER OR OTHER 3CHEDULED 4RIBE IS RESIDING IN THE
FOREST AREA THEY ARE ENTITLED TO DERIVE THE ADVANTAGE OF THE 3CHEDULED 4RIBES AND OTHER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT AND THE #OMMITTEE
MAY DECLARE THAT THEY ARE 3CHEDULED 4RIBE OF SUCH FOREST AREA
3O FAR AS VERICATION OF 3CHEDULED 4RIBE STATUS OF 2ABARI "HARWAD AND #HARAN IS
CONCERNED IF ORIGINALLY THEY WERE RESIDING IN THE FOREST AREAS OF 'IR !LECH AND "ARDA
EVEN IF THEY HAVE MIGRATED FROM 'IR !LECH AND "ADRA FOREST AREAS TO OTHER PLACES OF
THE 3TATE OF 'UJARAT AS PER THE CIRCULAR DATED THEY ARE ALSO ENTITLED TO GET
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
CERTICATE OF 3CHEDULED 4RIBE 4HOSE 2ABARI "HARWAD AND #HARAN THEREAFTER BORN SHALL
ON THE BASIS OF THE DOMICILE OF THEIR PARENTS ON THE DATE OF THE NOTICATION IF THEY WERE
RESIDING IN THE FOREST AREAS OF 'IR !LECH AND "ARDA ALSO BE ENTITLED TO GET THE 3CHEDULED
4RIBE CERTICATE THOUGH THEY MIGHT HAVE BEEN MIGRATED FROM 'IR !LECH AND "ARDA FOREST
AREAS AND ARE LIVING IN OTHER PLACES OF THE 3TATE
4HE 3TATE HAVING NOTICED THAT 2ABARI "HARWAD AND #HARAN CATEGORY PERSONS ARE FACING
GREAT DIFCULTIES IN OBTAINING THE CASTE CERTICATE HAVING ISSUED CIRCULAR DATED
THE RESPONDENTS ARE BOUND TO ACT IN TERMS WITH THE SAID CIRCULAR AND GRANT APPROPRIATE
CERTICATE IN FAVOUR OF THE SUCH PERSONS AFTER VERICATION OF THE RELEVANT RECORD AND
EVIDENCE )T IS EXPECTED THAT THE #OMMITTEE IN TERMS OF THE CIRCULAR COMPRISING OF 4ALUKA
-AMLATDAR 4ALUKA $EVELOPMENT /FCER AND 4ALUKA CONCERNED 2ANGE &OREST /FCER
HAVE BEEN CONSTITUTED AND THE SAID #OMMITTEE IS REQUIRED TO ACT AS PER THE CIRCULAR DATED
)F SUCH ACTION HAS NOT BEEN TAKEN WITH REGARD TO ANYONE OR OTHER MEMBER OF
2ABARI "HARWAD AND #HARAN COMMUNITY WHOSE ANCESTRAL WERE ORIGINALLY RESIDING IN
THE FOREST AREAS OF 'IR !LECH AND "ARDA ON OR BEFORE THE AUTHORITIES ARE BOUND
TO CONSIDER THEIR CASE AND PASS APPROPRIATE ORDERS )F ANY SUCH ORDER HAS NOT BEEN PASSED
IN RESPECT OF ONE OR OTHER PERSONS SUCH PERSON MAY MOVE BEFORE THE #OMMITTEE AND THE
#OMMITTEE IS EXPECTED TO GO THROUGH ALL THE RECORDS AND PASS ORDERS PREFERABLY WITHIN
THREE MONTHS )F NO SUCH COMMITTEE IS CONSTITUTED OR MEMBERS ARE TO BE INDUCTED THE
RESPONDENTS ARE DIRECTED TO CONSTITUTE OR INDUCT SUCH MEMBERS WITHIN A MONTH
7E MAY ONLY MENTION THAT WE HAVE NOT EXPRESSED ANY OPINION WITH REGARD TO ANY OF
THE PETITIONERS WHETHER THEY BELONG TO A PARTICULAR COMMUNITY OR NOT
4HE WRIT PETITION STANDS DISPOSED OF WITH THE AFORESAID OBSERVATIONS AND DIRECTIONS
BUT THERE SHALL BE NO ORDER AS TO COSTS
4 / \
4ARABEN 2USPING 6ASAVA /RS VS
3TATE OF 'UJARAT /RS
3#! ./ /&
()'( #/524 /& '5*!2!4
#/2!- -$ 3(!( *
3 5 - -!29
4HE PETITIONERS WERE TRIBALS OCCUPYING FOREST LAND FOR PERSONAL CULTIVATION FOR A
NUMBER OF YEARS 4HEY HAD FILED THIS PETITION IN SEEKING REGULARIZATION OF
SUCH OCCUPATION
)N THE MEANWHILE THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT &2! WAS ENACTED AND CIRCULARS ISSUED BY
THE GOVERNMENT FROM TIME TO TIME FOR ITS IMPLEMENTATION !CCORDINGLY COUNSEL FOR
THE PETITIONERS SUBMITTED THAT THEY WOULD MAKE A REPRESENTATION IN THIS REGARD TO
THE $ISTRICT #OLLECTOR SIC
4HE #OURT DIRECTED THAT SUCH REPRESENTATION BE MADE WITHIN A PERIOD OF FOUR WEEKS
IN ACCORDANCE WITH THE LAW )F THE ULTIMATE DECISION OF THE #OLLECTOR SIC IS ADVERSE
TO THE PETITIONERS IT WILL BE OPEN TO THEM TO CHALLENGE THE SAME IN ACCORDANCE WITH
LAW )T ALSO DIRECTED THAT TILL THE DISPOSAL OF THE REPRESENTATION STATUS QUO SHALL BE
MAINTAINED
% $ ) 4 /23 . /4%
7HILE IT IS HEARTENING THAT PETITIONERS ALREADY BEFORE THE #OURT FOR PROTECTION OF
THEIR RIGHTS IN FOREST LANDS ARE TAKING ADVANTAGE OF THE SUBSEQUENT ENACTMENT OF
THE &2! AND ARE BEING ALLOWED TO DO SO BY THE #OURTS IT NEVERTHELESS IS A MATTER
OF CONCERN THAT THE DIRECTIONS PASSED ARE NOT IN ACCORDANCE WITH THE PROCEDURE IN
THE !CT )T IS THE 'RAM 3ABHA AND NOT THE $ISTRICT #OLLECTOR BEFORE WHOM SUCH AN
APPLICATION IS REQUIRED TO BE MADE
)N SUBSEQUENT DECISIONS AS AWARENESS ABOUT THE &2! GATHERED GROUND SUCH ERRORS
WERE MADE LESS FREQUENTLY
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
/2$ % 2
0ETITIONERS ARE TRIBALS OCCUPYING FOREST LAND FOR PERSONAL CULTIVATION SINCE YEARS 4HEY
LED THIS PETITION SEEKING REGULARIZATION OF SUCH OCCUPATION )NTERIM RELIEF WAS GRANTED
IN THEIR FAVOUR DURING THE PENDENCY OF THE PETITION ,EARNED ADVOCATE FOR THE PETITIONERS
SUBMITTED THAT AFTER LING OF THE PETITION THE 'OVERNMENT HAS FRAMED A LAW NAMELY
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT GIVING CERTAIN PRIVILEGES AND GRANTING PROTECTION TO SUCH TRIBALS (E SUBMITTED
THAT THE 'OVERNMENT HAS ALSO ISSUED CIRCULARS FROM TIME TO TIME TO CONSIDER SUCH CASES
#OUNSEL FOR THE PETITIONERS SUBMITTED THAT THE PETITIONERS WILL MAKE A REPRESENTATION
IN THIS REGARD TO THE $ISTRICT #OLLECTOR )F SUCH REPRESENTATION IS MADE WITHIN A PERIOD OF
FOUR WEEKS FROM TODAY THE SAME SHALL BE CONSIDERED IN ACCORDANCE WITH LAW BEARING
IN MIND THE STATUTES APPLICABLE AND THE 'OVERNMENT POLICY PREVAILING )F THE ULTIMATE
DECISION OF THE #OLLECTOR IS ADVERSE TO THE PETITIONERS IT WILL BE OPEN TO THEM TO CHALLENGE
THE SAME IN ACCORDANCE WITH LAW 4ILL THE REPRESENTATION IS DISPOSED OF STATUS QUO SHALL
BE MAINTAINED BY BOTH SIDES
7ITH THE ABOVE DIRECTIONS THE PETITION IS DISPOSED OF 2ULE IS MADE ABSOLUTE TO THE ABOVE
EXTENT
4 / \
+AVSING VS $EPUTY OF &ORESTS /RS
3#! ./ /& %4#
()'( #/524 /& '5*!2!4
#/2!- -$ 3(!( *
3 5 - -!29
4HIS WRIT PETITION APPEARS TO HAVE BEEN FILED FOR PROTECTION OF FOREST RIGHTS AS
INDICATED IN A PREVIOUS ORDER WHICH REFERS TO A REPORT OF LOCAL INSPECTION OF THE LAND
SUBMITTED BY THE 2ANGE &OREST /FFICER
!LTHOUGH THE COUNSEL FOR THE PETITIONERS DID NOT APPEAR DESPITE SEVERAL
OPPORTUNITIES THE GOVERNMENT COUNSEL APPEARING FOR THE RESPONDENT 3TATE STATED
AT THE BAR THAT ALTERNATIVE REMEDY WAS PROVIDED UNDER THE 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
4HE #OURT DISPOSED OF THE WRIT PETITION IN TERMS OF THE STATEMENT MADE AT THE BAR
% $ ) 4 /23 . /4%
!GAIN IT IS HEARTENING TO FIND THAT A POSITIVE ORDER HAS BEEN PASSED BY THE #OURT IN
THE INTERESTS OF JUSTICE DESPITE THE ABSENCE OF THE COUNSEL FOR THE PETITIONERS
/2$%2
7HEN THESE MATTERS WERE LISTED YESTERDAY LEARNED ADVOCATE FOR THE PETITIONERS WAS NOT
PRESENT 4ODAY ALSO EVEN IN THE SECOND ROUND HE IS NOT PRESENT (OWEVER LEARNED !'0S
FOR THE RESPONDENT
3TATE IN ALL THE PETITIONS REMAINED PRESENT YESTERDAY AND ARE PRESENT
TODAY ALSO
,EARNED !'0 -R ,2 0UJARI FOR THE RESPONDENT 3TATE HAS STATED AT THE BAR THAT ALTERNATIVE
REMEDY IS PROVIDED UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT 4HE PETITIONERS SHALL AVAIL OF THE ALTERNATIVE
REMEDY AS PROVIDED UNDER THE !CT 7ITH THIS OBSERVATION AND IN VIEW OF THE STATEMENT
MADE BY LEARNED !'0 -R 0UJARI THESE PETITIONS STAND DISPOSED OF
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
"ANSIABHAI 6ADIABHAI "AGUL VS 3TATE
OF 'UJARAT /RS
3#! ./ /&
()'( #/524 /& '5*!2!4
#/2!- -$ 3(!( *
3 5--!29
4HIS PETITION WAS FILED IN BY A TRIBAL SEEKING REGULARIZATION OF PERSONAL
CULTIVATION OVER FOREST LAND WHICH HE HAD BEEN CULTIVATING FOR MANY YEARS
3UBSEQUENTLY THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT &2! WAS ENACTED
7HEN THE ENACTMENT OF &2! WAS BROUGHT TO ITS ATTENTION THE #OURT PASSED AN ORDER
PERMITTING THE PETITIONER TO FILE A REPRESENTATIONAPPLICATION UNDER 3ECTION OF
THE &2! BEFORE THE COMPETENT AUTHORITY WHICH WILL CONSIDER IT IN ACCORDANCE WITH
THE LAW AND DISPOSED OF THE WRIT PETITION ACCORDINGLY
4HE #OURT DIRECTED THAT UNTIL SUCH DISPOSAL OF THE APPLICATION STATUS QUO WOULD
BE MAINTAINED MEANING THEREBY THAT THERE WOULD BE NO DISPOSSESSION )T FURTHER
DIRECTED THAT IN THE EVENT THAT THE ORDER IS ADVERSE THE PETITIONER WOULD HAVE THE
LIBERTY TO APPROACH THE #OURT AGAIN
% $ )4/23 . /4%
)N THIS DECISION THE #OURT HAS TAKEN CARE TO DIRECT THAT THE APPLICATION BE SUBMITTED
BEFORE THE COMPETENT AUTHORITY UNDER 3ECTION OF THE &2! WHICH IS THE 'RAM
3ABHA 0ROTECTING THE POSSESSION OF THE PETITIONER OF THE LAND IN QUESTION UNTIL THE
DISPOSAL OF HIS APPLICATION IS ALSO A WELCOME STEP
/2$ % 2
0ETITIONER IS TRIBAL OCCUPYING FOREST LAND FOR PERSONAL CULTIVATION SINCE YEARS 4HEY LED
4 / \
THIS PETITION SEEKING REGULARIZATION OF SUCH OCCUPATION )NTERIM RELIEF WAS GRANTED IN
THEIR FAVOUR DURING THE PENDENCY OF THE PETITION ,EARNED ADVOCATE FOR THE PETITIONERS
SUBMITTED THAT AFTER LING OF THE PETITION THE 'OVERNMENT HAS FRAMED A LAW NAMELY
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT @THE SAID !CT GIVING CERTAIN PRIVILEGES AND GRANTING PROTECTION TO
SUCH TRIBALS (E SUBMITTED THAT THE 'OVERNMENT HAS ALSO ISSUED CIRCULARS FROM TIME TO
TIME TO CONSIDER SUCH CASES
#OUNSEL FOR THE PETITIONERS SUBMITTED THAT THE PETITIONERS WILL MAKE A REPRESENTATION
IN THIS REGARD TO THE COMPETENT AUTHORITY AS PER 3ECTION OF THE SAID !CT )F SUCH
REPRESENTATION IS MADE WITHIN A PERIOD OF FOUR WEEKS FROM TODAY THE SAME SHALL BE
CONSIDERED IN ACCORDANCE WITH LAW BEARING IN MIND THE STATUTES APPLICABLE AND THE
'OVERNMENT POLICY PREVAILING )F THE ULTIMATE DECISION OF THE AUTHORITY IS ADVERSE TO THE
PETITIONERS IT WILL BE OPEN TO THEM TO CHALLENGE THE SAME IN ACCORDANCE WITH LAW 4ILL
THE REPRESENTATION IS DISPOSED OF STATUS QUO SHALL BE MAINTAINED BY BOTH SIDES
7ITH THE ABOVE DIRECTIONS THE PETITION IS DISPOSED OF 2ULE IS MADE ABSOLUTE TO THE ABOVE
EXTENT
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
!BHESING +ALIYABHAI $AMOR VS 3TATE
OF 'UJARAT /RS
3#! ./3 !.$ /&
()'( #/524 /& '5*!2!4
#/2!- +- 4(!+%2 *
#)4!4)/. 3## /.,).% '5*
3 5--!29
4HE WRIT PETITIONERS ARE MEMBERS OF 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST
DWELLERS WHO ARE ENGAGED IN CULTIVATION AND OTHER ACTIVITIES IN FOREST LANDS
4HEY APPROACHED THE #OURT FOR PROTECTION UNDER THE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! AS THE
RESPONDENT 3TATE GOVERNMENT OFFICIALS WERE ATTEMPTING TO PREVENT THEM FROM
ENGAGING IN THEIR TRADITIONAL ACTIVITIES
4HE PETITIONERS ALSO URGED THE #OURT STRONGLY FOR INTERIM ORDERS PROTECTING THEIR
RIGHTS PARTICULARLY THEIR RIGHT TO CULTIVATE THEIR LANDS DURING THE SHORT MONSOON
SEASON 4HEY ARGUED THAT THEIR APPLICATIONS HAVE BEEN APPROVED BY THE 'RAM 3ABHA
WHICH IS THE BODY CONSTITUTED UNDER THE &2! FOR DETERMINATION OF RIGHTS AND ARE
PENDING BEFORE THE NODAL AGENCY
4HE #OURT DISPOSED OF THE MATTER AT THE PRELIMINARY STAGE ITSELF IN LIGHT OF THE
FACT THAT THE COUNSEL FOR THE 3TATE GOVERNMENT VERY REASONABLY STATED THAT IF
THE PETITIONERS APPLICATIONS ARE INDEED PENDING BEFORE THE 3TATE -ONITORING
#OMMITTEE THEY SHALL BE DULY CONSIDERED !CCORDINGLY THE #OURT DISPOSED OF THE
CASE WITH A DIRECTION TO THE PETITIONERS TO MAKE THE NECESSARY REPRESENTATION TO THE
3TATE GOVERNMENT AND THE 3TATE -ONITORING #OMMITTEE WITHIN TWO WEEKS AND
FURTHER DIRECTING THE SAID AUTHORITIES TO TAKE APPROPRIATE DECISION AS EXPEDITIOUSLY
AS POSSIBLE AND PREFERABLY WITHIN FOUR WEEKS )T WAS FURTHER CLARIFIED THAT IF THE
PETITIONERS ARE NOT SATISFIED WITH THE FINAL DECISION THEY MAY TAKE FURTHER LEGAL
STEPS 4HE PETITION WAS ACCORDINGLY DISPOSED OF WITHOUT ANY INTERIM PROTECTION OR
INJUNCTION
4 / \
% $ ) 4 /23 . /4%
7HILE THIS ORDER CLEARLY CONTAINS DIRECTIONS BENEFICIAL TO THE PETITIONERS AND
ADVANCES THEIR EFFORTS TO GET THEIR FOREST RIGHTS UNDER THE &2! RECOGNISED IT IS
DIFFICULT TO USE IT AS A PRECEDENT BECAUSE OF THE REPEATED USE OF INCORRECT TERMINOLOGY
TO DESCRIBE THE AUTHORITIES UNDER 3ECTION OF THE &2! .EVERTHELESS THE PROMPT
MANNER IN WHICH THE #OURT HAS GRANTED RELIEF IS WELCOME
/ 2 ! , /2$ % 2
)N PRESENT PETITION THE PETITIONERS HAVE PRAYED THAT
" !LLOW THIS PETITION BY ISSUING AN APPROPRIATE WRIT ORDER OR DIRECTION DIRECTING
THE RESPONDENTS AUTHORITIES TO ACT AND BEHAVE IN ACCORDANCE WITH THE PROVISIONS OF
THE ACT AND THEREBY HOLDING THAT RIGHTS RECOGNIZED BY THE 'RAM 3ABHA CANNOT BE
TAKEN AWAY PRIOR TO THE DECISION OF .ODAL !GENCY
C 'RANT THE INTERIM RELIEF BY RESTRAINING THE RESPONDENTS AND THEIR AGENTS SERVANTS
ETC FROM TAKING ANY COERCIVE ACTION AND ALSO FROM REMOVING THE PETITIONER FROM THE
POSSESSION OF THE LAND IN QUESTION
$URING THE SUBMISSIONS -R+HARADI LEARNED COUNSEL FOR THE PETITIONERS NARRATED
THE DIFCULTIES BEING FACED BY THE PETITIONERS BECAUSE DESPITE THE DECISION TAKEN BY
THE CONCERNED AUTHORITIESBODIES CONSTITUTED UNDER THE PROVISIONS OF THE 3CHEDULED
4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
FOR SHORT THE !CT THE OFCERS OF RESPONDENT NO RESTRAIN THE PETITIONERS FROM
CONDUCTING THE ACTIVITIES PERMISSIBLE UNDER THE PROVISION OF THE SAID !CT !CCORDING TO
THE PETITIONERS THE SAID ACTIONS BY THE OFCERS OF RESPONDENT NOS CAUSE UNDUE
HARASSMENT TO THE PETITIONERS
-R+HARADI LEARNED COUNSEL FOR THE PETITIONERS SUBMITTED THAT THE RIGHTS INCLUDING
THE RIGHT OF CULTIVATION OF MEMBERS OF 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST
$WELLERS IS RECOGNIZED UNDER THE PROVISIONS OF THE SAID !CT 4HEREFORE THE OFCERS OF
RESPONDENT NOS ARE NOT JUSTIED IN RESTRAINING THE PETITIONERS FROM UNDERTAKING
THEIR USUAL AND TRADITIONAL ACTIVITIES INCLUDING CULTIVATION WHICH IS PERMISSIBLE IN VIEW
OF THE PROVISIONS UNDER THE SAID !CT
-R+HARADI LEARNED #OUNSEL FOR THE PETITIONERS HAS SUBMITTED THAT CASE OF THE PETITIONERS
IS PENDING BEFORE .ODAL !GENCY AND .ODAL !GENCY HAS YET NOT GIVEN NAL DECISION
(E ALSO EMPHASIZED THE FACT THAT THOUGH THE APPLICATION IS PENDING BEFORE .ODAL
!GENCYTHE RESPONDENT !UTHORITY IS PROHIBITING THE PETITIONERS FROM UNDERTAKING THEIR
USUAL ACTIVITIES INCLUDING TRADITIONAL AGRICULTURE ACTIVITIES WHICH CAN BE CARRIED OUT
ONLY DURING MONSOON
-R+HARADI LEARNED ADVOCATE FOR THE PETITIONERS SUBMITTED THAT THE PETITIONERS WOULD
MAKE APPROPRIATE AND DETAILED REPRESENTATION TO THE RESPONDENT NO AND ALSO TO
THE 3TATE -ONITORING #OMMITTEE IN VIEW OF THE FACT THAT THE PETITIONERSS CASE IS STILL
PENDING BEFORE THE .ODAL !GENCY
(E ALSO SUBMITTED THAT THE PETITIONERS WOULD MAKE APPROPRIATE REQUEST AND THEREFORE
REPRESENTATION THAT UNTIL THE MATTER IS CONSIDERED AND NAL DECISION IS TAKEN BY THE
.ODAL !GENCY THE PETITIONERS MAY NOT BE DISTURBED OR RESTRAINED FROM UNDERTAKING
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
THEIR USUAL ACTIVITIES INCLUDING CULTIVATION ACTIVITIES WHICH THEY HAVE BEEN UNDERTAKING
SINCE SEVERAL YEARS
)N VIEW OF THE FACT THAT THE ISSUE IS ALIVE AND PENDING BEFORE .ODAL !GENCY IT APPEARS
THAT THE PETITIONERSS REQUEST IS REASONABLE AND JUSTIED AND PRESENT PETITION CAN BE
DISPOSED OF AT THIS STAGE WITH THE BELOW MENTIONED OBSERVATIONS
(AVING REGARD TO THE SUBMISSIONS MADE BY LEARNED COUNSEL FOR THE PETITIONERS THAT
PETITIONERS WOULD APPROACH RESPONDENT NO AS WELL AS 3TATE -ONITORING #OMMITTEE
WITH APPROPRIATE REPRESENTATION THE PETITION IS NOT ENTERTAINED AT THIS STAGE AND
IS DISPOSED OF SO AS TO ENABLE THE PETITIONERS TO APPROACH RESPONDENT NO AND 3TATE
-ONITORING #OMMITTEE WITH APPROPRIATE REPRESENTATION AND REQUEST
4HE PETITIONERS MAY SUBMIT SUCH REQUEST AND REPRESENTATION TO RESPONDENT NO AND
ALSO TO THE 3TATE -ONITORING #OMMITTEE
-R9AGNIK LEARNED !'0 WHO HAS APPEARED FOR RESPONDENT NO UPON BEING SERVED WITH
ADVANCED COPY OF THE PETITION HAS SUBMITTED THAT IF AND WHEN SUCH REPRESENTATION IS
MADE RESPONDENT NO AND 3TATE -ONITORING #OMMITTEE SHALL CONSIDER THE SAME
4HEREFORE IT IS OBSERVED AND CLARIED THAT THE PETITIONERS WILL MAKE SUCH REPRESENTATION
WITHIN A PERIOD OF TWO WEEKS !FTER SUCH REPRESENTATION IS MADE BY THE PETITIONERS
AND RECEIVED BY RESPONDENT NO AND 3TATE -ONITORING #OMMITTEE RESPONDENT NO
AND 3TATE -ONITORING #OMMITTEE SHALL TAKE UP SUCH REPRESENTATION FOR CONSIDERATION
AND PASS APPROPRIATE ORDERS AND DIRECTION TO RESPONDENT NOS HAVING REGARD TO
THE FACT THAT THE MATTER IS STILL PENDING BEFORE .ODAL !GENCY AND .ODAL !GENCY HAS
YET NOT TAKEN NAL DECISION AND UNTIL SUCH DECISION IS TAKEN BY THE .ODAL !GENCY
APPROPRIATE DIRECTIONS ARE REQUIRED TO BE ISSUED TO RESPONDENT NOS 3O THAT THE
PETITIONER MAY NOT HAVE TO FACE UNNECESSARY DIFCULTIES 4HE 2ESPONDENT NO AND 3TATE
-ONITORING #OMMITTEE SHALL TAKE INTO CONSIDERATION THE FACT THAT THE 'RAM 3ABHA IE
THE BODYAUTHORITY CONSTITUTED THE PROVISIONS UNDER THE SAID !CT HAS ALREADY MADE
RECOMMENDATION IN FAVOUR OF THE PETITIONERS !PPROPRIATE DECISION AS REGARDS THE
PETITIONERSS REQUESTREPRESENTATION MAY BE EXPEDITED BY RESPONDENT NO AND THE
3TATE #OMMITTEE AND APPROPRIATE DIRECTION MAY BE PASSED AS EXPEDITIOUSLY AS POSSIBLE
AND PREFERABLE WITHIN FOUR WEEKS HAVING REGARD TO THE DIFCULTIES BEING FACED BY THE
PETITIONERS
)T IS CLARIED THAT AFTER ANY ORDER IS PASSED BY RESPONDENT NO AND 3TATE #OMMITTEE IF
PETITIONERS STILL FEEL AGGRIEVED BY ANY ACTION OR EVEN BY THE SAID ORDER IT WOULD BE OPEN
TO THE PETITIONERS TO TAKE OUT APPROPRIATE PROCEEDINGS
7ITH THE AFORESAID CLARICATION PRESENT PETITIONS ARE DISPOSED OF AT THIS STAGE $IRECT
SERVICE IS PERMITTED
4 / \
2AMBHAI "HIKHABHAI -AKWANA VS
3TATE OF 'UJARAT /RS
3#! ./ /&
()'( #/524 /& '5*!2!4
#/2!- :+ 3!)9%$ *
3 5 - -!29
4HIS WRIT PETITION WAS FILED UNDER THE %LECTRICITY !CT AND THE 3CHEDULED
4RIBES AND /THER &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! BY
FOREST DWELLERS WHOSE RIGHTS HAVE BEEN RECOGNIZED UNDER THE &2! INSIDE A WILDLIFE
SANCTUARY 4HE 0ETITIONER MADE AN APPLICATION FOR AN ELECTRICITY CONNECTION BUT THE
SAME WAS REJECTED ON THE GROUND THAT PERMISSION FROM THE .ATIONAL "OARD FOR 7ILD
,IFE ."7, OR WILDLIFE CLEARANCE AND CLEARANCE UNDER THE &OREST #ONSERVATION
!CT !CT IS REQUIRED IN ADVANCE
4HE PRAYER IN THE WRIT PETITION SOUGHT A MANDAMUS TO THE RESPONDENT NO 0'6#,
TO PROVIDE THE ELECTRIC CONNECTION FORTHWITH WITHOUT DEMANDING ANY FURTHER
CERTIFICATE FROM THE REMAINING RESPONDENTS IE THE -INISTRY OF %NVIRONMENT AND
&ORESTS -O%& AND THE ."7,
4HE RESPONDENTS ARGUED QUITE FORCEFULLY THAT SUCH CLEARANCES WERE ESSENTIAL AND
THE ELECTRICITY CONNECTION CANNOT BE GRANTED WITHOUT THEM
!GREEING WITH THE SUBMISSIONS MADE BY THE 3TATE GOVERNMENT THE #OURT PASSED AN
ORDER DIRECTING 0'6#, TO FORWARD SUCH APPLICATION OF THE PETITIONER TO THE -O%&
WHICH SHALL FORWARD SUCH APPLICATION TO THE AUTHORITY IE 3TANDING #OMMITTEE OF
.ATIONAL "OARD FOR 7ILDLIFE .EW $ELHI
!CCORDINGLY THE WRIT PETITION WAS DISPOSED OF WITH THE DIRECTION THAT THE SAID
!UTHORITIES ARE DIRECTED TO CONSIDER AND DECIDE THE APPLICATION IN ACCORDANCE WITH
LAW PREFERABLY WITHIN SIX MONTHS FROM THE RECEIPT OF THE APPLICATION
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
% $ )4/23 . /4%
4HIS JUDGMENT PROCEEDS ON AN ERRONEOUS READING OF THE LAW AND IN PARTICULAR
3ECTION OF THE &2! WHICH PROVIDES THAT THE FOREST RIGHTS SHALL BE CONFERRED FREE
OF ALL ENCUMBRANCES AND PROCEDURAL REQUIREMENTS INCLUDING CLEARANCE UNDER THE
&OREST #ONSERVATION !CT "EING PER INCURIAM THE JUDGMENT ACCORDINGLY
HAS LITTLE PRECEDENT VALUE
/2$ % 2
"Y WAY OF THIS PETITION UNDER THE PROVISIONS OF %LECTRICITY !CT AND 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
THE PETITIONER SEEKS FOLLOWING PRAYERS
;A= "Y AN APPROPRIATE 7RIT ORDER ANDOR DIRECTION ANDOR BY 7RIT OF -ANDAMUS
DIRECTING THE 2ESPONDENT NO TO PROVIDE THE ELECTRIC CONNECTION FORTHWITH WITHOUT
DEMANDING ANY FURTHER CERTICATE FROM THE 2ESPONDENT NO TO
;D= 0ENDING HEARING AND TILL THE NAL DISPOSAL THE 2ESPONDENT NO ELECTRIC COMPANY
BE RESTRAINED FROM FORFEITING THE DEPOSITS MADE BY THE RESPECTIVE 0ETITIONER AS
EXPLAINED HEREIN BEFORE IN DETAIL
4HE FACTS OF THE CASE IN BRIEF ARE SUCH THAT THE PETITIONER BEING AGRICULTURIST THE LAND
WITHIN THE SETTLEMENT AREA OF &OREST $EPARTMENT AND HIS NAME IS IN &ARMER S $IARY
AS +HEDUT 0OTHI 4HE PETITIONER WITH A VIEW TO GET CONNECTION OF ELECTRICITY APPLIED
BEFORE THE RESPONDENT .O AND HE PAID AMOUNT OF 2S
AND THE RESPONDENT ISSUED
THE RECEIPT %VEN THE PETITIONER IS A SETTLEMENT FARMER WITHIN THE FOREST DEPARTMENT
WHICH REECTS FROM FORM .OS AND 4HE ELECTRIC CONNECTION WAS APPROVED TO THE
PETITIONER BY RESPONDENT .O AND ACCORDINGLY THE PETITIONER MADE PAYMENT AS PER
REQUIREMENT TOWARDS THE NEW SERVICE CONNECTION CHARGES CONNECTION SECURITY DEPOSIT
AND COST AGREEMENT FEES 4HE RESPONDENT .O WROTE A LETTER TO THE PETITIONER INFORMING
THAT SINCE THE AREA CONCERNED IS WITHIN THE &OREST $EPARTMENT THE CONNECTION IS YET
NOT GIVEN AS THE &OREST $EPARTMENT HAS DENIED FOR PROVIDING ELECTRIC CONNECTION 4HE
PETITIONER ALSO INFORMED THE RESPONDENT .O ABOUT THE SAME 4HE RESPONDENT .O
WROTE A LETTER TO THE PETITIONER TO PRODUCE PERMISSION LETTER FROM THE RESPONDENT .O
FOR THE PURPOSE OF ELECTRIC SUPPLY 4HE PETITIONER HAS RIGHT TITLE AND INTEREST IN THE LAND
WHICH IS RECOGNIZED UNDER THE &OREST 2IGHTS !CT AND ALSO 3CHEDULED 4RIBES AND
/THER 4RADITIONAL $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT !S PER THE CASE OF
THE PETITIONER THE RESPONDENT .O IS BOUND TO GIVE ELECTRIC CONNECTION TO THE PETITIONER
4HEREFORE THE PETITION IS LED BY THE PETITIONER WITH A DIRECTION TO PROVIDE THE ELECTRIC
CONNECTION TO THE PETITIONER
,EARNED ADVOCATE -R +ARIA FOR THE PETITIONER SUBMITTED THAT THE RESPONDENT .O 0'6#,
MAY BE DIRECTED TO MAKE AN APPLICATION TO RESPONDENT .OS AND SO AS TO FORWARD THE
APPLICATION FOR 7ILD ,IFE #LEARANCE TO THE !UTHORITY IE 3TANDING #OMMITTEE OF .ATIONAL
"OARD FOR 7ILDLIFE .EW $ELHI AND ALSO FORWARD THE APPLICATION TO -INISTRY OF &OREST AND
%NVIRONMENT AT .EW $ELHI FOR CLEARANCE UNDER &OREST #ONSERVATION !CT TO GIVE ELECTRIC
CONNECTION TO THE PETITIONER IN THE SANCTUARY WITHOUT CHARGING .06 FROM PETITIONER
,EARNED ADVOCATE -R 3INHA FOR RESPONDENT .O HAS NOT OPPOSED THE SUBMISSION OF THE
LEARNED ADVOCATE FOR THE PETITIONER SUBJECT TO FURTHER DIRECTION TO THE PETITIONER TO MAKE
AN APPLICATION TO RESPONDENT .O 0'6#, WHICH IN TURN SHALL TAKE FURTHER ACTION AS MAY
BE DIRECTED BY THIS #OURT
4 / \
,EARNED !'0 SUBMITTED THAT IF THE RESPONDENT .O MAKES AN APPLICATION TO THE
RESPONDENT .OS AND THE RESPONDENT .OS AND SHALL FORWARD SUCH APPLICATION
TO THE 3TANDING #OMMITTEE OF .ATIONAL "OARD FOR 7ILDLIFE .EW $ELHI FOR 7ILD ,IFE
#LEARANCE AND ALSO FORWARD THE SAME FOR CLEARANCE UNDER THE &OREST #ONSERVATION !CT FOR
THE PURPOSE OF ELECTRIC CONNECTION TO BE GIVEN TO THE PETITIONER THEN THE SAID !UTHORITY
MAY BE DIRECTED TO CONSIDER SUCH APPLICATION IN ACCORDANCE WITH LAW
)N VIEW OF THE STATEMENTS OF THE LEARNED ADVOCATES FOR THE PARTIES THE PETITIONER IS DIRECTED
TO MAKE AN APPLICATION BEFORE THE RESPONDENT .O 0'6#, FOR 7ILD ,IFE #LEARANCE AND
CLEARANCE UNDER THE &OREST #ONSERVATION !CT 4HE RESPONDENT .O IS FURTHER DIRECTED
TO FORWARD SUCH APPLICATION OF THE PETITIONER TO THE RESPONDENT .OS AND 4HE
RESPONDENT .OS AND ARE DIRECTED TO FORWARD SUCH APPLICATION TO THE !UTHORITY IE
3TANDING #OMMITTEE OF .ATIONAL "OARD FOR 7ILDLIFE .EW $ELHI AND -INISTRY OF &OREST
AND %NVIRONMENT .EW $ELHI AND SAID !UTHORITIES ARE DIRECTED TO CONSIDER AND DECIDE
THE APPLICATION IN ACCORDANCE WITH LAW PREFERABLY WITHIN SIX MONTHS FROM THE RECEIPT
OF THE APPLICATION FORWARDED BY RESPONDENT .OS
)N VIEW OF ABOVE DIRECTION THE PETITION IS DISPOSED OF 2ULE IS MADE ABSOLUTE TO THE
AFORESAID EXTENT
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
!CTION 2ESEARCH IN #OMMUNITY (EALTH
$EVELOPMENT !2#( /RS VS 3TATE
OF 'UJARAT /RS
70 0), ./ %4# / ',(%, (#
()'( #/524 /& '5*!2!4
#/2!- "(!3+!2 "(!44!#(!29! #* !.$ *" 0!2$)7!,! *
#)4!4)/. 3## /.,).% '5*
3 5--!29
4HIS IS A BATCH OF WRIT PETITIONS SUBSTANTIALLY FOR THE ENFORCEMENT OF THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2! AND THE 2ULES FRAMED THEREUNDER &2 2ULES 4HE PETITIONERS SOUGHT
DIRECTIONS FROM THE #OURT QUASHING A SERIES OF EXECUTIVE INSTRUCTIONS ISSUED BY
THE 3TATE GOVERNMENT RESTRICTING THE MEANING AND INTENT OF THE &2! )N PARTICULAR
THE PETITIONERS CHALLENGED THE INSISTENCE OF THE 3TATE &OREST $EPARTMENT UPON
PRODUCTION OF SATELLITE IMAGERIES AS A MANDATORY FORM OF PROOF ALONG WITH A CLAIM
FOR FOREST RIGHTS
!CCORDING TO THE RESPONDENT 3TATE GOVERNMENT MANY GRIEVANCES OF THE PETITIONERS
WOULD NOT SURVIVE AS THE SAME HAVE BEEN TAKEN CARE OF BY THE RESOLUTION DATED
/CTOBER WHERE A DECISION HAS BEEN TAKEN TO REVIEW ALL SUCH CASES WHEREIN
THE CLAIMS HAVE BEEN REJECTED UNDER THE &2! AND &2 2ULES )T CLAIMED THAT THE
PROVISIONS OF THE &2! AND THE &2 2ULES ARE BEING IMPLEMENTED IN LETTER AND
SPIRIT &URTHER IT CLAIMED THAT THE RESOLUTION PASSED BY THE 3TATE ,EVEL -ONITORING
#OMMITTEE EMPOWERS THE AUTHORITIES TO USE SATELLITE IMAGERIES OF STIPULATED PERIOD
TO CONFIRM THE POSSESSION OF THE CLAIMANT AND THAT THE USE OF SATELLITE IMAGERIES
ARE USED IN AN ABSOLUTELY SCIENTIFIC MANNER TO CONFIRM THE CLAIMS
)N A DETAILED JUDGMENT THE (IGH #OURT CLOSELY EXAMINED THE OBJECTIVE AND PURPOSE
OF &2! THE MECHANISM FOR RECOGNITION VERIFICATION AND VESTING OF FOREST RIGHTS
AND SO ON 4HE #OURT CITED WITH APPROVAL THE DECISION OF THE 3UPREME #OURT IN THE
.IYAMGIRI CASE )T FURTHER NOTED THAT THE AMENDMENT TO THE &2 2ULES VIDE
/RISSA -INING #ORPORATION VS -INISTRY OF %NVIRONMENT AND &ORESTS /RS 3##
4 / \
2ULE ! CLEARLY STATES THAT SATELLITE IMAGERY CANNOT BE MADE MANDATORY
4HE #OURT STATED THAT WE ARE OF THE OPINION HAVING REGARD TO THE OBJECT OF THE !CT
AND THE PURPOSE FOR WHICH THE SAME HAS BEEN ENACTED THAT TO DEMAND FROM SUCH A
CLASS OF CITIZENS STRICT PROOF AS REGARDS THEIR RIGHTS WOULD FRUSTRATE THE VERY OBJECT
WITH WHICH THE !CT HAS BEEN ENACTED 4HE PRIMARY DUTY OF THE 3TATE WITH RESPECT TO
THE &2! IS TO ADOPT A CONSTRUCTIVE APPROACH TO ACHIEVE THE PURPOSE OF THE !CT
$ ) 2 % #4) /.3 ) 3 3 5% $
4HE #OURT DISPOSED OF THE WRIT PETITIONS BY ISSUING A DETAILED LIST OF DIRECTIONS SEE
PARA BELOW TO THE RESPONDENT 3TATE GOVERNMENT 4HIS INCLUDED DIRECTING THAT
THE CLAIMS REJECTED ON THIS AND OTHER SPECIOUS GROUNDS BE RE
OPENED AND EXAMINED
AGAIN IN ACCORDANCE WITH THE LAW 4HE #OURT ALSO DIRECTED THAT COGENT REASONS BE
PROVIDED FOR REJECTION OR MODIFICATION OF CLAIMS
4HE #OURT FURTHER DIRECTED THAT A PREVIOUS ORDER OF STATUS QUO WITH REGARD TO
DISPOSSESSION OF THE PENDING CLAIMS SHALL REMAIN IN FORCE UNTIL THEIR
DISPOSAL
% $ ) 4 /23 . /4%
4HIS JUDGMENT MARKS AN IMPORTANT MILESTONE IN THE JURISPRUDENCE AROUND THE &2!
IN THAT A CONSTITUTIONAL COURT ISSUED DETAILED DIRECTIONS IN REM REGARDING A HOST
OF IMPLEMENTATION ISSUES 4HE JUDGMENT CLEARLY REFLECTS AN UNDERSTANDING THAT
GIVEN THE DRAMATIC PARADIGM SHIFT IN FOREST LAW RESULTING FROM &2! PROCEDURAL
RIGHTS ARE NOT MERELY FORMALITIES BUT INTEGRAL TO THE ADVANCEMENT OF THE RIGHT
ITSELF )N RECOGNISING THAT PROCEDURAL DUE PROCESS CAN MAKE OR BREAK A RIGHT EVEN
MORESO FOR A LAW WHICH SHIFTS THE BALANCE OF POWER AT SO MANY LEVELS THIS JUDGMENT
HAS BUTTRESSED THE IMPORTANCE OF ENSURING THAT THE PROCEDURES FOR VESTING AND
RECOGNITION OF FOREST RIGHTS AS ELUCIDATED IN THE &2! AND THE &2 2ULES ARE ADHERED
TO
!S SUBSEQUENT DECISIONS EXTRACTED IN THIS COMPENDIUM WILL DEMONSTRATE THE
ARTICULATION OF THE IMPORTANCE OF DUE PROCESS IN THIS JUDGMENT WAS TESTED OVER AND
OVER AGAIN BY THE IMPLEMENTING AGENCIES WITH CLAIMANTS COMING BEFORE THE #OURT
REPEATEDLY SEEKING QUITE SIMPLY THE IMPLEMENTATION OF THIS JUDGMENT
* 5 $ ' -% . 4
THE *UDGMENT OF THE #OURT WAS DELIVERED BY *"0ARDIWALA *
!S COMMON QUESTIONS OF FACT AND LAW HAVE BEEN RAISED IN BOTH THE ABOVE CAPTIONED
PETITIONS THE SAME WERE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY THIS COMMON
JUDGMENT AND ORDER 4HE 7RIT 0ETITION 0), .O OF IN THE NATURE OF 0UBLIC )NTEREST
,ITIGATION HAS BEEN PREFERRED BY !CTION 2ESEARCH IN #OMMUNITY (EALTH $EVELOPMENT
!2#($ A REGISTERED PUBLIC TRUST AND A SOCIETY WORKING FOR THE WELFARE OF THE TRIBALS OF
'UJARAT FOR THE PAST THIRTY YEARS JOINTLY WITH TWO OTHER PETITIONERS WHO ARE ALSO ENGAGED
IN THE WELFARE OF THE TRIBALS AND HAVE PRAYED FOR THE FOLLOWING RELIEFS
) 1UASH AND SET ASIDE ALL THE ORDERS OF REJECTION OF CLAIMS OF TRIBALS AND OTHER FOREST
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
DWELLERS WHO HAVE PREFERRED THE CLAIMS UNDER THE ;&OREST 2IGHTS !CT= AND THE 2ULES
BY 3UB $IVISIONAL ,EVEL #OMMITTEES AND $ISTRICT ,EVEL #OMMITTEES IN DISTRICTS
NAMELY .ARMADA $ANGS 6ADODARA 3ABARKANTHA "ANASKANTHA 6ALSAD .AVSARI
4API 3URAT "HARUCH 0ANCHMAHAL $AHOD AND TO DIRECT THEM TO CONSIDER AND DECIDE
ALL THESE CLAIMS AFRESH
)) 1UASH AND SET ASIDE THE INSTRUCTIONS GIVEN BY THE RESPONDENTS AND THE 2ESOLUTION
DATED
#IRCULARS DATED
AND
AND LETTERS DATED
AND
REFERRED TO AND ANNEXED AS ANNEXURES + , - .
0 3 AND 4 IN SO FAR AS THEY ARE CONTRARY TO THE PROVISIONS OF THE &OREST 2IGHTS !CT
AND THE &OREST 2IGHTS 2ULES AS MENTIONED IN THIS PETITION OR ARE CONTRARY OTHERWISE
AND THE RESPONDENTS MAY BE DIRECTED NOT TO ISSUE ANY DIRECTIONS INSTRUCTIONS THAT
ARE AGAINST THE PROVISIONS OF THIS !CT AND THE 2ULES AND TO DIRECT THE RESPONDENTS
TO DECIDE THE AFORESAID CLAIMS KEEPING IN MIND THE &OREST 2IGHTS !CT AND THE 2ULES
))) $IRECT THE RESPONDENTS TO CONSIDER NOT ONLY RECORD BASED EVIDENCE ONLY BUT ALL
THE EVIDENCES THAT ARE ENVISAGED UNDER THE 2ULE INCLUDING PHYSICAL EVIDENCES
AND APPROVE FORTHWITH ALL CLAIMS THAT HAVE MINIMUM TWO OF THESE EVIDENCES
)6 $ECLARE THAT THE WAY 3ATELLITE )MAGERIES HAVE BEEN USED IS HIGHLY UNSCIENTIC
DEFECTIVE UNSATISFACTORY AND ILLEGAL AND TO QUASH THE REJECTION OF CLAIMS BASED ON
THE USE OF THESE IMAGERIES AND TO DIRECT THAT IF THEY ARE TO BE USED IN FUTURE THE SAME
MAY BE USED IN A SCIENTIC MANNER IN THE WAY SUGGESTED BY THE PETITIONERS AND
TO DIRECT THAT IN THAT CASE TOO IT MAY BE USED IN A TRANSPARENT MANNER WITH ACTIVE
INVOLVEMENT OF THE CLAIMANTS AND THE 'RAMSABHAS AND ALSO THAT IT MAY BE USED
ONLY AS ONE OF THE EVIDENCES AND THE CLAIMS MAY NOT BE REJECTED SOLELY ON THE BASIS
OF THE SAME
6 $IRECT THE RESPONDENTS TO CONSIDER THE CUT OFF DATE OF FOR DECIDING THE
CLAIMS AND NOT
6) )SSUE DIRECTIONS TO THE RESPONDENTS THAT IN CASE OF THE CLAIMS OF /THER 4RADITIONAL
&OREST $WELLERS 'ENEALOGY MAY BE CONSIDERED AS SUFCIENT EVIDENCE TO ESTABLISH
RESIDENCE FOR GENERATIONS AND TO PROVIDE ADDITIONAL EVIDENCES LIKE VOTERS LISTS
SETTLEMENT RECORDS ETC TO THE CLAIMANTS&OREST 2IGHT #OMMITTEES
6)) )SSUE DIRECTIONS TO THE RESPONDENTS NOT TO OUTRIGHT REJECT CLAIMS OVER LANDS
WHERE THE CLAIMANTS HAVE BEEN EVICTED BY THE &$ BEFORE OR AFTER BUT TO TREAT
THEIR CLAIMS AS CLAIM FOR IN SITU REHABILITATION AS PER 3ECTION M AND THEN TAKE
APPROPRIATE DECISIONS
6))) )SSUE APPROPRIATE INSTRUCTIONS TO THE 3TATE 'OVERNMENT AND 3UB
$IVISIONAL
,EVEL #OMMITTEES AND $ISTRICT ,EVEL #OMMITTEES TO PROVIDE REASONABLE OPPORTUNITIES
TO THE AFFECTED CLAIMANTS TO PRESENT THEIR CASE BEFORE ANY ORDER IS PASSED AGAINST
THEIR CLAIMS
)8 )NITIATE PROSECUTION AGAINST THE RESPONSIBLE OFCERS AND OTHERS WHO HAVE
PASSED RESOLUTIONS SENT CIRCULARS ANDOR GAVE INSTRUCTIONS ETC CONTRARY TO THE
&OREST 2IGHTS !CT AND THE 2ULES AS MENTIONED IN THE PETITION AND THEREBY KNOWINGLY
VIOLATED THE PROVISIONS OF THIS !CT AND THE 2ULES AND COMMITTED THE OFFENCE UNDER
3ECTION OF THE !CT
8 4O MONITOR AND SUPERVISE THE IMPLEMENTATION OF THE &OREST 2IGHTS !CT MORE
PARTICULARLY DECISIONS OF CLAIM APPLICATIONS OF THE TRIBALS AND OTHER FOREST DWELLERS
4 / \
AND EVOLVE MECHANISM FOR PROPER IMPLEMENTATION OF THE SAID !CT AS THE SAME
CONCERNS THE VERY LIFE AND LIVELIHOOD OF MORE THAN ONE LAKH TRIBALS AND OTHER FOREST
DWELLERS
8) $IRECT THE RESPONDENTS TO EXPEDITE THE PROCESS OF RECOGNITION OF #OMMUNITY
2IGHTS OVER FOREST RESOURCES INCLUDING RIGHT TO PROTECT CONSERVE REGENERATE FORESTS
FOR SUSTAINABLE USE AND COVER ALL VILLAGES IN THE SAME AND ALSO TO EXPEDITE THE PROCESS
OF CONVERSION OF FOREST SETTLEMENT VILLAGES INTO REVENUE VILLAGES
8)) $URING PENDENCY OF THIS PETITION DIRECT THE RESPONDENTS PARTICULARLY THE &OREST
DEPARTMENT NOT TO EVICT ANY PERSON FROM THE FOREST LANDS UNDER THEIR OCCUPATION
OR HARASS ANY PERSONS WHO HAVE LED THE CLAIMS FOR INDIVIDUAL RIGHTS UNDER THIS !CT
AND WHOSE CLAIMS MAY HAVE BEEN REJECTED PARTIALLY APPROVED OR PENDING
8))) !NY OTHER RELIEF OR DIRECTION
4HE 7RIT 0ETITION 0), .O OF IN THE NATURE OF A 0UBLIC )NTEREST ,ITIGATION HAS
BEEN PREFERRED BY 6AN +ANUN "ACHAU 3AMITI A COMMITTEE CONSTITUTED BY LOCAL TRIBALS OF
FOUR TALUKAS NAMELY 3ONGARH 5CHHAL OF 4API $ISTRICT 5MARPADA OF 3URAT $ISTRICT AND
3AGBARA OF .ARMADA $ISTRICT AND HAVE PRAYED FOR THE FOLLOWING RELIEFS
) 1UASH AND SET ASIDE ALL THE ORDERS OF REJECTION OF CLAIMS OF TRIBALS AND OTHER FOREST
DWELLERS WHO HAVE PREFERRED THE CLAIMS UNDER THE &OREST 2IGHTS !CT AND THE 2ULES
BY 3UB $IVISIONAL ,EVEL #OMMITTEES AND $ISTRICT ,EVEL #OMMITTEES IN DISTRICTS
NAMELY .ARMADA 4API 3URAT AND TO DIRECT THEM TO CONSIDER AND DECIDE ALL THESE
CLAIMS AFRESH
)) 1UASH AND SET ASIDE THE INSTRUCTIONS GIVEN BY THE RESPONDENTS AND THE 2ESOLUTION
DATED
#IRCULARS DATED
AND
AND LETTERS DATED
AND
IN SO FAR AS THEY ARE CONTRARY TO THE PROVISIONS
OF THE &OREST 2IGHTS !CT AND THE &OREST 2IGHTS 2ULES AS MENTIONED IN THIS PETITION
OR ARE CONTRARY OTHERWISE AND THE RESPONDENTS MAY BE DIRECTED NOT TO ISSUE ANY
DIRECTIONSINSTRUCTIONS THAT ARE AGAINST THE PROVISIONS OF THIS !CT AND THE 2ULES AND
TO DIRECT THE RESPONDENTS TO DECIDE THE AFORESAID CLAIMS KEEPING IN MIND THE &OREST
2IGHTS !CT AND THE 2ULES
))) $IRECT THE RESPONDENTS TO CONSIDER NOT ONLY RECORD BASED EVIDENCE ONLY BUT ALL
THE EVIDENCES THAT ARE ENVISAGED UNDER THE 2ULE INCLUDING PHYSICAL EVIDENCES
AND APPROVE FORTHWITH ALL CLAIMS THAT HAVE MINIMUM TWO OF THESE EVIDENCES
)6 $ECLARE THAT THE WAY 3ATELLITE )MAGERIES HAVE BEEN USED IS HIGHLY UNSCIENTIC
DEFECTIVE UNSATISFACTORY AND ILLEGAL AND TO QUASH THE REJECTION OF CLAIMS BASED ON
THE USE OF THESE IMAGERIES AND TO DIRECT THAT IF THEY ARE TO BE USED IN FUTURE THE SAME
MAY BE USED IN A SCIENTIC MANNER IN THE WAY SUGGESTED BY THE PETITIONER AND TO
DIRECT THAT IN THAT CASE TOO IT MAY BE USED IN A TRANSPARENT MANNER WITH ACTIVE
INVOLVEMENT OF THE CLAIMANTS AND THE 'RAMSABHAS AND ALSO THAT IT MAY BE USED
ONLY AS ONE OF THE EVIDENCES AND THE CLAIMS MAY NOT BE REJECTED SOLELY ON THE BASIS
OF THE SAME
6 $IRECT THE RESPONDENTS TO CONSIDER THE CUT OFF DATE OF FOR DECIDING THE
CLAIMS AND NOT
6) )SSUE DIRECTIONS TO THE RESPONDENTS THAT IN CASE OF THE CLAIMS OF /THER 4RADITIONAL
&OREST $WELLERS 'ENEALOGY MAY BE CONSIDERED AS SUFCIENT EVIDENCE TO ESTABLISH
RESIDENCE FOR GENERATIONS AND TO PROVIDE ADDITIONAL EVIDENCES LIKE VOTERS LISTS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
SETTLEMENT RECORDS ETC TO THE CLAIMANTS&OREST 2IGHT #OMMITTEES
6)) )SSUE DIRECTIONS TO THE RESPONDENTS NOT TO OUTRIGHT REJECT CLAIMS OVER LANDS
WHERE THE CLAIMANTS HAVE BEEN EVICTED BY THE &$ BEFORE OR AFTER BUT TO TREAT
THEIR CLAIMS AS CLAIM FOR IN SITU REHABILITATION AS PER 3ECTION M AND THEN TAKE
APPROPRIATE DECISIONS
6))) )SSUE APPROPRIATE INSTRUCTIONS TO THE 3TATE 'OVERNMENT AND 3UB
$IVISIONAL
,EVEL #OMMITTEES AND $ISTRICT ,EVEL #OMMITTEES TO PROVIDE REASONABLE OPPORTUNITIES
TO THE AFFECTED CLAIMANTS TO PRESENT THEIR CASE BEFORE ANY ORDER IS PASSED AGAINST
THEIR CLAIMS
)8 )NITIATE PROSECUTION AGAINST THE RESPONSIBLE OFCERS AND OTHERS WHO HAVE
PASSED RESOLUTIONS SENT CIRCULARS ANDOR GAVE INSTRUCTIONS ETC CONTRARY TO THE
&OREST 2IGHTS !CT AND THE 2ULES AS MENTIONED IN THE PETITION AND THEREBY KNOWINGLY
VIOLATED THE PROVISIONS OF THIS !CT AND THE 2ULES AND COMMITTED THE OFFENCE UNDER
3ECTION OF THE !CT
8 4O MONITOR AND SUPERVISE THE IMPLEMENTATION OF THE &OREST 2IGHTS !CT MORE
PARTICULARLY DECISIONS OF CLAIM APPLICATIONS OF THE TRIBALS AND OTHER FOREST DWELLERS
AND EVOLVE MECHANISM FOR PROPER IMPLEMENTATION OF THE SAID !CT AS THE SAME
CONCERNS THE VERY LIFE AND LIVELIHOOD OF MORE THAN ONE LAKH TRIBALS AND OTHER FOREST
DWELLERS
8) $IRECT THE RESPONDENTS TO EXPEDITE THE PROCESS OF RECOGNITION OF #OMMUNITY
2IGHTS OVER FOREST RESOURCES INCLUDING RIGHT TO PROTECT CONSERVE REGENERATE FORESTS
FOR SUSTAINABLE USE AND COVER ALL VILLAGES IN THE SAME AND ALSO TO EXPEDITE THE PROCESS
OF CONVERSION OF FOREST SETTLEMENT VILLAGES INTO REVENUE VILLAGES
8)) $URING PENDENCY OF THIS PETITION DIRECT THE RESPONDENTS PARTICULARLY THE &OREST
DEPARTMENT NOT TO EVICT ANY PERSON FROM THE FOREST LANDS UNDER THEIR OCCUPATION
OR HARASS ANY PERSONS WHO HAVE LED THE CLAIMS FOR INDIVIDUAL RIGHTS UNDER THIS !CT
AND WHOSE CLAIMS MAY HAVE BEEN REJECTED PARTIALLY APPROVED OR PENDING
8))) !NY OTHER RELIEF OR DIRECTION
&!#45! , "!#+ ' 2 /5.$
4HE PETITION IS SUBSTANTIALLY FOR THE ENFORCEMENT OF THE &OREST 2IGHTS OF MORE THAN ONE
LAKH FAMILIES OF FOREST DWELLING SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS
!CCORDING TO THE PETITIONERS SUCH RIGHTS HAVE BEEN RECOGNIZED UNDER THE BENEVOLENT
PIECE OF LEGISLATION PASSED BY THE 0ARLIAMENT IN THE YEAR NAMELY 3CHEDULED #ASTE
AND /THER 4RADITIONAL &OREST $WELLERS RECOGNITION OF &OREST 2IGHTS !CT 5NDER
3ECTION OF THE !CT 2ULES HAVE ALSO BEEN FRAMED KNOWN AS 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS RECOGNITION OF &OREST 2IGHTS 2ULES 4HE OBJECT OF SUCH
LEGISLATION IS TO RECOGNIZE AND CONFER THE FOREST RIGHTS AND OCCUPATION OF FOREST LAND TO
THE &OREST $WELLING 3CHEDULED 4RIBES &$34S AND /THER 4RADITIONAL &OREST $WELLERS
/4&$S WHO HAVE BEEN RESIDING IN THE FORESTS FOR GENERATIONS BUT WHOSE RIGHTS COULD
NOT BE RECOGNIZED AND TO PROVIDE A FRAMEWORK FOR RECOGNITION OF SUCH FOREST RIGHTS SO
VESTED AND THE NATURE OF EVIDENCE REQUIRED FOR SUCH RECOGNITION AND VESTING
4HE !CT ALSO INCLUDES COMMUNITY RIGHTS OVER FOREST RESOURCES INCLUDING RIGHT TO OWN
ACCESS USE AND DISPOSE OF MINOR FOREST PRODUCE INCLUDING BAMBOO AND ALSO MOST
IMPORTANTLY THE RIGHT TO PROTECT REGENERATE CONSERVE OR MANAGE FOREST RESOURCES OF
4 / \
THEIR AREA AS COMMUNITY FOREST RESOURCES FOR SUSTAINABLE USE 4HESE COMMUNITY RIGHTS
ARE MOST IMPORTANT AS THEY ENSURE PROTECTION AND CONSERVATION OF FORESTS AND BIO
DIVERSITY WHILE ENSURING LIVELIHOOD AND FOOD SECURITY OF THE SCHEDULED TRIBES AND OTHER
TRADITIONAL FOREST DWELLERS !NOTHER IMPORTANT RIGHT RECOGNIZED BY THE !CT IS THE RIGHT OF
THE COMMUNITIES LIVING IN THE FOREST SETTLEMENT VILLAGES TO GET THEIR VILLAGES CONVERTED
TO REVENUE VILLAGES AND LANDS HELD BY THEM TO REVENUE LANDS
4HE !CT HAS ALSO ESTABLISHED A THREE TIER QUASI
JUDICIAL SYSTEM OF AUTHORITIES AND
PROCEDURES FOR DETERMINING THE NATURE AND EXTENT OF THE RIGHTS )T RECOGNIZES 'RAM
3ABHA AS AN AUTHORITY TO INITIATE THE PROCESS FOR DETERMINING THE NATURE AND EXTENT OF
INDIVIDUAL AND COMMUNITY RIGHTS BY RECEIVING THE CLAIMS VERIFYING THEM PASSING A
RESOLUTION RECOMMENDING APPROVAL OR REJECTION OF THE SAME AND FORWARDING THEM TO
THE 3UB
$IVISIONAL ,EVEL #OMMITTEE 3$,# FOR FURTHER ACTION WHICH AFTER EXAMINING
SHALL FORWARD THEM TO THE $ISTRICT ,EVEL #OMMITTEE $,# FOR NAL DECISION !NY PERSON
INCLUDING STATE AGENCIES LIKE THE &OREST $EPARTMENT AGGRIEVED BY THE RESOLUTION
OF THE 'RAM 3ABHA CAN PREFER A PETITION BEFORE THE 3$,# WITHIN SIXTY DAYS 3IMILARLY
ANY PERSON AGGRIEVED BY THE DECISION OF THE 3$,# CAN ALSO PREFER A PETITION AGAINST IT
BEFORE THE $,# 4HE 3$,#S AND $,#S ARE TO DISPOSE OF SUCH PETITIONS HOWEVER NO SUCH
PETITION SHALL BE DISPOSED OF AGAINST THE AGGRIEVED PERSON WITHOUT RST GIVING HIMHER
A REASONABLE OPPORTUNITY TO PRESENT HISHER CASE
)F ANY AUTHORITY OR COMMITTEE OR OFCER OR MEMBER OF SUCH AUTHORITY OR COMMITTEE
CONTRAVENES ANY PROVISION OF THIS !CT OR ANY 2ULE CONCERNING RECOGNITION OF RIGHTS IT OR
THEY ARE DEEMED TO BE GUILTY OF AN OFFENCE UNDER THE !CT AND ARE LIABLE TO BE PROCEEDED
AGAINST AND PUNISHED WITH NE UNDER 3ECTION OF THE !CT
/N TH &EBRUARY A VERY UNFORTUNATE INCIDENT OF POLICE RING OCCURRED AT
!NTARSUMBA OF 6IJAYNAGAR TALUKA OF 3ABARKANTHA DISTRICT IN WHICH TWO TRIBALS LOST
THEIR LIVES AND OTHER THREE TRIBALS RECEIVED SERIOUS INJURIES &OLLOWING THIS INCIDENT
THE 3TATE 'OVERNMENT APPOINTED A HIGH LEVEL #OMMITTEE UNDER THE #HAIRMANSHIP
OF RETIRED #HIEF 3ECRETARY OF 'UJARAT 3HRI 0+ ,AHERI TO INQUIRE INTO ITS CAUSES AND TO
MAKE RECOMMENDATIONS 4HE #OMMITTEE STATED IN ITS REPORT THAT THE CONICT BETWEEN
THE TRIBALS AND THE FOREST DEPARTMENT IS BECAUSE OF THE DEPARTMENT S NEGATIVE ATTITUDE
TOWARDS FOREST RIGHTS OF THE TRIBALS WHICH WAS CAUSING SERIOUS PROBLEMS AND TO PREVENT
SUCH INCIDENTS IN FUTURE THE 3TATE 'OVERNMENT MUST IMPLEMENT THE !CT IN A MORE
MEANINGFUL AND PROPER MANNER AND THAT THE FOREST DEPARTMENT MUST CHANGE ITS ATTITUDE
AND CO
OPERATE FULLY IN ITS IMPLEMENTATION
4HEREAFTER FROM -ARCH THE RESPONDENT 3TATE 'OVERNMENT TOOK IMMEDIATE STEPS
FOR THE IMPLEMENTATION OF THIS !CT )T CONVENED SPECIAL MEETINGS OF 'RAM 3ABHAS IN ALL
EASTERN TRIBAL DISTRICTS OF THE 3TATE FOR CONSTITUTION OF VILLAGE &OREST 2IGHTS #OMMITTEES
&2#S CONSTITUTED $ISTRICT AND 3UB $IVISIONAL ,EVEL #OMMITTEES $,#S AND 3$,#S
PRINTED AND DISTRIBUTED APPLICATION FORMS FOR BOTH )NDIVIDUAL AS WELL AS #OMMUNITY
2IGHTS &ORM ! AND &ORM " IN ALL RESPECTIVE VILLAGES GOT THE !CT AND THE 2ULES
TRANSLATED INTO 'UJARATI AND DISTRIBUTED THE COPIES OF THE SAME ALONG WITH AWARENESS
RAISING MATERIAL AMONGST THE VILLAGERS ORGANIZED TRAINING CAMPS FOR &2# MEMBERS ETC
4HE 4RIBAL $EVELOPMENT $EPARTMENT PLAYED A PIVOTAL ROLE IN ALL SUCH ACTIVITIES 4HIS
CREATED A WIDESPREAD HOPE AMONGST THE FOREST DWELLERS AND OTHERS THAT THE !CT WOULD
BE PROPERLY IMPLEMENTED BY THE RESPONDENTS IN ITS TRUE LETTER AND SPIRIT
&ROM !PRIL THE 'RAM 3ABHAS AND THE VILLAGE &OREST 2IGHTS #OMMITTEES &2#
STARTED THE PROCESS OF RECEIVING AND VERIFYING THE CLAIMS FOR FOREST RIGHTS AS PROVIDED
UNDER THE !CT AND THE 2ULES -ANY PEOPLE INCLUDING HIGH LEVEL GOVERNMENT OFCIALS
HAD EXPRESSED DOUBTS WHETHER THEY WOULD BE ABLE TO PERFORM SUCH TASKS OR NOT AS THEY
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
HAD NEVER UNDERTAKEN SUCH TYPE OF WORK BEFORE (OWEVER THIS WAS FOR THE RST TIME
THAT THEY WERE GIVEN SUCH AN IMPORTANT ROLE AND THEREFORE WERE FOUND TO BE HIGHLY
MOTIVATED AND TOOK UP THEIR RESPONSIBILITIES UNDER THE !CT VERY SERIOUSLY 4HE PETITIONERS
ALSO PRINTED BOOKLETS AND ORGANIZED SERIES OF WORKSHOPS ACROSS ALL DISTRICTS TO PROVIDE
HELP AND GUIDANCE TO THEM IN THAT REGARD !S A RESULT THE 'RAM 3ABHAS AND THE &2#S
HAVE BY AND LARGE CARRIED OUT THEIR TASKS IN A FAIR AND RESPONSIBLE MANNER
4HEY OBTAINED THE CLAIM FORMS FROM THE GOVERNMENT DISTRIBUTED THEM TO THE CLAIMANTS
HELPED THEM IN LLING THE FORMS EXPLAINED THEM THE TYPES OF EVIDENCES THAT COULD BE
ADDUCED IN SUPPORT OF THE CLAIMS RECEIVED THE CLAIMS FROM THE CLAIMANTS CARRIED OUT
THE ELD VERICATION OF EACH AND EVERY PLOT OF THE CLAIMED LAND AND PREPARED ROJKAM
PANCHNAMA ETC TOOK OR VERIED STATEMENTS GIVEN BY VILLAGE ELDERS AND OTHER WITNESSES
AND EXAMINED OTHER EVIDENCES AND FOR EACH CLAIM ARRIVED AT THE NDING AS TO WHETHER
THE SAME WAS WORTH APPROVING OR NOT 4HEY THEN PRESENTED SUCH NDINGS TO THE 'RAM
3ABHAS WHO AFTER CONSIDERING THEM PASSED APPROPRIATE RESOLUTIONS AND FORWARDED THE
SAME TOGETHER WITH ORIGINAL CLAIM LES TO THE 3UB $IVISIONAL ,EVEL #OMMITTEES 3$,#S
FOR FURTHER ACTION -OST IMPORTANTLY ALMOST ALL THE &2#S GAVE OPPORTUNITY TO THE
&OREST $EPARTMENT TO PRESENT ITS CASE OBJECTIONS WITH RESPECT TO THE CLAIMS RECEIVED
BY THE &2#S 4HEY GAVE PRIOR NOTICEINTIMATION TO THE FOREST DEPARTMENT BEFORE ELD
VERICATION GIVING THEM DETAILS OF THE CLAIMS RECEIVED AND DATES ON WHICH ELD
VERICATION WOULD BE DONE AND REQUESTING THEM TO REMAIN PRESENT AND PRESENT THEIR
CASEOBJECTIONS DURING THE SAME !T MANY PLACES THE FOREST DEPARTMENT OFCERS ALSO
REMAINED PRESENT DURING THE PROCESS OF ELD VERICATION AND RAISED THEIR OBJECTIONS IF
ANY BUT IN SOME DISTRICTS THEY SIMPLY IGNORED THE NOTICES AND DID NOT REMAIN PRESENT
DURING THE ELD VERICATION OF THE CLAIMS NOR DID THEY MAKE ANY REPRESENTATION BEFORE
THE &2#S
$URING THIS PERIOD THE &2#S IN ABOUT VILLAGES WITH FOREST LANDS ACROSS EASTERN
DISTRICTS OF 'UJARAT RECEIVED ABOUT
INDIVIDUAL CLAIMS FOR RECOGNITION OF
THEIR RIGHTS OVER FOREST LANDS !FTER COMPLETING THE VERICATION PROCESS AND PASSING
APPROPRIATE RESOLUTIONS THE 'RAM 3ABHAS STARTED SENDING THE LES TO THE 3$,#S FROM
THE BEGINNING OF "Y THE END OF MOST OF THE 'RAM 3ABHAS HAD MORE OR LESS
COMPLETED THEIR TASKS
)N THE MEANTIME THE RESPONDENT 4RIBAL $EVELOPMENT $EPARTMENT HAD APPARENTLY
INSTRUCTED THE DISTRICT AUTHORITIES TO TAKE UP AND APPROVE ONLY PRE
CLAIMS AND
FROM THOSE ALSO ONLY THE CLAIMS THAT WERE I ALREADY GIVEN IN
PRINCIPLE APPROVAL UNDER
THE PREVIOUS 3TATE 'OVERNMENT 2ESOLUTION OF BUT COULD NOT BE GIVEN NAL FORMAL
ORDERS OR II WERE APPROVED BY THE &OREST 3ETTLEMENT /FCERS AT THE TIME OF FOREST
SETTLEMENT AND WERE RECOMMENDED TO BE DELETED FROM THE FOREST AREA 4HE PETITIONERS
AND THE TRIBALS CAME TO KNOW ABOUT THIS FROM THE ACTIONS OF THE OFCERS ATTACHED WITH
THE 3$,#S WHO STARTED GOING TO THE VILLAGES ASKING THE &2#S TO DEPOSIT SUCH LES
7HEN THE PETITIONERS AND OTHERS RAISED OBJECTIONS SAYING THAT IT WAS CONTRARY TO THE
CUT
OFF DATE WHICH WAS TH $ECEMBER THEY WERE TOLD THAT THE SAME WAS DONE
ONLY TO SPEED UP THE PROCESS AND THE REMAINING CASES WOULD BE TAKEN UP IN THE NEXT
ROUND "UT FAR FROM DOING SO THIS ACTUALLY CREATED A LOT OF CONFUSION AND GAVE A WRONG
SIGNAL TO THE DISTRICT AND SUB
DIVISIONAL LEVEL OFCERS THAT ONLY SUCH PRE
CLAIMS
WERE TO BE APPROVED UNDER THE !CT
)N THE RST WEEK OF -AY THE 3TATE 'OVERNMENT ALSO DECLARED AT THE HIGHEST LEVEL
THAT ONLY ABOUT OF THE CLAIMS LED BY THE CLAIMANTS WERE GENUINE CLAIMS 4HIS WAS
REPORTEDLY DISCUSSED DURING THE MEETING OF 3TATE ,EVEL -ONITORING #OMMITTEE HELD ON
TH -AY AS REPORTED BY THE 4IMES OF )NDIA ON TH -AY
4 / \
!PPROXIMATELY INDIVIDUAL CLAIMS WERE PREFERRED ACROSS THE DISTRICTS OF THE
3TATE OUT OF WHICH CLAIMS WHICH WERE APPROVED BY 'RAM 3ABHA WERE REJECTED
BY 3$,#3 AND $,#3 !CCORDING TO PETITIONERS THIS SUMMARY REJECTION WAS THE OUTCOME
OF INSTRUCTIONS GIVEN BY THE RESPONDENTS VIDE ANNEXURES + , - . 0 3 AND 4 3UCH
INSTRUCTIONS ARE IN VIOLATION OF 2ULE OF THE 2ULES 4HE PETITIONER S MAIN GRIEVANCE
REGARDING REJECTION OF INDIVIDUAL FOREST RIGHTS REVOLVES AROUND THE ALLEGED VIOLATION OF
2ULE
!CCORDING TO THE PETITIONERS IN ALL CLAIMS WERE REJECTED THOUGH THEY DESERVED
TO BE APPROVED /UT OF SUCH REJECTED CLAIMS CLAIMS WERE REJECTED ON THE GROUND
THAT NO MINIMUM TWO EVIDENCES WERE PRODUCED BY THE CLAIMANTS AND THAT THEIR CLAIMS
WERE NOT SUPPORTED BY THE ")3!' MAP )N TERMS OF 2ULE MORE THAN ONE EVIDENCE
HAS TO BE PRODUCED BUT ACCORDING TO THE PETITIONERS APART FROM THE STATEMENTS OF THE
ELDERS WHICH THE RESPONDENTS CONSIDERED THEY HAD PRODUCED OTHER EVIDENCE TOO BUT
THE 3$,# AND $,#S DID NOT CONSIDER THE SAME TO EVIDENCES 4HIS WAS IN VIOLATION OF RULE
WHICH PERMITS SUCH EVIDENCES TO BE PRODUCED AND CONSIDERED !S FAR AS SUPPORT FROM
")3!' MAP IS CONCERNED ACCORDING TO THE PETITIONERS BECAUSE OF THE UNSCIENTIC AND
DEFECTIVE USER OF ")3!' MAPS WRONG CONCLUSIONS HAVE BEEN REACHED AS REGARDS THE
CLAIMANTS CLAIMS 4HE OTHER REJECTED CLAIMS WERE ALSO REJECTED ASSIGNING THE
SAME REASON THAT THE MINIMUM TWO EVIDENCES COULD NOT BE ADDUCED BY THE CLAIMANTS
)N SUCH CASES THE SATELLITE IMAGERIES WERE NOT AT ALL USED !CCORDING TO THE PETITIONERS
ALTHOUGH THE RESPONDENTS OWN INSTRUCTIONS REQUIRED THEM TO RESORT TO USER OF SATELLITE
IMAGERIES THEY DID NOT CONSIDER THE SAME AND REJECTED SUCH CLAIMS WITHOUT VERIFYING
AS TO WHETHER THE SATELLITE IMAGERIES OF AND SHOWED THE CULTIVATIONS IN THE
CLAIMED LANDS OR NOT
!CCORDING TO THE PETITIONERS THE OTHER CLAIMS WERE REJECTED ASSIGNING THE REASON
THAT THERE WAS NO PROOF OF SUCH CLAIMANTS BEING OTHER TRADITIONAL FOREST DWELLERS AS
CLAIMED BY THEM !S PER 3ECTION O /THER TRADITIONAL FOREST DWELLERS MEANS ANY
MEMBER OR COMMUNITY WHO HAS FOR AT LEAST THREE GENERATIONS PRIOR TO TH $ECEMBER
PRIMARILY RESIDED IN AND WHO DEPEND ON THE FOREST LAND FOR BONA DE LIVELIHOOD
NEEDS )N EXPLANATION OF 3ECTION O IT IS STATED THAT GENERATION MEANS A PERIOD
COMPRISING OF YEARS )T IS THE CASE OF THE PETITIONERS THAT SUCH CLAIMS WERE REJECTED
INSISTING THAT PROOFS SHOULD BE ADDUCED OF RESIDENTS IN THE FOREST OR FOREST LAND FOR
THREE GENERATIONS IE YEARS (OWEVER SUCH IS NOT THE REQUIREMENT UNDER SECTION
O OF THE !CT 4HE OTHER CLAIMS OF SCHEDULED TRIBES WERE REJECTED BECAUSE THE
SCHEDULED TRIBE CERTICATES WERE NOT ATTACHED (OWEVER THE PLIGHT OF THE SCHEDULED
TRIBE CLAIMANTS IN THESE CASES WAS THAT THE AUTHORITIES DID NOT PROVIDE SUCH CERTICATES
4HE OTHER CLAIMS WERE REJECTED BY ASSIGNING THE REASON THAT THE CLAIMANTS WERE
NOT IN POSSESSION OF THE CLAIMED LANDS (OWEVER ACCORDING TO THE PETITIONERS SECTION
M GIVES THE FOREST RIGHTS OF IN SITU REHABILITATION INCLUDING ALTERNATIVE LAND IN CASES
WHERE THE SCHEDULED TRIBE AND OTHER TRADITIONAL FOREST DWELLERS WERE ILLEGALLY EVICTED
OR DISPLACED FROM FOREST LAND WITHOUT RECEIVING THEIR LEGAL ENTITLEMENT PRIOR TO TH
$ECEMBER 4HE PREAMBLE ALSO EMPHASIZES TO ADDRESS THE CASES OF THOSE WHO WERE
FORCED TO RELOCATE THEIR DWELLING DUE TO STATE DEVELOPMENT INTERVENTIONS 3ECTION
OF THE !CT LAYS DOWN THAT THE FOREST RIGHTS RECOGNIZED AND VESTED UNDER THE !CT SHALL
INCLUDE THE RIGHT OF LAND TO FOREST DWELLING FOR SCHEDULED TRIBES AND OTHER TRADITIONAL
FOREST DWELLERS WHO CAN ESTABLISH THAT THEY WERE DISPLACED FROM THEIR DWELLING AND
CULTIVATION WITHOUT COMPENSATION DUE TO STATE DEVELOPMENT INTERVENTIONS AND WHERE
THE LAND WAS NOT USED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED WITHIN VE YEARS OF THE
SAID ACQUISITIONS !CCORDING TO THE PETITIONERS THE CLAIM OF THE CLAIMANTS WHO WERE NOT
IN POSSESSION OUGHT NOT TO HAVE BEEN SUMMARILY REJECTED BUT THEIR CASES SHOULD HAVE
BEEN CONSIDERED FOR IN SITU REHABILITATION WHEREVER SUCH EVIDENCES WAS AVAILABLE ON
THE RECORD OF THE CLAIM
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
4HE PETITIONERS HAVE PLACED RELIANCE ON 2ULE OF THE 3CHEDULED #ASTE AND /THER
4RADITIONAL &OREST $WELLERS RECOGNITION OF &OREST 2IGHTS 2ULES 2ULE IS WITH
REGARD TO THE EVIDENCE WHICH THE CLAIMANTS ARE EXPECTED TO ADDUCE FOR DETERMINATION
OF THE FOREST RIGHTS 2ULE READS AS UNDER
%VIDENCE FOR DETERMINATION OF FOREST RIGHTS
4HE EVIDENCE FOR RECOGNITION
AND VESTING OF FOREST RIGHTS SHALL INTER ALIA INCLUDE
A PUBLIC DOCUMENTS 'OVERNMENT RECORDS SUCH AS 'AZETTES #ENSUS SURVEY AND
SETTLEMENT REPORTS MAPS SATELLITE IMAGERY WORKING PLANS MANAGEMENT PLANS
MICRO
PLANS FOREST ENQUIRY REPORTS OTHER FOREST RECORDS RECORD OF RIGHTS BY
WHATEVER NAME CALLED PATTAS OR LEASES REPORTS OF COMMITTEES AND COMMISSIONS
CONSTITUTED BY THE 'OVERNMENT 'OVERNMENT ORDERS NOTICATIONS CIRCULARS
RESOLUTIONS
B 'OVERNMENT AUTHORISED DOCUMENTS SUCH AS VOTER IDENTITY CARD RATION CARD
PASSPORT HOUSE TAX RECEIPTS DOMICILE CERTICATES
C PHYSICAL ATTRIBUTES SUCH AS HOUSE HUTS AND PERMANENT IMPROVEMENTS MADE
TO LAND INCLUDING LEVELLING BUNDS CHECK DAMS AND THE LIKE
D QUASI JUDICIAL AND JUDICIAL RECORDS INCLUDING COURT ORDERS AND JUDGMENTS
E RESEARCH STUDIES DOCUMENTATION OF CUSTOMS AND TRADITIONS THAT ILLUSTRATE
THE ENJOYMENT OF ANY FOREST RIGHTS AND HAVING THE FORCE OF CUSTOMARY LAW BY
REPUTED INSTITUTIONS SUCH AS !NTHROPOLOGICAL 3URVEY OF )NDIA
F ANY RECORD INCLUDING MAPS RECORD OF RIGHTS PRIVILEGES CONCESSIONS FAVOURS
FROM ERSTWHILE PRINCELY 3TATES OR PROVINCES OR OTHER SUCH INTERMEDIARIES
G TRADITIONAL STRUCTURES ESTABLISHING ANTIQUITY SUCH AS WELLS BURIAL GROUNDS
SACRED PLACES
H GENEALOGY TRACING ANCESTRY TO INDIVIDUALS MENTIONED IN EARLIER LAND RECORDS OR
RECOGNIZED AS HAVING BEEN LEGITIMATE RESIDENT OF THE VILLAGE AT AN EARLIER PERIOD
OF TIME
I STATEMENT OF ELDERS OTHER THAN CLAIMANTS REDUCED IN WRITING
!N EVIDENCE FOR #OMMUNITY &OREST 2IGHTS SHALL INTER ALIA INCLUDE
A COMMUNITY RIGHTS SUCH AS NISTAR BY WHATEVER NAME CALLED
B TRADITIONAL GRAZING GROUNDS AREAS FOR COLLECTION OF ROOTS AND TUBERS FODDER
WILD EDIBLE FRUITS AND OTHER MINOR FOREST PRODUCE SHING GROUNDS IRRIGATION
SYSTEMS SOURCES OF WATER FOR HUMAN OR LIVESTOCK USE MEDICINAL PLANT COLLECTION
TERRITORIES OF HERBAL PRACTITIONERS
C REMNANTS OF STRUCTURES BUILT BY THE LOCAL COMMUNITY SACRED TREES GROVES AND
PONDS OR RIVERINE AREAS BURIAL OR CREMATION GROUNDS
4HE 'RAM 3ABHA THE 3UB
$IVISIONAL ,EVEL #OMMITTEE AND THE $ISTRICT ,EVEL
#OMMITTEE SHALL CONSIDER MORE THAN ONE OF THE ABOVE
MENTIONED EVIDENCES IN
DETERMINING THE FOREST RIGHTS
!CCORDING TO THE PETITIONERS THE NATURE OF EVIDENCES ENUMERATED UNDER 2ULE ARE
MERELY ILLUSTRATIVE AND NOT EXHAUSTIVE 4HE MAIN GRIEVANCE REDRESSED BY THE PETITIONERS
4 / \
IS THAT A SATELLITE IMAGERY HAS BEEN SHOWN AS A PIECE OF EVIDENCE UNDER 2ULE #LAUSE
3UB CLAUSE A BUT THE AUTHORITIES HAVE BEEN INSISTING FOR A SATELLITE IMAGERY
PROVIDED ONLY BY "HASKARACHARYA )NSTITUTE OF 3PACE !PPLICATIONS AND 'EO )NFORMATICS
'ANDHINAGAR !CCORDING TO THE PETITIONERS THE SAID INSTITUTE HAS BEEN AUTHORIZED BY
THE RESPONDENTS TO USE SATELLITE IMAGERY AND HAVE BEEN ENTRUSTED WITH THE DUTY OF
ACQUIRING THE IMAGERIES AND PREPARING MAPS INDICATING THE AREAS OF CULTIVATION AS
COMMON PLOTS !CCORDING TO THE PETITIONERS THE RESPONDENTS SHOULD ALSO CONSIDER
EVIDENCE OF SATELLITE IMAGERY OTHER THAN THOSE PROVIDED BY ")3!' )T IS ALSO THE CASE
OF THE PETITIONERS THAT UNDER 2ULE #LAUSE 3UB CLAUSE C THE PHYSICAL ATTRIBUTES
SUCH AS HOUSE HUTS AND PERMANENT IMPROVEMENTS MADE TO LAND INCLUDING LEVELING
BANDS CHECK DAMS AND THE LIKE ARE ALSO PIECES OF EVIDENCES WHICH THE RESPONDENTS ARE
DUTY BOUND TO CONSIDER WHILE DECIDING THE CLAIMS BUT THE RESPONDENTS HAVE REFUSED TO
CONSIDER THE SAME DESPITE THE FACT THAT THE FOREST RIGHTS COMMITTEE CONSTITUTED UNDER
THE 2ULES VESTED THE LANDS IN QUESTION AND PREPARED PANCHNAMAS INDICATING SUCH
PHYSICAL ATTRIBUTES
!CCORDING TO THE PETITIONERS UNDER 3ECTION #LAUSE OF THE !CT THE CLAIMANTS HAVE
TO SHOW THAT THEY HAD OCCUPIED THE CLAIMED FOREST LAND BEFORE TH $ECEMBER
AND UNDER 3ECTION #LAUSE SUCH CLAIMED LAND SHOULD BE UNDER THEIR OCCUPATION
ON THE DATE OF COMMENCEMENT OF THE !CT IE ST $ECEMBER 4HE GRIEVANCE OF
THE PETITIONERS IS THAT ALTHOUGH SUCH PHYSICAL ATTRIBUTES ARE NOTED SUBSEQUENT TO THE
ABOVE REFERRED DATES THE AGE OF SUCH PHYSICAL ATTRIBUTES COULD BE EASILY ASCERTAINED BY
THE COMMITTEE BUT SUCH EVIDENCE HAS BEEN REFUSED TO BE CONSIDERED BY THE 3$,#S AND
$,#S
)T IS ALSO THE COMPLAINT OF THE PETITIONERS THAT 2ULE #LAUSE SUB CLAUSE D PERMITS
QUASI JUDICIAL AND JUDICIAL RECORDS INCLUDING THE #OURT ORDERS AND JUDGMENTS TO BE
PRODUCED AND CONSIDERED AND MANY OF THE CLAIMANTS HAVE PRODUCED SUCH EVIDENCES
BUT THE RESPONDENTS HAVE IGNORED THE SAME
!CCORDING TO THE PETITIONERS THE 3$,#S AND $,#S ARE INSISTING UPON ONLY THE RECORD
BASED EVIDENCE AND THAT TOO OF THE AUTHORIZED DEPARTMENTS 4HE RESPONDENTS HAVE
THOUGHT T TO CONSIDER ONLY THE FOLLOWING TWO KIND OF FOREST DEPARTMENT RECORDS
I THE LIST PREPARED BY THE FOREST DEPARTMENT OF THOSE PRE CLAIMS WHICH WERE IN
PRINCIPLE APPROVED UNDER '2 OF BUT COULD NOT BE GIVEN NAL FORMAL ORDERS
II THE LIST OF FOREST SETTLEMENT OFCERS REPORTS RECOMMENDING DELETION OF THE LANDS
FROM THE PROPOSED FOREST AREAS
!CCORDING TO THE PETITIONERS THE 3$,#S AND $,#S IN CASES WHERE THERE IS NO FOREST
DEPARTMENTS RECORD BASED EVIDENCE WERE INSTRUCTED TO USE SATELLITE IMAGERIES 4HE
PETITIONERS HAVE CLARIED THAT THEY DO NOT HAVE ANY OBJECTION TO THE USE OF SUCH SATELLITE
IMAGERIES (OWEVER THEIR OBJECTION IS THAT SATELLITE IMAGERIES SHOULD NOT BE THE ONLY
PIECE OF EVIDENCE TO BE CONSIDERED FOR THE PURPOSE OF DECIDING THE CLAIM !CCORDING TO
THE PETITIONERS THE FOLLOWING ASPECTS ARE NECESSARY TO BE KEPT IN MIND
! 4HE USER OF SATELLITE IMAGERIES IS HIGHLY UNSCIENTIC 4HE ")3!' WHICH HAS BEEN
GIVEN THE TASK OF PREPARING MAPS FROM THE SATELLITE IMAGERIES OVERLAYS THE VILLAGE
MAP OVER THE CONCERNED SATELLITE IMAGERIES OF AND AND IN THE FOREST NUMBER
THEY EARMARK AS COMMON PLOTS THE AREAS WHERE THEY ND CULTIVATION IN YEAR AND
AND THEN PREPARE MAPS THE PRINT
OUT OF WHICH ARE SENT FOR THE USE OF THEM BY THE
3$,#S AND $,#S !CCORDING TO PETITIONERS THIS PROCEDURE IS HIGHLY UNSCIENTIC AS IT IS
VERY DIFCULT TO EARMARK THE COMMON PLOTS THUS PREPARED ACTUALLY ON THE GROUND AND
MORE OFTEN THAN NOT 3$,#S AND $,#S DO NOT RESORT TO THIS RESULTANTLY BY ASSUMPTION
THEY DECIDE THE CLAIMS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
" 3UCH METHOD IS ALSO HIGHLY DEFECTIVE AS COULD BE SEEN FROM THE MAPS PREPARED BY
")3!' )N ALMOST EVERY VILLAGE
CULTIVATED LANDS CLAIMED BY THE PETITIONERS ARE
LEFT OUT AS A RESULT OF WHICH THE DESERVING CLAIMS ARE REJECTED
# 4HE CLAIMANTS THEMSELVES IN MANY CASES PURCHASED THE SATELLITE IMAGERIES FROM
.2#(YDERABAD FROM WHERE EVEN ")3!' GETS THE IMAGERIES 4HEY THEN CARRY OUT '03
0$! 3URVEY OF THEIR CLAIMED LANDS THIS WAY THEY OBTAIN THE CO
ORDINATES OF THE CORNERS
OF THE LANDS WHICH THEY SUPERIMPOSE OVER THE IMAGERIES AND EARMARK THEIR CLAIMED
LANDS OVER THE SATELLITE IMAGERY 4HIS WILL EASILY SHOW WHETHER IN SUCH AN EARMARKED
LAND THERE IS CULTIVATION OR NOT !CCORDING TO THE PETITIONERS THE ")3!' SHOULD ALSO
ADOPT THIS METHOD HOWEVER THEY DO NOT RESORT TO SUCH A SIMPLE METHOD
$ 4HE PETITIONERS DESIRE THAT SUCH A PREPARED MAP ON .2#IMAGERY OR SUCH OTHER
IMAGERY SUCH AS GOOGLE EARTH ETC SHOULD ALSO BE ALLOWED TO BE PRODUCED AND CONSIDERED
AS THE SAME IS TO BE CONSIDERED UNDER 2ULE HOWEVER THE RESPONDENTS DO NOT CONSIDER
THE SAME
% 4HE SATELLITE IMAGERIES SHOULD NOT BE TREATED AS NAL AND IT SHOULD HAVE BEEN
CONSIDERED AS ONLY ONE OF THE EVIDENCE (OWEVER THE RESPONDENT CONSIDER THE SAME
TO BE NAL AND IF THE IMAGERY DOES NOT SUPPORT THE CLAIM OF THE CLAIMANT THE SAME IS
BEING REJECTED BY 3$,#S AND $,#S
!CCORDING TO THE PETITIONERS THE INSTRUCTIONS OF THE RESPONDENTS ISSUED ON THE 3$,#S
AND $,#S WHICH ARE ANNEXED TO THE PETITION AND MARKED AS !NNEXURES + , - . 0 3
AND 4 DESERVE TO BE RECALLED AND RECONSIDERED
)N SUCH CIRCUMSTANCES REFERRED TO ABOVE THE PETITIONERS HAVE PRAYED FOR APPROPRIATE
RELIEFS AS CONTAINED IN PARAGRAPH OF BOTH THE PETITIONS ARE CONCERNED
3 4! .#% /& 4( % 2 % 3 0/.$%. 43
/N BEHALF OF THE RESPONDENT NO THE !DDITIONAL #HIEF 3ECRETARY 4RIBAL $EVELOPMENT
$EPARTMENT ONE -R 4, 0ATEL *OINT $IRECTOR &2! #OMMISSIONERATE OF 4RIBAL
$EPARTMENT HAS AFRMED AN AFDAVIT
!CCORDING TO THE RESPONDENT MANY GRIEVANCES OF THE PETITIONERS WOULD NOT SURVIVE
AS THE SAME HAVE BEEN TAKEN CARE OF BY THE RESOLUTION OF THE 3TATE 'OVERNMENT DATED
TH /CTOBER 6IDE RESOLUTION DATED TH /CTOBER A DECISION HAS BEEN TAKEN TO
REVIEW ALL SUCH CASES WHEREIN THE CLAIMS OF THE PERSONS HAVE BEEN REJECTED UNDER THE
!CT AND THE 2ULES
!CCORDING TO THE RESPONDENTS THE PROVISIONS OF THE !CT AND THE 2ULES ARE BEING
IMPLEMENTED IN LETTER AND SPIRIT !CCORDING TO THE RESPONDENTS THE PANCHNAMA FOREST
OFFENCE RECEIPT ETC ARE JUST SECONDARY EVIDENCE AND THE PRIMARY EVIDENCE SHOULD BE
OBTAINED FROM OTHER RECORDS TO ESTABLISH THAT THE LAND WAS IN POSSESSION OF THE CLAIMANT
ON THE STIPULATED TIME AND THE DATE 4HE PANCHNAMAS DRAWN AFTER ST $ECEMBER
FAIL TO ESTABLISH THAT THE CLAIMANTS WERE IN POSSESSION ON THE STIPULATED DATE IE BEFORE
TH $ECEMBER AND ON ST $ECEMBER
!CCORDING TO THE RESPONDENT THE RESOLUTION PASSED BY THE 3TATE ,EVEL -ONITORING
#OMMITTEE EMPOWERS THE AUTHORITIES TO USE SATELLITE IMAGERIES OF STIPULATED PERIOD
TO CONRM THE POSSESSION OF THE CLAIMANT 4HE SATELLITE IMAGERIES ARE OTHERWISE AN
ACCEPTABLE PIECE OF EVIDENCE AS HELD BY THE 3UPREME #OURT IN THE CASE OF "ORIVALI
.ATIONAL 0ARK !CCORDING TO THE RESPONDENT THE SATELLITE IMAGERIES ARE USED IN A
4 / \
ABSOLUTELY SCIENTIC MANNER SO AS TO CONRM THE CLAIM OF THE CLAIMANT AND THE VILLAGERS
ARE PERMITTED TO PARTICIPATE IN USE OF SUCH IMAGERIES 4HE RESPONDENT HAS TAKEN A
STANCE THAT ANY SUGGESTIONS FROM ANY CORNER WILL BE TAKEN INTO CONSIDERATION SO AS TO
SIMPLIFY THE PROCESS MAKING IT MORE TRANSPARENT AND THEREBY GIVING TRUE EFFECT TO THE
OBJECT OF ENACTING THE !CT
7E HAVE HEARD -R+IRIT 0ANWALA THE LEARNED COUNSEL APPEARING FOR THE PETITIONERS
OF 7RIT 0ETITION 0), .O OF WITH -S+RUTI - 3HAH -R"HUSHAN " /ZA THE
LEARNED COUNSEL APPEARING FOR THE PETITIONERS OF 7RIT 0ETITION 0), .O OF AND
-R0RAKASH + *ANI THE LEARNED 'OVERNMENT 0LEADER APPEARING FOR THE 3TATE RESPONDENT
(AVING HEARD THE LEARNED COUNSEL FOR THE RESPECTIVE PARTIES AND HAVING GONE THROUGH
THE MATERIALS ON RECORD THE ONLY QUESTION THAT FALLS FOR OUR CONSIDERATION IN THESE
PETITIONS IS WHETHER THE RESPONDENTS ARE GIVING TRUE EFFECT TO THE PROVISIONS OF THE
3CHEDULED #ASTE AND /THER 4RADITIONAL &OREST $WELLERS RECOGNITION OF &OREST 2IGHTS
!CT AND THE 2ULES FRAMED THEREUNDER IN THE INTEREST OF THE PERSONS FOR WHOM THE
LEGISLATURE THOUGHT T TO ENACT SUCH A PIECE OF LEGISLATION
!T THIS STAGE IT WOULD NOT BE OUT OF CONTEXT TO LOOK INTO THE OBJECTS AND REASONS OF THE
!CT 4HE PREAMBLE READS AS UNDER
!N !CT TO RECOGNISE AND VEST THE FOREST RIGHTS AND OCCUPATION IN FOREST LAND IN FOREST
DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS WHO HAVE BEEN
RESIDING IN SUCH FORESTS FOR GENERATIONS BUT WHOSE RIGHTS COULD NOT BE RECORDED TO
PROVIDE FOR A FRAMEWORK FOR RECORDING THE FOREST RIGHTS SO VESTED AND THE NATURE OF
EVIDENCE REQUIRED FOR SUCH RECOGNITION AND VESTING IN RESPECT OF FOREST LAND
7HEREAS THE RECOGNISED RIGHTS OF THE FOREST DWELLING 3CHEDULED 4RIBES AND OTHER
TRADITIONAL FOREST DWELLERS INCLUDE THE RESPONSIBILITIES AND AUTHORITY FOR SUSTAINABLE
USE CONSERVATION OF BIODIVERSITY AND MAINTENANCE OF ECOLOGICAL BALANCE AND THEREBY
STRENGTHENING THE CONSERVATION REGIME OF THE FORESTS WHILE ENSURING LIVELIHOOD AND
FOOD SECURITY OF THE FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST
DWELLERS
!.$ 7(%2%!3 THE FOREST RIGHTS ON ANCESTRAL LANDS THEIR HABITAT WERE NOT ADEQUATELY
RECOGNISED IN THE CONSOLIDATION OF 3TATE FORESTS DURING THE COLONIAL PERIOD AS WELL
AS IN INDEPENDENT )NDIA RESULTING IN HISTORICAL INJUSTICE TO THE FOREST DWELLING
3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS WHO ARE INTEGRAL TO THE VERY
SURVIVAL AND SUSTAINABILITY OF THE FOREST ECOSYSTEM
!.$ 7(%2%!3 IT HAS BECOME NECESSARY TO ADDRESS THE LONG STANDING INSECURITY OF
TENURIAL AND ACCESS RIGHTS OF FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL
FOREST DWELLERS INCLUDING THOSE WHO WERE FORCED TO RELOCATE THEIR DWELLING DUE TO
3TATE DEVELOPMENT INTERVENTIONS
#HAPTER ))) PROVIDES FOR RECOGNITION RESTORATION AND VESTING OF FOREST RIGHTS AND RELATED
MATTERS 3ECTION READS AS UNDER
.OTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER LAW FOR THE TIME BEING
IN FORCE AND SUBJECT TO THE PROVISIONS OF THIS !CT THE #ENTRAL 'OVERNMENT HEREBY
RECOGNISES AND VESTS FOREST RIGHTS IN
A THE FOREST DWELLING 3CHEDULED 4RIBES IN 3TATES OR AREAS IN 3TATES WHERE THEY ARE
DECLARED AS 3CHEDULED 4RIBES IN RESPECT OF ALL FOREST RIGHTS MENTIONED IN SECTION
B THE OTHER TRADITIONAL FOREST DWELLERS IN RESPECT OF ALL FOREST RIGHTS MENTIONED
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
IN SECTION
4HE FOREST RIGHTS RECOGNISED UNDER THIS !CT IN CRITICAL WILDLIFE HABITATS OF .ATIONAL
0ARKS AND 3ANCTUARIES MAY SUBSEQUENTLY BE MODIED OR RESETTLED PROVIDED THAT
NO FOREST RIGHTS HOLDERS SHALL BE RESETTLED OR HAVE THEIR RIGHTS IN ANY MANNER
AFFECTED FOR THE PURPOSES OF CREATING INVIOLATE AREAS FOR WILDLIFE CONSERVATION
EXCEPT IN CASE ALL THE FOLLOWING CONDITIONS ARE SATISED NAMELY
A THE PROCESS OF RECOGNITION AND VESTING OF RIGHTS AS SPECIED IN SECTION IS
COMPLETE IN ALL THE AREAS UNDER CONSIDERATION
B IT HAS BEEN ESTABLISHED BY THE CONCERNED AGENCIES OF THE 3TATE 'OVERNMENT
IN EXERCISE OF THEIR POWERS UNDER THE 7ILD ,IFE 0ROTECTION !CT THAT THE
ACTIVITIES OR IMPACT OF THE PRESENCE OF HOLDERS OF RIGHTS UPON WILD ANIMALS IS
SUFCIENT TO CAUSE IRREVERSIBLE DAMAGE AND THREATEN THE EXISTENCE OF SAID SPECIES
AND THEIR HABITAT
C THE 3TATE 'OVERNMENT HAS CONCLUDED THAT OTHER REASONABLE OPTIONS SUCH AS
CO
EXISTENCE ARE NOT AVAILABLE
D A RESETTLEMENT OR ALTERNATIVES PACKAGE HAS BEEN PREPARED AND COMMUNICATED
THAT PROVIDES A SECURE LIVELIHOOD FOR THE AFFECTED INDIVIDUALS AND COMMUNITIES
AND FULLLS THE REQUIREMENTS OF SUCH AFFECTED INDIVIDUALS AND COMMUNITIES
GIVEN IN THE RELEVANT LAWS AND THE POLICY OF THE #ENTRAL 'OVERNMENT
E THE FREE INFORMED CONSENT OF THE 'RAM 3ABHAS IN THE AREAS CONCERNED TO THE
PROPOSED RESETTLEMENT AND TO THE PACKAGE HAS BEEN OBTAINED IN WRITING
F NO RESETTLEMENT SHALL TAKE PLACE UNTIL FACILITIES AND LAND ALLOCATION AT THE
RESETTLEMENT LOCATION ARE COMPLETE AS PER THE PROMISED PACKAGE
0ROVIDED THAT THE CRITICAL WILDLIFE HABITATS FROM WHICH RIGHTS HOLDERS ARE THUS
RELOCATED FOR PURPOSES OF WILDLIFE CONSERVATION SHALL NOT BE SUBSEQUENTLY
DIVERTED BY THE 3TATE 'OVERNMENT OR THE #ENTRAL 'OVERNMENT OR ANY OTHER ENTITY
FOR OTHER USES
4HE RECOGNITION AND VESTING OF FOREST RIGHTS UNDER THIS !CT TO THE FOREST DWELLING
3CHEDULED 4RIBES AND TO OTHER TRADITIONAL FOREST DWELLERS IN RELATION TO ANY 3TATE
OR 5NION TERRITORY IN RESPECT OF FOREST LAND AND THEIR HABITAT SHALL BE SUBJECT TO THE
CONDITION THAT SUCH 3CHEDULED 4RIBES OR TRIBAL COMMUNITIES OR OTHER TRADITIONAL
FOREST DWELLERS HAD OCCUPIED FOREST LAND BEFORE THE TH DAY OF $ECEMBER
! RIGHT CONFERRED BY SUB
SECTION 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
3AVE AS OTHERWISE PROVIDED NO MEMBER OF A FOREST DWELLING 3CHEDULED 4RIBE
OR OTHER TRADITIONAL FOREST DWELLER SHALL BE EVICTED OR REMOVED FROM FOREST LAND
UNDER HIS OCCUPATION TILL THE RECOGNITION AND VERICATION PROCEDURE IS COMPLETE
7HERE THE FOREST RIGHTS RECOGNISED AND VESTED BY SUB
SECTION ARE IN RESPECT
OF LAND MENTIONED IN CLAUSEA OF SUB
SECTION OF SECTION SUCH LAND SHALL
BE UNDER THE OCCUPATION OF AN INDIVIDUAL OR FAMILY OR COMMUNITY ON THE DATE
4 / \
OF COMMENCEMENT OF THIS !CT AND SHALL BE RESTRICTED TO THE AREA UNDER ACTUAL
OCCUPATION AND SHALL IN NO CASE EXCEED AN AREA OF FOUR HECTARES
4HE FOREST RIGHTS SHALL BE CONFERRED FREE OF ALL ENCUMBRANCES AND PROCEDURAL
REQUIREMENTS INCLUDING CLEARANCE UNDER THE &OREST #ONSERVATION !CT
REQUIREMENT OF PAYING THE NET PRESENT VALUE AND COMPENSATORY AFFORESTATION
FOR DIVERSION OF FOREST LAND EXCEPT THOSE SPECIED IN THIS !CT
4HE FOREST RIGHTS RECOGNISED AND VESTED UNDER THIS !CT SHALL INCLUDE THE RIGHT
OF LAND TO FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
WHO CAN ESTABLISH THAT THEY WERE DISPLACED FROM THEIR DWELLING AND CULTIVATION
WITHOUT LAND COMPENSATION DUE TO 3TATE DEVELOPMENT INTERVENTIONS AND WHERE
THE LAND HAS NOT BEEN USED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED WITHING
VE YEARS OF THE SAID ACQUISITION
4HE HOLDERS OF ANY FOREST RIGHT 'RAM 3ABHA AND VILLAGE LEVEL INSTITUTIONS IN AREAS
WHERE THERE ARE HOLDERS OF ANY FOREST RIGHT UNDER THIS !CT ARE EMPOWERED TO
A PROTECT THE WILD LIFE FOREST AND BIODIVERSITY
B ENSURE THAT ADJOINING CATCHMENTS ARE WATER SOURCES AND OTHER ECOLOGICAL
SENSITIVE AREAS ARE ADEQUATELY PROTECTED
C ENSURE THAT THE HABITAT OF FOREST DWELLING 3CHEDULED 4RIBES AND OTHER
TRADITIONAL FOREST DWELLERS IS PRESERVED FROM ANY FORM OF DESTRUCTIVE PRACTICES
AFFECTING THEIR CULTURAL AND NATURAL HERITAGE
D ENSURE THAT THE DECISIONS TAKEN IN THE 'RAM 3ABHA TO REGULATE ACCESS TO
COMMUNITY FOREST RESOURCES AND STOP ANY ACTIVITY WHICH ADVERSELY AFFECTS THE
WILD ANIMALS FOREST AND THE BIODIVERSITY ARE COMPLIED WITH
#HAPTER PROVIDES FOR THE AUTHORITIES AND THE PROCEDURE FOR VESTING OF FOREST RIGHTS
WHICH READS AS UNDER
#(!04%2 )6
!54(/2)4)%3 !.$ 02#$52% &/2 6%34).' /& &/2%34 2)'(43
4HE 'RAM 3ABHA 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 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST
DWELLERS WITHIN THE LOCAL LIMITS OF ITS JURISDICTION UNDER THIS !CT BY RECEIVING
CLAIMS CONSOLIDATION AND VERIFYING THEM AND PREPARING A MAP DELINEATING
THE AREA OF EACH RECOMMENDED CLAIM IN SUCH MANNER AS MAY BE PRESCRIBED FOR
EXERCISE OF SUCH RIGHTS AND THE 'RAM 3ABHA SHALL THEN PASS A RESOLUTION TO THAT
EFFECT AND THEREAFTER FORWARD A COPY OF THE SAME TO THE 3UB
$IVISIONAL ,EVEL
#OMMITTEE
!NY PERSON AGGRIEVED BY THE RESOLUTION OF THE 'RAM 3ABHA MAY PREFER A
PETITION TO THE 3UB
$IVISIONAL ,EVEL #OMMITTEE CONSTITUTED UNDER SUB
SECTION
AND THE 3UB
$IVISIONAL ,EVEL #OMMITTEE SHALL CONSIDER AND DISPOSE OF SUCH
PETITION
0ROVIDED THAT EVERY SUCH PETITION SHALL BE PREFERRED WITHIN SIXTY DAYS FROM THE
DATE OF PASSING OF THE RESOLUTION BY THE 'RAM 3ABHA
0ROVIDED FURTHER THAT NO SUCH PETITION SHALL BE DISPOSED OF AGAINST THE AGGRIEVED
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
PERSON UNLESS HE HAS BEEN GIVEN A REASONABLE OPPORTUNITY TO PRESENT HIS CASE
4HE 3TATE 'OVERNMENT SHALL CONSTITUTE A 3UB
$IVISIONAL ,EVEL #OMMITTEE TO
EXAMINE THE RESOLUTION PASSED BY THE 'RAM 3ABHA AND PREPARE THE RECORD OF
FOREST RIGHTS AND FORWARD IT THROUGH THE 3UB
$IVISIONAL /FCER TO THE $ISTRICT
,EVEL #OMMITTEE FOR A NAL DECISION
!NY PERSON AGGRIEVED BY THE DECISION OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE
MAY PREFER A PETITION TO THE $ISTRICT ,EVEL #OMMITTEE WITHIN SIXTY DAYS FROM THE
DATE OF DECISION OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE AND THE $ISTRICT ,EVEL
#OMMITTEE SHALL CONSIDER AND DISPOSE OF SUCH PETITION
0ROVIDED THAT NO PETITION SHALL BE PREFERRED DIRECTLY BEFORE THE $ISTRICT ,EVEL
#OMMITTEE AGAINST THE RESOLUTION OF THE 'RAM 3ABHA UNLESS THE SAME HAS BEEN
PREFERRED BEFORE AND CONSIDERED BY THE 3UB
$IVISIONAL ,EVEL #OMMITTEE
0ROVIDED 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
4HE 3TATE 'OVERNMENT SHALL CONSTITUTE A $ISTRICT ,EVEL #OMMITTEE TO CONSIDER
AND NALLY APPROVE THE RECORD OF FOREST RIGHTS PREPARED BY THE 3UB
$IVISIONAL
,EVEL #OMMITTEE
4HE DECISION OF THE $ISTRICT ,EVEL #OMMITTEE ON THE RECORD OF FOREST RIGHTS
SHALL BE NAL AND BINDING
4HE 3TATE 'OVERNMENT SHALL CONSTITUTE A 3TATE ,EVEL -ONITORING #OMMITTEE 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
4HE SUB
$IVISIONAL ,EVEL #OMMITTEE THE $ISTRICT ,EVEL #OMMITTEE AND THE
3TATE ,EVEL -ONITORING #OMMITTEE SHALL CONSIST OF OFCERS OF THE DEPARTMENTS OF
2EVENUE &OREST AND 4RIBAL !FFAIRS OF THE 3TATE 'OVERNMENT AND THREE MEMBERS
OF THE 0ANCHAYATI 2AJ )NSTITUTIONS AT THE APPROPRIATE LEVEL APPOINTED BY THE
RESPECTIVE 0ANCHAYATI 2AJ )NSTITUTIONS OF WHOM TWO SHALL BE THE 3CHEDULED 4RIBE
MEMBERS AND AT LEAST ONE SHALL BE A WOMAN AS MAY BE PRESCRIBED
4HE COMPOSITION AND FUNCTIONS OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE THE
$ISTRICT ,EVEL #OMMITTEE AND THE 3TATE ,EVEL -ONITORING #OMMITTEE AND THE
PROCEDURE TO BE FOLLOWED BY THEM IN THE DISCHARGE OF THEIR FUNCTIONS SHALL BE
SUCH AS MAY BE PRESCRIBED
4HUS IT IS EVIDENT FROM THE ABOVE THAT THE !CT OF IS A BENEVOLENT PIECE OF LEGISLATION
FOR THE MEMBERS OF THE 3CHEDULED 4RIBES AND /THER &OREST $WELLERS 3UCH MEMBERS
ARE A CLASS OF CITIZENS OF THIS COUNTRY WHO ARE UNDER
PRIVILEDGED AND HAIL FROM A POOR
STRATA OF THE SOCIETY )T APPEARS THAT THE -INISTRY OF 4RIBAL !FFAIRS IN EXERCISE OF THE
POWERS CONFERRED BY 3UB
SECTION AND OF3ECTION OF THE 3CHEDULED #ASTE AND
/THER 4RADITIONAL &OREST $WELLERS RECOGNITION OF &OREST 2IGHTS !CT AMENDED THE
2ULES OF TO BE CALLED THE 3CHEDULED #ASTE AND /THER 4RADITIONAL &OREST $WELLERS
RECOGNITION OF &OREST 2IGHTS !MENDMENT 2ULES &OR THE PURPOSE OF DECIDING THIS
PETITION IT IS NECESSARY TO CONSIDER THE AMENDED 2ULE 2ULE
! WHICH PROVIDES FOR
THE PROCESS OF RECOGNITION OF RIGHTS IS AS UNDER
! 0ROCESS OF RECOGNITION OF RIGHTS
/N RECEIPT OF INTIMATION FROM THE &OREST 2IGHTS #OMMITTEE THE OFCIALS OF THE
4 / \
&OREST AND 2EVENUE DEPARTMENTS SHALL REMAIN PRESENT DURING THE VERICATION
OF THE CLAIMS AND THE VERICATION OF EVIDENCES ON THE SITE AND SHALL SIGN THE
PROCEEDINGS WITH THEIR DESIGNATION DATE AND COMMENTS IF ANY
)F ANY OBJECTIONS ARE MADE BY THE &OREST OR 2EVENUE DEPARTMENTS AT A LATER
DATE TO A CLAIM APPROVED BY THE 'RAM 3ABHA FOR THE REASON THAT THEIR
REPRESENTATIVES WERE ABSENT DURING LED VERICATION THE CLAIM SHALL BE
REMANDED TO THE 'RAM 3ABHA FOR RE
VERICATION BY THE COMMITTEE WHERE
OBJECTION HAS BEEN RAISED AND IF THE REPRESENTATIVES AGAIN FAIL TO ATTEND THE
VERICATION PROCESS THE 'RAM 3ABHAS DECISION ON THE LED VERICATION SHALL
BE NAL
)N THE EVENT OF MODICATION OR REJECTION OF A CLAIM BY THE 'RAM 3ABHA OR
A RECOMMENDATION FOR MODICATION OR REJECTION OF A CLAIM FORWARDED BY
THE 3UB
$IVISIONAL ,EVEL #OMMITTEE TO THE $ISTRICT ,EVEL #OMMITTEE SUCH
DECISION OR RECOMMENDATION ON THE CLAIM SHALL BE COMMUNICATED IN PERSON
TO THE CLAIMANT TO ENABLE HIM TO PREFER A PETITION TO THE 3UB
$IVISIONAL ,EVEL
#OMMITTEE OR $ISTRICT ,EVEL #OMMITTEE AS THE CASE MAY BE WITHIN A PERIOD OF
SIXTY DAYS WHICH SHALL BE EXTENDABLE TO A PERIOD OF THIRTY DAYS AT THE DISCRETION
OF THE ABOVE SAID COMMITTEES
)F ANY OTHER STATE AGENCY DESIRES TO OBJECT TO A DECISION OF THE 'RAM 3ABHA
OR THE 3UB
$IVISIONAL ,EVEL #OMMITTEE IT SHALL LE AN APPEAL BEFORE THE
3UB
$IVISIONAL ,EVEL #OMMITTEE OR THE $ISTRICT ,EVEL #OMMITTEE AS THE CASE
MAY BE WHICH SHALL BE DECIDED BY THE #OMMITTEE IN THE ABSENCE OF THE
REPRESENTATIVE OF THE CONCERNED AGENCY IF ANY AFTER HEARING THE CLAIMANT
.O PETITION OF THE AGGRIEVED PERSON SHALL BE DISPOSED OF UNLESS HE HAS BEEN
GIVEN A REASONABLE OPPORTUNITY TO PRESENT ANYTHING IN SUPPORT OF HIS CLAIM
4HE 3UB
$IVISIONAL ,EVEL #OMMITTEE OR THE $ISTRICT ,EVEL #OMMITTEE SHALL
REMAND THE CLAIM TO THE 'RAM 3ABHA FOR RE
CONSIDERATION INSTEAD OF MODIFYING
OR REJECTING THE SAME IN CASE THE RESOLUTION OR THE RECOMMENDATION OF THE
'RAM 3ABHA IS FOUND TO BE INCOMPLETE OR PRIMA
FACIE REQUIRES ADDITIONAL
EXAMINATION
)N CASES WHERE THE RESOLUTION PASSED BY THE 'RAM 3ABHA RECOMMENDING
A CLAIM WITH SUPPORTING DOCUMENTS AND EVIDENCE IS UPHELD BY THE 3UB
$IVISIONAL ,EVEL #OMMITTEE WITH OR WITHOUT MODICATIONS BUT THE SAME IS
NOT APPROVED BY THE $ISTRICT ,EVEL #OMMITTEE THE $ISTRICT ,EVEL #OMMITTEE
SHALL RECORD DETAILED REASONS FOR NOT ACCEPTING THE RECOMMENDATIONS OF THE
'RAM 3ABHA OR THE 3UB
$IVISIONAL ,EVEL #OMMITTEE AS THE CASE MAY BE IN
WRITING AND A COPY OF THE ORDER OF THE $ISTRICT ,EVEL #OMMITTEE ALONG WITH
THE REASONS SHALL BE MADE AVAILABLE TO THE CLAIMANT OR THE 'RAM 3ABHA OR THE
#OMMUNITY AS THE CASE MAY BE
4HE LAND RIGHTS FOR SELF CULTIVATION RECOGNISED UNDER CLAUSEA OF SUB SECTION
OF SECTION SHALL BE WITHIN THE SPECIED LIMIT INCLUDING THE FOREST LANDS
USED FOR ALLIED ACTIVITIES ANCILLARY TO CULTIVATION SUCH AS FOR KEEPING CATTLE FOR
WINNOWING AND OTHER POST HARVEST ACTIVITIES ROTATIONAL FALLOWS TREE CROPS
AND STORAGE OF PRODUCE
/N COMPLETION OF THE PROCESS OF SETTLEMENT OF RIGHTS AND ISSUE OF TITLES AS
SPECIED IN !NNEXURE )) ))) AND )6 OF THESE RULES THE 2EVENUE AND THE &OREST
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
DEPARTMENTS SHALL PREPARE A NAL MAP OF THE FOREST LAND SO VESTED AND THE
CONCERNED AUTHORITIES SHALL INCORPORATE THE FOREST RIGHTS SO VESTED IN THE
REVENUE AND FOREST RECORDS AS THE CASE MAY BE WITHIN THE SPECIED PERIOD
OF RECORD UPDATION UNDER THE RELEVANT 3TATE LAWS OR WITHIN A PERIOD OF THREE
MONTHS WHICHEVER IS EARLIER
!LL DECISIONS OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE AND $ISTRICT ,EVEL
#OMMITTEE THAT INVOLVE MODICATION OR REJECTION OF A 'RAM 3ABHA
RESOLUTION OR RECOMMENDATION OF THE 3UB $IVISIONAL ,EVEL #OMMITTEE SHALL
GIVE DETAILED REASONS FOR SUCH MODICATION OR REJECTION AS THE CASE MAY BE
0ROVIDED THAT NO RECOMMENDATION OR REJECTION OF CLAIMS SHALL BE MERELY ON
ANY TECHNICAL OR PROCEDURAL GROUNDS
0ROVIDED FURTHER THAT NO COMMITTEE EXCEPT THE 'RAM 3ABHA OR THE &OREST
2IGHTS #OMMITTEE AT THE "LOCK OR 0ANCHAYAT OR FOREST BEAT OR RANGE LEVEL OR
ANY INDIVIDUAL OFCER OF ANY RANK SHALL BE EMPOWERED TO RECEIVE CLAIMS OR
REJECT MODIFY OR DECIDE ANY CLAIM ON FOREST RIGHTS
4HE 3UB
$IVISIONAL ,EVEL #OMMITTEE OR THE $ISTRICT ,EVEL #OMMITTEE SHALL
CONSIDER THE EVIDENCE SPECIED IN RULE WHILE DECIDING THE CLAIMS AND
SHALL NOT INSIST UPON ANY PARTICULAR FORM OF DOCUMENTARY EVIDENCE FOR
CONSIDERATION OF A CLAIM
%XPLANATION
&INE RECEIPTS ENCROACHER LISTS PRIMARY OFFENCE REPORTS FOREST SETTLEMENT
REPORTS AND SIMILAR DOCUMENTATION BY WHATEVER NAME CALLED ARISEN DURING
PRIOR OFCIAL EXERCISE OR THE LACK THEREOF SHALL NOT BE THE SOLE BASIS FOR REJECTION
OF ANY CLAIM
4HE SATELLITE IMAGERY AND OTHER USES OF TECHNOLOGY MAY SUPPLEMENT OTHER
FORM OF EVIDENCE AND SHALL NOT BE TREATED AS A REPLACEMENT
)T ALSO APPEARS THAT THE 3TATE 'OVERNMENT VIDE RESOLUTION DATED TH /CTOBER
DECIDED TO REVIEW ALL THE CASES WHEREIN THE CLAIMS WERE REJECTED BY THE COMMITTEES
UNDER THE !CT OF AND THE 2ULES FRAMED THEREUNDER
$URING THE PENDENCY OF THIS WRIT PETITION THE 'OVERNMENT OF )NDIA IN ITS DEPARTMENT
OF 4RIBAL !FFAIRS WHICH IS A NODAL AGENCY UNDER 3ECTION HAS FRAMED GUIDELINES DATED
TH *ULY 4HE GUIDELINES AS ISSUED BY THE 'OVERNMENT OF )NDIA AS REGARDS NOTIED
FOREST RIGHTS ARE AS UNDER
! 4HE OFCIALS OF THE &OREST AND 2EVENUE DEPARTMENT SHALL REMAIN PRESENT DURING
THE VERICATION OF CLAIMS AND EVIDENCE ON THE SITEIA
" 4HE DECISION ON THE CLAIM SHOULD BE COMMUNICATED TO THE CLAIMANT TO ENABLE
HIM TO PREFER A PETITIONIB
# 4HE CLAIM SHOULD BE REMANDED FOR RECONSIDERATION IN CASE THE RESOLUTION OR
THE RECOMMENDATION OF THE 'RAM 3ABHA IS FOUND TO BE INCOMPLETE OR PRIMA
FACIE
REQUIRES ADDITIONAL EXAMINATIONID
$ 4HE 3$,#S AND $,#S SHOULD RECORD REASONS FOR NOT ACCEPTING THE RECOMMENDATION
OF 'RAM 3ABHA OR 3$,#SIE
4 / \
% !LL DECISIONS OF THE 3$,#S AND $,#S THAT INVOLVE MODICATION OR REJECTION OF A
'RAM 3ABHA RESOLUTIONRECOMMENDATION SHOULD BE IN THE FORM OF SPEAKING ORDERS
IF
& 4HE 3$,#S OR $,#S SHOULD NOT REJECT ANY CLAIM ACCOMPANIED BY ANY TWO FORMS OF
EVIDENCES SPECIED IN 2ULE AND RECOMMENDED BY THE 'RAM 3ABHA WITHOUT GIVING
REASONS IN WRITING AND SHOULD NOT INSIST UPON ANY PARTICULAR FORM OF EVIDENCE FOR
CONSIDERATION OF A CLAIM &INE RECEIPTS ENCROACHER LISTS PRIMARY OFFENCE REPORT FOREST
SETTLEMENT REPORTS AND SIMILAR DOCUMENTATION ROOTED IN PRIOR OFCIAL EXERCISES OR
LACK THERE OF WOULD NOT BE THE SOLE BASIS FOR REJECTION OF ANY CLAIMIG
' 5SE OF ANY TECHNOLOGY SUCH AS SATELLITE IMAGERY SHOULD BE USED TO SUPPLEMENT
EVIDENCES TENDERED BY A CLAIMANT FOR CONSIDERATION OF THE CLAIM AND NOT TO REPLACE
OTHER EVIDENCES SUBMITTED BY HIM IN SUPPORT OF HIS CLAIM AS THE ONLY FORM OF
EVIDENCEIH
!FTER DECLARING THE AFORESAID GUIDELINES DATED TH *ULY THE 0ARLIAMENT THOUGHT
T TO AMEND THE 2ULES OF AND THAT IS HOW 2ULE
! AS REFERRED TO ABOVE CAME TO
BE INSERTED
4AKING INTO CONSIDERATION THE AFORESAID DEVELOPMENTS WE DIRECTED THE RESPONDENT TO LE
A SUPPLEMENTARY AFDAVIT DISCLOSING THE STATUS OF THE PENDING CLAIM APPLICATIONS AND
THE REVIEW APPLICATIONS 4HE RESPONDENTS WERE ALSO DIRECTED TO DISCLOSE IN THE AFDAVIT
WHETHER 2ULE
! HAD BEEN COMPLIED WITH WHILE DECIDING THE CLAIM APPLICATIONS OR
THE REVIEW APPLICATIONS 7E ALSO DIRECTED THAT IF ANY FRESH CLAIM APPLICATION OR REVIEW
APPLICATION WAS TO BE DISPOSED OF THEN THE AMENDED 2ULE SHOULD BE ADHERED TO
0URSUANT TO OUR ORDER DATED TH *ANUARY THE RESPONDENT NO AFRMED AN
AFDAVIT STATING THAT THEY HAD COMPLIED WITH THE PROVISIONS OF THE !CT THE AMENDED
2ULES AND GUIDELINES IN ITS TRUE LETTER AND SPIRIT AND IF THE PROCEDURE UNDER THE AMENDED
2ULE
! WAS NOT FOLLOWED THEN THE RESPONDENT WOULD ENSURE THAT ALL NECESSARY STEPS
WOULD BE TAKEN FOR THE SAME
!CCORDING TO THE PETITIONERS THE AMENDED 2ULES ARE NOT COMPLIED WITH WHILE DECIDING
THE PENDING CLAIMS AS WELL AS REVIEW APPLICATIONS )T HAS BEEN SUBMITTED BY -R0ANWALA
AS WELL AS -R/ZA THAT THE INSTRUCTIONS CONTAINED IN !NNEXURES + , - . 0 3 AND 4 ARE
STILL FOLLOWED BY THE 3$,#S AND $,#S
7E ARE OF THE OPINION HAVING REGARD TO THE OBJECT OF THE !CT AND THE PURPOSE FOR
WHICH THE SAME HAS BEEN ENACTED THAT TO DEMAND FROM SUCH A CLASS OF CITIZENS STRICT
PROOF AS REGARDS THEIR RIGHTS WOULD FRUSTRATE THE VERY OBJECT WITH WHICH THE !CT HAS
BEEN ENACTED .EEDLESS TO SAY THAT THE !CT IS A SOCIAL PIECE OF LEGISLATION AND
THE LEGISLATIVE INTENT IS TO PROTECT THE RIGHTS OF THE 3CHEDULED 4RIBES DWELLING IN THE
FORESTS 4HE OBJECTIVE OF SUCH SOCIAL WELFARE MEASURES NO DOUBT IS TO PROVIDE BETTER
EFCIENT AND MEANINGFUL LIFE TO SUCH FOREST DWELLERS 4HE PRIMARY DUTY OF THE #OURT
WHILE INTERPRETING THE PROVISIONS OF SUCH !CT IS TO ADOPT A CONSTRUCTIVE APPROACH TO
ACHIEVE THE PURPOSE OF THE !CT !NY OTHER INTERPRETATION THAT WOULD DEFEAT THE VERY
PURPOSE OF THE !CT IS NOT PERMISSIBLE IN LAW /NE SHOULD NOT OVERLOOK OR IGNORE THE
HARD FACT THAT THE CLAIM PETITIONS ARE LED BY THE PERSONS WHO ARE ABSOLUTELY ILLITERATE
AND WOULD HARDLY POSSESS ANY SUCH COGENT AND CONVINCING EVIDENCE TO THE SATISFACTION
OF THE AUTHORITIES 7E DO NOT PROPOSE TO SAY THAT THE AUTHORITIES SHOULD CONSIDER THE
CLAIMS IN A SLIPSHOD MANNER BUT AT THE SAME TIME TO DECIDE THE ENTIRE CLAIM BASED ONLY
ON SATELLITE IMAGERIES WOULD ALSO NOT SUBSERVE THE OBJECT OF THE !CT IGNORING OTHER
PIECES OF EVIDENCES
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
)N A VERY RECENT PRONOUNCEMENT OF THE 3UPREME #OURT DATED TH !PRIL IN THE CASE
OF /RISSA -INING #ORPORATION VS -INISTRY OF %NVIRONMENT AND &OREST AND /THERS IN 7RIT
0ETITION #IVIL .O OF THE 3UPREME #OURT IN DETAIL EXPLAINED THE TRUE SCOPE AND
OBJECT OF THE !CT 7E WOULD LIKE TO REPRODUCE SOME OF THE PARAGRAPHS OF THE SAID
JUDGMENT AS THEY ARE VERY MUCH RELEVANT SO FAR AS THE SUBJECT MATTER OF THE PRESENT
PETITION IS CONCERNED
3 43 ! . $ 4& $3
3CHEDULED 4RIBE AS SUCH IS NOT DENED IN THE &OREST 2IGHTS !CT BUT THE WORD
4RADITIONAL &OREST $WELLER HAS BEEN DENED UNDER 3ECTION O AS ANY MEMBER OR
COMMUNITY WHO HAS AT LEAST THREE GENERATIONS PRIOR TO THE TH DAY OF $ECEMBER
PRIMARILY RESIDED IN AND WHO DEPEND ON THE FOREST OR FORESTS LAND FOR BONA DE
LIVELIHOOD NEEDS !RTICLE OF THE #ONSTITUTION STATES THAT 34S MEANS SUCH TRIBES
OR TRIBAL COMMUNITIES OR PARTS OF OR GROUPS WITHIN SUCH TRIBES OR TRIBAL COMMUNITIES
AS ARE DENED UNDER !RTICLE TO BE THE 3CHEDULED 4RIBES 4HE 0RESIDENT OF )NDIA IN
EXERCISE OF THE POWERS CONFERRED BY #LAUSE OF !RTICLE OF THE #ONSTITUTION HAS
MADE THE #ONSTITUTION 3CHEDULE 4RIBES /RDER 0ART 8)) OF THE /RDER REFERS TO
THE 3TATE OF /RISSA 3ERIAL .O REFERS TO $ONGARIA +ONDH +UTIA +ANDHA ETC
"EFORE WE EXAMINE THE SCOPE OF THE &OREST 2IGHTS !CT LET US EXAMINE HOW THE RIGHTS
OF INDIGENOUS PEOPLE ARE GENERALLY VIEWED UNDER OUR #ONSTITUTION AND THE VARIOUS
)NTERNATIONAL #ONVENTIONS
#/ . 3 4)454)/ . ! , 2 ) '( 4 3 !.$ #/.6% .4 )/.3
!RTICLE OF THE #ONSTITUTION OF )NDIA WHICH APPEARS IN 0ART 8 PROVIDES THAT
THE ADMINISTRATION OF THE 3CHEDULED !REAS AND 3CHEDULED 4RIBES IN 3TATES OTHER
THAN !SSAM -EGHALAYA AND 4RIPURA SHALL BE ACCORDING TO THE PROVISIONS OF THE
&IFTH 3CHEDULE AND #LAUSE STATES THAT 3IXTH 3CHEDULE APPLIES TO THE TRIBAL AREAS IN
!SSAM -EGHALAYA 4RIPURA AND -IZORAM %VIDENTLY THE OBJECT OF THE &IFTH 3CHEDULE
AND THE 2EGULATIONS MADE THEREUNDER IS TO PRESERVE TRIBAL AUTONOMY THEIR CULTURES
AND ECONOMIC EMPOWERMENT TO ENSURE SOCIAL ECONOMIC AND POLITICAL JUSTICE FOR THE
PRESERVATION OF PEACE AND GOOD 'OVERNANCE IN THE 3CHEDULED !REA 4HIS #OURT IN
3AMATHA V !NDHRA 0RADESH 3## RULED THAT ALL RELEVANT CLAUSES IN THE
3CHEDULE AND THE 2EGULATIONS SHOULD BE HARMONIOUSLY AND WIDELY BE READ AS TO
ELONGATE THE #ONSTITUTIONAL OBJECTIVES AND DIGNITY OF PERSON TO THE 3CHEDULED 4RIBES
AND ENSURING DISTRIBUTIVE JUSTICE AS AN INTEGRAL SCHEME THEREOF 4HE #OURT NOTICED
THAT AGRICULTURE IS THE ONLY SOURCE OF LIVELIHOOD FOR THE 3CHEDULED 4RIBES APART FROM
COLLECTION AND SALE OF MINOR FOREST PRODUCE TO SUPPLEMENT THEIR INCOME ,AND IS
THEIR MOST IMPORTANT NATURAL AND VALUABLE ASSET AND IMPERISHABLE ENDOWMENT
FROM WHICH THE TRIBAL DERIVE THEIR SUSTENANCE SOCIAL STATUS ECONOMIC AND SOCIAL
EQUALITY PERMANENT PLACE OF ABODE WORK AND LIVING #ONSEQUENTLY TRIBES HAVE
GREAT EMOTIONAL ATTACHMENTS TO THEIR LANDS
0ART " OF THE &IFTH 3CHEDULE ;!RTICLE = SPEAKS OF THE ADMINISTRATION AND CONTROL
OF 3CHEDULES !REAS AND 3CHEDULED 4RIBES 0ARA THEREOF SPEAKS OF 4RIBES !DVISORY
#OUNCIL 4RIBES !DVISORY #OUNCIL USED TO EXERCISE THE POWERS FOR THOSE 3CHEDULED
!REAS WHERE 0ANCHAYAT 2AJ SYSTEM HAD NOT BEEN EXTENDED "Y WAY OF THE #ONSTITUTION
RD !MENDMENT !CT 0ART )8 WAS INSERTED IN THE #ONSTITUTION OF )NDIA
!RTICLE
" OF 0ART )8 OF THE #ONSTITUTION MANDATED THAT THERE SHALL BE PANCHAYATS
AT VILLAGE INTERMEDIATE AND DISTRICT LEVELS IN ACCORDANCE WITH THE PROVISIONS
OF THAT 0ART !RTICLE
# OF #HAPTER )8 REFERS TO THE COMPOSITION OF 0ANCHAYATS
!RTICLE
- B STATES THAT 0ARLIAMENT MAY BY LAW EXTEND THE PROVISIONS OF
4 / \
0ART )8 TO THE 3CHEDULED !REAS AND THE 4RIBAL AREAS AND TO WORK OUT THE MODALITIES
FOR THE SAME 4HE #ENTRAL 'OVERNMENT APPOINTED "HURIA #OMMITTEE TO UNDERTAKE
A DETAILED STUDY AND MAKE RECOMMENDATIONS AS TO WHETHER THE 0ANCHAYAT 2AJ
SYSTEM COULD BE EXTENDED TO 3CHEDULED !REAS 4HE #OMMITTEE SUBMITTED ITS REPORT
ON AND FAVOURED DEMOCRATIC DECENTRALIZATION IN 3CHEDULED !REAS "ASED
ON THE RECOMMENDATIONS THE 0ANCHAYAT %XTENSION TO 3CHEDULED !REAS !CT
FOR SHORT 0%3! !CT WAS ENACTED BY THE 0ARLIAMENT IN THE YEAR EXTENDING THE
PROVISIONS OF 0ART )8 OF THE #ONSTITUTION RELATING TO 0ANCHAYATS TO THE 3CHEDULED
!REAS 4HE 3TATEMENT OF /BJECTS AND 2EASONS OF THE !CT READS AS FOLLOWS
4HERE HAVE BEEN PERSISTENT DEMANDS FROM PROMINENT LEADERS OF THE 3CHEDULED
!REAS FOR EXTENDING THE PROVISIONS OF 0ART )8 OF THE #ONSTITUTION TO THESE !REAS
SO THAT 0ANCHAYATI 2AJ )NSTITUTIONS MAY BE ESTABLISHED THERE !CCORDINGLY IT IS
PROPOSED TO INTRODUCE A "ILL TO PROVIDE FOR THE EXTENSION OF THE PROVISIONS OF
0ART )8 OF THE #ONSTITUTION TO THE 3CHEDULED !REAS WITH CERTAIN MODICATIONS
PROVIDING THAT AMONG OTHER THINGS THE 3TATE LEGISLATIONS THAT MAY BE MADE
SHALL BE IN CONSONANCE WITH THE CUSTOMARY LAW SOCIAL AND RELIGIOUS PRACTICES AND
TRADITIONAL MANAGEMENT PRACTICES OF COMMUNITY RESOURCES 4HE OFCES OF THE
#HAIRPERSONS IN THE PANCHAYATS AT ALL LEVELS SHALL BE RESERVED FOR THE 3CHEDULED
4RIBES THE RESERVATIONS OF SEATS AT EVERY PANCHAYAT FOR THE 3CHEDULED 4RIBES SHALL
NOT BE LESS THAN ONE THIRD OF THE TOTAL NUMBER OF SEATS
4HIS COURT HAD OCCASION TO CONSIDER THE SCOPE OF 0%3! !CT WHEN THE CONSTITUTIONAL
VALIDITY OF THE PROVISO TO SECTION G OF THE 0%3! !CT AND FEW SECTIONS OF THE
*HARKHAND 0ANCHAYAT 2AJ !CT WERE CHALLENGED IN 5NION OF )NDIA VS 2AKESH
+UMAR 3## AND THIS #OURT UPHELD THE #ONSTITUTIONAL VALIDITY
3ECTION OF THE 0%3! !CT STIPULATES THAT THE 3TATE LEGISLATION ON 0ANCHAYATS SHALL
BE MADE IN CONSONANCE WITH THE CUSTOMARY LAW SOCIAL AND RELIGIOUS PRACTICES AND
TRADITIONAL MANAGEMENT PRACTICES OF COMMUNITY RESOURCES #LAUSE D OF 3ECTION
STATES THAT EVERY 'RAM 3ABHA SHALL BE COMPETENT TO SAFEGUARD AND PRESERVE
THE TRADITIONS AND CUSTOMS OF THE PEOPLE THEIR CULTURAL IDENTITY COMMUNITY
RESOURCES AND THE CUSTOMARY MODE OF DISPUTE RESOLUTION &URTHER IT ALSO STATES IN
CLAUSE I OF 3ECTION THAT THE 'RAM 3ABHA OR THE 0ANCHAYATS AT THE APPROPRIATE
LEVEL SHALL BE CONSULTED BEFORE MAKING THE ACQUISITION OF LAND IN THE 3CHEDULED
!REAS FOR DEVELOPMENT PROJECTS AND BEFORE RE
SETTLING OR REHABILITATING PERSONS
AFFECTED BY SUCH PROJECTS IN THE 3CHEDULED !REAS AND THAT THE ACTUAL PLANNING AND
IMPLEMENTATION OF THE PROJECTS IN THE 3CHEDULED !REAS SHALL BE COORDINATED AT THE
3TATE LEVEL 3UB
CLAUSE K OF 3ECTION STATES THAT THE RECOMMENDATIONS OF THE 'RAM
3ABHA OR THE 0ANCHAYATS AT THE APPROPRIATE LEVEL SHALL BE MADE MANDATORY PRIOR TO
GRANT OF PROSPECTIVE LICENCE OR MINING LEASE FOR MINOR MINERALS IN THE 3CHEDULED
!REAS 0ANCHAYAT HAS ALSO ENDOWED WITH THE POWERS AND AUTHORITY NECESSARY TO
FUNCTION AS INSTITUTIONS OF 3ELF
'OVERNMENT
4HE CUSTOMARY AND CULTURAL RIGHTS OF INDIGENOUS PEOPLE HAVE ALSO BEEN THE SUBJECT
MATTER OF VARIOUS INTERNATIONAL CONVENTIONS )NTERNATIONAL ,ABOUR /RGANIZATION
),/ #ONVENTION ON )NDIGENOUS AND 4RIBAL 0OPULATIONS #ONVENTION .O
WAS THE RST COMPREHENSIVE INTERNATIONAL INSTRUMENT SETTING FORTH THE RIGHTS
OF INDIGENOUS AND TRIBAL POPULATIONS WHICH EMPHASIZED THE NECESSITY FOR THE
PROTECTION OF SOCIAL POLITICAL AND CULTURAL RIGHTS OF INDIGENOUS PEOPLE &OLLOWING
THAT THERE WERE TWO OTHER CONVENTIONS ),/ #ONVENTION .O AND )NDIGENOUS
AND 4RIBAL 0EOPLES #ONVENTION AND 5NITED .ATIONS $ECLARATION ON THE RIGHTS OF
)NDIGENOUS 0EOPLES 5.$2)0 )NDIA IS A SIGNATORY ONLY TO THE ),/ #ONVENTION
.O
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
!PART FROM GIVING LEGITIMACY TO THE CULTURAL RIGHTS BY #ONVENTION THE
#ONVENTION ON THE "IOLOGICAL $IVERSITY #"! ADOPTED AT THE %ARTH 3UMMIT
HIGHLIGHTED NECESSITY TO PRESERVE AND MAINTAIN KNOWLEDGE INNOVATION AND
PRACTICES OF THE LOCAL COMMUNITIES RELEVANT FOR CONSERVATION AND SUSTAINABLE USE
OF BIO
DIVERSITY )NDIA IS A SIGNATORY TO #"! 2IO $ECLARATION ON %NVIRONMENT AND
$EVELOPMENT !GENDA AND &ORESTRY PRINCIPLE ALSO ENCOURAGE THE PROMOTION
OF CUSTOMARY PRACTICES CONDUCIVE TO CONSERVATION 4HE NECESSITY TO RESPECT AND
PROMOTE THE INHERENT RIGHTS OF INDIGENOUS PEOPLES WHICH DERIVE FROM THEIR POLITICAL
ECONOMIC AND SOCIAL STRUCTURES AND FROM THEIR CULTURES SPIRITUAL TRADITIONS HISTORIES
AND PHILOSOPHIES ESPECIALLY THEIR RIGHTS TO THEIR LANDS TERRITORIES AND RESOURCES HAVE
ALSO BEEN RECOGNIZED BY 5NITED .ATIONS IN THE 5NITED .ATIONS $ECLARATION ON 2IGHTS
OF )NDIGENOUS 0EOPLES 34S AND OTHER 4&$S RESIDING IN THE 3CHEDULED !REAS HAVE A
RIGHT TO MAINTAIN THEIR DISTINCTIVE SPIRITUAL RELATIONSHIP WITH THEIR TRADITIONALLY
OWNED OR OTHERWISE OCCUPIED AND USED LANDS
-ANY OF THE 34S AND OTHER 4&$S ARE TOTALLY UNAWARE OF THEIR RIGHTS 4HEY ALSO
EXPERIENCE LOT OF DIFCULTIES IN OBTAINING EFFECTIVE ACCESS TO JUSTICE BECAUSE OF THEIR
DISTINCT CULTURE AND LIMITED CONTACT WITH MAINSTREAM SOCIETY -ANY A TIMES THEY DO
NOT HAVE THE NANCIAL RESOURCES TO ENGAGE IN ANY LEGAL ACTIONS AGAINST DEVELOPMENT
PROJECTS UNDERTAKEN IN THEIR ABODE OR THE FOREST IN WHICH THEY STAY 4HEY HAVE A
VITAL ROLE TO PLAY IN THE ENVIRONMENTAL MANAGEMENT AND DEVELOPMENT BECAUSE OF
THEIR KNOWLEDGE AND TRADITIONAL PRACTICES 3TATE HAS GOT A DUTY TO RECOGNIZE AND DULY
SUPPORT THEIR IDENTITY CULTURE AND INTEREST SO THAT THEY CAN EFFECTIVELY PARTICIPATE
IN ACHIEVING SUSTAINABLE DEVELOPMENT
7E NOTICE BEARING IN MIND THE ABOVE OBJECTS THE &OREST 2IGHTS !CT HAS BEEN
ENACTED CONFERRING POWERS ON THE 'RAM 3ABHA CONSTITUTED UNDER THE !CT TO PROTECT
THE COMMUNITY RESOURCES INDIVIDUAL RIGHTS CULTURAL AND RELIGIOUS RIGHTS
4(% & / 2 %3 4 2 )'(43 !#4
4HE &OREST 2IGHTS !CT WAS ENACTED BY THE 0ARLIAMENT TO RECOGNIZE AND VEST THE
FOREST RIGHTS AND OCCUPATION IN FOREST LAND IN FOREST DWELLING 34S AND OTHER 4&$S
WHO HAVE BEEN RESIDING IN SUCH FORESTS FOR GENERATIONS BUT WHOSE RIGHTS COULD NOT
BE RECORDED AND 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 4HE !CT ALSO STATES THAT THE RECOGNIZED RIGHTS OF THE FOREST DWELLING
34S AND OTHER 4&$S INCLUDE THE RESPONSIBILITIES AND AUTHORITY FOR SUSTAINABLE USE
CONSERVATION OF BIO
DIVERSITY AND MAINTENANCE OF ECOLOGICAL BALANCE AND THEREBY
STRENGTHENING THE CONSERVATION REGIME OF THE FORESTS WHILE ENSURING LIVELIHOOD
AND FOOD SECURITY OF THE FOREST DWELLING 34S AND OTHER 4&$S 4HE !CT ALSO NOTICED
THAT THE FOREST RIGHTS ON ANCESTRAL LANDS AND THEIR HABITAT WERE NOT ADEQUATELY
RECOGNIZED IN THE CONSOLIDATION OF 3TATE FORESTS DURING THE COLONIAL PERIOD AS WELL
AS IN INDEPENDENT )NDIA RESULTING IN HISTORICAL INJUSTICE TO THEM WHO ARE INTEGRAL TO
THE VERY SURVIVAL AND SUSTAINABILITY OF THE FOREST ECOSYSTEM
4HE 3TATEMENT OF /BJECTS AND 2EASONS OF THE !CT STATES THAT FOREST DWELLING TRIBAL
PEOPLE AND FORESTS ARE INSEPARABLE AND 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
AND THAT ONLY RECENTLY THAT FOREST MANAGEMENT REGIMES HAVE INITIATED ACTION TO
RECOGNIZE THE OCCUPATION AND OTHER RIGHT OF THE FOREST DWELLERS /F LATE WE HAVE
REALIZED THAT FORESTS HAVE THE BEST CHANCE TO SURVIVE IF COMMUNITIES PARTICIPATE IN
THEIR CONSERVATION AND REGENERATION MEASURES 4HE ,EGISLATURE ALSO HAS ADDRESSED
4 / \
THE LONG STANDING AND GENUINE FELT NEED OF GRANTING A SECURE AND INALIENABLE RIGHT
TO THOSE COMMUNITIES WHOSE RIGHT TO LIFE DEPENDS ON RIGHT TO FORESTS AND THEREBY
STRENGTHENING THE ENTIRE CONSERVATION REGIME BY GIVING A PERMANENT STAKE TO THE
34S DWELLING IN THE FORESTS FOR GENERATIONS IN SYMBIOTIC RELATIONSHIP WITH THE ENTIRE
ECOSYSTEM
7E HAVE TO BEAR IN MIND THE ABOVE OBJECTS AND REASONS WHILE INTERPRETING VARIOUS
PROVISIONS OF THE &OREST 2IGHTS !CT WHICH IS A SOCIAL WELFARE OR REMEDIAL STATUTE 4HE
!CT PROTECTS A WIDE RANGE OF RIGHTS OF FOREST DWELLERS AND 34S INCLUDING THE CUSTOMARY
RIGHTS TO USE FOREST LAND AS A COMMUNITY FOREST RESOURCE AND NOT RESTRICTED MERELY TO
PROPERTY RIGHTS OR TO AREAS OF HABITATION
4HE DENITION CLAUSES READ WITH THE ABOVE MENTIONED PROVISIONS GIVE EMPHASIS
TO CUSTOMARY RIGHTS RIGHTS TO COLLECT USE AND DISPOSE OF MINOR FOREST PRODUCE
COMMUNITY RIGHTS LIKE GRAZING CATTLE COMMUNITY TENURE OF HABITAT AND HABITATION
FOR PRIMITIVE TRIBAL GROUPS TRADITIONAL RIGHTS CUSTOMARILY ENJOYED ETC ,EGISLATIVE
INTENTION IS THEREFORE CLEAR THAT THE !CT INTENDS TO PROTECT CUSTOM USAGE FORMS
PRACTICES AND CEREMONIES WHICH ARE APPROPRIATE TO THE TRADITIONAL PRACTICES OF FOREST
DWELLERS
#HAPTER )6 OF THE !CT DEALS WITH THE AUTHORITIES AND PROCEDURE FOR VESTING OF FOREST
RIGHTS 4HAT CHAPTER HAS ONLY ONE SECTION IE 3ECTION WHICH HAS TO BE READ ALONG
WITH 4HE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 2IGHTS !MENDMENT 2ULES AND THE !MENDMENT 2ULES
-INISTRY OF 4RIBAL !FFAIRS HAS NOTICED SEVERAL PROBLEMS WHICH ARE IMPEDING
THE IMPLEMENTATION OF THE !CT IN ITS LETTER AND SPIRIT &OR PROPER AND EFFECTIVE
IMPLEMENTATION OF THE !CT THE -INISTRY HAS ISSUED CERTAIN GUIDELINES AND
COMMUNICATED TO ALL THE 3TATES AND 54S VIDE THEIR LETTER DATED 4HE
OPERATIVE PORTION OF THE SAME READS AS FOLLOWS
'5)$ %,). %3
) 0 2 / #%33 / & 2 %#/ '.)4)/. /& 2)'( 4 3
A 4HE 3TATE 'OVERNMENTS SHOULD ENSURE THAT ON RECEIPT OF INTIMATION FROM THE
&OREST 2IGHTS #OMMITTEE THE OFCIALS OF THE &OREST AND 2EVENUE $EPARTMENTS
REMAIN PRESENT DURING THE VERICATION OF THE CLAIMS AND THE EVIDENCE ON THE SITE
B )N THE EVENT OF MODICATION OR REJECTION OF A CLAIM BY THE 'RAM 3ABHA OR BY
THE 3UB
$IVISIONAL ,EVEL #OMMITTEE OR THE $ISTRICT ,EVEL #OMMITTEE THE DECISION
ON THE CLAIM SHOULD BE COMMUNICATED TO THE CLAIMANT TO ENABLE THE AGGRIEVED
PERSON TO PREFER A PETITION TO THE 3UB $IVISIONAL ,EVEL #OMMITTEE OR THE $ISTRICT
,EVEL #OMMITTEE AS THE CASE MAY BE WITHIN THE SIXTY DAYS PERIOD PRESCRIBED
UNDER THE !CT AND NO SUCH PETITION SHOULD BE DISPOSED OF AGAINST THE AGGRIEVED
PERSON UNLESS HE HAS BEEN GIVEN A REASONABLE OPPORTUNITY TO PRESENT HIS CASE
C 4HE 3UB
$IVISIONAL ,EVEL #OMMITTEE OR THE $ISTRICT ,EVEL #OMMITTEE SHOULD
IF DEEMED NECESSARY REMAND THE CLAIM TO THE 'RAM 3ABHA FOR RECONSIDERATION
INSTEAD OF REJECTING OR MODIFYING THE SAME IN CASE THE RESOLUTION OR THE
RECOMMENDATION OF THE 'RAM 3ABHA IS FOUND TO BE INCOMPLETE OR PRIMA
FACIE
REQUIRES ADDITIONAL EXAMINATION
)N CASES WHERE THE RESOLUTION PASSED BY THE 'RAM 3ABHA RECOMMENDING A CLAIM
IS UPHELD BY 3UB
$IVISIONAL ,EVEL COMMITTEE BUT THE SAME IS NOT APPROVED BY
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
THE $ISTRICT ,EVEL #OMMITTEE THE $ISTRICT ,EVEL #OMMITTEE SHOULD RECORD THE
REASONS FOR NOT ACCEPTING THE RECOMMENDATIONS OF THE 'RAM 3ABHA AND THE
3UB
$IVISIONAL ,EVEL #OMMITTEE IN WRITING AND A COPY OF THE ORDER SHOULD BE
SUPPLIED TO THE CLAIMANT
E /N COMPLETION OF THE PROCESS OF SETTLEMENT OF RIGHTS AND ISSUE OF TITLES AS
SPECIED IN !NNEXURES )) ))) )6 OF THE 2ULES THE 2EVENUE &OREST $EPARTMENTS
SHALL PREPARE A NAL MAP OF THE FOREST LAND SO VESTED AND THE CONCERNED AUTHORITIES
SHALL INCORPORATE THE FOREST RIGHTS SO VESTED IN THE REVENUE AND FOREST RECORDS AS
THE CASE MAY BE WITHIN THE PRESCRIBED CYCLE OF RECORD UPDATION
F !LL DECISIONS OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE AND $ISTRICT ,EVEL
#OMMITTEE THAT INVOLVE MODICATION OR REJECTION OF A 'RAM 3ABHA RESOLUTION
RECOMMENDATION SHOULD BE IN THE FORM OF SPEAKING ORDERS
G 4HE 3UB
$IVISIONAL ,EVEL #OMMITTEE OR THE $ISTRICT ,EVEL COMMITTEE SHOULD
NOT REJECT ANY CLAIM ACCOMPANIED BY ANY TWO FORMS OF EVIDENCES SPECIED IN
2ULE AND RECOMMENDED BY THE 'RAM 3ABHA WITHOUT GIVING REASONS IN WRITING
AND SHOULD NOT INSIST UPON ANY PARTICULAR FORM OF EVIDENCE FOR CONSIDERATION OF
A CLAIM &INE RECEIPTS ENCROACHER LISTS PRIMARY OFFENCE REPORTS FOREST SETTLEMENT
REPORTS AND SIMILAR DOCUMENTATION ROOTED IN PRIOR OFCIAL EXERCISES OR THE LACK
THEREOF WOULD NOT BE THE SOLE BASIS FOR REJECTION OF ANY CLAIM
H 5SE OF ANY TECHNOLOGY SUCH AS SATELLITE IMAGERY SHOULD BE USED TO SUPPLEMENT
EVIDENCES TENDERED BY A CLAIMANT FOR CONSIDERATION OF THE CLAIM AND NOT TO
REPLACE OTHER EVIDENCES SUBMITTED BY HIM IN SUPPORT OF HIS CLAIM AS THE ONLY
FORM OF EVIDENCE
I 4HE STATUS OF ALL THE CLAIMS NAMELY THE TOTAL NUMBER OF CLAIMS LED THE
NUMBER OF CLAIMS APPROVED BY THE $ISTRICT ,EVEL #OMMITTEE FOR TITLE THE NUMBER
OF TITLES ACTUALLY DISTRIBUTED THE NUMBER OF CLAIMS REJECTED ETC SHOULD BE MADE
AVAILABLE AT THE VILLAGE AND PANCHAYAT LEVELS THROUGH APPROPRIATE FORMS OF
COMMUNICATIONS INCLUDING CONVENTIONAL METHODS SUCH AS DISPLAY OF NOTICES
BEAT OF DRUM ETC
J ! QUESTION HAS BEEN RAISED WHETHER THE FOUR HECTARE LIMIT SPECIED IN 3ECTION
OF THE !CT WHICH PROVIDES FOR RECOGNITION OF FOREST RIGHTS IN RESPECT OF THE
LAND MENTIONED IN CLAUSE A OF SUB
SECTION OF SECTION OF THE !CT APPLIES TO
OTHER FOREST RIGHTS MENTIONED IN 3ECTION OF THE !CT )T IS CLARIED THAT THE FOUR
HECTARE LIMIT SPECIED IN 3ECTION APPLIES TO RIGHTS UNDERSECTION A OF
THE !CT ONLY AND NOT TO ANY OTHER RIGHT UNDER SECTION SUCH AS CONVERSION OF
PATTAS OR LEASES CONVERSION OF FOREST VILLAGES INTO REVENUE VILLAGES ETC
)) -). / 2 & / 2 % 34 02/$5#%
A 4HE 3TATE 'OVERNMENT SHOULD ENSURE THAT THE FOREST RIGHTS RELATING TO -&0S
UNDER 3ECTION C OF THE !CT ARE RECOGNIZED IN RESPECT OF ALL -&0S AS DENED
UNDER 3ECTION I OF THE !CT IN ALL FOREST AREAS AND STATE POLICIES ARE BROUGHT
IN ALIGNMENT WITH THE PROVISIONS OF THE !CT 3ECTION I OF THE !CT DENES THE
TERM MINOR FOREST PRODUCE TO INCLUDE ALL NON
TIMBER PRODUCE OF PLANT ORIGIN
INCLUDING BAMBOO BRUSH WOOD STUMPS CANE TUSSAR COCOONS HONEY WAX LAC
TENDU OR KENDU LEAVES MEDICINAL PLANTS AND HERBS ROOTS TUBERS AND THE LIKE
B 4HE MONOPOLY OF THE &OREST #ORPORATIONS IN THE TRADE OF -&0 IN MANY 3TATES
4 / \
ESPECIALLY IN CASE OF HIGH VALUE -&0 SUCH AS TENDU PATTA IS AGAINST THE SPIRIT OF
THE !CT AND SHOULD HENCEFORTH BE DONE AWAY WITH
C 4HE FOREST RIGHT HOLDERS OR THEIR COOPERATIVESFEDERATIONS SHOULD BE ALLOWED
FULL FREEDOM TO SELL SUCH -&0S TO ANYONE OR TO UNDERTAKE INDIVIDUAL OR COLLECTIVE
PROCESSING VALUE ADDITION MARKETING FOR LIVELIHOOD WITHIN AND OUTSIDE FOREST
AREA BY USING LOCALLY APPROPRIATE MEANS OF TRANSPORT
4HE 3TATE 'OVERNMENTS SHOULD EXEMPT MOVEMENT OF ALL -&0S FROM THE PURVIEW
OF THE TRANSIT RULES OF THE 3TATE 'OVERNMENT AND FOR THIS PURPOSE THE TRANSIT
RULES BE AMENDED SUITABLY %VEN A TRANSIT PERMIT FROM 'RAM 3ABHA SHOULD
NOT BE REQUIRED )MPOSITION OF ANY FEECHARGESROYALTIES ON THE PROCESSING
VALUE ADDITION MARKETING OF -&0 COLLECTED INDIVIDUALLY OR COLLECTIVELY BY THE
COOPERATIVES FEDERATIONS OF THE RIGHTS HOLDERS WOULD ALSO BE ULTRA VIRES OF THE
!CT
E 4HE 3TATE 'OVERNMENTS NEED TO PLAY THE FACILITATING ROLE IN NOT ONLY TRANSFERRING
UNHINDERED ABSOLUTE RIGHTS OVER -&0 TO FOREST DWELLING 3CHEDULED 4RIBES AND
OTHER TRADITIONAL FOREST DWELLERS BUT ALSO IN GETTING THEM REMUNERATIVE PRICES FOR
THE -&0 COLLECTED AND PROCESSED BY THEM
))) #/ --5. )49 2 )'( 43
A 4HE $ISTRICT ,EVEL #OMMITTEE SHOULD ENSURE THAT THE RECORDS OF PRIOR RECORDED
NISTARI OR OTHER TRADITIONAL COMMUNITY RIGHTS SUCH AS +HATIAN PART )) IN
*HARKHAND AND TRADITIONAL FOREST PRODUCE RIGHTS IN (IMACHAL AND 5TTARAKHAND
ARE PROVIDED TO 'RAM 3ABHAS AND IF CLAIMS ARE LED FOR RECOGNITION OF SUCH AGE
OLD USUFRUCTORY RIGHTS SUCH CLAIMS ARE NOT REJECTED EXCEPT FOR VALID REASONS TO BE
RECORDED IN WRITING FOR DENIAL OF SUCH RECORDED RIGHTS
B 4HE $ISTRICT ,EVEL #OMMITTEE SHOULD ALSO FACILITATE THE LING OF CLAIMS BY
PASTORALISTS BEFORE THE CONCERNED 'RAM 3ABHA S SINCE THEY WOULD BE A OATING
POPULATION FOR THE 'RAM 3ABHAS OF THE AREA USED TRADITIONALLY
)N VIEW OF THE DIFFERENTIAL VULNERABILITY OF 0ARTICULARLY 6ULNERABLE 4RIBAL 'ROUPS
04'S AMONGST THE FOREST DWELLERS $ISTRICT ,EVEL #OMMITTEE SHOULD PLAY A PRO
ACTIVE ROLE IN ENSURING THAT ALL 04'S RECEIVE HABITAT RIGHTS IN CONSULTATION WITH
THE CONCERNED 04'S TRADITIONAL INSTITUTIONS AND THEIR CLAIMS FOR HABITAT RIGHTS ARE
LED BEFORE THE CONCERNED 'RAM 3ABHAS
D 4HE FOREST VILLAGES ARE VERY OLD ENTITIES AT TIMES OF PRE INDEPENDENT ERA DULY
EXISTING IN THE FOREST RECORDS 4HE ESTABLISHMENT OF THESE VILLAGES WAS IN FACT
ENCOURAGED BY THE FOREST AUTHORITIES IN THE PRE INDEPENDENT ERA FOR AVAILABILITY
OF LABOUR WITHIN THE FOREST AREAS 4HE WELL DENED RECORD OF EACH FOREST VILLAGE
INCLUDING THE AREA NUMBER OF INHABITANTS ETC EXISTS WITH THE 3TATE &OREST
$EPARTMENTS 4HERE ARE ALSO UNRECORDED SETTLEMENTS AND OLD HABITATIONS THAT
ARE NOT IN ANY 'OVERNMENT RECORD 3ECTION H OF THE !CT RECOGNIZES THE RIGHT
OF FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS RELATING
TO SETTLEMENT AND CONVERSION ON FOREST VILLAGES OLD HABITATION UN SURVEYED
VILLAGES AND OTHER VILLAGES AND FORESTS WHETHER RECORDED NOTIED OR NOT INTO
REVENUE VILLAGES 4HE CONVERSION OF ALL FOREST VILLAGES INTO REVENUE VILLAGES AND
RECOGNITION OF THE FOREST RIGHTS OF THE INHABITANTS THEREOF SHOULD ACTUALLY HAVE
BEEN COMPLETED IMMEDIATELY ON ENACTMENT OF THE !CT 4HE 3TATE 'OVERNMENTS
MAY THEREFORE CONVERT ALL SUCH ERSTWHILE FOREST VILLAGES UNRECORDED SETTLEMENTS
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
AND OLD HABITATIONS INTO REVENUE VILLAGES WITH A SENSE OF URGENCY IN A TIME
BOUND MANNER 4HE CONVERSION WOULD INCLUDE THE ACTUAL LAND
USE OF THE VILLAGE
IN ITS ENTIRETY INCLUDING LANDS REQUIRED FOR CURRENT OR FUTURE COMMUNITY USES
LIKE SCHOOLS HEALTH FACILITIES PUBLIC SPACES ETC 2ECORDS OF THE FOREST VILLAGES
MAINTAINED BY THE &OREST $EPARTMENT MAY THEREAFTER BE SUITABLY UPDATED ON
RECOGNITION OF THIS RIGHT
)6 #/ --5. )4 9 &/2% 34 2% 3/52#% 2)'( 4 3
A 4HE 3TATE 'OVERNMENT SHOULD ENSURE THAT THE FOREST RIGHTS UNDER 3ECTION I
OF THE !CT RELATING TO PROTECTION REGENERATION OR CONSERVATION OR MANAGEMENT OF
ANY COMMUNITY FOREST RESOURCE WHICH FOREST DWELLERS MIGHT HAVE TRADITIONALLY
BEEN PROTECTING AND CONSERVING FOR SUSTAINABLE USE ARE RECOGNIZED IN ALL VILLAGES
AND THE TITLES ARE ISSUED AS SOON AS THE PRESCRIBED &ORMS FOR CLAIMING 2IGHTS
TO #OMMUNITY &OREST 2ESOURCE AND THE &ORM OF 4ITLE FOR #OMMUNITY &OREST
2ESOURCES ARE INCORPORATED IN THE 2ULES !NY RESTRICTION SUCH AS TIME LIMIT ON
USE OF COMMUNITY FOREST RESOURCES OTHER THAN WHAT IS TRADITIONALLY IMPOSED
WOULD BE AGAINST THE SPIRIT OF THE !CT
B )N CASE NO COMMUNITY FOREST RESOURCE RIGHTS ARE RECOGNIZED IN A VILLAGE THE
REASONS FOR THE SAME SHOULD BE RECORDED 2EFERENCE CAN BE MADE TO EXISTING
RECORDS OF COMMUNITY AND JOINT FOREST MANAGEMENT VAN PANCHAYATS ETC FOR
THIS PURPOSE
C 4HE 'RAM 3ABHA WOULD INITIALLY DEMARCATE THE BOUNDARIES OF THE COMMUNITY
FOREST RESOURCE AS DENED IN 3ECTION A OF THE !CT FOR THE PURPOSES OF LING
CLAIMS FOR RECOGNITION OF FOREST RIGHT UNDER 3ECTION I OF THE !CT
D 4HE #OMMITTEES CONSTITUTED UNDER 2ULE E OF THE &OREST 2IGHTS 2ULES
WOULD WORK UNDER THE CONTROL OF 'RAM 3ABHA 4HE 3TATE !GENCIES SHOULD FACILITATE
THIS PROCESS
E #ONSEQUENT UPON THE RECOGNITION OF FOREST RIGHT IN 3ECTION I OF THE !CT TO
PROTECT REGENERATE OR CONSERVE OR MANAGE ANY COMMUNITY FOREST RESOURCE THE
POWERS OF THE 'RAM 3ABHA WOULD BE IN CONSONANCE WITH THE DUTIES AS DENED
IN 3ECTION D WHEREIN THE 'RAM 3ABHA IS EMPOWERED TO REGULATE ACCESS TO
COMMUNITY FOREST RESOURCES AND STOP ANY ACTIVITY WHICH ADVERSELY AFFECTS THE
WILD ANIMALS FOREST AND THE BIO
DIVERSITY !NY ACTIVITY THAT PREJUDICIALLY AFFECTS
THE WILD
LIFE FOREST AND BIO
DIVERSITY IN FOREST AREA WOULD BE DEALT WITH UNDER
THE PROVISIONS OF THE RELEVANT !CTS
6 0 2 / 4%#4)/ . !'!).34 % 6 )#4 )/. $)6% 23)/. /& &/2% 34 ,!.$ 3 ! .$
& / 2 #%$ 2 %,/ #!4)/.
A 3ECTION OF THE !CT IS VERY SPECIC AND PROVIDES THAT NO MEMBER OF A FOREST
DWELLING 3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLERS SHALL BE EVICTED
OR REMOVED FROM THE FOREST LAND UNDER HIS OCCUPATION TILL THE RECOGNITION AND
VERICATION PROCEDURE IS COMPLETE 4HIS CLAUSE IS OF AN ABSOLUTE NATURE AND
EXCLUDES ALL POSSIBILITIES OF EVICTION OF FOREST DWELLING 3CHEDULED 4RIBES OR OTHER
TRADITIONAL FOREST DWELLERS WITHOUT SETTLEMENT OF THEIR FOREST RIGHTS AS THIS
3ECTION OPENS WITH THE WORDS 3AVE AS OTHERWISE PROVIDED 4HE RATIONALE BEHIND
THIS PROTECTIVE CLAUSE AGAINST EVICTION IS TO ENSURE THAT IN NO CASE A FOREST DWELLER
SHOULD BE EVICTED WITHOUT RECOGNITION OF HIS RIGHTS AS THE SAME ENTITLES HIM
TO A DUE COMPENSATION IN CASE OF EVENTUALITY OF DISPLACEMENT IN CASES WHERE
4 / \
EVEN AFTER RECOGNITION OF RIGHTS A FOREST AREA IS TO BE DECLARED AS INVIOLATE FOR
WILDLIFE CONSERVATION OR DIVERTED FOR ANY OTHER PURPOSE )N ANY CASE 3ECTION
HAS THE EFFECT OF RECOGNIZING AND VESTING FOREST RIGHTS IN ELIGIBLE FOREST DWELLERS
4HEREFORE NO EVICTION SHOULD TAKE PLACE TILL THE PROCESS OF RECOGNITION AND VESTING
OF FOREST RIGHTS UNDER THE !CT IS COMPLETE
B 4HE -INISTRY OF %NVIRONMENT &ORESTS VIDE THEIR LETTER .O &#PT
DATED AS MODIED BY THEIR SUBSEQUENT LETTER OF THE SAME NUMBER
DATED HAS ISSUED DIRECTIONS REQUIRING THE 3TATE 54 'OVERNMENTS
TO ENCLOSE CERTAIN EVIDENCES RELATING TO COMPLETION OF THE PROCESS OF SETTLEMENT
OF RIGHTS UNDER THE 3CHEDULED 4RIBES AND OTHER4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT WHILE FORMULATING UNCONDITIONAL
PROPOSALS FOR DIVERSION OF FOREST LAND FOR NON FOREST PURPOSES UNDER THE &OREST
#ONSERVATION !CT 4HE 3TATE 'OVERNMENT SHOULD ENSURE THAT ALL DIVERSIONS
OF FOREST LAND FOR NON FOREST PURPOSES UNDER THE &OREST #ONSERVATION !CT
TAKE PLACE IN COMPLIANCE WITH THE INSTRUCTIONS CONTAINED IN THE -INISTRY OF
%NVIRONMENT &OREST S LETTER DATED AS MODIED ON
C 4HERE MAY BE SOME CASES OF MAJOR DIVERSIONS OF FOREST LAND FOR NON
FOREST
PURPOSES UNDER THE&OREST #ONSERVATION !CT AFTER THE ENACTMENT OF THE
3CHEDULED 4RIBES AND OTHER4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT BUT BEFORE THE ISSUE OF -INISTRY OF %NVIRONMENT &ORESTS LETTER
DATED REFERRED TO ABOVE )N CASE ANY EVICTIONS OF FOREST DWELLING
3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS HAVE TAKEN PLACE WITHOUT
SETTLEMENT OF THEIR RIGHTS DUE TO SUCH MAJOR DIVERSIONS OF FOREST LAND UNDER
THE&OREST #ONSERVATION !CT THE $ISTRICT ,EVEL #OMMITTEES MAY BE ADVISED
TO BRING SUCH CASES OF EVICTIONS IF ANY TO THE NOTICE OF THE 3TATE ,EVEL -ONITORING
#OMMITTEE FOR APPROPRIATE ACTION AGAINST VIOLATION OF THE PROVISIONS CONTAINED
IN 3ECTION OF THE !CT
D 4HE !CT ENVISAGES THE RECOGNITION AND VESTING OF FOREST RIGHTS IN FOREST
DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS OVER ALL FOREST
LANDS INCLUDING .ATIONAL 0ARKS AND 3ANCTUARIES 5NDER 3ECTION B OF THE !CT
THE -INISTRY OF %NVIRONMENT &ORESTS IS RESPONSIBLE FOR DETERMINATION AND
NOTICATION OF CRITICAL WILDLIFE HABITATS IN THE .ATIONAL 0ARKS AND 3ANCTUARIES
FOR THE PURPOSE OF CREATING INVIOLATE AREAS FOR WILDLIFE CONSERVATION AS PER THE
PROCEDURE LAID DOWN )N FACT THE RIGHTS OF THE FOREST DWELLERS RESIDING IN THE
.ATIONAL 0ARKS AND 3ANCTUARIES ARE REQUIRED TO BE RECOGNIZED WITHOUT WAITING OF
NOTICATION OF CRITICAL WILDLIFE HABITATS IN THESE AREAS &URTHER 3ECTION OF THE
!CT PROVIDES FOR CERTAIN SAFEGUARDS FOR PROTECTION OF THE FOREST RIGHTS OF THE FOREST
RIGHTS HOLDERS RECOGNIZED UNDER THE !CT IN THE CRITICAL WILDLIFE HABITATS OF .ATIONAL
0ARKS AND 3ANCTUARIES WHEN THEIR RIGHTS ARE EITHER TO BE MODIED OR RESETTLED FOR
THE PURPOSES OF CREATING INVIOLATE AREAS FOR WILDLIFE CONSERVATION .O EXERCISE FOR
MODICATION OF THE RIGHTS OF THE FOREST DWELLERS OR THEIR RESETTLEMENT FROM THE
.ATIONAL 0ARKS AND 3ANCTUARIES CAN BE UNDERTAKEN UNLESS THEIR RIGHTS HAVE BEEN
RECOGNIZED AND VESTED UNDER THE !CT )N VIEW OF THE PROVISIONS OF 3ECTION OF
THE !CT NO EVICTION AND RESETTLEMENT IS PERMISSIBLE FROM THE .ATIONAL 0ARKS AND
SANCTUARIES TILL ALL THE FORMALITIES RELATING TO RECOGNITION AND VERICATION OF THEIR
CLAIMS ARE COMPLETED 4HE 3TATE 54 'OVERNMENTS MAY THEREFORE ENSURE THAT
THE RIGHTS OF THE FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST
DWELLERS RESIDING IN .ATIONAL 0ARKS AND 3ANCTUARIES ARE RECOGNIZED RST BEFORE
ANY EXERCISE FOR MODICATION OF THEIR RIGHTS OR THEIR RESETTLEMENT IF NECESSARY
IS UNDERTAKEN AND NO MEMBER OF THE FOREST DWELLING 3CHEDULED 4RIBE OR OTHER
TRADITIONAL FOREST DWELLER IS EVICTED FROM SUCH AREAS WITHOUT THE SETTLEMENT OF
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
THEIR RIGHTS AND COMPLETION OF ALL OTHER ACTIONS REQUIRED UNDER SECTION OF THE
!CT
E 4HE 3TATE ,EVEL -ONITORING #OMMITTEE SHOULD MONITOR COMPLIANCE OF THE
PROVISIONS OF3ECTION M OF THE !CT WHICH RECOGNIZES THE RIGHT TO IN SITU
REHABILITATION INCLUDING ALTERNATIVE LAND IN CASES WHERE THE FOREST DWELLING
3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS HAVE BEEN ILLEGALLY
EVICTED OR DISPLACED FROM FOREST LAND WITHOUT RECEIVING THEIR LEGAL ENTITLEMENT
TO REHABILITATION AND ALSO OF THE PROVISIONS OF 3ECTION OF THE !CT WHICH
RECOGNIZES THEIR RIGHT TO LAND WHEN THEY ARE DISPLACED FROM THEIR DWELLING AND
CULTIVATION WITHOUT LAND COMPENSATION DUE TO 3TATE DEVELOPMENT INTERVENTIONS
6) ! 7 ! 2 %. %33 2!)3).' -/.)4/2).' !.$ '2)% 6 !.#% 2% $2% 33! ,
A %ACH 3TATE SHOULD PREPARE SUITABLE COMMUNICATION AND TRAINING MATERIAL IN
LOCAL LANGUAGE FOR EFFECTIVE IMPLEMENTATION OF THE !CT
B 4HE 3TATE .ODAL !GENCY SHOULD ENSURE THAT THE 3UB $IVISIONAL ,EVEL #OMMITTEE
AND THE $ISTRICT ,EVEL #OMMITTEE MAKE DISTRICT
WISE PLANS FOR TRAININGS OF
REVENUE FOREST AND TRIBAL WELFARE DEPARTMENTS ELD STAFF OFCIALS &OREST 2IGHTS
#OMMITTEES AND 0ANCHAYAT REPRESENTATIVES 0UBLIC MEETINGS FOR AWARENESS
GENERATION IN THOSE VILLAGES WHERE PROCESS OF RECOGNITION IS NOT COMPLETE NEED
TO BE HELD
C )N ORDER TO GENERATE AWARENESS ABOUT THE VARIOUS PROVISIONS OF THE !CT AND
THE 2ULES ESPECIALLY THE PROCESS OF LING PETITIONS THE 3TATE 'OVERNMENT SHOULD
ORGANIZE PUBLIC HEARINGS ON LOCAL BAZAAR DAYS OR AT OTHER APPROPRIATE LOCATIONS
ON A QUARTERLY BASIS TILL THE PROCESS OF RECOGNITION IS COMPLETE )T WILL BE HELPFUL
IF SOME MEMBERS OF 3UB $IVISIONAL ,EVEL #OMMITTEE ARE PRESENT IN THE PUBLIC
HEARINGS 4HE 'RAM 3ABHAS ALSO NEED TO BE ACTIVELY INVOLVED IN THE TASK OF
AWARENESS RAISING
D )F ANY FOREST DWELLING 3CHEDULED 4RIBE IN CASE OF A DISPUTE RELATING TO A RESOLUTION
OF A 'RAM 3ABHA OR 'RAM 3ABHA THROUGH A RESOLUTION AGAINST ANY HIGHER AUTHORITY
OR #OMMITTEE OR OFCER OR MEMBER OF SUCH AUTHORITY OR #OMMITTEE GIVES A NOTICE
AS PER 3ECTION OF THE !CT REGARDING CONTRAVENTION OF ANY PROVISION OF THE !CT
OR ANY RULE MADE THEREUNDER CONCERNING RECOGNITION OF FOREST RIGHTS TO THE 3TATE
,EVEL -ONITORING #OMMITTEES THE 3TATE ,EVEL -ONITORING #OMMITTEE SHOULD
HOLD AN INQUIRY ON THE BASIS OF THE SAID NOTICE WITHIN SIXTY DAYS FROM THE RECEIPT
OF THE NOTICE AND TAKE ACTION IF ANY THAT IS REQUIRED 4HE COMPLAINANT AND THE
'RAM 3ABHA SHOULD BE INFORMED ABOUT THE OUTCOME OF THE INQUIRY
' 2 !- 3 !"( ! !.$ /4(%2 !54(/2)4)%3
5NDER 3ECTION OF THE !CT 'RAM 3ABHA SHALL BE THE AUTHORITY TO INITIATE THE PROCESS
FOR DETERMINING THE NATURE AND EXTENT OF INDIVIDUAL OR COMMUNITY FOREST RIGHTS OR
BOTH AND THAT MAY BE GIVEN TO THE FOREST DWELLING 34S AND OTHER 4&$S WITHIN THE LOCAL
LIMITS OF THE JURISDICTION &OR THE SAID PURPOSE IT RECEIVE CLAIMS AND AFTER CONSOLIDATING
AND VERIFYING THEM IT HAS TO PREPARE A PLAN DELINEATING THE AREA OF EACH RECOMMENDED
CLAIM IN SUCH MANNER AS MAY BE PRESCRIBED FOR EXERCISE OF SUCH RIGHTS 4HE 'RAM 3ABHA
SHALL THEN PASS A RESOLUTION TO THAT EFFECT AND THEREAFTER FORWARD A COPY OF THE SAME TO
THE 3UB
$IVISIONAL ,EVEL #OMMITTEE !NY AGGRIEVED PERSON MAY MOVE A PETITION BEFORE
THE 3UB
$IVISIONAL ,EVEL #OMMITTEE AGAINST THE RESOLUTION OF THE 'RAM 3ABHA 3UB
SECTION OF 3ECTION CONFERS A RIGHT ON THE AGGRIEVED PERSON TO PREFER A PETITION TO THE
4 / \
$ISTRICT ,EVEL #OMMITTEE AGAINST THE DECISION OF THE 3UB $IVISIONAL ,EVEL #OMMITTEE
3UB SECTION OF 3ECTION ENABLES THE 3TATE 'OVERNMENT TO CONSTITUTE A 3TATE ,EVEL
-ONITORING #OMMITTEE TO MONITOR THE PROCESS OF RECOGNITION AND VESTING OF FOREST
RIGHTS AND TO SUBMIT TO THE NODAL AGENCY 3UCH RETURNS AND REPORTS SHALL BE CALLED FOR
BY THAT AGENCY
&UNCTIONS OF THE 'RAM 3ABHA 3UB
$IVISIONAL ,EVEL #OMMITTEE $ISTRICT ,EVEL
#OMMITTEE 3TATE ,EVEL -ONITORING #OMMITTEE AND PROCEDURE TO BE FOLLOWED AND THE
PROCESS OF VERICATION OF CLAIMS ETC HAVE BEEN ELABORATELY DEALT WITH IN 2ULES
READ WITH !MENDMENT 2ULES %LABORATE PROCEDURES HAVE THEREFORE BEEN LAID DOWN
BY &OREST 2IGHTS !CT READ WITH AND !MENDMENT 2ULES WITH REGARD TO THE
MANNER IN WHICH THE NATURE AND EXTENT OF INDIVIDUAL OR CUSTOMARY FOREST RIGHTS OR
BOTH HAVE TO BE DECIDED 2EFERENCE HAS ALREADY BEEN MADE TO THE DETAILS OF FOREST RIGHTS
WHICH HAVE BEEN CONFERRED ON THE FOREST DWELLING 34S AS WELL AS 4&$S IN THE EARLIER PART
OF THE *UDGMENT
) . $)6)$ 5! ,#/ --5. )49 2)'( 4 3
&OREST 2IGHTS !CT PRESCRIBED VARIOUS RIGHTS TO TRIBALSFOREST DWELLERS AS PER 3ECTION OF
THE !CT !S PER 3ECTION OF THE !CT POWER IS CONFERRED ON THE 'RAM 3ABHA TO PROCESS
FOR DETERMINING THE NATURE AND THE EXTENT OF INDIVIDUAL OR COMMUNITY FORESTS READ
WITH OR BOTH THAT MAY BE GIVEN TO FOREST DWELLING 34S AND OTHER 4&$S BY RECEIVING
CLAIMS CONSOLIDATE IT AND VERIFYING THEM AND PREPARING A MAP DELINEATING AREA OF
EACH RECOMMENDED CLAIM IN SUCH A MANNER AS MAY BE PRESCRIBED 4HE 'RAM 3ABHA
HAS RECEIVED A LARGE NUMBER OF INDIVIDUAL CLAIMS AND COMMUNITY CLAIMS FROM THE
2AYAGADA $ISTRICT AS WELL AS THE +ALAHANDI $ISTRICT &ROM 2AYAGADA $ISTRICT 'RAM 3ABHA
RECEIVED INDIVIDUAL CLAIMS OF
WHICH CLAIMS HAVE BEEN CONSIDERED AND SETTLED
BY GRANTING ALTERNATE RIGHTS OVER ACRES OF LAND )NDIVIDUAL CLAIMS PENDING
BEFORE THE 'RAM 3ABHA PERTAIN TO AREAS WHICH FALLS OUTSIDE THE MINING LEASE AREA )N
RESPECT OF +ALAHANDI $ISTRICT INDIVIDUAL CLAIMS HAVE BEEN CONSIDERED AND SETTLED BY
GRANTING ALTERNATE RIGHTS OVER AN AREA OF ACRES
'RAM 3ABHA HAS NOT RECEIVED ANY COMMUNITY CLAIM FROM THE $ISTRICT OF 2AYAGADA
(OWEVER IN RESPECT OF +ALAHANDI $ISTRICT COMMUNITY CLAIMS HAD BEEN RECEIVED BY
THE 'RAM 3ABHA OF WHICH HAD BEEN CONSIDERED AND SETTLED BY GRANTING AN ALTERNATE
AREA OF ACRES 4HE BALANCE CLAIMS ARE PENDING CONSIDERATION
# 53 4/ -! 2 9 ! . $ 2 %,)')/ 53 2)'( 43 3!#2% $ 2)'( 43
2ELIGIOUS FREEDOM GUARANTEED TO 34S AND THE 4&$S UNDER !RTICLES AND OF THE
#ONSTITUTION IS INTENDED TO BE A GUIDE TO A COMMUNITY OF LIFE AND SOCIAL DEMANDS 4HE
ABOVE MENTIONED !RTICLES GUARANTEE THEM THE RIGHT TO PRACTICE AND PROPAGATE NOT ONLY
MATTERS OF FAITH OR BELIEF BUT ALL THOSE RITUALS AND OBSERVATIONS WHICH ARE REGARDED
AS INTEGRAL PART OF THEIR RELIGION 4HEIR RIGHT TO WORSHIP THE DEITY .IYAM
2AJA HAS
THEREFORE TO BE PROTECTED AND PRESERVED
'RAM 3ABHA HAS A ROLE TO PLAY IN SAFEGUARDING THE CUSTOMARY AND RELIGIOUS RIGHTS OF
THE 34S AND OTHER 4&$S UNDER THE &OREST 2IGHTS !CT 3ECTION OF THE !CT CONFERS POWERS
ON THE 'RAM 3ABHA TO DETERMINE THE NATURE AND EXTENT OF INDIVIDUAL OR COMMUNITY
RIGHTS )N THIS CONNECTION REFERENCE MAY ALSO BE MADE TO 3ECTION OF THE !CT COUPLED
WITH THE PROVISIONS OF 0%3! !CT WHICH DEAL WITH THE POWERS OF 'RAM 3ABHA 3ECTION
OF THE &OREST 2IGHTS !CT READS AS UNDER
!CT NOT IN DEROGATION OF ANY OTHER LAW
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
3AVE AS OTHERWISE PROVIDED IN THIS !CT AND THE PROVISIONS OF THE 0ANCHAYATS
%XTENSION OF THE 3CHEDULED !REAS !CT OF THE PROVISIONS OF THIS !CT
SHALL BE IN ADDITION TO AND NOT IN DEROGATION OF THE PROVISIONS OF ANY OTHER LAW FOR
THE TIME BEING IN FORCE
0%3! !CT HAS BEEN ENACTED AS ALREADY STATED TO PROVIDE FOR THE EXTENSION OF THE
PROVISIONS OF 0ART )8 OF THE #ONSTITUTION RELATING TO 0ANCHAYATS TO THE 3CHEDULED !REAS
3ECTION D OF THE !CT SAYS THAT EVERY 'RAM 3ABHA SHALL BE COMPETENT TO SAFEGUARD
AND PRESERVE THE TRADITIONS CUSTOMS OF THE PEOPLE THEIR CULTURAL IDENTITY COMMUNITY
RESOURCES AND COMMUNITY MODE OF DISPUTE RESOLUTION 4HEREFORE 'RAMA 3ABHA
FUNCTIONING UNDER THE &OREST 2IGHTS !CT READ WITH 3ECTION D OF 0%3! !CT HAS AN
OBLIGATION TO SAFEGUARD AND PRESERVE THE TRADITIONS AND CUSTOMS OF THE 34S AND OTHER
FOREST DWELLERS THEIR CULTURAL IDENTITY COMMUNITY RESOURCES ETC WHICH THEY HAVE TO
DISCHARGE FOLLOWING THE GUIDELINES ISSUED BY THE -INISTRY OF 4RIBAL !FFAIRS VIDE ITS LETTER
DATED
)N THE AFORESAID CONTEXT WE WOULD LIKE TO QUOTE WITH PROT THE OBSERVATIONS OF THE
3UPREME #OURT IN THE CASE OF $ELHI *AL "OARD V .ATIONAL #AMPAIGN FOR $IGNITY AND
2IGHTS OF 3EWERAGE AND !LLIED 7ORKERS AND /THERS REPORTED IN !)2 3# 3UPP
)N PARAGRAPH OF THE DECISION THE 3UPREME #OURT MADE THE FOLLOWING OBSERVATIONS
)N LAST YEARS 0ARLIAMENT AND 3TATE ,EGISLATURES HAVE ENACTED SEVERAL LAWS
FOR ACHIEVING THE GOALS SET OUT IN THE PREAMBLE BUT THEIR IMPLEMENTATION HAS BEEN
EXTREMELY INADEQUATE AND TARDY AND BENET OF WELFARE MEASURES ENSHRINED IN THOSE
LEGISLATIONS HAS NOT REACHED MILLIONS OF POOR DOWNTRODDEN AND DISADVANTAGED
SECTIONS OF THE SOCIETY AND THE EFFORTS TO BRIDGE THE GAP BETWEEN THE HAVES AND HAVE
NOTS HAVE NOT YIELD THE DESIRED RESULT 4HE MOST UNFORTUNATE PART OF THE SCENARIO IS
THAT WHENEVER ONE OF THE THREE CONSTITUENTS OF THE 3TATE IE JUDICIARY HAS ISSUED
DIRECTIONS FOR ENSURING THAT THE RIGHT TO EQUALITY LIFE AND LIBERTY NO LONGER REMAINS
ILLUSORY FOR THOSE WHO SUFFER FROM THE HANDICAPS OF POVERTY ILLITERACY AND IGNORANCE
AND DIRECTIONS ARE GIVEN FOR IMPLEMENTATION OF THE LAWS ENACTED BY THE LEGISLATURE
FOR THE BENET OF THE HAVE
NOTS A THEORETICAL DEBATE IS STARTED BY RAISING THE BOGEY
OF JUDICIAL ACTIVISM OR JUDICIAL OVERREACH AND THE ORDERS ISSUED FOR BENET OF THE
WEAKER SECTIONS OF THE SOCIETY ARE INVARIABLY SUBJECTED TO CHALLENGE IN THE HIGHER
#OURTS )N LARGE NUMBER OF CASES THE SOLE OBJECT OF THIS LITIGATIVE EXERCISE IS TO TIRE
OUT THOSE WHO GENUINELY ESPOUSE THE CAUSE OF THE WEAK AND POOR
)N SUCH CIRCUMSTANCES WE WOULD LIKE TO DISPOSE OF BOTH THE PETITIONS BY ISSUING
FOLLOWING DIRECTIONS WHICH WILL PROTECT THE INTEREST OF THE CLAIMANTS AS WELL AS THE
3TATE
) 4HE RESPONDENTS ARE DIRECTED TO STRICTLY COMPLY WITH 2ULE AND THE AMENDED
2ULE
! WHILE DISPOSING OF A FRESH CLAIM APPLICATION OR A REVIEW APPLICATION
WHICH IS ALREADY DISPOSED OF )N OTHER WORDS EVEN IF A REVIEW APPLICATION HAS BEEN
DISPOSED OF THEN IN SUCH CIRCUMSTANCES THE RESPONDENTS SHALL RECONSIDER THE CLAIM
AFTER COMPLYING WITH 2ULE AND 2ULE
! OF THE 2ULES
)) !CCORDING TO THE RESPONDENTS THERE ARE PENDING CLAIMS AS ON TH
&EBRUARY 7E DIRECT THAT ALL SUCH CLAIMS BE DECIDED BY STRICTLY COMPLYING WITH
2ULE AND THE AMENDED 2ULE
!
))) 4HE RESPONDENTS ARE DIRECTED TO TAKE INTO CONSIDERATION THE FOLLOWING EVIDENCES
WHILE DECIDING THE PENDING CLAIMS
A &IELD VERICATION PANCHNAMAS ALONG WITH PHOTOGRAPHS DESCRIBING THE
PHYSICAL ATTRIBUTES OF THE LAND INDICATING OCCUPATION PRIOR TO AND
4 / \
B 2ECORDS OF #IVIL AND #RIMINAL #OURT CASES
C 2ECEIPTS OR PURCHASE AGREEMENT FROM ERSTWHILE 0RINCELY 3TATES
D 'OVERNMENT RECORDS LIKE ABOVE RECEIPTS ISSUED BY THE &OREST $EPARTMENT
E 2EVENUE $EPARTMENT RECEIPTS
F 3ATELLITE IMAGERIES ANDOR MAPS PREPARED FROM IMAGERIES OTHER THAN ")3!'
ANDOR MAPS PREPARED FROM OTHER AUTHORIZED IMAGERIES
G 4HE APPLICATIONS MADE IN THE PAST IE BEFORE FOR REGULARIZATION OF THE
CLAIMED LANDS
)6 7E DIRECT THE 3TATE 'OVERNMENT TO RECALL OR WITHDRAW THE INSTRUCTIONS AS
CONTAINED IN !NNEXURES + , - . 0 3 AND 4 IN LIGHT OF THE AMENDED 2ULE
!
6 4HE RESPONDENTS SHALL ASSIGN COGENT REASONS FOR REJECTION OR MODICATION OF
THE CLAIM ACCORDING TO THE 'OVERNMENT GUIDELINES DATED TH *ULY AND THE
AMENDED 2ULE
! 4HE COPY OF SUCH DECISION SHOULD BE MADE AVAILABLE TO THE
CLAIMANT AT THE EARLIEST
6) 4HE RESPONDENTS ARE DIRECTED TO COMMUNICATE THE DECISION OF REJECTION OR
MODICATION OF THE CLAIM ACCORDING TO 'OVERNMENT GUIDELINES DATED TH *ULY
AND THE AMENDED 2ULE
! SO AS TO ENABLE THE CLAIMANTS TO APPROACH THE HIGHER
FORUM IN ACCORDANCE WITH LAW
6)) 4HE RESPONDENTS ARE DIRECTED TO EXPEDITE THE PROCESS OF DECIDING THE PENDING
CLAIMS AS WELL AS THE PROCESS OF RECOGNITION OF COMMUNITY RIGHTS OVER FOREST
RESOURCES AND ALSO EXPEDITE THE PROCESS OF CONVERSION OF FOREST SETTLEMENT VILLAGES
INTO REVENUE VILLAGES
6))) 4HE ORDER OF STATUS QUO PASSED BY US IN #IVIL !PPLICATION .O OF SHALL
CONTINUE TILL THE DISPOSAL OF CLAIMS WHICH WILL BE IN TUNE WITH THE PROVISIONS
OF 3ECTION #LAUSE OF THE !CT
7E ARE OF THE VIEW THAT THE DIRECTIONS WHICH WE HAVE ISSUED SHOULD TAKE CARE OF
THE GRIEVANCES VOICED BY THE PETITIONERS 4HE PETITIONS ALONG WITH #IVIL !PPLICATION ARE
ACCORDINGLY DISPOSED OF WITH THE ABOVE DIRECTIONS WITH NO ORDER AS TO COSTS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
"ARIYA -ONGHIBEN 3HANABHAI /RS
VS 0ROGRAMME !DMINISTRATOR /RS
3#! ./ /&
()'( #/524 /& '5*!2!4 !4 !(-%$!"!$
#/2!- +- 4(!+%2 *
#)4!4)/. 3## /.,).% '5*
3 5--!29
4HE PETITIONERS ARE THE HEIRS OF ONE -R 3HANABHAI 'ALABBHAI "ARIA WHO HAD FILED
AN APPLICATION FOR RECOGNITION OF FOREST RIGHTS AS FAR BACK AS !LTHOUGH HE
IS SINCE DECEASED THE WRIT PETITIONERS WHO ARE HIS HEIRS ARE CLAIMING PROTECTION
UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 2IGHTS !CT &2! AS WELL AS THE DETAILED JUDGMENT PASSED BY THE (IGH
#OURT IN !CTION 2ESEARCH IN #OMMUNITY (EALTH $EVELOPMENT !2#( /RS VS
3TATE OF 'UJARAT /RS 4HEY POINT OUT TO THE #OURT THAT THEY HAVE BEEN CULTIVATING
THE LAND IN QUESTION EVEN PRIOR TO BUT RECENTLY THE OFFICIALS OF THE 3TATE &OREST
$EPARTMENT ARE MAKING ATTEMPTS TO DISPOSSESS THEM AND PREVENT THEM FROM
CULTIVATING THESE LANDS
4HE #OURT TOOK NOTE OF THE FACT THAT SUBSEQUENT TO THE DECISION OF THE (IGH #OURT
IN THE !2#( CASE SUPRA A NUMBER OF SIMILAR MATTERS HAVE COME BEFORE THIS #OURT
AND THAT THERE IS A SPECIFIC PROVISION UNDER 3ECTION OF &2! PROTECTING THE FOREST
DWELLERS FROM DISPOSSESSION WHILE THEIR APPLICATIONS FOR RECOGNITION OF RIGHTS ARE
PENDING
!CCORDINGLY THE #OURT PASSED THE FOLLOWING DIRECTIONS
I 4HE APPLICATION OF LATE -R "ARIA BE DECIDED BY THE COMPETENT AUTHORITY
AS EXPEDITIOUSLY AS POSSIBLE AND UNTIL SUCH APPLICATION IS FINALLY DISPOSED
OF IF THE PETITIONERS ARE IN ACTUAL POSSESSION OF THE LAND IN QUESTION THEIR
POSSESSION SHALL NOT BE DISTURBED
II 4HE AUTHORITIES SHALL DECIDE THE APPLICATION OF THE PETITIONERS STRICTLY IN
*UDGMENT DT IN 70 0), .O OF ETC 'UJARAT (IGH #OURT 4HIS JUDGMENT IS EXTRACTED
ELSEWHERE IN THIS COMPENDIUM
4 / \
ACCORDANCE WITH THE DIRECTIONS ISSUED BY THE (IGH #OURT IN THE !2#( CASE AND
CONNECTED MATTERS RELEVANT POLICY NOTIFICATIONS AND CIRCULARS
% $ ) 4 /23 . /4%
4HIS DECISION IS ONE AMONG A LARGE NUMBER OF PETITIONS WHICH HAVE BEEN FILED BY
INDIVIDUAL OR SMALL GROUPS OF FOREST DWELLERS SEEKING THE PROTECTION OF THE #OURT IN
LIGHT OF ITS PREVIOUS DIRECTIONS CONTAINED IN THE !2#( CASE )T IS ILLUSTRATIVE OF THE
DIFFICULTIES FACED BY THE BENEFICIARIES OF A LEGISLATION SUCH AS THE &2! IN CLAIMING
THEIR LAWFUL AND STATUTORY RIGHTS ON THE GROUND
/ 2 ! , /2$ % 2
(EARD -S "AROT LEARNED ADVOCATE FOR THE PETITIONERS AND -R 9AGNIK LEARNED !'0 FOR
THE RESPONDENT 3TATE WHO HAS APPEARED ON ADVANCE SERVICE OF COPY OF THE PETITION
)N PRESENT PETITION THE PETITIONERS HAVE PRAYED INTER ALIA THAT
" 9/52 ,/2$3()03 BE PLEASED TO ISSUE APPROPRIATE WRIT ORDER OR DIRECTION
DIRECTING THE RESPONDENT AUTHORITIES AND THEIR AGENTS SERVANTS ETC NOT TO HARASS
THE PETITIONERS OR CAUSE ANY DISTURBANCE IN PEACEFUL POSSESSION CULTIVATION AND
TAKING CROPS FROM LAND BEARING 3URVEY NO OF VILLAGE #HALALI 4ALUKA 3HAHERA
$ISTRICT 0ANCHMAHAL AS PER DIRECTIONS OF THIS (ONBLE #OURT IN 7RIT 0ETITION 0),
.O UNTIL THE NAL DISPOSAL OF THE APPLICATION MADE BY PETITIONERS BEFORE
RESPONDENT NO 0RANTH /FCER IN THE INTEREST OF JUSTICE
# 9/52 ,/2$3()03 BE PLEASED TO RESPONDENT AUTHORITIES OR THEIR AGENTS SERVANTS
ETC NOT TO HARASS THE PETITIONERS OR CAUSE ANY DISTURBANCE IN PEACEFUL POSSESSION
CULTIVATION AND TAKING CROPS FROM LAND BEARING 3URVEY NO OF VILLAGE #HALALI
4ALUKA
3HAHERA $ISTRICT
0ANCHMAHAL UNTIL THE NAL DISPOSAL OF APPLICATION GIVEN
BY PETITIONERS TO RESPONDENT NO
0RANTH /FCER PENDING THE ADMISSION HEARING
AND NAL DISPOSAL OF THIS PETITION
4O SUPPORT AND JUSTIFY THE REQUEST MADE IN THE PETITION THE PETITIONERS HAVE AVERRED
INTER ALIA THAT
4HE 0ETITIONERS ARE CULTIVATING THE LAND BEARING 3URVEY .O SITUATED AT VILLAGE
#HALALI 4ALUKA
3HAHERA $ISTRICT
0ANCHMAHAL 4HE PETITIONERS ARE GROWING TUVER
BHINDI DANGER BAJRI BANTI KODAR ETC SINCE MANY YEARS ON THESE LANDS
4HE PETITIONERS ARE CULTIVATING THESE LANDS MUCH PRIOR TO AND THEREAFTER TILL
DATE
4HE PETITIONERS SUBMIT THAT IN THE YEAR THE OFCERS OF RESPONDENT FOREST
DEPARTMENT TRIED TO DISPOSSESS THE PETITIONERS FROM THE AFORESAID LANDS (OWEVER
THE PETITIONERS DID NOT VACATE THE LAND AND CONTINUED THE POSSESSION
4HE PETITIONERS SUBMIT THAT RECENTLY IN *UNE ON COMMENCEMENT OF MONSOON
SEASON THOUGH THE PETITIONERS ARE DOING AGRICULTURAL ACTIVITIES THE OFCERS OF
FOREST DEPARTMENT ARE TRYING TO HARASS THE PETITIONERS AND TO VACATE THE PETITIONERS
FROM THE AFORESAID LANDS 4HE PETITIONERS HAVE ALSO LED APPLICATION BEFORE THE
0RANTH /FCER ,UNAVADA UNDER THE &OREST !CT /NE SUCH CASE IS REGISTERED AS #ASE
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
.O A COPY OF WHICH IS ANNEXED HEREWITH AND MARKED AS !NNEXURE
!
4HE PETITIONERS SUBMIT THAT SOME COMPLAINTS FOR THE OFFENCES PUNISHABLE UNDER
THE )NDIAN &OREST !CT ARE ALSO LED BY 2ANGE &OREST /FCER 3HAHERA AGAINST SOME
OF THE PETITIONERS BY ALLEGING THAT THE PETITIONERS HAVE DESTROYED TREES GRASS ETC
BY ILLEGALLY ENTERING INTO AND CULTIVATING FOREST LAND )N THE SAID COMPLAINTS CHARGE
SHEET APPEARS TO HAVE BEEN LED AND THE CASE WERE COMMITTED FOR TRIAL BEFORE THE ,D
*-&# 3HAHERA 4HE SAID CASES WERE REGISTERED AS #RIMINAL #ASE NO AND
#OPY OF THE RECEIPT OF PAYMENT TOWARDS NE ISSUED BY ,D -AGISTRATE ARE
ANNEXED HEREWITH AND MARKED AS !NNEXURE
" #OLLY
4HE PETITIONERS SUBMIT THAT SINCE *ULY THE RESPONDENT NO AND THE OFCERS
OF RESPONDENT DEPARTMENT ARE HARASSING THE PETITIONERS AND NOT PERMITTING THE
PETITIONERS TO CULTIVATE THE AFORESAID LANDS
4HE PETITIONERS SUBMIT THAT AS PER 2ULE OF &OREST 2ULES AND AS PER THE ORDER
PASSED BY THIS (ONBLE #OURT IN 7RIT 0ETITION 0), .O UNTIL THE NAL DISPOSAL
OF THE APPLICATION LED BY PETITIONERS THE PETITIONERS SHOULD NOT BE HARASSED OR THEIR
POSSESSION SHOULD NOT BE DISTURBED (OWEVER THERE IS CLEAR VIOLATION OF THE ABOVE
DIRECTION COMMITTED BY RESPONDENTS 4HE IMPUGNED ACTION OF THE RESPONDENTS IS
ILLEGAL ARBITRARY IN VIOLATION OF DIRECTION GIVEN BY THIS (ONBLE #OURT IN 7RIT 0ETITION
0), .O OF AND ALSO IN VIOLATION OF &OREST !CT AND 2ULES AND BAD IN LAW 4HE
PETITIONERS ARE THEREFORE CONSTRAINED TO APPROACH THIS (ONBLE #OURT BY WAY OF THIS
PETITION
4HE PETITIONER SUBMITS THAT THUS FROM THE ABOVE FACTS AND CIRCUMSTANCES IT IS
ADMITTED POSITION ON RECORD THAT THE PETITIONER ARE IN POSSESSION OF THE LAND BEARING
3URVEY .O SINCE UNINTERRUPTEDLY 4HE PETITIONERS HAVE BEEN CULTIVATING THE
SUBJECT LAND FOR ALL THESE YEARS 4HE PETITIONERS ARE ENTITLED TO CONTINUE TO HOLD THE
SUBJECT LAND FOR CULTIVATION AS PER THE PROVISIONS OF THE &OREST !CT AND 'OVERNMENT
.OTICATIONS ISSUED FROM TIME TO TIME
!T THE TIME OF HEARING LEARNED ADVOCATE FOR THE PETITIONERS RELIED ON #!6 *UDGMENT
DATED IN 7RIT 0ETITION 0), .OS OF AND CONNECTED MATTERS
&OR THE PRESENT PURPOSE THE NAL DIRECTIONS ISSUED BY THE (ONBLE $IVISION "ENCH IN THE
SAID #!6 *UDGMENT DATED ARE RELEVANT 4HEREFORE THEY ARE QUOTED HEREINBELOW
)N SUCH CIRCUMSTANCES WE WOULD LIKE TO DISPOSE OF BOTH THE PETITIONS BY ISSUING
FOLLOWING DIRECTIONS WHICH WILL PROTECT THE INTEREST OF THE CLAIMANTS AS WELL AS
THE 3TATE
) 4HE RESPONDENTS ARE DIRECTED TO STRICTLY COMPLY WITH 2ULE AND THE AMENDED
2ULE
! WHILE DISPOSING OF A FRESH CLAIM APPLICATION OR A REVIEW APPLICATION
WHICH IS ALREADY DISPOSED OF )N OTHER WORDS EVEN IF A REVIEW APPLICATION HAS
BEEN DISPOSED OF THEN IN SUCH CIRCUMSTANCES THE RESPONDENTS SHALL RECONSIDER
THE CLAIM AFTER COMPLYING WITH 2ULE AND 2ULE
! OF THE 2ULES
)) !CCORDING TO THE RESPONDENTS THERE ARE PENDING CLAIMS AS ON TH
&EBRUARY 7E DIRECT THAT ALL SUCH CLAIMS BE DECIDED BY STRICTLY COMPLYING
WITH 2ULE AND THE AMENDED 2ULE
!
))) 4HE RESPONDENTS ARE DIRECTED TO TAKE INTO CONSIDERATION THE FOLLOWING
EVIDENCES WHILE DECIDING THE PENDING CLAIMS
4 / \
A &IELD VERICATION PANCHNAMAS ALONG WITH PHOTOGRAPHS DESCRIBING THE
PHYSICAL ATTRIBUTES OF THE LAND INDICATING OCCUPATION PRIOR TO AND
B 2ECORDS OF #IVIL AND #RIMINAL #OURT CASES
C 2ECEIPTS OR PURCHASE AGREEMENT FROM ERSTWHILE 0RINCELY 3TATES
D 'OVERNMENT RECORDS LIKE ABOVE RECEIPTS ISSUED BY THE &OREST $EPARTMENT
E 2EVENUE $EPARTMENT RECEIPTS
F 3ATELLITE IMAGERIES ANDOR MAPS PREPARED FROM IMAGERIES OTHER THAN ")3!'
ANDOR MAPS PREPARED FROM OTHER AUTHORIZED IMAGERIES
G 4HE APPLICATIONS MADE IN THE PAST IE BEFORE FOR REGULARIZATION OF THE
CLAIMED LANDS
)6 7E DIRECT THE 3TATE 'OVERNMENT TO RECALL OR WITHDRAW THE INSTRUCTIONS AS
CONTAINED IN !NNEXURES + , - . 0 3 AND 4 IN LIGHT OF THE AMENDED 2ULE
!
6 4HE RESPONDENTS SHALL ASSIGN COGENT REASONS FOR REJECTION OR MODICATION OF
THE CLAIM ACCORDING TO THE 'OVERNMENT GUIDELINES DATED TH *ULY AND THE
AMENDED 2ULE
! 4HE COPY OF SUCH DECISION SHOULD BE MADE AVAILABLE TO THE
CLAIMANT AT THE EARLIEST
6) 4HE RESPONDENTS ARE DIRECTED TO COMMUNICATE THE DECISION OF REJECTION OR
MODICATION OF THE CLAIM ACCORDING TO 'OVERNMENT GUIDELINES DATED TH *ULY
AND THE AMENDED 2ULE
! SO AS TO ENABLE THE CLAIMANTS TO APPROACH THE
HIGHER FORUM IN ACCORDANCE WITH LAW
6)) 4HE RESPONDENTS ARE DIRECTED TO EXPEDITE THE PROCESS OF DECIDING THE PENDING
CLAIMS AS WELL AS THE PROCESS OF RECOGNITION OF COMMUNITY RIGHTS OVER
FOREST RESOURCES AND ALSO EXPEDITE THE PROCESS OF CONVERSION OF FOREST SETTLEMENT
VILLAGES INTO REVENUE VILLAGES
6))) 4HE ORDER OF STATUS QUO PASSED BY US IN #IVIL !PPLICATION .O OF
SHALL CONTINUE TILL THE DISPOSAL OF CLAIMS WHICH WILL BE IN TUNE WITH THE
PROVISIONS OF 3ECTION #LAUSE OF THE !CT
7E ARE OF THE VIEW THAT THE DIRECTIONS WHICH WE HAVE ISSUED SHOULD TAKE CARE
OF THE GRIEVANCES VOICED BY THE PETITIONERS 4HE PETITIONS ALONG WITH #IVIL
!PPLICATION ARE ACCORDINGLY DISPOSED OF WITH THE ABOVE DIRECTIONS WITH NO ORDER
AS TO COSTS
)T IS NOT IN DISPUTE THAT IN VIEW OF THE SAID DECISION CERTAIN OTHER MATTERS HAVE BEEN
ENTERTAINED BY THIS #OURT ,EARNED !'0 FAIRLY SUBMITTED THAT IN CERTAIN OTHER PETITIONS
INTERIM DIRECTIONS HAVE BEEN PASSED DIRECTING THE AUTHORITIES NOT TO DISTURB THE
POSSESSION OF THE PETITIONERS UNTIL THE APPLICATION SUIT LED BY THE PETITIONERS CLAIMING
FOREST RIGHTS ARE DECIDED
3O FAR AS PRESENT CASE IS CONCERNED IT APPEARS THAT THE PETITIONERS HEREIN HAVE LED AN
APPLICATION SUIT BEFORE THE COMPETENT AUTHORITY SEEKING FOREST RIGHTS AND THE SAID
APPLICATION SUIT IS PENDING BEFORE THE AUTHORITY SINCE 4HE SAID APPLICATION SUIT
CAME TO BE LED BY -R 3HANABHAI 'ALABBHAI "ARIA WHO DIED DURING PENDENCY OF THE SAID
APPLICATION SUIT AND HIS HEIRS LEGAL REPRESENTATIVES HAVE TAKEN OUT PRESENT PETITION )T
IS CLAIMED THAT THE APPLICATION SUIT LED BY -R "ARIA IS PENDING BEFORE THE AUTHORITIES
,EARNED ADVOCATE FOR THE PETITIONERS ALSO RELIED ON THE ORDERS DATED IN 3PECIAL
#IVIL !PPLICATION .O OF AND DATED IN 3PECIAL #IVIL !PPLICATION .O
OF
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
(AVING REGARD TO THE SAID ORDERS AND UPON CONSIDERING THE DIRECTIONS ISSUED BY THE
(ONBLE $IVISION "ENCH IN ORDER DATED IT APPEARS THAT PRESENT PETITION CAN BE
DISPOSED OF AT THIS STAGE WITH BELOW MENTIONED OBSERVATIONS AND CLARICATIONS
)F THE APPLICATION SUIT LED BY -R 3HANABHAI 'ALABBHAI "ARIA IS PENDING BEFORE
THE COMPETENT AUTHORITY THEN THE SAME MAY BE DECIDED AS EXPEDITIOUSLY
AS POSSIBLE AND UNTIL 0AGE #3#! /2$%2 THE SAID APPLICATION
SUIT IS NOT NALLY DECIDED AND DISPOSED OF IF THE PETITIONERS ARE IN ACTUAL AND
PHYSICAL POSSESSION OF THE LAND BEARING 3URVEY .O OF VILLAGE #HALALI 4ALUKA
3HAHERA $ISTRICT
0ANCHMAHALS AND IF THE SAID APPLICATION SUIT LED BY -R
3HANABHAI 'ALABBHAI "ARIA IS IN CONNECTION WITH THE SAID PARCEL OF LAND THEN
THEIR POSSESSION MAY NOT BE DISTURBED UNTIL THE SAID APPLICATION SUIT IS NALLY
DECIDED
4HE AUTHORITIES SHALL ACT AND DECIDE THE APPLICATION SUIT IN ACCORDANCE WITH THE
DIRECTIONS ISSUED BY THE (ONBLE $IVISION "ENCH IN ABOVE REFERRED #!6 *UDGMENT
DATED IN 7RIT 0ETITION 0), .OS OF AND CONNECTED MATTERS AND
RELEVANT POLICY NOTICATIONS CIRCULARS
4HE AUTHORITY MAY ALSO ENDEAVOUR TO DECIDE THE APPLICATIONSUIT AS EXPEDITIOUSLY AS
POSSIBLE AND PREFERABLY WITHIN SIX MONTHS
7ITH AFORESAID CLARICATIONS AND OBSERVATIONS PRESENT PETITION STANDS DISPOSED OF
$IRECT SERVICE IS PERMITTED
4 / \
"ARIYA 0ARVATSINH 3HANKARBHAI /RS
VS 0ROGRAMME !DMINISTRATOR /RS
3#! ./ /&
()'( #/524 /& '5*!2!4
#/2!- +- 4(!+%2 *
#)4!4)/. 3## /.,).% '5*
3 5 - -!29
! COMMON WRIT PETITION WAS FILED BY PERSONS SEEKING IMPLEMENTATION OF THE
DIRECTIONS PASSED BY THE (IGH #OURT IN !CTION 2ESEARCH IN #OMMUNITY (EALTH
$EVELOPMENT /RS VS 3TATE OF 'UJARAT /RS AND ALSO SEEKING PROTECTION FROM
DISPOSSESSION IN TERMS OF 3ECTION OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! 4HE #OURT ELECTED TO
DECIDE EACH CASE SEPARATELY
4HE FIRST PETITIONER ASSERTED THAT HE HAS BEEN CULTIVATING THE FOREST LAND AT VILLAGE
#HALALI $ISTRICT 0ANCHMAHAL BEFORE )N
THE OFFICERS OF RESPONDENT
&OREST $EPARTMENT TRIED TO DISPOSSESS HIM FROM THE AFORESAID LAND BUT THE
PETITIONER DID NOT VACATE THE LAND AND CONTINUED IN POSSESSION )N *UNE THE
RESPONDENT &OREST $EPARTMENT AGAIN TRIED TO EVICT THE PETITIONER AND ALSO INITIATED
PROCEEDINGS FOR ALLEGEDLY DESTROYING TREES AND GRASS BY ILLEGAL ENTRY AND CULTIVATION
OF FOREST LAND
4HE #OURT REITERATED THE DIRECTIONS GIVEN IN THE !2#( CASE AND DIRECTED THAT THE
PETITIONERS APPLICATION FOR RECOGNITION OF FOREST RIGHTS UNDER THE &2! WHICH HAD
BEEN PENDING SINCE BE DISPOSED OF EXPEDITIOUSLY BY THE COMPETENT AUTHORITY
4HE #OURT FURTHER DIRECTED THAT THE PETITIONERS POSSESSION MUST NOT BE DISTURBED
UNTIL THE APPLICATION SUIT IS FINALLY DECIDED AND DISPOSED OF
*UDGMENT DATED IN 70 0), .O 'UJARAT (IGH #OURT 4HIS JUDGMENT IS EXTRACTED
ELSEWHERE IN THIS COMPENDIUM
)BID
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
% $ )4/23 . /4%
!S STATED EARLIER A SERIES OF PETITIONS HAVE BEEN FILED BEFORE THE (IGH #OURT OF
'UJARAT OVER THE LAST FEW YEARS SEEKING IMPLEMENTATION OF THE DIRECTIONS ISSUED BY
THE #OURT IN THE !2#( CASE SUPRA 4HE FACT THAT THESE PETITIONERS HAVE APPROACHED
THE #OURT IS A REFLECTION OF THE HIGH LEVEL OF AWARENESS REGARDING THE &2! IN 'UJARAT
AS ALSO AN INDICATOR OF HOW DIFFICULT THIS FUNDAMENTAL LAW HAS BEEN TO IMPLEMENT
IN LETTER AND SPIRIT
/2$ % 2
(EARD -S .IDHI 0 "AROT LEARNED ADVOCATE FOR THE PETITIONERS AND -R 2AKESH 0ATEL
LEARNED !'0 WHO HAS APPEARED ON ADVANCE SERVICE OF COPY OF PRESENT PETITION
)N APPEARS THAT DIFFERENT CASES ARE PENDING WITH REFERENCE TO DIFFERENT PETITIONERS AND IT
HAS EMERGED THAT IN VIEW OF DIFFERENT SET OF FACTS IT WILL NOT BE APPROPRIATE TO ENTERTAIN
COMMON PETITION BY ALMOST PETITIONERS
%ACH OF THE PETITIONER HAS DIFFERENT FACTS AND HAS LED DIFFERENT CASES BEFORE THE AUTHORITY
WHICH ARE REGISTERED AS SEPARATE CASES
4HEREFORE PRESENT PETITION IS RESTRICTED TO THE PETITIONER .O ONLY AND OTHER PETITIONERS
CAN TAKE OUT SEPARATE PETITION
)T IS CLARIED THAT IF COMMON BUT FULL #OURT FEES IS PAID IN RESPECT OF ALL THE PETITIONERS
THEN IT WILL BE OPEN TO THE OTHER PETITIONERS TO CLAIM SET OFF SO FAR AS #OURT FEES IS
CONCERNED
)F ALL THE PETITIONERS HAVE SIGNED AND EXECUTED COMMON 6AKALATNAMA IN FAVOUR OF THE
LEARNED ADVOCATE THEN IT WOULD BE OPEN TO SAID OTHER PETITIONERS TO REQUEST THE REGISTRY
TO ACCEPT SAID 6AKALATNAMA IN RESPECT OF OTHER MATTERS AND IF THE REGISTRY IS SATISED
THAT OTHER PERSONS HAVE SIGNED THE 6AKALATNAMA THEN THE 6AKALATNAMA IN EACH CASE
AFTER PROPER VERICATION MAY BE DISPENSED WITH
0RESENT PETITION IS RESTRICTED TO THE PETITIONER .O IE "ARIYA 0ARVATSINH 3HANKARBHAI
)N PRESENT PETITION THE PETITIONER HAS PRAYED INTER ALIA THAT
" 9/52 ,/2$3()03 BE PLEASED TO ISSUE APPROPRIATE WRIT ORDER OR DIRECTION
DIRECTING THE RESPONDENT AUTHORITIES AND THEIR AGENTS SERVANTS ETC NOT TO HARASS
THE PETITIONERS OR CAUSE ANY DISTURBANCE IN PEACEFUL POSSESSION CULTIVATION AND
TAKING CROPS FROM LAND BEARING 3URVEY NO OF VILLAGE #HALALI 4ALUKA 3HAHERA
$ISTRICT 0ANCHMAHAL AS PER DIRECTIONS OF THIS (ONBLE #OURT IN 7RIT 0ETITION 0),
.O UNTIL THE NAL DISPOSAL OF THE APPLICATION MADE BY PETITIONERS BEFORE
RESPONDENT NO 0RANTH /FCER IN THE INTEREST OF JUSTICE
# 9/52 ,/2$3()03 BE PLEASED TO RESPONDENT AUTHORITIES OR THEIR AGENTS SERVANTS
ETC NOT TO HARASS THE PETITIONERS OR CAUSE ANY DISTURBANCE IN PEACEFUL POSSESSION
CULTIVATION AND TAKING CROPS FROM LAND BEARING 3URVEY NO OF VILLAGE #HALALI
4ALUKA
3HAHERA $ISTRICT
0ANCHMAHAL UNTIL THE NAL DISPOSAL OF APPLICATION GIVEN
BY PETITIONERS TO RESPONDENT NO
0RANTH /FCER PENDING THE ADMISSION HEARING
AND NAL DISPOSAL OF THIS PETITION
4 / \
4O SUPPORT AND JUSTIFY THE REQUEST MADE IN THE PETITION THE PETITIONER HAS AVERRED INTER
ALIA THAT
4HE 0ETITIONER IS CULTIVATING THE LAND BEARING 3URVEY .O SITUATED AT VILLAGE
#HALALI 4ALUKA 3HAHERA $ISTRICT 0ANCHMAHAL 4HE PETITIONER IS GROWING TUVER
BHINDI DANGER BAJRI BANTI KODAR ETC SINCE MANY YEARS ON THESE LANDS
4HE PETITIONER IS CULTIVATING THESE LANDS MUCH PRIOR TO AND THEREAFTER TILL
DATE
4HE PETITIONER SUBMITS THAT IN THE YEAR
THE OFCERS OF RESPONDENT FOREST
DEPARTMENT TRIED TO DISPOSSESS THE PETITIONER FROM THE AFORESAID LANDS (OWEVER
THE PETITIONER DID NOT VACATE THE LAND AND CONTINUED THE POSSESSION
4HE PETITIONER SUBMITS THAT RECENTLY IN *UNE COMMENCEMENT OF MONSOON
SEASON THOUGH THE PETITIONER IS DOING AGRICULTURAL ACTIVITIES THE OFCERS OF FOREST
DEPARTMENT ARE TRYING TO HARASS THE PETITIONER AND TO VACATE THE PETITIONER FROM THE
AFORESAID LANDS 4HE PETITIONER HAS ALSO LED APPLICATION BEFORE THE 0RANTH /FCER
,UNAVADA UNDER THE &OREST !CT
4HE PETITIONER SUBMITS THAT SOME COMPLAINTS FOR THE OFFENCES PUNISHABLE UNDER
THE )NDIAN &OREST !CT ARE ALSO LED BY 2ANGE &OREST /FCER 3HAHERA AGAINST SOME OF
THE PETITIONERS BY ALLEGING THAT THE PETITIONERS HAVE DESTROYED TREES GRASS ETC BY
ILLEGALLY ENTERING INTO AND CULTIVATING FOREST LAND
)N THE SAID COMPLAINTS ,D -AGISTRATE HAS PASSED ORDER DIRECTING THE ACCUSED TO PAY
LE AND IN DEFAULT OF PAYMENT OF NE TO UNDERGO SIMILE IMPRISONMENT FOR DAYS
4HE PETITIONERS SUBMIT THAT SINCE !UGUST THE RESPONDENT NO AND THE
OFCERS OF RESPONDENT DEPARTMENT ARE HARASSING THE PETITIONER AND NOT PERMITTING
THE PETITIONER TO CULTIVATE THE AFORESAID LANDS
4HE PETITIONER SUBMITS THAT AS PER 2ULE OF &OREST 2ULES AND AS PER THE
ORDER PASSED BY THIS (ONBLE #OURT IN 7RIT 0ETITION 0), .O UNTIL THE NAL
DISPOSAL OF THE APPLICATION LED BY PETITIONER THE PETITIONER SHOULD NOT BE HARASSED
OR THEIR POSSESSION SHOULD NOT BE DISTURBED (OWEVER THERE IS CLEAR VIOLATION
OF THE ABOVE DIRECTION COMMITTED BY RESPONDENTS 4HE IMPUGNED ACTION OF THE
RESPONDENTS IS ILLEGAL ARBITRARY IN VIOLATION OF DIRECTION GIVEN BY THIS (ONBLE #OURT
IN 7RIT 0ETITION 0), .O OF AND ALSO IN VIOLATION OF &OREST !CT AND 2ULES AND
BAD IN LAW 4HE PETITIONER IS THEREFORE CONSTRAINED TO APPROACH THIS (ONBLE #OURT
BY WAY OF THIS PETITION
4HE PETITIONER SUBMITS THAT THUS FROM THE ABOVE FACTS AND CIRCUMSTANCES IT IS
ADMITTED POSITION ON RECORD THAT THE PETITIONER IS IN POSSESSION OF THE LAND BEARING
3URVEY .O SINCE UNINTERRUPTEDLY 4HE PETITIONER HAS BEEN CULTIVATING THE
SUBJECT LAND FOR ALL THESE YEARS 4HE PETITIONER IS ENTITLED TO CONTINUE TO HOLD THE
SUBJECT LAND FOR CULTIVATION AS PER THE PROVISIONS OF THE &OREST !CT AND 'OVERNMENT
.OTICATIONS ISSUED FROM TIME TO TIME
!T THE TIME OF HEARING LEARNED ADVOCATE FOR THE PETITIONER RELIED ON #!6 *UDGMENT
DATED IN 7RIT 0ETITION 0), .OS OF AND CONNECTED MATTERS
&OR THE PRESENT PURPOSE WHAT IS RELEVANT IS THE NAL DIRECTIONS ISSUED BY THE (ONBLE
$IVISION "ENCH IN THE SAID #!6 *UDGMENT DATED 4HEREFORE THEY ARE QUOTED
HEREINBELOW
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
)N SUCH CIRCUMSTANCES WE WOULD LIKE TO DISPOSE OF BOTH THE PETITIONS BY ISSUING
FOLLOWING DIRECTIONS WHICH WILL PROTECT THE INTEREST OF THE CLAIMANTS AS WELL AS
THE 3TATE
) 4HE RESPONDENTS ARE DIRECTED TO STRICTLY COMPLY WITH 2ULE AND THE AMENDED
2ULE
! WHILE DISPOSING OF A FRESH CLAIM APPLICATION OR A REVIEW APPLICATION
WHICH IS ALREADY DISPOSED OF )N OTHER WORDS EVEN IF A REVIEW APPLICATION HAS
BEEN DISPOSED OF THEN IN SUCH CIRCUMSTANCES THE RESPONDENTS SHALL RECONSIDER
THE CLAIM AFTER COMPLYING WITH 2ULE AND 2ULE
! OF THE 2ULES
)) !CCORDING TO THE RESPONDENTS THERE ARE PENDING CLAIMS AS ON TH
&EBRUARY 7E DIRECT THAT ALL SUCH CLAIMS BE DECIDED BY STRICTLY COMPLYING
WITH 2ULE AND THE AMENDED 2ULE
! ))) 4HE RESPONDENTS ARE DIRECTED TO TAKE
INTO CONSIDERATION THE FOLLOWING EVIDENCES WHILE DECIDING THE PENDING
CLAIMS
A &IELD VERICATION PANCHNAMAS ALONG WITH PHOTOGRAPHS DESCRIBING THE
PHYSICAL ATTRIBUTES OF THE LAND INDICATING OCCUPATION PRIOR TO AND
B 2ECORDS OF #IVIL AND #RIMINAL #OURT CASES
C 2ECEIPTS OR PURCHASE AGREEMENT FROM ERSTWHILE 0RINCELY 3TATES
D 'OVERNMENT RECORDS LIKE ABOVE RECEIPTS ISSUED BY THE &OREST $EPARTMENT
E 2EVENUE $EPARTMENT RECEIPTS
F 3ATELLITE IMAGERIES ANDOR MAPS PREPARED FROM IMAGERIES OTHER THAN
")3!' ANDOR MAPS PREPARED FROM OTHER AUTHORIZED IMAGERIES
G 4HE APPLICATIONS MADE IN THE PAST IE BEFORE FOR REGULARIZATION OF
THE CLAIMED LANDS
)6 7E DIRECT THE 3TATE 'OVERNMENT TO RECALL OR WITHDRAW THE INSTRUCTIONS AS
CONTAINED IN !NNEXURES + , - . 0 3 AND 4 IN LIGHT OF THE AMENDED 2ULE
!
6 4HE RESPONDENTS SHALL ASSIGN COGENT REASONS FOR REJECTION OR MODICATION OF
THE CLAIM ACCORDING TO THE 'OVERNMENT GUIDELINES DATED TH *ULY AND THE
AMENDED 2ULE
! 4HE COPY OF SUCH DECISION SHOULD BE MADE AVAILABLE TO THE
CLAIMANT AT THE EARLIEST
6) 4HE RESPONDENTS ARE DIRECTED TO COMMUNICATE THE DECISION OF REJECTION OR
MODICATION OF THE CLAIM ACCORDING TO 'OVERNMENT GUIDELINES DATED TH *ULY
AND THE AMENDED 2ULE
! SO AS TO ENABLE THE CLAIMANTS TO APPROACH THE
HIGHER FORUM IN ACCORDANCE WITH LAW
6)) 4HE RESPONDENTS ARE DIRECTED TO EXPEDITE THE PROCESS OF DECIDING THE PENDING
CLAIMS AS WELL AS THE PROCESS OF RECOGNITION OF COMMUNITY RIGHTS OVER
FOREST RESOURCES AND ALSO EXPEDITE THE PROCESS OF CONVERSION OF FOREST SETTLEMENT
VILLAGES INTO REVENUE VILLAGES
6))) 4HE ORDER OF STATUS QUO PASSED BY US IN #IVIL !PPLICATION .O OF
SHALL CONTINUE TILL THE DISPOSAL OF CLAIMS WHICH WILL BE IN TUNE WITH THE
PROVISIONS OF 3ECTION #LAUSE OF THE !CT
7E ARE OF THE VIEW THAT THE DIRECTIONS WHICH WE HAVE ISSUED SHOULD TAKE CARE OF
THE GRIEVANCES VOICED BY THE PETITIONERS 4HE PETITIONS ALONG WITH #IVIL !PPLICATION
ARE ACCORDINGLY DISPOSED OF WITH THE ABOVE DIRECTIONS WITH NO ORDER AS TO COSTS
)T IS NOT IN DISPUTE THAT IN VIEW OF THE SAID DECISION CERTAIN OTHER MATTERS HAVE BEEN
ENTERTAINED BY THIS #OURT ,EARNED !'0 FAIRLY SUBMITTED THAT IN CERTAIN OTHER PETITIONS
4 / \
INTERIM DIRECTIONS HAVE BEEN PASSED DIRECTING THE AUTHORITIES NOT TO DISTURB THE
POSSESSION OF THE PETITIONERS UNTIL THE APPLICATION SUIT LED BY THE PETITIONERS CLAIMING
FOREST RIGHTS ARE DECIDED
3O FAR AS PRESENT CASE IS CONCERNED THE PETITIONER HAS CLAIMED THAT HE HAS LED AN
APPLICATION SUIT BEFORE THE COMPETENT AUTHORITY SEEKING FOREST RIGHTS AND THE SAID
APPLICATION SUIT .O IS PENDING BEFORE THE AUTHORITY SINCE
4HE LEARNED ADVOCATE FOR THE PETITIONER ALSO RELIED ON THE ORDERS DATED IN
3PECIAL #IVIL !PPLICATION .O OF AND DATED IN 3PECIAL #IVIL !PPLICATION
.O OF
(AVING REGARD TO THE SAID ORDERS AND UPON CONSIDERING THE DIRECTIONS ISSUED BY THE
(ONBLE $IVISION "ENCH IN ORDER DATED IT APPEARS THAT PRESENT PETITION CAN BE
DISPOSED OF AT THIS STAGE WITH BELOW MENTIONED OBSERVATIONS AND CLARICATIONS
)F THE APPLICATION SUIT LED BY THE PETITIONER IS PENDING BEFORE THE COMPETENT
AUTHORITY THEN THE SAME MAY BE DECIDED AS EXPEDITIOUSLY AS POSSIBLE AND UNTIL THE
SAID APPLICATION SUIT IS NOT NALLY DECIDED AND DISPOSED OF IF THE PETITIONER IS IN ACTUAL
AND PHYSICAL POSSESSION OF THE LAND IN QUESTION AND IF THE SAID APPLICATION SUIT LED BY
THE PETITIONERS IS IN CONNECTION WITH THE SAID PARCEL OF LAND THEN THEIR POSSESSION MAY
NOT BE DISTURBED UNTIL THE SAID APPLICATION SUIT IS NALLY DECIDED
4HE AUTHORITIES SHALL ACT AND DECIDE THE APPLICATION SUIT IN ACCORDANCE WITH THE
DIRECTIONS ISSUED BY THE (ONBLE $IVISION "ENCH IN ABOVE REFERRED #!6 *UDGMENT DATED
IN 7RIT 0ETITION 0), .OS OF AND CONNECTED MATTERS AND RELEVANT POLICY
NOTICATIONS CIRCULARS 4HE AUTHORITY MAY ALSO ENDEAVOUR TO DECIDE THE APPLICATION
SUIT AS EXPEDITIOUSLY AS POSSIBLE AND PREFERABLY WITHIN SIX MONTHS
7ITH AFORESAID CLARICATIONS AND OBSERVATIONS PRESENT PETITION STANDS DISPOSED OF $IRECT
SERVICE IS PERMITTED
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
0RAHLADBHAI -AGANLAL *ANI
#HUNRIWALA -ATAJI VS !CTION
2ESEARCH IN #OMMUNITY (EALTH AND
$EVELOPMENT !2#( /RS
-)3# #)6), !00,)#!4)/. ./ /& ). 70 0), ./ /&
()'( #/524 /& '5*!2!4 !(-%$!"!$"%.#(
#/2!- "(!3+!2 "(!44!#(!29! #* !.$ *" 0!2$)7!,! *
#)4!4)/. 3## /.,).% '5*
3 5--!29
4HE APPLICANT SOUGHT STRICT IMPLEMENTATION OF THE JUDGMENT AND ORDER DATED
PASSED BY THE (IGH #OURT IN !CTION 2ESEARCH IN #OMMUNITY (EALTH
$EVELOPMENT /RS VS 3TATE OF 'UJARAT /RS WHICH DIRECTED THE RESPONDENT
AUTHORITIES TO FOLLOW CERTAIN DIRECTIONS WHILE DECIDING CLAIMS UNDER THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2! )N PARTICULAR THE #OURT HAD DIRECTED THAT PENDING THE DISPOSAL OF
CLAIMS UNDER THE &2! THE POSSESSION OF THE CLAIMANTS WILL NOT BE DISTURBED
4HE APPLICANT SUBMITTED THAT THE RESPONDENT AUTHORITIES ARE TRYING TO DISTURB
HIS POSSESSION OF THE FOREST LAND EVEN THOUGH HE IS ONE OF THE APPLICANTS
AFORESAID AND HIS CLAIM IS PENDING
!CCEPTING THE ASSERTION OF THE RESPONDENT 3TATE MADE THROUGH ITS COUNSEL THAT
IT WILL NOT THREATEN DISPOSSESSION OF ANY PERSON WHOSE CLAIM UNDER THE &2! IS
PENDING THE #OURT DISPOSED OF THE APPLICATION
/2$ % 2
"Y THIS APPLICATION THE APPLICANT HAS PRAYED FOR MODICATION OF OUR ORDER DATED RD -AY
*UDGMENT DATED IN 70 0), .O 'UJARAT (IGH #OURT 4HIS JUDGMENT IS EXTRACTED ELSEWHERE
IN THIS COMPENDIUM
4 / \
BY DIRECTING THE RESPONDENT
AUTHORITIES TO DECIDE THE APPLICATIONCLAIM SUBMITTED
BY THE APPLICANT UNDER &OREST 2IGHTS !CT2ULES IN THE LIGHT OF OUR DIRECTION ISSUED BY US
VIDE THE SAID ORDER DATED RD -AY PASSED IN 7RIT 0ETITION 0), .O OF
)T APPEARS THAT WHILE DISPOSING OF THE 0UBLIC )NTEREST ,ITIGATION WE PASSED THE FOLLOWING
DIRECTIONS IN PARAGRAPH WHICH ARE QUOTED BELOW
)N SUCH CIRCUMSTANCES WE WOULD LIKE TO DISPOSE OF BOTH THE PETITIONS BY ISSUING
FOLLOWING DIRECTIONS WHICH WILL PROTECT THE INTEREST OF THE CLAIMANTS AS WELL AS THE 3TATE
) 4HE RESPONDENTS ARE DIRECTED TO STRICTLY COMPLY WITH 2ULE AND THE AMENDED 2ULE
! WHILE DISPOSING OF A FRESH CLAIM APPLICATION OR A REVIEW APPLICATION WHICH IS
ALREADY DISPOSED OF )N OTHER WORDS EVEN IF A REVIEW APPLICATION HAS BEEN DISPOSED
OF THEN IN SUCH CIRCUMSTANCES THE RESPONDENTS SHALL RECONSIDER THE CLAIM AFTER
COMPLYING WITH 2ULE AND 2ULE
! OF THE 2ULES
)) !CCORDING TO THE RESPONDENTS THERE ARE PENDING CLAIMS AS ON TH &EBRUARY
7E DIRECT THAT ALL SUCH CLAIMS BE DECIDED BY STRICTLY COMPLYING WITH 2ULE
AND THE AMENDED 2ULE
!
))) 4HE RESPONDENTS ARE DIRECTED TO TAKE INTO CONSIDERATION THE FOLLOWING EVIDENCES
WHILE DECIDING THE PENDING CLAIMS
A &IELD VERICATION PANCHNAMAS ALONG WITH PHOTOGRAPHS DESCRIBING THE
PHYSICAL ATTRIBUTES OF THE LAND INDICATING OCCUPATION PRIOR TO AND
B 2ECORDS OF #IVIL AND #RIMINAL #OURT CASES
C 2ECEIPTS OR PURCHASE AGREEMENT FROM ERSTWHILE 0RINCELY 3TATES
D 'OVERNMENT RECORDS LIKE ABOVE RECEIPTS ISSUED BY THE &OREST $EPARTMENT
E 2EVENUE $EPARTMENT RECEIPTS
F 3ATELLITE IMAGERIES ANDOR MAPS PREPARED FROM IMAGERIES OTHER THAN ")3!'
ANDOR MAPS PREPARED FROM OTHER AUTHORIZED IMAGERIES
G 4HE APPLICATIONS MADE IN THE PAST IE BEFORE FOR REGULARIZATION OF THE
CLAIMED LANDS
)6 7E DIRECT THE 3TATE 'OVERNMENT TO RECALL OR WITHDRAW THE INSTRUCTIONS AS
CONTAINED IN !NNEXURES + , - . 0 3 AND 4 IN LIGHT OF THE AMENDED 2ULE
!
6 4HE RESPONDENTS SHALL ASSIGN COGENT REASONS FOR REJECTION OR MODICATION OF THE
CLAIM ACCORDING TO THE 'OVERNMENT GUIDELINES DATED TH *ULY AND THE AMENDED
2ULE
! 4HE COPY OF SUCH DECISION SHOULD BE MADE AVAILABLE TO THE CLAIMANT AT THE
EARLIEST
6) 4HE RESPONDENTS ARE DIRECTED TO COMMUNICATE THE DECISION OF REJECTION OR
MODICATION OF THE CLAIM ACCORDING TO 'OVERNMENT GUIDELINES DATED TH *ULY
AND THE AMENDED 2ULE
! SO AS TO ENABLE THE CLAIMANTS TO APPROACH THE HIGHER
FORUM IN ACCORDANCE WITH LAW
6)) 4HE RESPONDENTS ARE DIRECTED TO EXPEDITE THE PROCESS OF DECIDING THE PENDING
CLAIMS AS WELL AS THE PROCESS OF RECOGNITION OF COMMUNITY RIGHTS OVER FOREST
RESOURCES AND ALSO EXPEDITE THE PROCESS OF CONVERSION OF FOREST SETTLEMENT VILLAGES
INTO REVENUE VILLAGES
6))) 4HE ORDER OF STATUS QUO PASSED BY US IN #IVIL !PPLICATION .O OF SHALL
CONTINUE TILL THE DISPOSAL OF CLAIMS WHICH WILL BE IN TUNE WITH THE PROVISIONS
OF 3ECTION #LAUSE OF THE !CT
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4HE GRIEVANCE OF -R /ZA THE LEARNED 3ENIOR !DVOCATE APPEARING ON BEHALF OF THE
APPLICANT IS THAT IN SPITE OF SPECIC DIRECTION GIVEN BY US THAT THE POSSESSION OF NONE OF
THE APPLICANTS NUMBERING WHO LED THEIR CLAIM SHOULD NOT BE DISTURBED BEFORE
THE DISPOSAL OF THE APPLICATION THE SAID AUTHORITY IS TRYING TO DISTURB THE POSSESSION OF
THE APPLICANT EVEN THOUGH HIS APPLICATION HAS NOT BEEN DISPOSED OF
)T APPEARS THAT THE APPLICANT IS ONE OF THE CLAIMANTS AMONGST AS WOULD APPEAR
FROM THE APPLICATION AND RECEIPT PRODUCED AND ANNEXED TO THIS APPLICATION AT PAGES
TO
-R "AXI THE LEARNED !'0 APPEARING ON BEHALF OF THE 3TATE 'OVERNMENT ON INSTRUCTION
SUBMITS THAT THE 3TATE 'OVERNMENT WILL NOT THREATEN DISPOSSESSION OF ANY OF THE PERSONS
WHOSE APPLICATIONS OR CLAIMS ARE PENDING AND PURSUANT TO OUR EARLIER DECISION THEY WILL
COMPLY WITH THE DIRECTIONS CONTAINED IN PARAGRAPH
)N VIEW OF SUCH ASSERTION OF -R "AXI WE DO NOT ND ANY REASON TO MODIFY OR CLARIFY OUR
EARLIER ORDER
4HE APPLICATION IS THUS DISPOSED OF
$IRECT SERVICE IS PERMITTED
4 / \
3AURASHTRA $ALIT 3ANGATHAN !NR VS
3TATE OF 'UJARAT /RS
72)4 0%4)4)/. 0), ./ /&
()'( #/524 /& '5*!2!4 !4 !(-%$!"!$
#/2!- 6)*!9 -!./(!2 3!(!) !#4).' #* !.$ 20$(/,!2)! *
3 5 - -!29
4HE PETITIONERS FILED THIS WRIT PETITION AS A PUBLIC INTEREST LITIGATION SEEKING
DIRECTIONS FROM THE (IGH #OURT FOR IMPLEMENTATION OF THE DETAILED JUDGMENT IN
!CTION 2ESEARCH IN #OMMUNITY (EALTH AND $EVELOPMENT !2#( VS 3TATE OF 'UJARAT
/RS ESPECIALLY IN THE 'IR
3OMNATH $ISTRICT AND OTHER NON
3CHEDULED !REAS IN
THE 3TATE OF 'UJARAT )N PARTICULAR THE PETITIONERS SOUGHT THE DIRECTIONS OF THE #OURT
IN THE FOLLOWING TERMS
! 4IME
BOUND IMPLEMENTATION OF THE &OREST 2IGHTS !CT BY
I CONVENING THE 'RAM 3ABHA AS CONTEMPLATED UNDER 2ULE
OF THE &OREST
2IGHTS 2ULES
II #ONSTITUTING THE VARIOUS &OREST 2IGHTS #OMMITTEES FROM THE VILLAGE LEVEL
TO THE $ISTRICT AND 3TATE LEVEL AS CONTEMPLATED BY THE 2ULES
" 0ENDING THE DISPOSAL OF THIS PETITION TO RESTRAIN THE RESPONDENTS FROM
DISTURBING THE POSSESSION OF THE FOREST DWELLERS OF 'IR
3OMNATH $ISTRICT UNTIL
THE RIGHTS RECOGNITION PROCEDURE IS COMPLETE IN TERMS OF 3ECTION OF THE
&OREST 2IGHTS !CT
7HILE ISSUING NOTICE TO THE RESPONDENT
3TATE GOVERNMENT WHEN THE WRIT PETITION
CAME UP FOR HEARING ON THE #OURT ALSO DIRECTED THAT IN ITS AFFIDAVIT OF
RESPONSE THE 3TATE GOVERNMENT MUST EXPLAIN WHETHER THE DETAILED DIRECTIONS
ISSUED IN 0), OF ARE BEING FOLLOWED
4HEREAFTER WHEN THE WRIT PETITION CAME UP FOR HEARING ON THE #OURT
*UDGMENT DATED RD -AY IN 70 0), .O OF 'UJARAT (IGH #OURT 4HIS JUDGMENT IS EXTRACTED
ELSEWHERE IN THIS COMPENDIUM
/RDER DT IN 700), .O OF 'UJARAT (IGH #OURT
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
EXAMINED THE AFFIDAVIT OF THE 3TATE GOVERNMENT THAT A HUNDRED SUCH #OMMITTEES
HAD BEEN SET UP ONLY TO FIND THAT THERE WERE NO DETAILS PROVIDED REGARDING THESE
#OMMITTEES WHICH 'RAM 3ABHAS THEY RELATE TO AND WHETHER THEY ARE EMPOWERED
TO EXERCISE POWERS UNDER 3ECTION OF THE &2! !CCORDINGLY THE #OURT ISSUED THE
FOLLOWING DIRECTION TO THE 3TATE GOVERNMENT
,EARNED !'0 -R 0ARTH "HATT IS DIRECTED TO FILE AFFIDAVIT OF THE CONCERNED
AUTHORITY CLEARLY STATING THEREIN IN A TABULAR FORM WITH REGARD TO 'IR
3OMNATH
$ISTRICT THAT IN WHICH 4ALUKA A PARTICULAR 'RAM 3ABHA IS SITUATED AND WHICH OF
THE VILLAGES ARE FORMING PART OF THAT 'RAM 3ABHA AND WHETHER THE #OMMITTEE
UNDER 3ECTION OF THE !CT HAS BEEN CONSTITUTED IN THE 'RAM 3ABHA OR NOT AND IF
IS CONSTITUTED NAMES OF THE -EMBERS OF THE #OMMITTEE BE GIVEN 4HE AFORESAID
AFFIDAVIT SHALL BE FILED BY LEARNED !'0 WITHIN A PERIOD OF ONE MONTH
+EEPING THE MATTER PENDING UNTIL THE MACHINERY FOR IMPLEMENTATION OF THE &2!
WAS IN PLACE TO ITS SATISFACTION THE #OURT FINALLY DISPOSED OF THE MATTER THROUGH A
DETAILED JUDGMENT ON 4HE #OURT EXAMINED THE MATERIAL PLACED ON RECORD
BY THE 3TATE GOVERNMENT GIVING DETAILED INFORMATION REGARDING THE FORMATION OF
THE VARIOUS #OMMITTEES UNDER THE &2! 4HE #OURT FURTHER EXPRESSED ITS EXPECTATION
THAT THE MEETINGS OF THESE #OMMITTEES WILL BE DULY CONVENED WITHOUT FURTHER
DELAY SO THAT THE FOREST RIGHTS RECOGNITION PROCESS UNDER THE &2! CAN COMMENCE
)T ALSO OBSERVED THAT IN THE EVENT THE PETITIONERS FIND THESE MEETINGS ARE NOT
BEING CONVENED IT WILL BE OPEN TO THEM TO MAKE REPRESENTATIONS TO THE CONCERNED
AUTHORITY FOR THIS PURPOSE
% $ )4/23 . /4%
4HE (IGH #OURT BY TREATING THE WRIT PETITION AS A CONTINUING MANDAMUS AND
KEEPING IT PENDING UNTIL ITS DIRECTIONS AS SOUGHT BY THE PETITIONERS HAVE BEEN
FULLY COMPLIED WITH SENT AN UNAMBIGUOUS AND UNEQUIVOCAL MESSAGE TO THE
3TATE EXECUTIVE THAT THE JUDGMENT DT IN THE !2#( CASE SUPRA IS BINDING
PRECEDENT
* 5$ '-% . 4
4HE JUDGMENT OF THE #OURT WAS DELIVERED BY 20 $HOLARIA *
"Y WAY OF THIS 7RIT 0ETITION IN THE NATURE OF 0UBLIC )NTEREST ,ITIGATION THE PETITIONERS
HAVE PRAYED FOR THE FOLLOWING RELIEFS
! 4HE (ONBLE #OURT MAY BE PLEASED TO ISSUE A WRIT OF MANDAMUS OR A WRIT IN THE NATURE
OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT ORDER OR DIRECTION DIRECTING THE RESPONDENTS
TO IMMEDIATELY INITIATE THE PROCESS OF IMPLEMENTATION OF THE !CT AS PER THE PROVISIONS
LAID DOWN IN THE !CT AND THE 2ULES IN 'IR 3OMNATH $ISTRICT IN PARTICULAR AND OTHER NON
SCHEDULED DISTRICTS IN GENERAL IN A TIME BOUND FRAMEWORK BY
I CONVENING THE 'RAM 3ABHA AS CONTEMPLATED UNDER 2ULE
OF THE 2ULES
II #ONSTITUTING THE VARIOUS &OREST 2IGHTS #OMMITTEES FROM THE VILLAGE LEVEL TO $ISTRICT
AND 3TATE LEVEL AS CONTEMPLATED BY THE 2ULES
/RDER DT IN 700), .O OF 'UJARAT (IGH #OURT
4 / \
" 0ENDING ADMISSION AND NAL DISPOSAL OF THIS PETITION THE (ONBLE #OURT MAY BE PLEASED
TO RESTRAIN THE RESPONDENTS FROM EVICTING OR DISTURBING THE OCCUPATION AND POSSESSION OF
THE FOREST DWELLERS OF 'IR 3OMNATH $ISTRICT TILL THE RECOGNITION AND VERICATION PROCEDURE
AS CONTEMPLATED UNDER 3ECTION OF THE !CT IS COMPLETE
# 9OUR ,ORDSHIPS MAY BE PLEASED TO PERMIT THE PETITIONERS TO ADD AMEND ALTER OR DELETE
ANY OF THE GROUNDS AS AND WHEN IT BECOMES NECESSARY TO DOSE
5PON ISSUANCE OF THE NOTICE TO THE RESPONDENTS !UTHORITIES AFDAVIT IN REPLY HAS BEEN
LED BY THE RESPONDENT .O #OLLECTOR 'IR 3OMNATH $ISTRICT WHEREIN HE HAS PLACED
THE LIST OF &OREST 2IGHTS #OMMITTEE CONSTITUTED IN THE 4ALUKA 6ERAVAL OF 'IR 3OMNATH
$ISTRICT IN A TABULAR FORM AND MORE PARTICULARLY HE HAS PLACED THE AFORESAID LIST VIDE
!NNEXURE COMMENCING FROM PAGE TO
7E HAVE HEARD THE LEARNED ADVOCATES APPEARING FOR THE RESPECTIVE PARTIES AND ON GOING
THROUGH THE MATERIAL AVAILABLE ON RECORD IT IS CLEARLY ESTABLISHED THAT THE COMPETENT
!UTHORITY HAS ALREADY CONSTITUTED THE #OMMITTEE AS PER THE PROVISIONS OF THE AFORESAID
!CT 4HEREFORE SO FAR AS THE PRAYER AS REGARD TO NOT CONSTITUTING THE #OMMITTEES ARE
CONCERNED THE DISPUTE NO MORE SURVIVES AS THE #OMMITTEES ARE ALREADY CONSTITUTED
IN ACCORDANCE WITH THE PROVISIONS OF THE !CT .OW THE ONLY QUESTION REMAINS SO FAR AS
THE CONVENING THE 'RAM 3ABHA MEETING OF THE AFORESAID #OMMITTEE AS CONTEMPLATED
UNDER THE !CT AS WELL AS 2ULES THE #HAIRMAN OF THE #OMMITTEE IS OBLIGED TO CONVENE
THE MEETING AS PER THE PROVISIONS OF THE 'UJARAT 0ANCHAYAT !CT AS WELL AS THE PROVISIONS
OF 4HE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT AND THE 2ULES THEREUNDER
/NCE THE #OMMITTEES ARE CONSTITUTED FOR EACH ONE OF THE VILLAGES WHO ARE COMPRISING IN
THE AFORESAID NON
SCHEDULED DISTRICTS OF THE 3TATE OF 'UJARAT WE HOPE AND TRUST THAT THE
MEETING SHALL BE CONVENED AS PER THE PROVISIONS OF THE !CT )F THE PETITIONERS ND THAT
THE MEETING IS NOT CONVENED THEY SHALL BE AT LIBERTY TO MAKE REPRESENTATION BEFORE THE
CONCERNED !UTHORITY FOR CONVENING THE SAME
7ITH THE AFORESAID DIRECTIONS THIS 7RIT 0ETITION IN THE NATURE OF 0UBLIC )NTEREST ,ITIGATION
STANDS NALLY DISPOSED OF .OTICE IS DISCHARGED 4HERE SHALL BE NO ORDERS AS TO COSTS
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
!MRABHAI -AGANBHAI 0ATEL VS
0ROGRAMME !DMINISTRATOR
3#! ./ /&
()'( #/524 /& '5*!2!4
#/2!- !*$%3!) *
3 5--!29
4HE PETITIONER A 3CHEDULED 4RIBE FILED THIS WRIT PETITION CHALLENGING THE ORDER
DATED PASSED BY THE $EPUTY #OLLECTOR WHEREBY HIS APPLICATION FOR
REGULARISATION OF THE FOREST LAND WHICH IS UNDER HIS CULTIVATION WAS REJECTED
4HE PETITIONER ARGUED THAT HE WAS UNAWARE OF THE PROCEDURE FOR REGULARIZATION
OF HIS POSSESSION AND COULD NOT APPLY WITHIN TIME 7HEN HE BELATEDLY MADE HIS
APPLICATION IT WAS REJECTED BY THE $EPUTY #OLLECTOR
4HE RESPONDENT 3TATE GOVERNMENT STATED THAT ALTHOUGH THERE IS A PROCEDURE UNDER
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! TO REGULARIZE THE LAND AT PRESENT NO SUCH TASK IS BEING
UNDERTAKEN
7ITHOUT GOING INTO THE MERITS THE #OURT DIRECTED THE CONCERNED AUTHORITY IN THE
PETITIONERS VILLAGE TO INFORM HIM IN ADVANCE WHEN SUCH REGULARIZATION PROCEDURE
IS UNDERTAKEN 4HEREAFTER THE PETITIONER MUST APPLY IMMEDIATELY TO THE CONCERNED
AUTHORITY WITH REGARD TO HIS CLAIM
% $ )4/23 . /4%
)T IS APPARENT THAT NEITHER THE #OURT NOR THE LAWYERS ON EITHER SIDE EXPENDED MUCH
TIME ATTEMPTING TO EXPLORE THE INTRICACIES OF THE &2! 4HIS IS SURPRISING GIVEN THE
WEALTH OF JUDICIAL PRECEDENT ON &2! EMERGING FROM THE 'UJARAT (IGH #OURT !LL THE
SAME THE #OURT THROUGH THIS ORDER RECOGNIZED THE NEED TO ENSURE THAT THE END OF
JUSTICE IS MET AND A REMEDY WHICH HAD PREVIOUSLY BEEN CLOSED TO THE PETITIONER
IS RE
OPENED
4 / \
/2$%2
2ULE -R + - !NTANI LEARNED !'0 WAIVES SERVICE OF NOTICE OF 2ULE ON BEHALF OF
RESPONDENT .OS TO
-S .IDHI "AROT LEARNED ADVOCATE FOR THE PETITIONER WOULD SUBMIT THAT THE PETITIONER IS
FROM SCHEDULE TRIBE AND WAS NOT AWARE ABOUT THE PROCEDURE FOR REGULARIZING THE LAND
WHICH IS UNDER HIS CULTIVATION SITUATED IN FOREST AREA HE COULD NOT APPLY FOR THE SAME
WITHIN TIME 3HE WOULD FURTHER SUBMIT THAT THE PETITIONER DID APPLY FOR REGULARIZING THE
SAME HOWEVER THE APPLICATION WAS REJECTED BY ORDER DATED PASSED BY THE
$EPUTY #OLLECTOR 3HE WOULD FURTHER SUBMIT THAT THE RESPONSIBILITY MAY BE DIRECTED TO
CONSIDER THE CASE OF THE PETITIONER
/N THE OTHER HAND -R +- !NTANI LEARNED !'0 BY TAKING ME THROUGH THE IMPUGNED
ORDER DATED PASSED BY THE $EPUTY #OLLECTOR WOULD SUBMIT THAT THERE IS A
PROCEDURE FOR REGULARIZING THE LAND UNDER THE PROVISIONS OF 3CHEDULED 4RIBES /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT AND AT PRESENT
THERE IS NO SUCH TASK UNDERTAKEN BY THE AUTHORITY
(EARD LEARNED ADVOCATES FOR THE RESPECTIVE PARTIES 0ERUSED THE DOCUMENTS ANNEXED
WITH THE PETITION WITH REGARD TO THE DISPUTED LAND AND THE ORDER DATED PASSED
BY THE $EPUTY #OLLECTOR
#ONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE ) AM OF THEOPINION THAT THE
FOLLOWING ORDER WOULD MEET THE END OF JUSTICE
;I= 4HE CONCERNED DEPARTMENT OR PRESIDENT OR SECRETARY OF VILLAGE WHERE THE LAND IS
SITUATED SHALL INFORM THE PETITIONER IN ADVANCE AT THE ADDRESS MENTIONED IN THE
CAUSE TITLE OF THE PETITION AS AND WHEN THE PROCEDURE TO REGULARIZE SUCH LANDS IS
UNDERTAKEN
;II= 4HE PETITIONER SHALL THEREAFTER APPLY IMMEDIATELY TO THE CONCERNED AUTHORITY
WITH REGARD TO HIS CLAIM
2ULE MADE ABSOLUTE TO THE AFORESAID EXTENT
)T IS HEREBY MADE CLEAR THAT THIS #OURT HAS NOT GONE INTO THE MERITS OF THE CASE AND THE
AUTHORITY SHALL CONSIDER THE SAME IN ACCORDANCE WITH LAW
)T WOULD BE OPEN FOR THE PETITIONER TO SERVE THE COPY OF THE ORDER TO THE 0RESIDENT OR
3ECRETARY 6ILLAGE "AMROLI +HURD "HEKHADIA 4ALUKA 'ODHRA $ISTRICT 0ANCHMAHAL
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
()-!#(!,
02!$%3( ()'(
#/524
4!",% /& *5$'-%.43 !.$ /2$%23
#OURT ON ITS /WN -OTION VS 3TATE OF (IMACHAL 0RADESH /RS
3## /NLINE (0 \
-
ANGI 2AM /RS VS 5NION OF )NDIA /RS
3## /N,INE (0 \
3
HER 3INGH AND /THERS VS 3TATE OF (IMACHAL 0RADESH AND !NR
23! .O OF ! \
#
OURT ON ITS /WN -OTION AND $UNGAR 3INGH VS 3TATE OF (IMACHAL 0RADESH /RS
#70 0), .O OF \
4 / \
#OURT ON ITS /WN -OTION VS 3TATE OF
(IMACHAL 0RADESH /RS
#70), ./ /&
()'( #/524 /& ()-!#(!, 02!$%3(
#/2!- $%%0!+ '504! !.$ 2!*)6 3(!2-! **
#)4!4)/. 3## /.,).% (0
3 5 - -!29
4HE #OURT TOOK SUO MOTU NOTICE OF THIS MATTER THROUGH NEWSREPORTS WHERE IT WAS
MENTIONED THAT POWER TRANSMISSION LINES ARE BEING LAID AS PART OF A PROJECT BY *AI
0RAKASH (YDRO 0OWER ,IMITED AND 0OWER 'RID #ORPORATION ON THE LEFT BANK OF THE
3UTLEJ RIVER THEREBY ENDANGERING THE FLORA AND FAUNA OF THE AREA AND LEADING TO
CUTTING OF TREES
4HE #OURT ISSUED NOTICES AND IMPLEADED A VARIETY OF STAKEHOLDERS AS RESPONDENT
PARTIES INCLUDING THE ELECTED 0RADHANS OF SEVERAL VILLAGES IN THE AREA THE 3TATE
GOVERNMENT THE PROJECT PROPONENTS THE #ENTRAL %LECTRICITY !UTHORITY AND SO
ON 4HE VILLAGE 0RADHANS POINTED OUT TO THE #OURT THAT THE PROJECT IS LOCATED IN
4HE RESPONDENTS APPEARING IN THIS CASE ARE AS UNDER
3TATE OF (0 THROUGH ITS 0RINCIPAL 3ECRETARY )NDUSTRIES
3ECRETARY %NVIRONMENT TO THE 'OVERNMENT OF (0
!DDITIONAL #HIEF 3ECRETARY &OREST TO THE 'OVERNMENT OF (0
0RINCIPAL #HIEF #ONSERVATOR OF &OREST (0
3HRI "HANU 0RATAP 3INGH "ISHT 6ILLAGE 3HAGAG 0/ 3ARAHAN "USHAHR 4EHSIL 2AMPUR "USHAHR $ISTRICT
3HIMLA (0
3MT 3AVITRI .EGI PRESENTLY 0RADHAN 'RAM 0ANCHAYAT 3UNGRA $ISTRICT +INNAUR (0
3MT +AMLA .EGI PRESENTLY 0RADHAN 'RAM 0ANCHAYAT .ICHAR $ISTRICT +INNAUR (0
3HRI 3UBHASH .EGI PRESENTLY 0RADHAN 'RAM 0ANCHAYAT 0ONDA 4EHSIL .ICHAR $ISTRICT +INNAUR (0
3MT 4ARA -OYAN PRESENTLY 0RADHAN 'RAM 0ANCHAYAT 4RANDA 4EHSIL .ICHAR $ISTRICT +INNAUR (0
-S *AY 0EE 0OWER 'RID ,IMITED THROUGH 3HRI 6INOD 3HARMA $IRECTOR *AY 0EE 0OWER 'RID ,IMITED 2O
$ 3AFDARJUNG %NCLAVE .EW $ELHI
4HE )NSPECTOR 'ENERAL OF &ORESTS 'OVERNMENT OF )NDIA -INISTRY OF &OREST AND %NVIRONMENT &# $IV
5NION OF )NDIA THROUGH 3ECRETARY -INISTRY OF %NVIRONMENT AND &OREST &# $IV
#ENTRAL %LECTRICITY 2EGULATORY #OMMISSIONER #HANDERLOK "UILDING *ANPATH .EW $ELHI THROUGH ITS
#HAIRMAN
0OWER 'RID #ORPORATION OF )NDIA ,TD THROUGH ITS #HAIRMAN AND -ANAGING $IRECTOR
#ENTRAL %LECTRICITY !UTHORITY THROUGH ITS #HAIRMAN
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
+INNAUR $ISTRICT WHICH IS A 3CHEDULED !REA COVERED BY THE 0ANCHAYATS %XTENSION
TO 3CHEDULED !REAS !CT AND ALSO CLAIMED CERTAIN RIGHTS UNDER THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2! 4HEY FURTHER INFORMED THE #OURT THAT ALTHOUGH EARLY IN THE PROJECT THE
ALTERNATIVE ROUTE ON THE RIGHT BANK WHERE THERE ARE NO TREES WAS CONSIDERED THIS
WAS SUBSEQUENTLY IGNORED FOR NO GOOD REASON
4HE #OURT TOOK NOTE OF THE FACT THAT THIS PROJECT HAD RECEIVED THE IN
PRINCIPLE APPROVAL
OF THE 3UPREME #OURT OF )NDIA ON ON THE BASIS OF RECOMMENDATIONS MADE
BY THE #%# %XPRESSING ITS INABILITY TO ENTER INTO THE DECISION TO GRANT IN
PRINCIPLE
APPROVAL BY THE 3UPREME #OURT THE (IGH #OURT MADE IT CLEAR THAT IT WAS CONSTRAINED
TO TAKE THIS POSITION THOUGH WE ARE OF THE OPINION THAT ALL THE RELEVANT FACTS WERE
NOT CORRECTLY PLACE BEFORE THE !PEX #OURT 4HE #OURT OBSERVED
!S NOTED BY US EARLIER THE RIGHT BANK OF THE RIVER 3UTLEJ ESPECIALLY IN +INNAUR
AND UPPER AREAS OF 3HIMLA $ISTRICT NEAR 2AMPUR AND IN FACT ALMOST UP TO
3LAPPER IS MORE SPARSELY POPULATED THAN THE LEFT BANK 4HE RIGHT BANK HAS MUCH
LESS TREES AND IS ALMOST BARREN (OWEVER FOR REASONS BEST KNOWN TO THE &OREST
OFFICIALS THEY CHOSE TO JUST ACCEPT THE PROPOSAL OF THE PROJECT PROPONENT WITHOUT
EVEN EXAMINING THE FEASIBILITY OF THE OTHER TWO ALTERNATE ROUTES PARA
4HE #OURT FINALLY HAD TO CLOSE THE PROCEEDINGS BY ISSUING DETAILED DIRECTIONS TO BE
FOLLOWED BY THE 3TATE GOVERNMENT IN FUTURE PROJECTS FINDING ITSELF UNABLE TO PASS
ANY DIRECTIONS TO REMEDY THE PRESENT SITUATION
% $ )4/23 . /4%
!LTHOUGH THE DECISION OF THE #OURT DOES NOT REFER TO OR RELY UPON THE &2! OTHER THAN
MENTIONING THAT THE VILLAGES AFFECTED ARGUE THEY HAVE RIGHTS UNDER IT IT IS CLEAR
THAT THE #OURT IS DISMAYED BY THE FACT THAT IT IS UNABLE TO ISSUE ANY DIRECTIONS IN
THIS CASE DUE TO THE PREVIOUS ORDERS OF THE 3UPREME #OURT )T MUST BE POINTED OUT
HOWEVER THAT THIS DECISION WAS PRONOUNCED BEFORE THE HISTORIC JUDGMENT OF THE
3UPREME #OURT IN THE .IYAMGIRI CASE WHERE THE CENTRALITY OF THE 'RAM 3ABHA IN
THE DECISION
MAKING PROCESS HAS BEEN CLEARLY ARTICULATED )F THE #OURT WAS TO TAKE A
DECISION TODAY ON THE SAME FACTS A DIFFERENT RESULT COULD EMERGE
/2$ % 2
4HE /RDER OF THE #OURT WAS PRONOUNCED BY $EEPAK 'UPTA *
4HIS #OURT TOOK SUO
MOTU NOTICE OF A NEWS ITEM WHICH APPEARED IN THE (INDUSTAN 4IMES
#HANDIGARH EDITION ON TH $ECEMBER IN WHICH IT WAS MENTIONED THAT POWER
TRANSMISSION LINES ARE BEING LAID ON THE LEFT BANK OF 3UTLEJ WHICH WILL ENDANGER THE ORA
AND FAUNA OF THE AREA AND LEAD TO THE CUTTING OF MORE THAN TREES 4HESE POWER
LINES ARE BEING LAID BY *AI 0RAKASH (YDRO 0OWER ,IMITED AND 0OWER 'RID #ORPORATION OF
)NDIA 4HE NEWS ITEM ITSELF WAS REGISTERED AS A 0UBLIC )NTEREST 7RIT 0ETITION
6IDE ORDER DT IN THE MATTER OF 4. 'ODAVARMAN 4HIRUMALPAD VS 5NION OF )NDIA 70 # OF
3UPREME #OURT OF )NDIA UNREPORTED
/RISSA -INING #ORPORATION VS -INISTRY OF %NVIRONMENT AND &ORESTS /RS 3##
4 / \
.OTICE WAS ISSUED ON THIS PETITION ON 4HEREAFTER APPLICATIONS WERE MOVED BY
CERTAIN RESIDENTS OF THE AREA WHO PRAYED THAT THEY MAY BE IMPLEADED AS PARTIES IN THE
PETITION 4HESE APPLICATIONS WERE ALLOWED AND THEY WERE IMPLEADED AS RESPONDENTS .O
TO IN THE PETITION 4HEY HAVE ALSO PLACED ON RECORD CERTAIN MATERIAL TO SUPPORT THE
PETITION
4HE GRIEVANCE OF THE RESPONDENTS TO IS THAT IN CASE THE POWER CORRIDOR FROM +ARCHAM
7ANGTU AT +INNAUR IN (IMACHAL 0RADESH TO !BDULLAPUR IN 3TATE OF (ARYANA IS LAID ON
THE LEFT BANK OF THE RIVER 3UTLEJ MANY TREES WILL HAVE TO BE FELLED )T HAS BEEN SUBMITTED
THAT WHEREAS THE LEFT BANK IS COVERED WITH TREES THE RIGHT BANK IS BARREN AND HAS NO
TREES AND THEREFORE IT WOULD BE IN INTEREST OF ALL CONCERNED IF THE POWER CORRIDOR IS LAID
ON THE RIGHT BANK THUS PREVENTING IMMENSE DAMAGE WHICH IS LIKELY TO BE CAUSED TO THE
ENVIRONMENT IN $ISTRICT +INNAUR +INNAUR IS A TRIBAL AREA AND THE PETITIONERS HAVE MADE
REFERENCE TO THE (0 4RANSFER OF ,AND 2EGULATION !CT THE 0ANCHAYATS %XTENSION
TO THE 3CHEDULED !REAS !CT AND THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT AND CLAIM CERTAIN RIGHTS THEREIN 4HEY
SUBMIT THAT THE PERMISSION WAS OBTAINED BY THE RESPONDENT .O FOR CONVERSION OF THE
FOREST AREA TO NON
FOREST USE BY WITHHOLDING FACTS AND WITHOUT INFORMING THE CONCERNED
PARTIES ABOUT THE FACT THAT THE RIGHT BANK OF 3UTLEJ IS BARREN AND IN CASE POWER LINE IS LAID
TO THE RIGHT BANK IT WILL CAUSE MINIMUM DAMAGE TO THE ENVIRONMENT
4HEY ALSO ALLEGE THAT RESPONDENT .O HAD OBTAINED THE REQUISITE PERMISSIONS WITHOUT
HOLDING PUBLIC HEARING AND THE PEOPLE OF THE AREA WERE NOT TAKEN INTO CONDENCE )N
CASE THAT HAD BEEN DONE THE SAID RESPONDENTS WOULD HAVE POINTED OUT THAT IT WOULD
BE FOR THE BENET OF ALL CONCERNED IF THE POWER CORRIDOR IS LAID ON THE RIGHT SIDE OF THE
3UTLEJ RIVER 4HE PETITIONERS HAVE ALSO SUBMITTED THAT AFTER THEY CAME TO KNOW ABOUT THE
PROPOSAL MADE BY RESPONDENT .O THERE WAS WIDE SPREAD AGITATION IN THE AREA AND
THE $EPUTY #OMMISSIONER HIMSELF VISITED THE CONCERNED AREAS AND SUGGESTED THAT THE
LAND SHOULD BE TAKEN ON THE RIGHT SIDE OF THE 3UTLEJ RIVER
/UR ATTENTION HAS BEEN SPECICALLY DRAWN TO THE LETTER DATED RD *ANUARY SENT IN
THIS BEHALF BY THE 3ECRETARY &ORESTS TO THE 'OVERNMENT OF (IMACHAL 0RADESH TO THE
3ENIOR !SSISTANT )NSPECTOR 'ENERAL OF &ORESTS WHICH READS AS FOLLOWS
)N CONTINUATION TO THIS DEPARTMENTS LETTERS OF EVEN .O DATED TH &EBRUARY
AND TH $ECEMBER ON THE SUBJECT CITED ABOVE ) AM DIRECTED TO SAY THAT VARIOUS
WRITTEN OBJECTIONS HAVE BEEN RECEIVED TO THIS ALIGNMENT FROM $EPUTY #OMMISSIONER
+INNAUR AND .'/S AS WELL AS RESIDENTS OF VILLAGES FALLING IN THE CORRIDOR 4HE $#
+INNAUR SUGGESTED THAT THE LINE SHOULD BE TAKEN ON THE RIGHT BANK OF THE 3UTLEJ
2IVER AND NOT ON THE LEFT BANK AS THE PRESENT ALIGNMENT IS CAUSING HUGE SOCIAL AND
ENVIRONMENTAL PROBLEMS INCLUDING MORE THAN TREE 7E ARE ASKING THE 0OWER
$EPARTMENT AND (0 0OWER 4RANSMISSION #ORPORATION FOR THEIR COMMENTS
)T IS THEREFORE REQUESTED THAT THE ABOVE DIVERSION CASE MAY NOT BE PROCESSEDNALISED
TILL THE ALIGNMENT IS NALISED
!CCORDING TO RESPONDENTS TO THIS LETTER HAS NOT BEEN CONSIDERED AT ALL EITHER BY THE
!PEX #OURT OR BY THE #ENTRAL %MPOWERED #OMMITTEE OR BY THE -INISTRY OF %NVIRONMENT
AND &OREST WHILE GRANTING APPROVAL IN FAVOUR OF RESPONDENT .O
4HE STAND OF RESPONDENT .O IS THAT THEY HAVE OBTAINED ALL REQUISITE PERMISSIONS
FROM THE #ENTRAL %LECTRICITY 2EGULATORY #OMMISSION THE 'OVT OF )NDIA THE -INISTRY OF
%NVIRONMENT AND &OREST -O%& #ENTRAL %MPOWERED #OMMITTEE #%- APPOINTED BY
THE !PEX #OURT AND BY THE !PEX #OURT ITSELF 7E MAY MAKE A REFERENCE TO AN ORDER
DATED PASSED BY THE !PEX #OURT IN 4. 'ODAVARMAN V 5NION OF )NDIA 4HE
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
RELEVANT PORTION OF THE ORDER IN SO FAR IT RELATES TO THE PRESENT CASE READS AS FOLLOWS
-S *AYPEE 0OWER 'RID ,TD 3HOLTU WITHIN THE JURISDICTION OF +INNAUR 2AMPUR
4EHOG 2AJGARH AND .AHAN &OREST $IVISIONS IN +INNAUR 3HIMLA AND 3IRMOUR DISTRICTS
OF (IMACHAL 0RADESH SEEKS PERMISSION FOR DIVERSION OF HA OF FOREST LAND FOR
+V $# +ARCHAM7ANGTOO
!BDULLAPUR TRANSMISSION LINE IN ITS FAVOUR 4HE #%#
HAS MADE CERTAIN OBSERVATIONS AFTER CONSIDERING THE PROJECT 4HE SUGGESTIONS MADE
BY #%# ARE ACCEPTABLE TO THE APPLICANT -O%& MAY TAKE A DECISION AFTER CONSIDERING
THE OBSERVATIONS MADE BY #%#
4HE APPLICATION AS REGARDS THE APPLICANT IS DISPOSED OF ACCORDINGLY
)T CANNOT BE DISPUTED THAT WHEREAS THE LEFT BANK OF THE RIVER 3UTLEJ IS COVERED WITH FORESTS
THERE IS VERY LITTLE FOREST GROWTH ON THE RIGHT BANK (OWEVER SINCE PERMISSION HAS BEEN
OBTAINED BY RESPONDENT .O FROM THE !PEX #OURT THIS #OURT CANNOT NOW DEAL WITH
THAT ASPECT OF THE MATTER 7HETHER THE PERMISSION WAS OBTAINED WITHOUT DISCLOSING
RELEVANT FACTS IS A QUESTION WE CANNOT DECIDE IN THIS PROCEEDING 4HE AGGRIEVED PERSONS
IF SO ADVISED MAY APPROACH THE !PEX #OURT IN THIS REGARD BUT WE ARE CLEARLY OF THE VIEW
THAT WE CANNOT EXERCISE ANY JURISDICTION AS FAR AS THIS ISSUE IS CONCERNED
! PERUSAL OF THE ORDER OF THE !PEX #OURT CLEARLY SHOWS THAT THE !PEX #OURT GAVE IN
PRINCIPLE APPROVAL FOR DIVERSION OF FOREST LAND IN VIEW OF THE REPORT OF THE #ENTRAL
%MPOWERED #OMMITTEE 4HE -O%& WAS DIRECTED TO TAKE A DECISION AFTER CONSIDERING THE
OBSERVATIONS MADE BY THE #%# 7E ND THAT THE -INISTRY OF %NVIRONMENT AND &OREST
WHILE GRANTING PERMISSION HAS LAID DOWN THE FOLLOWING AMONGST OTHER CONDITIONS
XXX XXX XXX
IV )N CASE THE 4RANSMISSION ,INE IS TO BE CONSTRUCTED IN HILLY AREAS WHERE ADEQUATE
CLEARANCE IS ALREADY AVAILABLE TREES SHALL NOT BE FELLED
XXX XXX 8XX
4HE 5SER !GENCY SHALL ENSURE MINIMUM FELLING OF TREES AND MAXIMUM HEIGHTS OF
TOWERS IN THE FOREST AREA
!NY TREE FELLING SHALL BE DONE ONLY WHEN IT IS UNAVOIDABLE UNDER STRICT SUPERVISION
OF THE 3TATE &OREST $EPARTMENT
XXX XXX XXX
.O DAMAGE TO THE ORA AND FAUNA OF THE AREA SHALL BE CAUSED
XXX XXX XXX
4HE 5SER AGENCY SHALL PROVIDE RETAINING WALLS TO AVOID HUGE EARTH CUTTINGS FOR
XING THE LEGS OF THE TOWERS WHEREVER NECESSARY
4HESE CONDITIONS ARE VERY SALUTARY AND EVEN IF THE POWER CORRIDOR IS TO BE ESTABLISHED
ON THE LEFT BANK IT IS IMPERATIVE THAT THESE CONDITIONS ARE FOLLOWED IN LETTER AND SPIRIT
-INIMUM TREES SHOULD BE FELLED AND THE HEIGHT OF THE TOWERS SHOULD BE RAISED SO THAT
THE MAXIMUM NUMBER OF TREES CAN BE PROTECTED 4HE CONDITIONS PROVIDE THAT THE HEIGHT
OF THE TOWERS IN THE FOREST AREA WILL BE MAXIMUM TO ENSURE MINIMUM FELLING OF TREES
$ESPITE OUR QUERIES NONE OF THE PARTIES REPRESENTED BEFORE US HAS BEEN ABLE TO TELL US
WHO IS THE AUTHORITY TO DECIDE WHAT SHOULD BE THE HEIGHT OF THE TOWERS IN A PARTICULAR
4 / \
AREA 7HO WILL OVERSEE THE PROTECTION OF THE TREES 7E CANNOT EXPECT THE 5SER !GENCY
TO POLICE AND MONITOR ITS OWN ACTION 4HIS MUST BE DONE BY AN INDEPENDENT BODY TO
ENSURE THAT THE CONDITIONS LAID DOWN ARE FOLLOWED IN LETTER AND SPIRIT
4HEREFORE WE HAD ALSO IMPLEADED THE )NSPECTOR 'ENERAL OF &ORESTS 5NION OF )NDIA
THROUGH 3ECRETARY -INISTRY OF %NVIRONMENT AND &ORESTS AND 0OWER 'RID #ORPORATION
OF )NDIA AS RESPONDENTS IN THE PETITION 6IDE OUR ORDER DATED TH -ARCH WE HAD
DIRECTED THE RESPONDENTS TO ANSWER THE FOLLOWING QUESTIONS
7HO DETERMINES THE HEIGHT OF THE TRANSMISSION TOWERS
/N WHAT BASIS IS THE HEIGHT OF THE TRANSMISSION TOWERS DETERMINED
)S THE HEIGHT OF THE 4RANSMISSION TOWERS CHANGED IN HILLY AND FOREST AREAS TO
PROTECT THE TREES
7HAT IS THE HEIGHT OF THE TOWERS PROPOSED BY THE 5SER !GENCY
7HAT IS THE HEIGHT OF THE TRANSMISSION LINES
7HAT IS THE CLEARANCE REQUIRED BETWEEN THE TOPS OF THE TREES AND THE TRANSMISSION
LINES
#AN THE HEIGHT OF THE TOWERS BE RAISED IN SUCH A MANNER THAT MORE TREES ARE
PROTECTED
4HEREAFTER IT WAS POINTED OUT TO US THAT THE #ENTRAL %LECTRICITY !UTHORITY IS ALSO A
NECESSARY PARTY AND THE SAME WAS ALSO IMPLEADED AS PARTY
RESPONDENT IN THIS CASE
/N AFTER CONSIDERING THE MATTER IN DETAIL WE HAD PASSED THE FOLLOWING ORDER
7E HAVE CONSIDERED THE MATTER IN SOME DETAIL /N A PERUSAL OF THE VARIOUS PROVISIONS
OF THE %LECTRICITY !CT WE ND THAT THE #ENTRAL 4RANSMISSION 5TILITY IS NOT ONLY DUTY
BOUND TO TRANSMIT ELECTRICITY BUT HAS BEEN CLOTHED WITH THE ROLE OF REGULATOR AND
APPRAISOR OF THE 0ROJECTS )N THIS BEHALF REFERENCE MAY BE MADE TO 3ECTIONS
TO OF THE !CT
)N THE PRESENT CASE THE #ENTRAL 4RANSMISSION 5TILITY IE THE 0OWER 'RID #ORPORATION
OF )NDIA IS ALSO ONE OF THE MEMBERS OF THE JOINT VENTURE 7E AT THIS MOMENT ARE NOT
GOING INTO THE QUESTION AS TO WHETHER AN AUTHORITY CAN BE *UDGE IN ITS OWN CAUSE OR
NOT BUT WHEN A DUAL ROLE IS CAST UPON ANY AUTHORITY WE ARE PRIMA FACIE OF THE VIEW
THAT TRANSPARENCY HAS TO BE EVEN GREATER
&ROM THE MATERIAL ON RECORD ESPECIALLY THE COMMUNICATION DATED TH *ULY
SENT BY THE 5NDER 3ECRETARY TO THE 'OVERNMENT OF )NDIA -INISTRY OF 0OWER TO THE
-ANAGING $IRECTOR OF THE *AYPEE0OWERGRID ,TD IT IS APPARENT THAT THREE CORRIDORS
HAD BEEN PRESENTED AS BEING FEASIBLE BEFORE THE -INISTRY OF 0OWER )N THE SAID LETTER
FOLLOWING OBSERVATIONS WERE MADE
)T IS ALSO ADVISED TO ENSURE THAT WHILE OBTAINING FOREST CLEARANCE FOR +ARCHAM
7ANGTOO
!BDULLAPUR KV $# ,INE REQUIREMENT OF FOREST CLEARANCE FOR ALL THE
THREE CORRIDORS FEASIBILITY OF WHICH HAS BEEN VERIED BY *AYPEE0OWERGRID MAY BE
INTIMATED TO THE AUTHORITY CONCERNED
"EFORE EMBARKING UPON A MORE DETAILED ANALYSIS AND HEARING OF THE CASE WE ARE
OF THE CONSIDERED VIEW THAT RESPONDENTS .O SHOULD LE AN AFDAVIT BEFORE
US STATING THEREIN WHICH WERE THE THREE CORRIDORS WHICH WERE IDENTIED AS BEING
FEASIBLE FOR THIS 0ROJECT
2ESPONDENT .O SHALL ALSO ON ITS AFDAVIT SPECICALLY DEAL WITH THE QUESTION AS TO
WHETHER IT LOOKED INTO THE ENVIRONMENT ASPECTS WHICH IT WAS REQUIRED TO IN TERMS OF
THE 4RANSMISSION 2EGULATIONS OF WHICH WERE PREVALENT AT THAT TIME
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
2ESPONDENT .O THE 3ECRETARY -INISTRY OF %NVIRONMENT AND &ORESTS IS ALSO
DIRECTED TO LE AN AFDAVIT THAT WHILE CONSIDERING THE PROPOSAL FOR OBTAINING FOREST
CLEARANCE FOR +ARCHAM
7ANGTOO
!BDULLAPUR TRANSMISSION LINE ONLY ONE PROPOSAL
FOR ONE CORRIDOR WAS SUBMITTED OR WHETHER SOME OTHER PROPOSALS FOR TRANSMISSION
OF ABOVE 0ROJECT WERE SUBMITTED .EEDFUL BE DONE WITHIN FOUR WEEKS
!FDAVITS WERE LED AND WE FOUND THAT THE 5NDER 3ECRETARY TO THE 'OVERNMENT OF
)NDIA -INISTRY OF 0OWER HAD ADDRESSED A LETTER TO THE -ANAGING $IRECTOR OF THE *AY 0EE
0OWER 'RID ,IMITED GIVING THE FOLLOWING ADVICE TO THE #ORPORATION
)T IS ALSO ADVISED TO ENSURE THAT WHILE OBTAINING FOREST CLEARANCE FOR +ARCHAM
7ANGTOO
!DBULLAPUR KV $# ,INE REQUIREMENT OF FOREST CLEARANCE FOR ALL THE
THREE CORRIDORS FEASIBILITY OF WHICH HAS BEEN VERIED BY *AYPEE0OWERGRID MAY BE
INTIMATED TO THE AUTHORITY CONCERNED
4HEREAFTER THE MATTER WAS CONSIDERED IN DETAIL VIDE ORDER DATED TH !PRIL WHERE
WE HAD MADE THE FOLLOWING OBSERVATIONS
4HE AFDAVITS WHICH HAS BEEN LED NOW REVEAL THAT ONLY ONE PROPOSAL FOR ONE
CORRIDOR ON THE LEFT BANK IE CORRIDOR ON WHICH THE TRANSMISSION LINE IS BEING
BUILT WAS SENT TO THE -INISTRY OF %NVIRONMENT AND &OREST ! CHART HAS ALSO BEEN
LED WHEREIN THE COMPARATIVE ASSESSMENT OF THE THREE ROUTES WERE GIVEN ONE FOR
THE PROPOSED ROUTE ON THE LEFT BANK OF 3UTLEJ RIVER ON WHICH CONSTRUCTION IS BEING
DONE THE SECOND IS THE ALTERNATIVE ROUTE ) ON THE LEFT BANK ITSELF AND THE THIRD IS THE
ALTERNATIVE ROUTE )) ON THE RIGHT BANK
4HIS #OURT IN ITS ORDER DATED HAS ALREADY OBSERVED THAT THERE IS VERY LITTLE
FOREST GROWTH ON THE RIGHT BANK OF THE RIVER 3UTLEJ AS IT OWS DOWN FROM THE HEIGHTS
OF THE (IMALAYANS TOWARDS "ILASPUR AND BEYOND )N THE COMPARATIVE CHART PREPARED
THE COLUMN RELATING TO TREES CROPS AND DAMAGE HAS BEEN ANSWERED IN VERY CRYPTIC
LANGUAGE IE TO BE DECIDED AT THE TIME OF DETAILED SURVEY AND TOWER SPOTTING
4HUS IT IS APPARENT THAT WHAT WAS THE REAL DAMAGE WHICH WAS TO BE CAUSED TO THE
TREES WAS NOT ASSESSED AT THAT TIME 4HE APPROXIMATE FOREST AREA ON THE RIGHT BANK
OF 3UTLEJ RIVER WAS THE LOWEST
7E ALSO FOUND THAT IN COLUMN .O RELATING TO CONSTRUCTION PROBLEM IT IS STATED
THAT THE ALTERNATIVE ROUTE
)) THROUGH THE RIGHT BANK WOULD PASS THROUGH DENSELY
POPULATED AREA .ORMALLY *UDGES DO NOT BRING IN PERSONAL KNOWLEDGE IN CASES
BUT THIS IS A 0UBLIC )NTEREST ,ITIGATION AND BOTH OF US ARE AWARE OF THE FACT THAT AS
COMPARED TO THE LEFT BANK THE POPULATION OF THE RIGHT BANK OF RIVER 3UTLEJ IS MUCH
LOWER
3URPRISINGLY WHEN THE PROPOSAL WAS FORWARDED TO THE -INISTRY OF %NVIRONMENT
AND &ORESTS THE ALTERNATIVE ROUTES WERE NEITHER MENTIONED DESPITE THE SPECIC
INSTRUCTIONS OF THE 5NDER 3ECRETARY TO THE 'OVERNMENT OF )NDIA -INISTRY OF 0OWER
QUOTED HEREINABOVE 7E ARE ALSO NOT OBLIVIOUS TO THE FACT WHICH FACT IS CLEAR FROM
OUR ORDER DATED THAT THE #ENTRAL 4RANSMISSION 5TILITY IE 0OWER 'RID
#ORPORATION OF )NDIA
RESPONDENT .O BEFORE US IS VIRTUALLY A JUDGE IN ITS OWN CAUSE
SINCE IT IS A PART AND PARCEL OF RESPONDENT .O AND HAS SUBSTANTIAL SHARE HOLDING
IN RESPONDENT .O
7E THEREFORE DIRECT THE -ANAGING $IRECTORS OF RESPONDENTS .O AND TO LE
THEIR PERSONAL AFDAVIT WITH REGARD TO THE FOLLOWING
7HY WERE THE ALTERNATIVE ROUTES NOT MENTIONED IN THE PROPOSAL SUBMITTED TO
THE -INISTRY OF %NVIRONMENT AND &OREST
4 / \
/N THE NEXT DATE THE RESPONDENT .O SHALL PRODUCE THE COMPLETE RECORDS
INCLUDING THE NOTING SHEETS IN THIS REGARD
4HE 0RINCIPAL 3ECRETARY 2EVENUE SHALL ALSO LE HIS AFDAVIT ON OR BEFORE THE NEXT
DATE STATING THE NAMES OF THE VILLAGES ALONGWITH THE POPULATION ON THE PROPOSED
ROUTE ALTERNATIVE ROUTE
) AND ALTERNATIVE ROUTE
)) ON THE RIGHT BANK OF RIVER 3UTLEJ
4HE #HIEF 3ECRETARY TO THE 'OVERNMENT OF (IMACHAL 0RADESH SHALL ALSO LE AN
AFDAVIT STATING WHAT WAS THE INFORMATIONEVIDENCE BEFORE THE 3TATE WHEN IT
RECOMMENDED THE PROPOSED ROUTE AND WERE THE ALTERNATIVE ROUTES CONSIDERED
BEFORE RECOMMENDING SAME
#ONSEQUENT TO THE AFORESAID DIRECTIONS AFDAVITS HAVE BEEN LED 7E HAVE GONE
THROUGH THE AFDAVITS AS WELL AS THE RECORD PRODUCED BEFORE US CAREFULLY
!T THE OUTSET WE MAY AGAIN REPEAT THAT IN VIEW OF THE FACT THAT IN PRINCIPAL APPROVAL
WAS GRANTED BY THE !PEX #OURT THIS #OURT CANNOT GO INTO THIS ASPECT OF THE MATTER
THOUGH WE ARE OF THE OPINION THAT ALL THE RELEVANT FACTS WERE NOT CORRECTLY PLACED
BEFORE THE !PEX #OURT )F ANY PARTY WAS AGGRIEVED IT SHOULD HAVE APPROACHED THE APEX
#OURT FOR CLARICATION OR MODICATION OF ITS ORDERS AND IT IS NOT FOR THIS #OURT TO DO SO
(AVING SAID SO THERE ARE CERTAIN IMPORTANT ISSUES WHICH ARISE BEFORE US AND WHICH WE
ARE BOUND TO CONSIDER 4HE CASE SET UP BY RESPONDENT .O IN THE AFDAVIT LED BY IT
IS THAT IT HAD ENGAGED THE #ONSULTANCY $IVISION OF THE #ENTRAL 4RANSMISSION 5TILITY
TO UNDERTAKE THE ROUTE ALIGNMENT STUDY FOR CONSTRUCTION OF THE 0ROJECT AND THAT THREE
ROUTES WERE RECOMMENDED BY THE #ENTRAL 4RANSMISSION 5TILITY FOR DETAILED SURVEY
ONE THE PROPOSED ROUTE AND TWO ALTERNATIVE ROUTES !CCORDING TO RESPONDENT .O ALL
THE THREE ALTERNATIVE ROUTES WERE MAPPED AND LED ALONGWITH &ORM
! SEEKING PRIOR
PERMISSION OF THE -INISTRY OF %NVIRONMENT AND &OREST UNDER 3ECTION OF THE &OREST
#ONSERVATION !CT 4HE 3TATE 'OVERNMENT RECOMMENDED THE PROPOSED CORRIDOR
FOR GRANT OF PERMISSION AND THEREAFTER ITS RECOMMENDATIONS WERE PLACED BEFORE THE
(ONBLE !PEX #OURT THROUGH THE #ENTRAL %MPOWERED #OMMITTEE
4HE STAND OF RESPONDENT .O THE -ANAGING $IRECTOR OF THE 0OWER 'RID #ORPORATION
IS ON SIMILAR LINES )T IS STATED IN THE AFDAVIT AS FOLLOWS
4HE RESPONDENT .O ALSO CONSIDERED THE CONSTRUCTION AND OPERATIONAL ISSUES
INCLUDING ENVIRONMENTAL CONSIDERATION LIKE FOREST INVOLVEMENT AND ITS EXTENT WHILE
SELECTING THE ROUTES OF TRANSMISSION LINES AND PROPOSED THREE ALTERNATE CORRIDORS
TWO BEING ON THE LEFT BANK OF RIVER 3ATLUJ AND ONE BEING ON THE RIGHT BANK OF THE RIVER
3ATLUJ AS STATED SUPRA 4HESE PROPOSALS WERE SUBMITTED TO THE RESPONDENT .O
FOR FURTHER NECESSARY ACTION 0/7%2'2)$ HAS SUBSEQUENTLY PROCEEDED FOR DETAILED
SURVEY OF THE MOST OPTIMUM ROUTE ROUTE HAVING LINE LENGTH OF KM ON THE
LEFT BANK OF 3ATLUJ RIVER )T IS FURTHER TO MENTION THAT THE RESPONDENT .O IE
*AYPEE 0OWERGRID ,TD WAS TO OBTAIN FURTHER NECESSARY APPROVAL IN ACCORDANCE WITH
THE PROVISIONS OF &OREST #ONSERVATION !CT AND THE RULES MADE THEREUNDER
)T IS APPARENT THAT RESPONDENT .O ON THE ONE HAND WAS THE #ENTRAL 4RANSMISSION
5TILITY )T IS ALSO ONE OF THE MEMBERS OF THE VENTURECONSORTIUM WHICH WAS TO CONSTRUCT
THE PROJECT )T WAS A BENECIARY OF THE PROJECT 4HE QUESTION THAT IS AGITATING US IS
WHETHER ONE CAN EXPECT THE PERSON WHO IS ONE OF THE BENECIARIES OF THE PROJECT TO BE
OBJECTIVE IN ITS OWN CASE /BVIOUSLY THE PROJECT PROPONENT ANDOR THE COMPANY AND
OR THE LICENSEE SETTING UP THE TRANSMISSION LINE WILL FAVOUR THE PROJECT WHICH IS MOST
BENECIAL TO IT IN ECONOMIC TERMS 7HEN THE #ENTRAL 4RANSMISSION 5TILITY IS ITSELF A
MEMBER OF THE CONSORTIUM WE WOULD HAVE EXPECTED THAT THE CONSULTANT SHOULD HAVE
BEEN SOME OTHER BODY %VEN ASSUMING THAT A DIFFERENT WING OF THE #ENTRAL 4RANSMISSION
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
5TILITY COULD BE THE CONSULTANT TO THE PROJECT WE ARE OF THE CONSIDERED VIEW THAT IN SUCH
A CASE A GREATER RESPONSIBILITY IS CAST ON THE 3TATE 'OVERNMENT THE #ENTRAL %LECTRICITY
!UTHORITY AND THE -INISTRY OF %NVIRONMENT AND &ORESTS TO ENSURE THAT THE CORRECT FACTS
ARE BROUGHT TO THE NOTICE OF ALL CONCERNED INCLUDING THE #ENTRAL %MPOWERED #OMMITTEE
IN THIS CASE 7E ARE CONSTRAINED TO OBSERVE THAT ALL THESE AUTHORITIES AND FUNCTIONARIES
ABDICATED THEIR DUTIES AND DID NOT PERFORM THEM IN A PROPER MANNER
)T IS MORE THAN APPARENT THAT THE LETTER DATED SENT BY THE 5NDER 3ECRETARY
TO THE 'OVERNMENT OF )NDIA -INISTRY OF 0OWER TO THE -ANAGING $IRECTOR OF THE
*AYPEE0OWERGRID ,TD WHEREIN IT WAS CLEARLY ADVISED THAT ALL THREE CORRIDORS SHOULD BE
PRESENTED TO THE !UTHORITY WAS NOT FOLLOWED IN LETTER AND SPIRIT !S FAR AS THE 3TATE OF
(IMACHAL 0RADESH IS CONCERNED THE AFDAVIT OF THE 0RINCIPAL 3ECRETARY &ORESTS TO THE
'OVERNMENT OF (IMACHAL 0RADESH LED IN RESPONSE TO OUR ORDER READS AS FOLLOWS
4HAT THE INFORMATION WITH REGARD TO VILLAGES AND POPULATION COVERED BY THE
+ARCHHAM TO 7ANGTOO
!BDULAPUR +6$# TRANSMISSION LINE ALTERNATE 2OUTES
)
AND )) IS NOT AVAILABLE WITH THE DEPARTMENT %FFORTS WERE MADE TO COLLECT THE
INFORMATION FROM THE CONCERNED DISTRICTS BUT THEY HAVE SUPPLIED INFORMATION ONLY
IN RESPECT OF VILLAGES AND POPULATION ON PROPOSED ROUTE AND ON THE RIGHT BANK OF
3ATLUJRIVER IN +INNAUR
4HE $EPUTY #OMMISSIONER 3HIMLA +INNAUR AND 3IRMOUR HAVE SUBMITTED THE ENTIRE
INFORMATION REGARDING ROUTE OF THE TRANSMISSION LINE THROUGH !LTERNATE 2OUTES )
AND )) IS NOT AVAILABLE WITH THEM
!S PER THE INFORMATION COLLECTED FROM THE *0 #OMPANY AND SUPPLIED BY THE $#
+INNAUR THE DETAILED SURVEY HAS ONLY BEEN CARRIED OUT ON THE PROPOSED ROUTE AND
THE #OMPANY DOES NOT HAVE THE ALL DETAILS OF VILLAGES AND TOWNS ON !LTERNATE
2OUTE
) AND !LTERNATE 2OUTE
)) APART FROM THE INFORMATION ENCLOSED AS !NNEXURE
" 0
4HIS INFORMATION IS SCANTY AND NOT IN A FORM THAT PERMITS MAKING AVAILABLE
DETAILS OF CENSUS VILLAGES AND POPULATION 4HE INFORMATION WITH REGARD TO VILLAGES
POPULATION ON THE PROPOSED ROUTE AS WELL AS ON THE RIGHT BANK OF 3ATLUJ IN +INNAUR AS
MENTIONED ABOVE IS SUBMITTED FOR KIND INFORMATION OF THIS (ONBLE #OURT
7E FAIL TO UNDERSTAND HOW THE 3TATE SUPPORTED THE ROUTE AS PROPOSED BY RESPONDENTS
.O AND WHEN IT DID NOT HAVE SUFCIENT INFORMATION BEFORE IT %VEN BEFORE THIS
#OURT THE 3TATE HAS FAILED TO GIVE ANY INFORMATION AND HAS CLEARLY STATED THAT THE
ENTIRE INFORMATION REGARDING ROUTE OF THE TRANSMISSION LINE THROUGH ALTERNATE ROUTES
)
AND )) IS NOT AVAILABLE WITH THEM )T IS THUS CLEAR THAT NOBODY SURVEYED THE ALTERNATE
ROUTES .O PERSON FROM THE &OREST $EPARTMENT OF THE 3TATE CARED TO LOOK INTO THIS
ASPECT OF THE MATTER TO ND OUT WHETHER THERE WOULD BE LESS ECOLOGICAL DAMAGE ON
ALTERNATIVE ROUTES
) AND )) OR NOT 4HE AFDAVIT QUOTED HEREINABOVE CLEARLY SHOWS THAT
NO INFORMATION WAS AVAILABLE WITH THE 3TATE
!S NOTED BY US EARLIER THE RIGHT BANK OF THE RIVER 3UTLEJ ESPECIALLY IN +INNAUR AND UPPER
AREAS OF 3HIMLA $ISTRICT NEAR 2AMPUR AND IN FACT ALMOST UP TO 3LAPPER IS MORE SPARSELY
POPULATED THAN THE LEFT BANK 4HE RIGHT BANK HAS MUCH LESS TREES AND IS ALMOST BARREN
(OWEVER FOR REASONS BEST KNOWN TO THE &OREST OFCIALS THEY CHOSE TO JUST ACCEPT THE
PROPOSAL OF THE PROJECT PROPONENT WITHOUT EVEN EXAMINING THE FEASIBILITY OF THE OTHER
TWO ALTERNATE ROUTES
!NOTHER IMPORTANT QUESTION WHICH ARISES IS WITH REGARD TO THE ROLE OF THE #ENTRAL
%LECTRICITY !UTHORITY 4HE SAID !UTHORITY IS CONSTITUTED UNDER 3ECTION OF THE
%LECTRICITY !CT AND ITS FUNCTIONS ARE DENED IN 3ECTION OF THE !CT RELEVANT
PORTION OF WHICH READS AS FOLLOWS
4 / \
&UNCTIONS AND DUTIES OF !UTHORITY
XXXXXXXXX
A ADVISE THE #ENTRAL 'OVERNMENT ON THE MATTERS RELATING TO THE NATIONAL
ELECTRICITY POLICY FORMULATE SHORT
TERM AND PERSPECTIVE PLANS FOR DEVELOPMENT
OF THE ELECTRICITY SYSTEM AND CO
ORDINATE THE ACTIVITIES OF THE PLANNING
AGENCIES FOR THE OPTIMAL UTILISATION OF RESOURCES TO SUBSERVE THE INTERESTS OF
THE NATIONAL ECONOMY AND TO PROVIDE RELIABLE AND AFFORDABLE ELECTRICITY FOR ALL
CONSUMERS
B SPECIFY THE TECHNICAL STANDARDS FOR CONSTRUCTION OF ELECTRICAL PLANTS ELECTRIC
LINES AND CONNECTIVITY TO THE GRID
C SPECIFY THE SAFETY REQUIREMENTS FOR CONSTRUCTION OPERATION AND MAINTENANCE
OF ELECTRICAL PLANTS AND ELECTRIC LINES
D SPECIFY THE 'RID 3TANDARDS FOR OPERATION AND MAINTENANCE OF TRANSMISSION
LINES
E SPECIFY THE CONDITIONS FOR INSTALLATION OF METERS FOR TRANSMISSION AND SUPPLY
OF ELECTRICITY
XXXXXXXXX
O DISCHARGE SUCH OTHER FUNCTIONS AS MAY BE PROVIDED UNDER THIS !CT
)T IS THUS CLEAR THAT IT IS THE ONE OF THE DUTIES AND FUNCTIONS OF THE #ENTRAL %LECTRICITY
!UTHORITY TO ADVISE THE #ENTRAL 'OVERNMENT WITH REGARD TO THE TECHNICAL STANDARDS
OF ELECTRIC LINES CONNECTIVITY TO THE GRID GRID STANDARDS AND SAFETY REQUIREMENTS FOR
CONSTRUCTION OPERATION AND MAINTENANCE OF SUCH LINES ETC
4HOUGH WE HAD ISSUED NOTICE TO THE #ENTRAL %LECTRICITY !UTHORITY IT CHOSE TO APPEAR
ONLY ONCE BEFORE THIS #OURT AND DID NOT APPEAR AGAIN AND DID NOT EVEN CARE TO LE ANY
RESPONSE TO THE PETITION 7HEN HUGE PROJECTS OF THIS NATURE ARE TO BE CONSTRUCTED THEN
IT IS THE DUTY OF THE #ENTRAL %LECTRICITY !UTHORITY TO ENSURE THAT IT MONITORS SUCH PROJECTS
AND ENSURES THAT THEY COMPLY WITH THE STANDARD SPECICATIONS SAFETY REQUIREMENTS
ETC AS APPROVED BY THE #ENTRAL %LECTRICITY !UTHORITY
4HE #ENTRAL 4RANSMISSION 5TILITY HAS BEEN CONSTITUTED UNDER 3ECTION OF THE
%LECTRICITY !CT 4HE 3ECTION SPECICALLY PROVIDES THAT THE #ENTRAL 4RANSMISSION
5TILITY SHOULD NOT ENGAGE IN THE BUSINESS OF GENERATION OF ELECTRICITY OR TRADING IN
ELECTRICITY 4HE FUNCTIONS OF THE #ENTRAL 4RANSMISSION 5TILITY HAVE BEEN PRESCRIBED
IN 3ECTION OF THE %LECTRICITY !CT AND THE MAIN FUNCTION IS TO UNDERTAKE
TRANSMISSION OF ELECTRICITY THROUGH INTER
3TATE TRANSMISSION SYSTEM (OWEVER THERE
ARE OTHER FUNCTIONS ALSO WHICH THE #ENTRAL 4RANSMISSION 5TILITY IS REQUIRED TO PERFORM
5NDER 3ECTION OF THE %LECTRICITY !CT IT IS ONLY AN AUTHORIZED PERSON WHO CAN TRANSMIT
ELECTRICITY AND AS POINTED OUT ABOVE THE MAIN ROLE OF THE #ENTRAL 4RANSMISSION 5TILITY
IS TO TRANSMIT ELECTRICITY THROUGHOUT THE COUNTRY 3ECTION OF THE !CT PROVIDES THAT
THE APPROPRIATE #OMMISSION CONSTITUTED BY THE APPROPRIATE 'OVERNMENT MAY
ON AN APPLICATION LED UNDER 3ECTION GRANT A LICENSE TO ANY PERSON TO TRANSMIT
ELECTRICITY 3ECTION OF THE !CT PROVIDES THE PROCEDURE FOR GRANT OF LICENSES &OR
OUR PURPOSE SUB SECTIONS AND ARE RELEVANT 5NDER SUBSECTION OF 3ECTION
OF THE !CT THE APPLICANT FOR GRANT OF TRANSMISSION LICENSE HAS TO FORWARD A COPY OF
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
SUCH APPLICATION TO THE #ENTRAL 4RANSMISSION 5TILITY AND UNDER SUB
SECTION THE
CONCERNED 4RANSMISSION 5TILITY HAS TO SEND ITS RECOMMENDATIONS TO THE APPROPRIATE
#OMMISSION 4HE #OMMISSION HAS TO CONSIDER ALL THE SUGGESTIONS OR OBJECTIONS AND
RECOMMENDATIONS OF THE CONCERNED 4RANSMISSION 5TILITY WHICH IN THE PRESENT CASE
WAS THE #ENTRAL 4RANSMISSION 5TILITY .OTICES ARE REQUIRED TO BE ISSUED AND THEREAFTER
HEARING CONDUCTED AND ORDERS PASSED IN THE APPLICATION
4HE #ENTRAL 4RANSMISSION 5TILITY HAS THEREFORE A VERY IMPORTANT FUNCTION /NCE THE
#ENTRAL 4RANSMISSION 5TILITY IS ITSELF THE APPLICANT OR PART OF A JOINT VENTURE WHICH
IS SEEKING LICENSE FOR TRANSMISSION OF ELECTRICITY THEN IN OUR CONSIDERED OPINION IT
CANNOT ALSO TAKE ON THE ROLE OF THE CONSULTANT AND MAKE RECOMMENDATIONS /BVIOUSLY
RECOMMENDATIONS WILL BE IN ITS OWN FAVOUR )N SUCH AN EVENTUALITY THE CONCERNED
3TATE %LECTRICITY #OMMISSION AND THE #ENTRAL %LECTRICITY 2EGULATORY #OMMISSION MUST
INTERVENE AND BE MORE CAREFUL IN THE MATTER
)N THE PRESENT CASE WE ND THAT AS FAR AS THE 3TATE 'OVERNMENT IS CONCERNED ITS
OFCERS ESPECIALLY THE OFCERS BELONGING TO THE &OREST $EPARTMENT AND THE OFCERS
VESTED WITH THE DUTY TO ENSURE THAT THE ENVIRONMENT IS PROTECTED SUCH AS THE 3ECRETARY
%NVIRONMENT DID NOT AT ALL EXAMINE THE PROPOSAL &ILES RUNNING INTO HUNDREDS
OF PAGES HAVE BEEN PLACED BEFORE US /N GOING THROUGH THE LES WE ND THAT OTHER
THAN ACCEPTING THE JOINT PROPOSAL OF RESPONDENTS .O AND NO OFCIAL OF THE 3TATE
'OVERNMENT HAS GIVEN ANY NOTING OR HAS COMMENTED AS TO WHAT IS THE FEASIBILITY
USEFULNESS OR OTHERWISE OF THE OTHER TWO ALTERNATIVE ROUTES
4HE WHOLE IDEA OF GIVING THREE ALTERNATIVE ROUTES IS THAT THE PROJECT PROPONENT HAS
FOUND THESE THREE ROUTES WHICH ARE VIABLE .OW IT IS FOR THE AUTHORITIES TO DECIDE WHICH
ROUTE HAS THE LEAST IMPACT ON THE ENVIRONMENT AND THE ECOLOGY 4HE AUTHORITIES MUST
DECIDE WHICH ROUTE IS BETTER FOR THE PEOPLE (OWEVER IN THIS CASE THEY DID NOT CARRY OUT
THIS EXERCISE BUT ONLY APPROVED THE ROUTE WHICH WAS BETTER FOR THE PROJECT PROPONENT
)T IS FOR THE 'OVERNMENT OFCIALS INCLUDING THE &OREST OFCIALS TO ENSURE THAT THEY
MAKE A COMPARATIVE ANALYSIS OF THE PROJECT AND AFTER MAKING SUCH ANALYSIS SUBMIT
THEIR COMMENTS AS TO HOW ONE ROUTE IS BETTER THAN THE OTHER AND IS MORE ENVIRONMENT
FRIENDLY 4HE ROLE OF THE &OREST $EPARTMENT IS TO RECOMMEND THAT ROUTE WHICH CAUSES
THE LEAST DAMAGE TO THE FOREST AND THE ENVIRONMENT 4HIS HAS NOT BEEN DONE IN THE
PRESENT CASE
7E HOPE EXPECT AND DIRECT THAT IN FUTURE ALL FUNCTIONARIES OF THE 3TATE OF (IMACHAL
0RADESH SHALL ENSURE THAT IN ALL PROJECTS OF THIS NATURE A PROPER AND COMPARATIVE
ANALYSIS IS DONE 4HE RECOMMENDATIONS OF THE PROJECT PROPONENT ARE NOT TO BE ACCEPTED
JUST FOR THE ASKING 4HE OFCIALS OF THE 3TATE OF (IMACHAL 0RADESH HAVE TO DO SOME SPADE
WORK ON THE GROUND AND THEN ANALYZE ALL THE PROPOSALS AND MAKE THEIR INDEPENDENT
RECOMMENDATIONS IN ALL CASES 4HEIR RECOMMENDATIONS SHOULD BE BASED ON THE INTEREST
OF THE 3TATE IN THE INTEREST OF PROTECTING THE ENVIRONMENT AND IN THE INTEREST OF THE LOCAL
PEOPLE SO THAT MINIMUM LAND IS ACQUIRED AND THE AGRICULTURAL LANDS OF THE LOCAL PEOPLE
ARE DAMAGED TO THE MINIMUM POSSIBLE EXTENT 4HE #HIEF 3ECRETARY TO THE 'OVERNMENT
OF (IMACHAL 0RADESH IS HELD RESPONSIBLE TO ENSURE THAT SUCH DIRECTIONS ARE COMPLIED
WITH IN LETTER AND SPIRIT AND THERE IS NO VIOLATION OF THE SAME IN FUTURE
7E ALSO ND THAT THERE IS VIRTUALLY NO APPLICATION OF MIND BY THE VARIOUS AUTHORITIES
SUCH AS THE #ENTRAL %LECTRICITY !UTHORITY AS TO HOW THE HEIGHT OF THE TRANSMISSION
TOWERS IS TO BE DETERMINED )T HAS BEEN POINTED OUT TO US THAT IN CASE THE HEIGHT OF THE
TOWERS IS INCREASED THEN A WIDER BASE IS REQUIRED )N CASE THE BASE CAN BE PROVIDED
IN AN AREA WHICH IS BARREN OR WHERE NOT MANY TREES ARE REQUIRED TO BE CUT THEN IF
LOPPING CHOPPING OF THE TOPS OF THE TREES AND FELLING OF TREES CAN BE PREVENTED OR IN ANY
4 / \
MANNER DECREASED THEN THESE ASPECTS MUST BE LOOKED INTO SO AS TO PROTECT MORE TREES
7HILE DETERMINING THE PLACES WHERE THE TOWERS ARE TO BE SET UP THE #ENTRAL %LECTRICITY
!UTHORITY AND #ENTRAL 4RANSMISSION 5TILITY MUST TAKE INTO CONSIDERATION EVERY FACTOR
SUCH AS AVAILABILITY OF ROAD ETC 'REAT HAVOC HAS BEEN CAUSED TO THE LEFT BANK OF THE RIVER
3UTLEJ AND THE LIVES AND PROPERTIES OF PRIVATE PERSONS AND THE 'OVERNMENT HAVE BEEN
PUT AT GREAT RISK )N FUTURE THE #ENTRAL %LECTRICITY !UTHORITY AND #ENTRAL 4RANSMISSION
5TILITY WILL ENSURE THAT EACH ASPECT IS EXAMINED IN THE LIGHT OF OUR OBSERVATIONS MADE
HEREINABOVE AND SANCTION IS NOT GRANTED AT THE MERE BEHEST OF THE PROJECT PROPONENT
)T IS THE DUTY OF THE #ENTRAL %LECTRICITY !UTHORITY AND THE #ENTRAL 4RANSMISSION 5TILITY
TO ENSURE THAT ALL FACTORS ARE TAKEN INTO CONSIDERATION
%VEN THE -INISTRY OF %NVIRONMENT AND &ORESTS MUST IN FUTURE ENSURE THAT STEPS ARE
TAKEN BY THE PROJECT PROPONENT TO CAUSE MINIMUM DAMAGE TO THE ENVIRONMENT )T
SHOULD ALSO LOOK INTO THE QUESTIONS AS TO WHETHER THE 2EGULATORY AND OTHER AUTHORITIES
HAVE DONE THEIR WORK OR NOT )F IT NDS THAT THERE HAS BEEN NO EXAMINATION OF THE
PROPOSALS ESPECIALLY ALTERNATIVE PROPOSALS LIKE IN THE PRESENT CASE THEN IT SHOULD
REMIT THE MATTER TO THE CONCERNED AUTHORITYAGENCY TO SEND ITS RECOMMENDATIONS
AFTER CARRYING OUT A COMPLETE ANALYSIS OF THE VARIOUS PROPOSALS PUT FORTH BY THE PROJECT
PROPONENT
4HE WRIT PETITION IS DISPOSED OF WITH THE AFORESAID DIRECTIONS 4HE 2EGISTRAR 'ENERAL
OF THIS #OURT IS DIRECTED TO SEND A COPY OF THIS JUDGMENT TO THE 3ECRETARY -INISTRY
OF %NVIRONMENT AND &OREST 'OVERNMENT OF )NDIA THE #ENTRAL %LECTRICITY !UTHORITY
#ENTRAL %LECTRICITY 2EGULATORY #OMMISSION (0 3TATE 2EGULATORY #OMMISSION THE #HIEF
3ECRETARY TO THE 'OVERNMENT OF (IMACHAL 0RADESH THE )NSPECTOR 'ENERAL OF &ORESTS
AND THE 3ECRETARY (0 3TATE 0OLLUTION #ONTROL "OARD WHO SHALL ENSURE THAT IN FUTURE
ACTION IS TAKEN STRICTLY IN ACCORDANCE WITH WHAT WE HAVE STATED IN THIS JUDGMENT
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
-ANGI 2AM /RS VS 5NION OF )NDIA
/RS
#70 ./ /& %4#
()-!#(!, 02!$%3( ()'( #/524
#/2!- !- +(!.7),+!2 #* !.$ 2" -)32! *
3 5--!29
4HREE WRIT PETITIONS WERE DISPOSED OF BY THIS COMMON JUDGMENT 4HE FIRST TWO
PETITIONS 0), SOUGHT DIRECTIONS AGAINST THE 3TATE GOVERNMENT TO DISCONTINUE THE
PROPOSED "AJOLI
(OLI (YDROELECTRIC 0OWER 0ROJECT AT 2IVER 2AVI IN $ISTRICT #HAMBA
AS IT WAS OPPOSED TO THE SENTIMENTS OF THE LOCAL PEOPLE AND IN VIOLATION OF VARIOUS
ENVIRONMENTAL LAWS 4HE THIRD PETITION WAS FILED BY THE PROJECT PROPONENT COMPANY
ABOUT THE OBSTRUCTIONIST ATTITUDE OF A FEW OF THE VILLAGERS INSPITE OF OBTAINING
CLEARANCE FROM THE CONCERNED AUTHORITIES /NE OF THE ISSUES FRAMED BY THE #OURT
RELATED TO THE FAILURE OF THE 3TATE GOVERNMENT TO IMPLEMENT THE 3CHEDULED 4RIBES
AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
&).$ ) .' 3 /& 4( % #/524
4HE FINDINGS OF THE #OURT REGARDING OTHER ENVIRONMENTAL ISSUES ARE NOT BEING
EXAMINED /N THE &2! THE #OURT EXAMINED A LETTER ISSUED BY THE #ENTRAL -INISTRY OF
4RIBAL !FFAIRS DEPRECATING THE FAILURE OF SEVERAL 3TATE GOVERNMENTS IN IMPLEMENTING
THE &2! AND FURTHER DEPRECATING THE EXEMPTION FROM &2! PROCESSES GRANTED BY THE
-O%& FOR SUCH 3TATES INCLUDING (IMACHAL 0RADESH IN GRANT OF FOREST CLEARANCES 4HE
#OURT ALSO NOTICED THE JUDGMENT OF THE 3UPREME #OURT IN /RISSA -INING #ORPORATION
VS -INISTRY OF %NVIRONMENT AND &ORESTS /RS 3#!,% WRONGLY DESCRIBED
AS UNREPORTED WHERE THE NECESSITY FOR &2! COMPLIANCE AND 'RAM 3ABHA DECISION
REGARDING DIVERSION OF FOREST LAND IS EXPLICATED 4HE (IGH #OURT WAS OF THE VIEW
THIS IS COMPLETELY DEVOID OF MERIT AND HAS BEEN RAISED ONLY ON THE BASIS OF SOME
ASSUMPTIONS OR FIGMENT OF IMAGINATION OF PETITIONERS WHICH ARE NOT SUPPORTED BY
ANY TANGIBLE MATERIAL AND DECISIVE ENOUGH TO INTERDICT THE ACTIVITIES FOR SETTING UP
THE PROPOSED PROJECT
4HE FIRST TWO WRIT PETITIONS WERE DISMISSED WITH COSTS QUANTIFIED AT 2S
TO BE PAID WITHIN WEEKS BY EACH OF THE PETITIONERS TO THE RESPONDENTS INCLUDING
THE PROJECT PROPONENT '-2 "AJOLI
(OLI (YDRO 0OWER 0VT ,TD FAILING WHICH THE
4 / \
#OLLECTOR #HAMBA WAS DIRECTED TO RECOVER THE AGGREGATE AMOUNT OF 2S LAKHS
JOINTLY AND SEVERALLY FROM THE 0ETITIONERS WITHIN WEEKS AS ARREARS OF LAND
REVENUE AND DEPOSIT THAT AMOUNT IN THE 2EGISTRY OF THE #OURT TO BE MADE OVER TO
THE CONCERNED RESPONDENTS
% $ ) 4 /23 . /4%
)T MAY BE NOTED THAT THE JUDGMENT IS UNDER APPEAL IN THE 3UPREME #OURT AND IS
PENDING ADJUDICATION #LEARLY THE JUDGMENT IS ERRONEOUS IN FAILING TO FOLLOW
A BINDING PRECEDENT LAID DOWN BY THE 3UPREME #OURT UNDER !RTICLE OF THE
#ONSTITUTION OF )NDIA IN THE /RISSA -INING #ORPORATION CASE SUPRA AND DISMISSING
THE SAME AS UNREPORTED
* 5 $ ' -% . 4
THE JUDGMENT OF THE #OURT WAS DELIVERED BY !- +HANWILKAR #*
7E HAVE HEARD COUNSEL FOR THE PARTIES AT LENGTH 7E PROPOSE TO DISPOSE OF ALL THE THREE
WRIT PETITIONS TOGETHER BY THIS COMMON JUDGMENT
4HE RST PETITION #70 .O OF HAS BEEN LED BY FOUR PETITIONERS IN &EBRUARY
QUESTIONING THE PROPOSED "AJOLI
(OLI (YDROELECTRIC 0ROJECT AT RIVER 2AVI IN $ISTRICT
#HAMBA 4HE RELIEFS CLAIMED IN THIS PETITION PURPORTEDLY LED AS 0UBLIC )NTEREST
,ITIGATION READ THUS
! 4HE ENVIRONMENT CLEARANCE DATED ISSUED BY 2ESPONDENT NO
!NNEXURE
0 IN FAVOUR OF THE 2ESPONDENT NO MAY BE QUASHED AND SET ASIDE
" 4HE IN PRINCIPLE APPROVAL DATED !NNEXURE 0 ISSUED BY 2ESPONDENT
NO AND FOR DIVERSION OF HECTARE FOREST LAND MAY BE QUASHED AND SET ASIDE
# 4HE 2ESPONDENTS NO AND MAY BE DIRECTED NOT TO ISSUE FURTHER CLEARANCES
WITHOUT TAKING INTO CONSIDERATION THE 0RE &EASIBILITY 2EPORT PREPARED BY THE
2ESPONDENT NO
$ 4HE 2ESPONDENT NO AND MAY BE DIRECTED TO IMPLEMENT THE PROVISIONS OF
THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT WHILE ISSUING CLEARANCES IF ANY TO THE PROJECT PROPONENTS IN THE
STATE OF (IMACHAL 0RADESH INCLUDING TO THE 2ESPONDENT .O
% 4HE RECOMMENDATIONS GIVEN AND PROCEEDINGS CONDUCTED BY THE 2ESPONDENT NO
MAY ALSO BE QUASHED AND 2ESPONDENT NO MAY BE DIRECTED TO ASSOCIATE 2ESPONDENT
NO IN FUTURE
& !NY OTHER WRIT ORDER OR DIRECTION WHICH THIS (ONBLE #OURT MAY DEEM T IN THE
FACTS AND CIRCUMSTANCES OF THE CASE MAY ALSO BE PASSED IN FAVOUR OF THE PETITIONER
4HE SECOND PETITION #70 .O OF HAS BEEN LED BY SOLE PETITIONER IN .OVEMBER
ANOTHER RESIDENT OF 4EHSIL (OLI $ISTRICT #HAMBA QUESTIONING THE CONTINUANCE OF
SELFSAME PROPOSED PROJECT AFTER THE GRANT OF STAGE )) APPROVAL THERETO 4HE RELIEFS CLAIMED
IN THE SECOND PETITION READS THUS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
4HE NAL APPROVAL OF FOREST LAND DATED !NNEXURE 0
ISSUED BY
2ESPONDENT NO GRANTING DIVERSION OF HECTARE FOREST LAND MAY BE QUASHED
AND SET ASIDE
!NY OTHER WRIT ORDER OR DIRECTION WHICH THIS (ONBLE #OURT MAY DEEM T IN THE FACTS
AND CIRCUMSTANCES OF THE CASE MAY ALSO BE PASSED IN FAVOUR OF THE PETITIONER
!S BOTH THESE PETITIONS PURPORTEDLY LED AS 0UBLIC )NTEREST ,ITIGATION ARE IN RESPECT OF
SAME PROJECT THOUGH LED ON DIFFERENT DATES SEEK OVERLAPPING DIRECTION AGAINST THE
3TATE !UTHORITIES TO DISCONTINUE THE PROJECT BEING OPPOSED TO THE SENTIMENTS OF THE
LOCALS IN THE AREA AND INCLUDING THE POSSIBILITY OF VIOLATIONS OF ENVIRONMENTAL LAWS !S
A RESULT BOTH THESE PETITIONS WERE HEARD TOGETHER
4HE THIRD PETITION #70 .O OF HAS BEEN LED BY THE PROJECT PROPONENT
#OMPANY ABOUT THE OBSTRUCTIONIST ATTITUDE OF SOME OF THE VILLAGERS FOR CONTINUANCE OF
THE PROPOSED PROJECT AND TO THE CONSTRUCTION ACTIVITY UNDERTAKEN IN THAT REGARD INSPITE
OF OBTAINING CLEARANCE FROM THE CONCERNED !UTHORITIES /N THIS ASSERTION THE PROJECT
PROPONENT HAS PRAYED FOR FOLLOWING RELIEFS
I 4HAT THE RESPONDENTS .O TO MAY BE DIRECTED TO CREATE CONGENIAL ATMOSPHERE
SO AS TO ENABLE THE PETITIONER TO UNDERTAKE THE TASKS PERTAINING TO THE EXECUTION OF
"AJOLI
(OLI (YDROELECTRIC 0ROJECT
II 4HAT THE RESPONDENTS TO MAY FURTHER BE DIRECTED TO ENSURE THAT THE RESPONDENTS
TO THEMSELVES OR THROUGH THEIR AGENTS DO NOT STOP THE CONSTRUCTION ACTIVITIES OF
"AJOLI
(OLI (YDROELECTRIC 0ROJECT
III 4HAT THE RESPONDENTS TO MAY BE RESTRAINED FROM INTERFERING IN THE
CONSTRUCTION ACTIVITIES OF "AJOLI
(OLI (YDROELECTRIC 0ROJECT THEMSELVES OR THROUGH
THEIR AGENTS BY BLOCKING THE ROAD LEADING TO THE PROJECT SITE OR IN ANY OTHER WAY
WHATSOEVER
IV !NY OTHER ORDER DEEMED JUST AND PROPER MAY ALSO BE PASSED IN THE FACTS AND
CIRCUMSTANCES STATED HEREINABOVE IN FAVOUR OF THE PETITIONER
%VEN THIS PETITION WAS ORDERED TO BE HEARD ALONGWITH OTHER TWO PETITIONS LED BY THE
VILLAGERS OPPOSING THE CONTINUANCE OF PROPOSED (YDEL 0ROJECT ON RIVER 2AVI $ISTRICT
#HAMBA
4HESE MATTERS WERE TAKEN UP FOR ADMISSION ON #OUNSEL APPEARING FOR THE WRIT
PETITIONERS IN THE RST TWO MATTERS ADDRESSED THE #OURT FOR QUITE SOME TIME FOR ALMOST
AN HOUR BUT WAS UNABLE TO MAKE OUT ANY SPECIC ISSUE WARRANTING INTERFERENCE BY
THIS #OURT IN EXERCISE OF WRIT JURISDICTION ALBEIT AS 0UBLIC )NTEREST ,ITIGATION 2ATHER IT
WAS NOTICED THAT HE WAS MAKING INCOHERENT SUBMISSIONS 4HEREFORE WE ADJOURNED THE
HEARING OF THESE MATTERS TO GIVE HIM SOME TIME TO PREPARE THE MATTER PROPERLY SO THAT
HE CAN ARTICULATE THE ISSUES WHICH THE SAID PETITIONERS WANTED TO PURSUE BEFORE THIS
#OURT !CCORDINGLY ALL THREE MATTERS WERE ORDERED TO BE LISTED ON FOR FURTHER
ARGUMENT /N THAT DAY AT THE OUTSET THE COUNSEL FOR THE SAID PETITIONERS SUBMITTED THAT
HE WOULD CONNE THE CHALLENGE TO THE PROPOSED PROJECT ONLY ON THREE COUNTS MENTIONED
HEREUNDER
I 4HE PROPOSED PROJECT WAS TO BE SET UP ON THE RIGHT BANK OF RIVER 2AVI BUT AT THE
INSTANCE OF THE PROJECT PROPONENT IT HAS BEEN UNILATERALLY SHIFTED TO THE LEFT BANK
DISREGARDING THE FACT THAT THE DAMAGE AND LOSS TO BE CAUSED TO THE LAND COMING
UNDER THE PROJECT ON THE LEFT BANK AND IN PARTICULAR THE FOREST AREA WOULD BE FAR
GREATER -OREOVER THE DECISION TO SHIFT THE PROJECT ON THE LEFT BANK HAS BEEN TAKEN
WITHOUT CONSULTING THE %XPERT "ODY
II 4HE PROJECT PROPONENT HAS BEEN PERMITTED TO CONTINUE WITH THE PROPOSAL TO SET UP
THE PROJECT WITHOUT DISCHARGING THE OBLIGATION AS PER CONDITION .O IMPOSED BY
4 / \
THE -INISTRY OF %NVIRONMENT &OREST &# $IVISION 'OVERNMENT OF )NDIA -O%& FOR
SHORT VIDE LETTER DATED OF ASSESSMENT OF IMPACT ON LANDSCAPE IN GENERAL AND
WILDLIFE ECOLOGICAL ASPECTS IN SPECIC BEFORE THE NAL SANCTION IS ACCORDED
III 4HE NAL APPROVAL HAS BEEN GRANTED TO THE PROJECT PROPONENT BY THE CONCERNED
!UTHORITY WITHOUT COMPLYING WITH CONDITION .O IMPOSED BY THE -O%& VIDE
SELFSAME COMMUNICATION DATED OF OBTAINING CLEARANCE UNDER THE PROVISIONS
OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT AND INCLUDING OF SUBMITTING CERTICATE TOWARDS THE SETTLEMENT
OF ALL CLAIMS AND RIGHTS OVER THE PROPOSED FOREST LAND UNDER THE !CT AS PER ADVISORY
ISSUED BY THE -O%& ON
4HESE ARE THE ONLY THREE POINTS NALLY URGED DURING THE ARGUMENT BY THE COUNSEL FOR
THE PETITIONERS IN RST TWO WRIT PETITIONS 4HE 3TATE !UTHORITIES -O%& 'OVERNMENT
OF )NDIA (IMACHAL 0RADESH %LECTRICITY "OARD (03%" AND THE PROJECT PROPONENT HAVE
OPPOSED THE SAID WRIT PETITIONS RSTLY ON THE GROUND THAT THE SAME SUFFER FROM LACHES
AND UNEXPLAINED DELAY 3ECONDLY THE PETITIONER IN THE RST PETITION IS THE 0RADHAN OF
THE 'RAM 0ANCHAYAT WHO NOW WANTS TO OPPOSE THE PROJECT NOTWITHSTANDING THE .O
/BJECTION #ERTICATE TO THE PROPOSED PROJECT IS GRANTED BY THAT 'RAM 0ANCHAYAT IN THE
PAST -OREOVER THE SAID PETITIONER HAD ATTENDED THE PUBLIC HEARING BUT DID NOT RAISE THE
THREE POINTS NOW URGED BEFORE THIS #OURT $URING THE PUBLIC HEARING THE OBJECTION TAKEN
BY THE SAID PETITIONER WAS DULY CONSIDERED BY THE #HAIRMAN OF THE MEETING AND THE
SOLUTION OFFERED WAS ACCEPTED BY ALL THE PERSONS PRESENT IN THE MEETING 4HE PETITIONS
AS LED BY THE VILLAGERS ARE NOT ONLY MISCHIEVOUS BUT ALSO MOTIVATED /N MERITS THE
COUNSEL APPEARING FOR THE RESPONDENTS HAVE RELIED ON CONTEMPORANEOUS RECORD TO
SUBSTANTIATE THEIR ARGUMENT TO COUNTER EACH OF THE POINTS URGED BY THE PETITIONERS IN
THE RST TWO PETITIONS BEING DEVOID OF MERIT AND UNTENABLE "OTH SIDES IN SUPPORT OF
THEIR RESPECTIVE CONTENTIONS HAVE RELIED UPON THE JUDGMENTS OF THE 3UPREME #OURT AND
THE UNREPORTED JUDGMENT OF THE $IVISION "ENCH OF THIS #OURT 7E SHALL ADVERT TO THOSE
DECISIONS A LITTLE LATER
!S REGARDS THE RST CONTENTION PURSUED BY THE PETITIONERS IN THE RST TWO PETITIONS
WE HAVE NO HESITATION IN TAKING THE VIEW THAT THE SAID PETITIONERS HAVE BEEN ILL
ADVISED TO RELY ON THE COMMUNICATIONS AND DOCUMENTS WHICH DO NOT REECT THE
AUTHORITATIVE OPINION OF THE $EPARTMENT AND THE %XPERT "ODY 4HE RST CONTENTION
PERTAINS TO SHIFTING OF THE PROJECT TO THE LEFT BANK FROM THE ORIGINAL PROPOSAL OF
ESTABLISHING THE SAME ON THE RIGHT BANK 4HE ARGUMENT PROCEEDS THAT THE VILLAGERS
ARE OPPOSED TO THE SHIFTING OF THE PROJECT ON THE LEFT BANK AS IT WOULD CAUSE GREATER
DAMAGE TO THE FOREST AREA AS LARGE NUMBER OF TREES AND HABITATION WILL BE SWEPT
BECAUSE OF THE PROJECT 7HEREAS IF THE PROJECT WAS TO BE ESTABLISHED ON THE RIGHT BANK IT
WOULD RESULT IN VERY MINIMAL LOSS AND DAMAGE TO THE TREES AND THE HABITATION -OREOVER
THE 'RAM 3ABHA OF .AYA 'RAM AS ALSO 'RAM 3ABHA OF (OLI HAVE GONE ON RECORD THAT
THEY WERE OPPOSED TO ESTABLISHING THE PROJECT ON THE LEFT BANK %VEN THE OFCIALS WERE
OF THE OPINION THAT SHIFTING THE PROJECT ON THE LEFT BANK WOULD CAUSE MORE DAMAGE
AND LOSS AND SHALL NOT BE FEASIBLE AS IS EVIDENT FROM THE COMMUNICATIONS ON RECORD
)T IS FURTHER ARGUED THAT THE DECISION OF SHIFTING THE PROJECT WAS UNILATERAL AND AT THE
BEHEST OF THE PROJECT PROPONENT TO FAVOUR THE PROJECT PROPONENT (OWEVER WHEN
CALLED UPON TO POINT OUT THE AVERMENTS IN THE WRIT PETITIONS IN SUPPORT OF THIS ARGUMENT
THE COUNSEL FOR THE SAID PETITIONERS GAVE UP THAT ARGUMENT (E HOWEVER SUBMITTED
THAT THERE WAS MATERIAL ON RECORD WHICH IS INDICATIVE OF THE FACT THAT THE LAND ON
THE RIGHT SIDE OF THE BANK WAS BARREN AND WAS MORE SUITED FOR THE PROPOSED PROJECT THAN
THE LAND ON THE LEFT SIDE OF THE BANK WHICH IS A THICK FOREST
4HE RESPONDENTS HAVE NOT ONLY REFUTED THESE CONTENTIONS BUT HAVE POINTED OUT FROM
THE RECORD THAT THE ARGUMENT UNDER CONSIDERATION WAS FOUNDED ON EITHER MISIN
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
FORMATION OR MORE PARTICULARLY DISTORTED PRESENTATION OF THE RECORD /N THE OTHER
HAND THE DECISION TO SHIFT THE PROJECT ON THE LEFT BANK FROM THE RIGHT BANK WAS TAKEN
AFTER OBSERVING DUE DILIGENCE AND BECAUSE THE %XPERT "ODY FOUND IT MORE APPROPRIATE
AND FEASIBLE THAN ON THE RIGHT BANK &OR THAT RELIANCE HAS BEEN PLACED ON THE
OFCIAL RECORD AS TO HOW THE PROPOSAL FOR SHIFTING WAS NECESSITATED AND WAS NALLY
TAKEN AT THE HIGHEST LEVEL AND MORE SO HAVING RECEIVED APPROVAL EVEN OF THE
-INISTRY OF %NVIRONMENT AND &OREST 4HE LEARNED !DVOCATE 'ENERAL HAS HANDED OVER
COMPARATIVE CHART PREPARED BY THE OFCIALS ABOUT THE TREE ENUMERATION ON THE LEFT
BANK VIS A VIS ON THE RIGHT BANK AND WHICH IS INDICATIVE OF HOW THE ESTABLISHMENT
OF THE PROJECT ON THE LEFT BANK WAS MORE BENECIAL 4HE SAID CHART READS THUS
#/ -0 ! 2 )3 / . / & 42 %% % .5-% 2!4)/. ,% &4 "!.+ 63 2)'( 4 "!.+
,%& 4 "! . + 42 %% %. 5-% 2!4)/. 2)'( 4 "!.+ 4 2% % % .5-% 2!4)/ .
. / #/ -0 / . %. 4 ./ /& ./ #/-0/.% .4 ./ / &
4 2% % 3 4 2% % 3
"AJOL 2ESERVOIR !REA "AJOL 2ESERVOIR !REA
$AM 3ITE &ACULTY !REA $AM 3ITE &ACULTY !REA
$UMPING 9ARD $UMPING 9ARD
$AM 3ITE )NTAKE $AM 3ITE )NTAKE
.AYA 'RAM &ACILITY .AYA 'RAM &ACILITY
!REA !REA
$AM 3ITE !LTERNATE $AM 3ITE !LTERNATE
$UMPING 9ARD $UMPING 9ARD
!DIT AND 2OAD !DIT AND 2OAD
M $UMPING M $UMPING
9ARD 9ARD
!DIT AND 2OAD !DIT AND 2OAD
1UARRY !REA 1UARRY !REA
1UARRY !REA 2OAD 1UARRY !REA 2OAD
#ONTRACTOR #OLONY #ONTRACTOR #OLONY
!DIT AND 2OAD !DIT AND 2OAD M
$UMPING 9ARD
2OAD TO #RESHER 0LANT 2OAD TO #RESHER 0LANT
$UMPING 9ARD $UMPING 9ARD
!DIT $UMPING 9ARD !DIT $UMPING 9ARD
2OAD 2OAD
$UMPING 9ARD $UMPING 9ARD
7ORKSHOP !REA 7ORKSHOP !REA
4 / \
0OWERHOUSE 0OWERHOUSE
$UMPING 9ARD $UMPING 9ARD
0OWERHOUSE !REA 0OWERHOUSE !REA
!DIT 3URGE 3HAFT !DIT 3URGE 3HAFT
3URGE 3HAFT 2OAD 3URGE 3HAFT 2OAD
4OTAL .O OF 4REES
, !. $ 2 %15)2 %-%. 4 #/ -0 !2)3/.
, % & 4 "! . + 3 #(%-% ! . $ 2 )'( 4 "!.+ 3#( % -%
4 9 0 % / & ,! . $ ,% &4 "!.+ 2)'( 4 "!.+
&OREST /PEN
&OREST 5NDER 'ROUND
'OVERNMENT
0RIVATE
4OTAL
.OTABLY THE PROJECT PROPONENT ON AFDAVIT LED TO OPPOSE THESE WRIT PETITIONS DATED
HAS GRAPHICALLY DESCRIBED NOT ONLY ABOUT THE FEASIBILITY OF THE PROJECT ON THE
LEFT BANK BUT ALSO ABOUT THE IMPERATIVENESS OF SUCH SHIFTING )T IS JUSTLY POINTED OUT THAT
THE PLEA RAISED BY THE PETITIONERS IS IN THE BACKDROP OF PRE FEASIBILITY REPORT PREPARED
BY (03%" WHICH WAS NOT DECISIVE )T WAS PREPARED ONLY WITH A VIEW TO INITIATE THE
PROPOSAL )NDISPUTABLY THAT REPORT WAS PREPARED WITHOUT ANY ELD VISIT (OWEVER AFTER
THE IN PRINCIPLE DECISION IS TAKEN BY THE 3TATE 'OVERNMENT AND RECOURSE TO INTERNATIONAL
BIDDING ON ONEROUS TERMS SUCH AS DEPOSIT OF SUBSTANTIAL AMOUNT AS UPFRONT PAYMENT
AND UPON EXECUTION OF PRE IMPLEMENTATION AGREEMENT IN FAVOUR OF THE SUCCESSFUL
BIDDER AND BECOMING THE PROJECT PROPONENT AND AUTHORIZED TO CARRY OUT NECESSARY
SURVEY AND INVESTIGATIONS AS PER THE (YDRO 0OWER 0OLICY SUBMITTED PROPOSAL
THAT BECAME THE BASE DOCUMENT FOR FURTHER CONSIDERATION 2ELIANCE HAS BEEN PLACED
ON #LAUSE VIII OF #HAPTER 6 OF THE SAID POLICY WHICH APPLIES TO PROJECT ABOVE -7
CAPACITY AS IN THE PRESENT CASE 4HE SAME READS THUS
VIII 4HE SCOPE OF THE WORK WILL BE FROM CONCEPT TO COMMISSIONING AND OPERATION
THEREAFTER INCLUDING INTER ALIA SURVEY AND INVESTIGATIONS IDENTICATION OF
TRANSMISSION SYSTEM FOR THE EVACUATION OF POWER AND PREPARATIONREVIEW OF
$02 4HE TRANSMISSION SYSTEM FOR EVACUATION OF POWER SHALL FORM PART OF THE
0ROJECT AND SHALL BE INCLUDED IN THE $02 IN CONSULTATION WITH (03%" KEEPING
IN VIEW THE INTEGRATED SYSTEM REQUIREMENTS
)T IS STATED THAT KEEPING IN VIEW THE SAID POLICY THE PROJECT PROPONENT AFTER CARRYING
OUT SURVEY AND INVESTIGATIONS THE DETAILS WHEREOF ARE DELINEATED IN THE SAID AFDAVIT
WHICH READS THUS
4HE DETAILS OF THE INVESTIGATIONS CARRIED OUT BY THE #OMPANY FOR $02 APPROVAL ARE
AS UNDER
I M OF 'EOLOGICAL #ORE DRILLING FOR NUMBERS OF $RILL (OLES
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
II M OF %XPLORATORY $RIFTING WORK AT LOCATIONS
III !DDITIONALLY HECTARES OF THE TOPOGRAPHICAL SURVEY WORK ALONG WITH
NOS OF RIVER CROSS SECTION
IV %XTENSIVE ,ABORATORY INVESTIGATIONS ARE ALSO CARRIED OUT TO ASCERTAIN THE
ACTUAL SITE CONDITIONS
V (YDRO METROLOGICAL DATA FROM )NDIAN -ETROLOGICAL $EPARTMENT 'O) AND OTHER
'OVERNMENT $EPARTMENTS ARE ALSO COLLECTED FOR FURTHER OPTIMIZATION STUDIES
VI -ARKET SURVEY FOR GETTING THE BASE DATE FOR THE BASIC MATERIAL RATE FOR MAJOR
CONSTRUCTION MATERIAL REQUIREMENTS LIKE #EMENT AND 3TEEL IS ALSO DONE
VII 4RANSPORT LOGISTIC SURVEY FOR CHECKING THE FEASIBILITY OF THE ROAD CONDITIONS
ARE LIMITING DIMENSION OF THE ROAD WAS CARRIED OUT
VIII #ONSTRUCTION -ATERIAL 3URVEY FOR SUITABILITY OF THE IN SITU MATERIALS ARE ALSO
CARRIED OUT
IX !DDITIONAL DATE COLLECTION WORK FOR THREE SEASONS REQUIRED FOR ASSESSMENT
UNDER ENVIRONMENTAL CONSIDERATION FOR ORA AND FAUNA IN THE PROJECT ARE WERE
CARRIED OUT
X 3OCIO %CONOMIC 3URVEY OF THE 0ROJECT AREA WAS ALSO CARRIED OUT FOR
ENVIRONMENTAL CONSIDERATION
4HESE INVESTIGATIONS WERE CARRIED OUT IN TIME SPAN OF ONE AND HALF YEAR FROM &EBRUARY
GRANTING OF 0/2 BY -O%& TO .OVEMBER SUBMISSION OF $02 AND ON THE
BASIS OF THE INFORMATION COLLATED DURING SUCH INVESTIGATIONS THE PROJECT PROPONENT
SUBMITTED $02 TO THE APPROPRIATE !UTHORITIES 4HAT $02 ADDRESSES ALL ASPECTS INCLUDING
THE TECHNICAL ASPECTS ABOUT THE FEASIBILITY AND ENVIRONMENTAL ISSUES
)N THE AFDAVIT IT IS THEN STATED THAT DUE TO SHIFTING OF THE PROJECT ON THE LEFT BANK THERE
WOULD BE HARDLY ANY REHABILITATION &OR ONLY TWO FAMILIES HAVING HOUSESHOP ARE LIKELY
TO BE DISPLACED 4HE SAID TWO FAMILIES ARE ALREADY HAVING A HOUSE IN UPPER TERRACE AND IN
ANY CASE SUITABLE COMPENSATION WILL BE PAID AS PER 'OVERNMENT OF (IMACHAL 0RADESH
'O(0 AND 'OVERNMENT OF )NDIA 'O) 2EHABILITATION AND 3ETTLEMENT 0OLICY !S AGAINST
THAT THE SETTING UP OF THE PROJECT ON THE RIGHT BANK WOULD RESULT IN AFFECTATION OF ENTIRE
VILLAGES HAVING ABOUT FAMILIES AND THEIR DISPLACEMENT 3IMILARLY THE ADVERSE IMPACT
TO THE ENVIRONMENT WOULD BE FAR SEVERE IF THE PROJECT WERE TO BE SET UP ON THE RIGHT
BANK )T IS ALSO STATED THAT THE PETITIONERS HAVE BEEN ILL ADVISED TO RELY ON THE REPORTS OF
RESPONDENT .O AS THAT RESPONDENT WAS NOT COMPETENT !UTHORITY FOR APPROVAL OF THE
PROJECT BEING VALUED MORE THAN 2S CRORES COST IN TERMS OF 'OVERNMENT NOTICATION
AND THE APPROPRIATE !UTHORITY FOR THE SUBJECT PROJECT IS #%!
)N SUBSTANCE IT IS STATED ON AFDAVIT THAT ALL NECESSARY CARE AND CAUTION HAS BEEN
TAKEN BY THE PROJECT PROPONENT AND ONLY AFTER BEING FULLY CONVINCED THAT SHIFTING
OF THE PROJECT ON THE LEFT BANK WAS IMPERATIVE SUCH PROPOSAL WAS SUBMITTED TO
THE APPROPRIATE !UTHORITY AND WHICH HAS BEEN APPROVED RIGHT UPTO -O%& VIDE
COMMUNICATION DATED 4HAT PERMISSION WAS FOLLOWED BY THE DECISION OF THE
'OVERNMENT OF (IMACHAL 0RADESH CONVEYED BY THE 0RINCIPAL 3ECRETARY 0OWERS VIDE
LETTER DATED -OREOVER THE #HIEF %NGINEER %NERGY $IRECTORATE OF %NERGY ALSO
CONRMED THE LOCATION OF THE PROJECT ON THE LEFT BANK VIDE LETTER DATED 4HE
4 / \
RESPONDENTS HAVE ALSO RELIED ON THE COMMUNICATION ISSUED UNDER THE SIGNATURE OF THE
$EPUTY #OMMISSIONER #HAMBA $ISTRICT DATED SENT TO THE 0RINCIPAL 3ECRETARY
0OWERS THAT NO OBJECTION WAS RAISED BY THE LOCALS REGARDING THE SHIFTING OF THE PROJECT
COMPONENT FROM RIGHT BANK TO LEFT BANK OF RIVER 2AVI ,ASTLY THE 'OVERNMENT OF
(IMACHAL 0RADESH CONRMED AND CONVEYED TO THE #HAIRMAN AND %X
OFCIO 3ECRETARY
OF THE 'OVERNMENT OF )NDIA #ENTRAL %LECTRICITY !UTHORITY #%! VIDE LETTER DATED
THAT RESPONDENT .O PROJECT PROPONENT
COMPANY HAS BEEN ALLOWED TO SHIFT THE
PROJECT COMPONENT FROM RIGHT BANK TO LEFT BANK OF THE RIVER 2AVI 4HE PROPOSAL WAS
ACCOMPANIED BY A DETAILED NOTE OF JUSTICATION FOR EXPLORING WATER CONDUCTOR SYSTEM
AND POWER HOUSE COMPLEX ON LEFT BANK SENT ALONGWITH LETTER OF THE PROJECT PROPONENT
DATED TO THE 0RINCIPAL 3ECRETARY 0OWERS TO THE 'OVERNMENT OF (IMACHAL
0RADESH 3IMILAR COMMUNICATION WAS SENT TO THE !DDITIONAL $IRECTOR -O%& .EW $ELHI
)T IS FURTHER STATED THAT THE (03%" THROUGH #HIEF %NGINEER 030 WHILE REFERRING TO THEIR
MEETING WITH THE PROJECT PROPONENT THROUGH THEIR CONSULTANTS RECOMMENDED THAT
REQUEST OF THE PROJECT PROPONENT FOR SHIFTING THE PROJECT COMPONENTS FROM RIGHT BANK
TO LEFT BANK MAY BE CONSIDERED AND APPROVED VIDE LETTER DATED )T IS STATED
THAT IN ANY CASE RESPONDENT .O (03%" HAS A LIMITED ROLE IN PROCESSING THE PROPOSAL
IN QUESTION AS IT IS ABOVE -7 CAPACITY AND INVOLVING COST OF RUPEES MORE THAN
CRORES BY VIRTUE OF NOTICATION DATED
.OTABLY THE PETITIONERS HAVE NOT CONTROVERTED THE ASSERTIONS SO MADE BY THE
RESPONDENTS ON AFDAVIT 2ATHER EACH FACT IS SUPPORTED BY CONTEMPORANEOUS RECORD
4HE PETITIONERS HOWEVER FOR PURSUING THE GROUND UNDER CONSIDERATION PLACED RELIANCE
ON THE COMMUNICATION DATED ISSUED UNDER THE SIGNATURE OF !DDITIONAL
$IRECTOR -O%& 'OVERNMENT OF )NDIA ADDRESSED TO THE !SSOCIATE 6ICE 0RESIDENT OF THE
PROJECT PROPONENT WHICH REFERS TO THE FACT THAT ON SETTING UP THE PROPOSED PROJECT ON
THE LEFT BANK NO FOREST LAND AND HABITATION WILL BE SUB
MERGED AND THAT CLEARANCE WAS
GRANTED TO THE PROPOSED PROJECT ON THAT UNDERSTANDING )N THE RST PLACE MUCH WATER
HAD OWN AFTER ISSUANCE OF THIS COMMUNICATION BY THE -O%& 'OVERNMENT OF )NDIA
-OREOVER THE OBSERVATION IN THIS COMMUNICATION WAS NOT AFTER DOING COMPARATIVE
STUDY OF PROS AND CONS AS AT THAT TIME THE PROJECT WAS CONCEIVED TO BE ON THE RIGHT
BANK ONLY !S AFORESAID THE PROJECT PROPONENT UNDERTOOK SURVEY AND INVESTIGATIONS
FROM &EBRUARY TO .OVEMBER AND SUBMITTED $02 /N THE BASIS OF THE SAID
$02 APPROVALPERMISSION FROM THE COMPETENT !UTHORITIES FOR SETTING UP THE PROPOSED
PROJECT ON THE LEFT BANK WAS SOUGHT WHICH REQUEST WAS SUPPORTED BY JUSTICATION
STATEMENT 4HAT RECEIVED FAVOURABLE RESPONSE FROM THE COMPETENT !UTHORITIES AND
INCLUDING THE -INISTRY OF %NVIRONMENT AND &OREST 'OVERNMENT OF )NDIA 3UFCE IT
TO OBSERVE THAT THE POSITION RECORDED IN THE COMMUNICATION DATED BECAME
REDUNDANT BECAUSE OF THE SUBSEQUENT PERMISSIONAPPROVAL GRANTED BY THE COMPETENT
!UTHORITIES AND INCLUDING THE -INISTRY OF %NVIRONMENT 'OVERNMENT OF )NDIA
)NDEED THE SAID PETITIONERS HAD RELIED ON THE SUBSEQUENT COMMUNICATION OF #HIEF
%NGINEER ) 0 (03%" DATED WHICH HAS CONCLUDED THAT THE RIGHT BANK OF THE
RIVER 2AVI WAS BEST SUITED FOR CONSTRUCTION OF THE PROJECT TAKING INTO CONSIDERATION
ALL THE ASPECTS NECESSITATED FOR ECONOMICAL AND SOCIAL CONSIDERATION (E FURTHER
CONCLUDED THAT THERE SEEMS THAT NO ASPECTS SUBSTANTIATED TO SHIFT THE PROJECT TO LEFT
BANK AS PROPOSED BY THE COMPANY BY QUOTING VARIOUS SELF VESTED REASONSGROUNDS
4HIS COMMUNICATION IS ADDRESSED TO THE $EPUTY #OMMISSIONER $ISTRICT #HAMBA 7E
ARE AFRAID THIS COMMUNICATION CANNOT BE THE BASIS TO DISREGARD THE FORMAL APPROVALS
PERMISSIONS GIVEN BY THE APPROPRIATE !UTHORITIES AT THE HIGHEST LEVEL AND INCLUDING
THE -INISTRY OF %NVIRONMENT AND &OREST 'OVERNMENT OF )NDIA )N FACT THE RESPONDENTS
HAVE RIGHTLY CONTENDED THAT (03%" HAS HAD NO CONCERN WITH THE SUBJECT PROJECT WHICH
IS FOR ABOVE -7 CAPACITY AND INVOLVING COST OF MORE THAN 2S CRORES BY VIRTUE
OF NOTICATION DATED ISSUED UNDER THE %LECTRICITY !CT )T IS ONLY THE #%!
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
WHOSE OPINION COULD HAVE INUENCED THE NAL APPROVALPERMISSION BY THE COMPETENT
!UTHORITY
4HE ATTEMPT OF THE PETITIONERS WE ND IS TO PLACE RELIANCE ON MATERIALS WHICH HAVE
NO BEARING WHATSOEVER ON THE NAL PERMISSIONAPPROVAL GRANTED BY THE COMPETENT
!UTHORITY )NSTEAD RELIANCE IS PLACED ON CONTENTS OF INTER DEPARTMENTAL CORRESPONDENCE
AT DIFFERENT LEVELS 3UFCE IT TO OBSERVE THAT WE ARE MORE THAN SATISED THAT REQUISITE
PROCEDURE HAS BEEN FOLLOWED AND DUE DILIGENCE HAS BEEN TAKEN BY ALL CONCERNED BEFORE
GRANTING APPROVALPERMISSION FOR SHIFTING OF THE PROJECT ON THE LEFT BANK INSTEAD OF
ORIGINAL PROPOSAL TO SET UP THE SAME ON THE RIGHT BANK OF THE 2IVER 4HE JUSTICATION
NOTE AND THE PROPOSAL SUBMITTED BY THE PROJECT PROPONENT REFERS TO ALL THE RELATIVE
ASPECTS AND INCLUDING THE NECESSITY OF SETTING UP THE PROJECT ON THE LEFT BANK 4HE
#OMPETENT !UTHORITIES HAVING GRANTED APPROVALPERMISSION AFTER CONSIDERING THOSE
MATTERS IT IS NOT OPEN FOR THIS #OURT TO TAKE ANOTHER VIEW !SSUMING THAT TWO OPINIONS
ARE POSSIBLE IT IS NOT OPEN TO THIS #OURT TO ACT UPON THE OBSERVATION OF SOME AUTHORITY
OTHER THAN THE COMPETENT !UTHORITY AND ANSWER THE MATTER IN ISSUE 4HE !PEX #OURT
IN THE CASE OF .ARMADA "ACHAO !NDOLAN VS 5NION OF )NDIA OTHERS IN PARAGRAPH
HAS OBSERVED THAT IF A CONSIDERED POLICY DECISION HAS BEEN TAKEN WHICH IS NOT IN CONICT
WITH ANY LAW OR IS NOT MALA DE IT WILL NOT BE IN PUBLIC INTEREST TO REQUIRE THE #OURT
TO GO INTO AND INVESTIGATE THOSE AREAS WHICH ARE THE FUNCTION OF THE EXECUTIVE 4HE
#OURT FURTHER OPINED THAT FOR ANY PROJECT WHICH IS APPROVED AFTER DUE DELIBERATION THE
#OURT SHOULD REFRAIN FROM BEING ASKED TO REVIEW THE DECISION JUST BECAUSE A PETITIONER
IN LING A PUBLIC INTEREST LITIGATION ALLEGES THAT SUCH A DECISION SHOULD NOT HAVE BEEN
TAKEN BECAUSE AN OPPOSITE VIEW AGAINST THE UNDERTAKING OF THE PROJECT WHICH VIEW
MAY HAVE BEEN CONSIDERED BY THE 'OVERNMENT IS POSSIBLE 4HE #OURT PLAINLY OBSERVED
THAT WHEN TWO OR MORE OPTIONS OR VIEWS ARE POSSIBLE AND AFTER CONSIDERING THEM
THE 'OVERNMENT TAKES A POLICY DECISION IT IS THEN NOT THE FUNCTION OF THE #OURT TO GO
INTO THE MATTER AFRESH AND IN ANY WAY AND SIT IN APPEAL OVER SUCH A POLICY DECISION
!PPLYING THE PRINCIPLE UNDER LYING THIS EXPOSITION THE ARGUMENT OF THE PETITIONERS
UNDER CONSIDERATION DESERVES TO BE STATED TO BE REJECTED
4O GET OVER THIS POSITION THE OTHER SHADE OF THE RST CONTENTION WAS AT THE PUBLIC
HEARING ON THE VILLAGERS HAD VIGOROUSLY OPPOSED THE SETTING UP OF THE PROJECT
ON THE LEFT BANK -OREOVER BESIDES THE 'RAM 3ABHA .AYA 'RAM EVEN THE 'RAM 3ABHA
(OLI HAD GONE ON RECORD THAT THEY WERE OPPOSED TO SETTING UP THE PROJECT ON THE LEFT
BANK OF THE 2IVER )N VIEW OF THE OBJECTION TAKEN BY THE VILLAGERS IN THE 'RAM 3ABHA
THE PERMISSION SHOULD NOT HAVE BEEN GRANTED BY THE COMPETENT !UTHORITIES IN FAVOUR
OF SHIFTING OF THE PROJECT ON THE LEFT BANK 4HIS ARGUMENT WILL HAVE TO BE NEGATIVED FOR
MORE THAN ONE REASON &IRSTLY BECAUSE UPON PERUSAL OF THE MINUTES OF THE MEETING
DATED IT IS SEEN THAT THE OBJECTION TAKEN BY THE PETITIONER .O -ANGI 2AM
WAS THAT THE PROJECT ON THE LEFT BANK MAY CAUSE DAMAGE TO 'HAROH AND FOR WHICH
REASON SUITABLE MEASURES BE TAKEN TO AVOID SUCH DAMAGE TO 'HAROH (E FURTHER STATED
THAT SOME OF THE LOCALS WHO COULD NOT REMAIN PRESENT MAY BE GIVEN OPPORTUNITY OF
HEARING )N THAT SENSE THE OBJECTION WAS NOT POINTEDLY TO THE SHIFTING OF THE PROJECT ON
THE LEFT BANK BUT ONLY EXPRESSING APPREHENSION ABOUT THE DAMAGE LIKELY TO BE CAUSED TO
'HAROH AND TO TAKE CORRECTIVE MEASURES IN THAT BEHALF 4HAT ASPECT WAS DULY CONSIDERED
AND SUGGESTIONS MADE BY THE #HAIRMAN OF THE MEETING WERE TAKEN NOTE OF AND NALLY
EVERYONE PRESENT IN THE PUBLIC MEETING APPROVED THE PROPOSAL FOR SETTING UP OF THE
PROJECT ON THE LEFT BANK !S REGARDS THE SUGGESTION OF GIVING OPPORTUNITY TO LOCALS WHO
COULD NOT REMAIN PRESENT CONSIDERING THE FACT THAT SUFCIENT PUBLIC NOTICE WAS GIVEN
ABOUT PUBLIC HEARING AND THE PUBLIC HEARING WAS HELD ON TWO DIFFERENT DATES RSTLY ON
3##
4 / \
AND THE SECOND PUBLIC HEARING WAS ON COUPLED WITH THE FACT THAT
THE PUBLIC HEARING ON WAS HELD IN TWO SESSIONS AT AM AND THE SECOND
AT PM AND AFTER CONSIDERING ALL THE ASPECTS NAL DECISION WAS TAKEN 4HEREFORE
NO FAULT CAN BE FOUND WITH THE !UTHORITIES HAVING PROCEEDED WITH THE MATTER ON THE
BASIS OF SUCH RECORD )N OTHER WORDS THE CHALLENGE TO THE PERMISSIONAPPROVAL GRANTED
BY THE COMPETENT !UTHORITY ON THE GROUND THAT IT HAS BEEN GIVEN WITHOUT OBSERVING
THE REQUIREMENT OF PUBLIC HEARING AND TAKING NOTE OF THE OPPOSITION OF THE LOCALS TO
SAY THE LEAST IS ILL
ADVISED 4HE RECORD SUBSTANTIATES THE FACT THAT SUFCIENT NOTICE WAS
GIVEN ABOUT THE SCHEDULED PUBLIC HEARING AND ALL PERSONS DURING THE MEETING WERE
ALLOWED TO RAISE THEIR OBJECTIONS AND THE OBJECTIONS SO RAISED WERE DULY CONSIDERED AND
REDRESSED BEFORE RECORDING NAL RESOLUTION OF APPROVING THE SETTING UP THE PLANT ON
THE LEFT BANK OF THE RIVER &URTHER THE OBJECTION TAKEN WAS LIMITED TO APPREHENSION OF
DAMAGE TO ONE AREA 'HAROH AND NOT TO THE ENTIRE PROPOSAL OF SHIFTING THE PROJECT ON THE
LEFT BANK 4HEREFORE WE HAVE NO HESITATION IN TAKING THE VIEW THAT THE ARGUMENT UNDER
CONSIDERATION IS AN ARGUMENT OF DESPERATION
#OUNSEL FOR THE PETITIONERS HAD RELIED UPON THE UN
REPORTED DECISION OF THIS #OURT IN
(ARISH #HANDER ANOTHER VS 3TATE OF (0 OTHERS DATED IN #70 .O
OF AND COMPANION MATTERS (OWEVER THIS DECISION PROCEEDS ON THE NDING THAT
THE AUTHORITIES HAS COMMITTED MANIFEST ERROR IN DISPENSING WITH THE CONVENING OF THE
PUBLIC MEETING 4HE OTHER ASPECT CONSIDERED IN THIS DECISION IS ABOUT THE PROCEDURAL
INRMITY IN THE PROCESS OF ACQUISITION OF LAND AND ABOUT THE IMPACT OF ENVIRONMENT
BECAUSE OF REDUCING THE DISTANCE FROM METERS TO METERS FROM THE FOREST AREA
3UFCE IT TO OBSERVE THAT THIS DECISION IS OF NO AVAIL TO THE PETITIONERS HEREIN
$URING THE REJOINDER THE COUNSEL FOR THE SAID PETITIONERS ONCE AGAIN MADE A FAINT
ATTEMPT TO RAISE THE ARGUMENT THAT THE DECISION TO SHIFT THE PROJECT ON THE LEFT BANK
HAS BEEN TAKEN WITHOUT CONSULTATION OF THE EXPERTS !S NOTED EARLIER THE COUNSEL FOR
THE PETITIONERS HAD GIVEN UP THIS GROUND AS HE COULD NOT POINT OUT ANY PLEADING FROM
THE PETITION IN SUPPORT OF THE SAID GROUND 4HAT BEING A FACTUAL MATTER IN ABSENCE OF
FOUNDATION IN THE WRIT PETITION IN THAT BEHALF IT CANNOT BE TAKEN FORWARD .EVERTHELESS
WE ARE OF THE CONSIDERED OPINION THAT THE PROPOSAL FOR SHIFTING HAS BEEN PROCESSED
THROUGH PROPER CHANNEL AND UPTO THE HIGHEST LEVEL BEFORE GRANTING OF PERMISSION BY THE
-INISTRY OF %NVIRONMENT AND &OREST 'OVERNMENT OF )NDIA %VEN THE %XPERT !PPRAISAL
#OMMITTEE HAD EXAMINED THE SAME AS CAN BE DISCERNED FROM THE COMMUNICATION DATED
ISSUED UNDER THE SIGNATURE OF !DDITIONAL $IRECTOR AND -EMBER
3ECRETARY
%!# ADDRESSED TO THE PRESIDENT OF RESPONDENT .O PROJECT PROPONENT
#OMPANY )N
PARAGRAPH OF THIS COMMUNICATION IT IS STATED THAT THE PROPOSAL WAS CONSIDERED BY THE
%XPERT !PPRAISAL #OMMITTEE FOR REFERRED (YDEL %LECTRICITY 0ROJECT IN ITS MEETING DATED
THST $ECEMBER )N OTHER WORDS EVEN THIS CONTENTION OF THE PETITIONERS IS
FRIVOLOUS VEXATIOUS AND HAS NOT BEEN SUBSTANTIATED FROM THE RECORD 4AKING OVERALL
VIEW OF THE MATTER THEREFORE WE ND THAT THE RST CONTENTION RAISED BY THE PETITIONERS
IS NOT ONLY DEVOID OF MERIT BUT ALSO UNSUBSTANTIATED AND MOTIVATED AND HAS BEEN RAISED
FOR THE REASONS BEST KNOWN TO THEM (ENCE THE SAME IS REJECTED
4HAT TAKES US TO THE SECOND GROUND URGED BY THE SAID PETITIONERS !CCORDING TO THEM
THE PROJECT PROPONENT WAS UNDER OBLIGATION TO ASSESS THE IMPACT ON LANDSCAPE IN
GENERAL AND WILDLIFE ECOLOGICAL ASPECTS IN SPECIC BEFORE NAL SANCTION IS ACCORDED
AS PREDICATED BY #LAUSE
OF THE COMMUNICATION DATED ADDRESSED TO THE
0RINCIPAL 3ECRETARY &OREST (0 'OVT ISSUED UNDER THE SIGNATURE OF !SSISTANT )NSPECTOR
'ENERAL OF &OREST -O%& 'OVERNMENT OF )NDIA 4HE SAID CLAUSE READS THUS
! CUMULATIVE STUDY MAY BE CARRIED OUT BY THE 3TATE 'OVERNMENT ON THE BEHEST OF
ALL PROJECT PROPONENTS ON 2AVI 2IVER TO ASSESS THE IMPACT ON LANDSCAPE IN GENERAL
AND WILDLIFE AND ECOLOGICAL ASPECTS IN SPECIC BEFORE THE NAL SANCTION IS ACCORDED
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
4HE &!# SEEKS SPECIAL EMPHASIS ON THE ISSUES OF FOREST FRAGMENTATION AND LANDSCAPE
LEVEL CHANGES DUE TO DIRECT AND INDIRECT IMPACT OF THE PROJECT 4HE STUDY SHOULD TAKE
INTO ACCOUNT ON MICRO HYDEL PROJECTS EXISTING AND PROPOSED IN THE PROJECT BASIN
MAY BE PROVIDED WITH MAPS
)T IS ALLEGED THAT THE APPROVAL HAS BEEN ACCORDED WITHOUT PREPARING SUCH IMPACT
ASSESSMENT REPORT (OWEVER IT IS NOTICED THAT THE !SSISTANT )NSPECTOR 'ENERAL &ORESTS
-O%& 'OVERNMENT OF )NDIA ISSUED ANOTHER COMMUNICATION DATED ADDRESSED
TO THE 0RINCIPAL 3ECRETARY &OREST 'OVERNMENT OF (IMACHAL 0RADESH BEING PARTIAL
MODICATION OF CONDITION .O REPRODUCED ABOVE 4HE SAID COMMUNICATION READS THUS
& .O
&#
'OVERNMENT OF )NDIA
-INISTRY OF %NVIRONMENT &OREST
&# $IVISION
4O
4HE 0RINCIPAL 3ECRETARY &ORESTS
'OVERNMENT OF (IMACHAL 0RADESH
3HIMLA
3UB 0ARTIAL MODICATION IS CONDITION NO OF THE IN
PRINCIPAL APPROVAL DATED
IN RESPECT OF DIVERSION OF (A OF FOREST LAND FOR IMPLEMENTATION
OF -7 "AJOLI (YDRO %LECTRIC 0ROJECT IN FAVOUR OF -S '-2 "AJOLI (OLI (YDRO
0OWER 0VT ,IMITED IN "HARMOUR &OREST $IVISION IN #HAMBA $ISTRICT OF (IMACHAL
0RADESH
3IR
) AM DIRECTED TO REFER TO THIS -INISTRYS LETTER OF EVEN NO DATED TH *ULY ON THE
SUBJECT MENTIONED ABOVE COMMUNICATED THE IN
PRINCIPAL APPROVAL OF THIS -INISTRY
AND TO SAY THAT CONDITION NO OF THIS LETTER MAY BE READ AS GIVEN BELOW
! CUMULATIVE STUDY MAY BE CARRIED OUT BY THE 3TATE 'OVERNMENT ON BEHEST OF ALL
PROJECT PROPONENTS ON 2AVI 2IVER TO ASSESS THE IMPACT ON LANDSCAPE IN GENERAL
AND WILDLIFE AND ECOLOGICAL ASPECTS IN SPECIC AND THE USER AGENCY SHALL SUBMIT AN
UNDERTAKING TO COMPLY WITH THE ADDITIONAL CONDITIONS THAT THE #ENTRAL 'OVERNMENT
MAY STIPULATE BASED ON OUTCOME OF THE SAID STUDY )SSUES OF FOREST FRAGMENTATION
AND LANDSCAPE LEVEL CHANGES DUE TO DIRECT AND INDIRECT IMPACT OF THE PROJECT SHALL
BE SPECICALLY DEALT IN THE SAID STUDY 4HE STUDY SHOULD ALSO TAKE INTO ACCOUNT ON
MICRO
HYDEL PROJECTS EXISTING AND PROPOSED IN THE PROJECT BASIN MAY BE PROVIDED
WITH MAPS
) AM FURTHER DIRECTED TO REQUEST THE 3TATE 'OVERNMENT TO KINDLY KEEP THIS -INISTRY
INFORMED ON QUARTERLY BASIS REGARDING THE PROGRESS OF THE CUMULATIVE STUDY
9OURS FAITHFULLY
SD
!NITA +ARN
!SSISTANT )NSPECTOR 'ENERAL &ORESTS
EMPHASIS SUPPLIED
4 / \
)T WAS SUBMITTED THAT BY THE SUBSEQUENT COMMUNICATION THE AUTHORITY HAS DILUTED
CONDITION .O TO FAVOUR RESPONDENT .O PROJECT PROPONENT COMPANY 7E ARE NOT
IMPRESSED BY THIS SUBMISSION AT ALL &OR THE REPLY AFDAVIT LED BY RESPONDENT .O
0RINCIPAL 3ECRETARY &OREST 'OVERNMENT OF (IMACHAL 0RADESH BELIES THIS PLEA )N
PARAGRAPH OF THE REPLY AFDAVIT DATED LED IN COMPLIANCE TO THE ORDER OF
THE #OURT DATED IS STATED AS FOLLOWS
4HAT IN THIS REGARD IT IS SUBMITTED THAT VIDE CONDITION NO OF THE IN PRINCIPAL
APPROVAL THE LIABILITY WAS IMPOSED UPON THE 3TATE 'OVT TO CARRY OUT THE STUDY
AND ASSESS THE CUMULATIVE IMPACT ON LANDSCAPE IN GENERAL AND WILD LIFE AND
ECOLOGICAL ASPECT IN SPECIC OF THE RIVER BASIN STUDY TAKING INTO ACCOUNT THE -ICRO
(YDEL 0ROJECTS IN 2AVI BASIN BEFORE ACCORDING THE NAL SANCTION !CCORDINGLY
THE &OREST ,AND WAS RECOMMENDED TO BE DIVERTED FOR THE PURPOSE OF THE BASIS
OF UNDERTAKING GIVEN BY THE RESPONDENT .O THAT ANY CONDITION IMPOSED IN
CONNECTION WITH THE OUTCOME OF THE AFORESAID STUDY CONDUCTED BY THE REPLYING
RESPONDENT SHALL BE COMPLIED WITH THE ADDITIONAL CONDITIONS THAT THE CENTRAL
'OVERNMENT MAY STIPULATE BASED ON THE OUTCOME OF AFORESAID STUDY )N THIS
CONNECTION IT IS SUBMITTED THAT THE 'OVERNMENT OF (0 COMMITTED TO CARRY THE
CUMULATIVE ENVIRONMENT IMPACT ASSESSMENT #%)! STUDY FOR THE 2AVI BASIN
ALONG WITH OTHER RIVER BASIN OF 3ATLUJ #HENAB "EAS AND 9AMUNA AND THE WORK
HAS BEEN ENTRUSTED TO THE $IRECTORATE OF %NERGY 2IVER BASIN STUDIES OF 3ATLUJ AND
#HENAB RIVERS ARE IN PROGRESS AND THE WORK OF CUMULATIVE ENVIRONMENT IMPACT
ASSESSMENT STUDY IN BASINS OF "EAS AND 2AVI RIVERS ARE YET TO BE AWARDED TO
EXECUTING AGENCIES BY THE $IRECTORATE OF %NERGY TO CARRY OUT THE DETAILED STUDY
AND THAT THE MEASURES REQUIRED TO BE TAKEN FOR OVERCOMING THE IMPACTS WHICH
MAY BE CAUSED DUE TO THE IMPLEMENTATION OF THE PROJECTS 4HEREFORE CONSIDERING
THE IMPORTANCE AND NECESSITY OF THE IMPLEMENTATION OF THE PROJECTS AND THE
HUGE MINORITY LOSS INVOLVED DUE TO DELAY IN IMPLEMENTATION THE 'OVERNMENT
OF )NDIA IE RESPONDENT .O HAD PARTIALLY MODIED THE CONDITION .O VIDE ITS
LETTER .O & .O &# DATED TH !UGUST COPY ANNEXED AS !NNEXURE
2 4HEREFORE THE REPLYING RESPONDENT HAD NO MALADE INTENSION IN ANY MANNER
TO IMPLEMENT AND ALLOW THE SANCTIONSEXECUTION OF THE PROJECTS
&URTHER THE RESPONDENT .O PROJECT PROPONENT COMPANY HAS ALSO INVITED OUR ATTENTION
TO THE COMMUNICATION DATED ISSUED UNDER THE SIGNATURE OF 6ICE 0RESIDENT
AND (EAD (YDEL 0ROJECT OF RESPONDENT .O PROJECT PROPONENT COMPANY ADDRESSED TO
THE 0RINCIPAL 3ECRETARY OF THE 3TATE 0OLLUTION #ONTROL "OARD PLACING ON RECORD THAT OUT
OF VE 'RAM 3ABHAS FOUR 'RAM 3ABHAS HAVE GIVEN .O /BJECTION #ERTICATES AND TH
'RAM 3ABHA +ULETH WAS STILL PROCESSING THE PROPOSAL 4HE ./#S WERE ISSUED UNDER THE
SIGNATURE OF !UTHORIZED /FCERS OF FOUR 'RAM 3ABHAS INCLUDING .AYA 'RAM AND (OLI
DATED AND RESPECTIVELY 4HE SAME WERE FORWARDED ALONG WITH THE
SAID COMMUNICATION 2ESPONDENT .O PROJECT PROPONENT COMPANY HAS ALSO RELIED ON
THE ASPECTS CONSIDERED DURING THE PUBLIC HEARING DATED AS ALSO ON
AND INCLUDING THE COMMUNICATION ISSUED UNDER THE SIGNATURE OF 0RINCIPAL 3ECRETARY (0
3TATE 0OLLUTION #ONTROL "OARD DATED ADDRESSED TO THE $IRECTOR %NVIRONMENT
3 4 $EPARTMENT OF %NVIRONMENT 3CIENCE AND 4ECHNOLOGY 'OVERNMENT OF (IMACHAL
0RADESH 3AID COMMUNICATION READS THUS
(0 34!4% 0/,,54)/. #/.42/, "/!2$
()- 0!2)6%3( 0(!3% )))
.%7 $%,()
.O (030#" "AJOLI (OLI (%0 #HAMBA
$ATED
&ROM -EMBER 3ECRETARY
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4O
4HE $IRECTOR %NV 3 4
$EPARTMENT OF %NVIRONMENT 3CIENCE AND 4ECHNOLOGY
.ARAYAN 6ILLA .EAR 7OOD 6ILLA 0ALACE 3HIMLA
3UBJECT %NVIRONMENT 0UBLIC (EARING ON THE PROPOSAL SUBMITTED BY -S '-2 "AJOLI
(OLI (YDRO 0OWER 0VT ,TD /LD 5DDAN "HAWAN ND OOR 4ERMINAL
)')
!IR 0ORT 0ALAM .EW $ELHI
FOR SETTING UP OF -7 "AJOLI
(OLI
(YDROELECTRIC 0ROJECT BASED ON 2IVER 2AVI WITH DIVERSION WORKS NEAR "AJOLI
VILLAGE AT AN ELEVATION OF ABOUT M ABOVE -3, AND 0OWER (OUSE LOCATED
ON THE LEFT BANK OF 2IVER 2AVI NEAR VILLAGE "AROLA $ISTRICT #HAMBA (0
3IR
!CCORDING TO THE PROVISIONS OF %)! .OTICATION .O 3/ DATED AND
THE PROCEDURE PRESCRIBED THEREIN (0 3TATE 0OLLUTION #ONTROL "OARD HAD ORGANIZED
A 0UBLIC (EARING UNDER THE #HAIRMANSHIP OF THE $ISTRICT #OLLECTOR
CUM
$EPUTY
#OMMISSIONER #HAMBA ON THE PROPOSAL OF -S '-2 "AJOLI (YDRO 0OWER 0VT ,TD
/LD 5DDAN "HAWAN ND &LOOR 4ERMINAL
)') !IR 0ORT 0ALAM .EW $ELHI
FOR SETTING UP OF -7 "AJOLI
(OLI (YDROELECTRIC 0ROJECT BASED ON 2IVER 2AVI WITH
DIVERSION WORKS NEAR "AJOLI VILLAGE AT AN ELEVATION OF ABOUT TO ABOVE -3,
IN $ISTRICT #HAMBA AND 0OWER (OUSE LOCATED ON THE LEFT BANK OF 2IVER 2AVI NEAR
VILLAGE "AROLA $ISTRICT #HAMBA (0 IN (OLI 4OWN NEAR &OREST 'UEST (OUSE 4EHSIL
"HARMOUR $ISTRICT #HAMBA (0 ON
AT !-
/N THE BASIS OF THE ISSUE RAISED BY THE 0UBLIC RELATED TO CHANGE OF ALIGNMENT OF
THE PROJECT FROM THE RIGHT BANK TO LEFT BANK OF RIVER 2AVI WITHOUT CONSULTATION AND
./#S FROM THE 'RAM 3ABHAS IT WAS CONCLUDED DURING THE PROCEEDINGS OF THE SAID
0UBLIC (EARING HELD UNDER THE #HAIRMANSHIP OF THE $ISTRICT #OLLECTOR
CUM
$EPUTY
#OMMISSIONER #HAMBA THAT THE 0ROJECT 0ROPONENT SHALL APPROACH THE AFFECTED 'RAM
3ABHAS AND APPRISE THEM ON THE TECHNICAL VIEW AS TO WHY THE PROJECT IS ALIGNED ON
THE LEFT BANK INSTEAD OF RIGHT BANK AND OBTAIN THEIR .O /BJECTION #ERTICATE )T WAS
ALSO CONCLUDED THAT AFTER THE PROPONENT OBTAINS THE .O /BJECTION #ERTICATES FROM
THE AFFECTED 'RAM 3ABHAS THE 0UBLIC (EARING WOULD BE ORGANIZED AGAIN
4HE $EPUTY #OMMISSIONER CUM $ISTRICT #OLLECTOR #HAMBA VIDE ,ETTER .O 22/#"!
"AJOLI (OLI (%0 DATED HAD INFORMED THAT THE 0ROPONENT HAS
OBTAINED .O /BJECTION #ERTICATES FROM ALL THE 0ANCHAYATS WHICH ARE TO BE AFFECTED
DUE TO CONSTRUCTION OF "AJOLI (OLI (YDROELECTRIC 0ROJECT AND HAD ADVISED TO X THE
0UBLIC (EARING ON
)N VIEW OF ABOVE AND ACCORDING TO THE PROVISION OF NOTICATION .O 3/ %
$ATED
AND THE PROCEDURE PRESCRIBED THEREIN THE 3TATE "OARD HAS AGAIN
CONDUCTED THE 0UBLIC (EARING ON
UNDER THE #HAIRMANSHIP OF $ISTRICT
-AGISTRATE #HAMBA ON THE PROPOSAL OF -S '-2 "AJOLI (OLI (YDRO 0OWER 0VT ,TD
/LD 5DDAN "HAWAN ND OOR 4ERMINAL
)') !IR PORT 0ALAM .EW $ELHI
FOR
SETTING UP OF -7 "AJOLI
(OLI (YDROELECTRIC 0ROJECT BASED ON 2IVER 2AVI WITH
DIVERSION WORKS NEAR "AJOLI 6ILLAGE AT AN ELEVATION OF ABOUT IN ABOVE -3, AND
0OWER (OUSE LOCATED ON THE LEFT BANK OF 2IVER NEAR VILLAGE "AROLA $ISTRICT #HAMBA
(0
&URTHER IN VIEW OF THE CONTENTS OF NOTICATION BY THE 3TATE 'OVT ISSUED VIDE .O 34%
2ESTRUCTURING OF 34 % "4 0# 6OL
) DATED
PLEASE ND ENCLOSED
HEREWITH I 0ROCEEDINGS OF THE 0UBLIC (EARING IN (INDI WITH ATTENDANCE SHEET
4 / \
ALONGWITH REPRESENTATIONS RECEIVED DURING THE PUBLIC HEARINGS II 3TATEMENT OF
ISSUES IN %NGLISH AS RAISED IN THE 0UBLIC (EARING III #$6IDEOTAPE OF THE PROCEEDINGS
OF THE 0UBLIC (EARING IV COPIES OF 0UBLIC .OTICES IN %NGLISH AND (INDI PUBLISHED BY
THE 3TATE "OARD IN THE NEW PAPERS
4HE PROCEEDINGS AND ABOVE
MENTIONED INFORMATION ARE BEING SENT TO YOU FOR FURTHER
NECESSARY ACTION IN VIEW OF NOTICATION REFERRED TO ABOVE
%NCLS !S ABOVE
9OURS FAITHFULLY
-EMBER 3ECRETARY
!FTER CONSIDERING THE ABOVE MATERIAL WE HAVE NO HESITATION IN TAKING THE VIEW
THAT THE ARGUMENT UNDER CONSIDERATION ABOUT NOT DISCHARGING THE OBLIGATION AS PER
CONDITION .O OF THE COMMUNICATION DATED IS DEVOID OF MERIT !S IS NOTICED
THE SAID CONDITION CAME TO BE MODIED BY THE #OMPETENT !UTHORITY .OTABLY IT IS
NOT THE CASE OF THE PETITIONERS THAT THE SAID !UTHORITY COULD NOT HAVE MODIED THAT
CONDITION .OR IT IS POSSIBLE TO DISREGARD THE JUSTICATION GIVEN IN THE RESPONSE LED
BEFORE THIS #OURT BY RESPONDENT .O )N THAT SENSE THE MODICATION EFFECTED BY THE
#OMPETENT !UTHORITY VIDE COMMUNICATION DATED OUGHT TO PREVAIL !S PER
THAT CONDITION THE 3TATE 'OVERNMENT WOULD CARRY OUT A CUMULATIVE STUDY OF ALL PROJECT
PROPONENTS ON 2AVI 2IVER TO ASSESS THE IMPACT IN GENERAL AND WILDLIFE AND ECOLOGICAL
ASPECTS IN SPECIC 4HE USER AGENCY IS REQUIRED TO GIVE UNDERTAKING TO COMPLY WITH THE
ADDITIONAL CONDITION THAT THE #ENTRAL 'OVERNMENT MAY STIPULATE ON THE BASIS OF THE
OUTCOME OF SUCH STUDY
)N THE RST PETITION THE PETITIONERS HAVE MERELY REFERRED TO THE COMMUNICATION
IMPOSING CONDITION .O UN
AMENDED DATED #OMMUNICATION DATED
MODIFYING THAT CONDITION HOWEVER WAS BROUGHT ON RECORD BY THE RESPONDENT
ALONG WITH REPLY
AFDAVIT 4HAT INDISPUTABLY IS A MATERIAL DOCUMENT 9ET IT WAS
CONVENIENTLY NOT PRODUCED BY THE PETITIONERS AND NO EXPLANATION IN THAT BEHALF HAS
BEEN OFFERED BY THE SAID PETITIONERS "E THAT AS IT MAY THE SECOND GROUND URGED BY THE
PETITIONERS TO SAY THE LEAST IS AN ATTEMPT TO CAUSE CONFUSION AND MISINFORMATION 4HAT
CANNOT BE COUNTENANCED IN VIEW OF THE MODICATION OF CONDITION .O !CCORDINGLY
EVEN THE SECOND GROUND PRESSED INTO SERVICE DOES NOT COMMEND TO US
4HAT TAKES US TO THE THIRD GROUND AGITATED BY THE SAID PETITIONERS IN THE CONTEXT OF
CONDITION .O CONTAINED IN THE COMMUNICATION DATED ISSUED UNDER
THE SIGNATURE OF !SSISTANT )NSPECTOR 'ENERAL OF &OREST -O%& 'OVERNMENT OF )NDIA
ADDRESSED TO THE 0RINCIPAL 3ECRETARY &ORESTS 'OVERNMENT OF (IMACHAL 0RADESH 4HE
SAME READS THUS
4HE USER AGENCY WILL OBTAIN THE CLEARANCE UNDER THE PROVISIONS OF 34
/4&$
2ECOGNITION OF &OREST 2IGHTS !CT BEFORE THE NAL APPROVAL AND WILL SUBMIT
CERTICATE TOWARDS THE SETTLEMENT OF ALL CLAIMS AND RIGHTS OVER THE PROPOSED
FOREST LAND UNDER THE !CT ALONG WITH THE AS PER THE ADVISORY DATED
ISSUED BY -O%&
4HE SAID PETITIONERS HAVE ALSO PRESSED INTO SERVICE COMMUNICATION DATED
SENT BY THE 3ENIOR !SSISTANT )NSPECTOR 'ENERAL OF &OREST OF -O%& &# $IVISION $IVISION
'OVERNMENT OF )NDIA ADDRESSED TO THE #HIEF 3ECRETARIES OF ALL THE 3TATES AND 5NION
4ERRITORIES 4HE SAME READS THUS
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
&.
&#PT
'OVERNMENT OF )NDIA
-INISTRY OF %NVIRONMENT AND &ORESTS
&# $IVISION
0ARYAVARAN "HAWAN
#'/ #OMPLEX ,ODHI 2OAD
.EW $ELHI
$ATED
4O
4HE #HIEF 3ECRETARY!DMINISTRATOR
!LL 3TATE54 'OVERNMENTS EXCEPT * +
3UBJECT $IVERSION OF FOREST LAND FOR NON
FOREST PURPOSE UNDER THE &OREST
#ONSERVATION !CT
ENSURING COMPLIANCE OF THE 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
3IR
)N CONTINUATION TO THIS -INISTRYS LETTER OF EVEN NUMBER DATED ) AM
DIRECTED TO INVITE THE ATTENTION OF THE 3TATE 'OVERNMENT TO THE OPERATIONALIZATION
OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT WHICH HAS BECOME EFFECTIVE FROM )T IS OBSERVED THAT
THE PROPOSALS UNDER THE &OREST #ONSERVATION !CT ARE BEING RECEIVED FROM
DIFFERENT 3TATES54 'OVERNMENTS WITH THE SUBMISSION THAT THE SETTLEMENT OF RIGHTS
UNDER THE &2! WILL BE CORRELATED LATER ON
!CCORDINGLY TO FORMULATE UNCONDITIONAL PROPOSALS UNDER THE &OREST #ONSERVATION
!CT THE 3TATE54 'OVERNMENTS ARE WHEREVER THE PROCESS OF SETTLEMENT OF
2IGHTS UNDER THE &2! HAS BEEN COMPLETED OR CURRENTLY UNDER PROCESS REQUIRED TO
ENCLOSE EVIDENCES FOR HAVING INITIATED AND COMPLETED THE ABOVE PROCESS ESPECIALLY
AMONG OTHER SECTIONS 3ECTIONS I E AND 4HESE ENCLOSURES OF EVIDENCE
SHALL BE IN THE FORM OF FOLLOWING
A ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT THE COMPLETE PROCESS FOR
IDENTICATION AND SETTLEMENT OF RIGHTS UNDER THE &2! HAS BEEN CARRIED OUT FOR THE
ENTIRE FOREST AREA PROPOSED FOR DIVERSION WITH A RECORD OF ALL CONSULTATIONS AND
MEETINGS HELD
B ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT PROPOSALS FOR SUCH DIVERSION
WITH FULL DETAILS OF THE PROJECT AND ITS IMPLICATIONS IN VERNACULARLOCAL LANGUAGES
HAVE BEEN PLACED BEFORE EACH CONCERNED 'RAM 3ABHA OF FOREST
DWELLERS WHO ARE
ELIGIBLE UNDER THE &2!
C ! LETTER FROM EACH OF THE CONCERNED 'RAM 3ABHAS INDICATING THAT ALL FORMALITIES
PROCESSES UNDER THE &2! HAVE BEEN CARRIED OUT AND THAT THEY HAVE GIVEN THEIR
CONSENT TO THE PROPOSED DIVERSION AND THE COMPENSATORY AND AMELIORATIVE
MEASURES IF ANY HAVING UNDERSTOOD THE PURPOSES AND DETAILS OF PROPOSED
DIVERSION
D ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT THE DIVERSION OF FOREST LAND
FOR FACILITIES MANAGED BY THE 'OVERNMENT AS REQUIRED UNDER SECTION OF THE
4 / \
&2! HAVE BEEN COMPLETED AND THAT THE 'RAM 3ABHAS HAVE CONSENTED TO IT
E ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT DISCUSSIONS AND DECISIONS
ON SUCH PROPOSALS HAD TAKEN PLACE ONLY WHEN THERE WAS A QUORUM OF MINIMUM
OF MEMBERS OF THE 'RAM 3ABHA PRESENT
F /BTAINING THE WRITTEN CONSENT OR REJECTION OF THE 'RAM 3ABHA TO THE PROPOSAL
G ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT THE RIGHTS OF 0RIMITIVE
4RIBAL 'ROUPS AND 0RE
!GRICULTURAL #OMMUNITIES WHERE APPLICABLE HAVE BEEN
SPECICALLY SAFEGUARDED AS PER SECTION E OF THE &2!
H !NY OTHER ASPECT HAVING BEARING ON OPERATIONALISATION OF THE &2!
4HE 3TATE54 'OVERNMENTS WHERE PROCESS OF SETTLEMENT OF 2IGHTS UNDER THE &2!
IS YET TO BEGIN ARE REQUIRED TO ENCLOSE EVIDENCES SUPPORTING THAT SETTLEMENT OF
RIGHTS UNDER &2! WILL BE INITIATED AND COMPLETED BEFORE THE NAL APPROVAL FOR
PROPOSALS
4HIS IS ISSUED WITH THE APPROVAL OF THE -INISTER OF %NVIRONMENT AND &ORESTS
3D
#$ 3INGH
3R !SSISTANT )NSPECTOR 'ENERAL OF &ORESTS
2ELIANCE IS ALSO PLACED ON ANOTHER COMMUNICATION SENT BY THE !SSISTANT )NSPECTOR
'ENERAL OF &ORESTS -O%& &# $IVISION 'OVERNMENT OF )NDIA ADDRESSED TO THE 0RINCIPAL
3ECRETARY &ORESTS 3TATE OF (IMACHAL 0RADESH DATED THE SAME READS THUS
&. &#PT
'OVERNMENT OF )NDIA
-INISTRY OF %NVIRONMENT &OREST
&# $IVISION
0ARYAVARAN "HAWAN
#'/ #OMPLEX ,ODHI 2OAD
.EW $ELHI
$ATED TH 3EPTEMBER
4O
4HE 0RINCIPAL 3ECRETARY &ORESTS
(IMACHAL 0RADESH
3HIMLA
3UB $IVERSION OF &OREST LAND FOR NON
FOREST PURPOSE UNDER THE &OREST #ONSERVATION
!CT
ENSURING COMPLIANCE OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
3IR
)N CONTINUATION OF THIS -INISTRYS LETTER OF EVEN .O DATED ON THE ABOVE
MENTIONED SUBJECT ) AM DIRECTED TO SAY THAT THIS MINISTRY HAS CONSIDERED SPECIC
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
SITUATION AS INTIMATED BY THE (ONBLE #HIEF -INISTRY (IMACHAL 0RADESH VIDE HIS
$/ .O -00
&
$ATED WHERE ACCORDING TO (ONBLE #HIEF
-INISTERS RIGHTS AND CONCESSIONS ON FOREST LAND THROUGHOUT THE 3TATE INCLUDING THE
TRIBAL AREAS HAVE BEEN SETTLED LONG BACK AND RECORDED IN SETTLEMENT REPORTS AND THAT
NO &2! COMPLIANCE ISSUES EXIST WHICH NEED TO BE SETTLED
!CCORDINGLY ) AM DIRECTED TO SAY THAT AFTER EXAMINATION OF THE MATTER THIS
-INISTRY HAS ACCEPTED THE REQUEST OF THE (ONBLE #HIEF -INISTER (IMACHAL 0RADESH
THAT IN CASE OF (IMACHAL 0RADESH A CERTICATE ISSUED BY #OLLECTOR CUM $ISTRICT
#OMMISSIONER OF THE $ISTRICT CONCERNED THAT NO CLAIM UNDER THE 3CHEDULED 4RIBES
AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT EXISTS
ON PENDING IN RESPECT OF FOREST LAND BE CONSIDERED AS SUFCIENT EVIDENCE TO MEET
PROCEDURAL REQUIREMENT OF THE AFORE
MENTIONED !CT 4O ENSURE PROPER SCRUTINY
IN ALL SUCH CASES STAGE
)) APPROVAL WILL HOWEVER BE ACCORDED ONLY AFTER OBTAINING
SPECIC APPROVAL FROM THE #OMPETENT !UTHORITY
4HIS ISSUE WITH APPROVAL OF THE (ONBLE -INISTER OF 3TATE )NDEPENDENT #HARGE FOR
%NVIRONMENT AND &ORESTS
9OURS FAITHFULLY
SD
(# #HAUDHARY
!SSISTANT )NSPECTOR 'ENERAL &ORESTS
4HE ARGUMENT PROCEEDS THAT THE OPINION RECORDED IN THIS COMMUNICATION IS CONTRARY
TO THE PROVISIONS OF LAW 4HE PROVISIONS OF !CT OF MANDATE PROPER PROCEEDINGS
ISSUANCE OF CERTICATE BY THE #OMPETENT !UTHORITY UNDER THAT !CT MENTIONING THE
&OREST DWELLING 3CHEDULED 4RIBES IN THE 3TATE OR IN THE AREAS WHERE THEY HAVE BEEN
DECLARED AS 3CHEDULED 4RIBES IN RESPECT OF ALL FOREST RIGHTS MENTIONED IN 3ECTION AND
THE OTHER TRADITIONAL FOREST DWELLERS IN RESPECT OF ALL FOREST RIGHTS MENTIONED IN 3ECTION
ARE DULY RECOGNIZED AND VESTED IN THEM -OREOVER IN THE COMMUNICATION DATED
THE 'RAM 3ABHA WAS EXPECTED TO ISSUE COMMUNICATION INDICATING THAT ALL
FORMALITIESPROCESSES UNDER THE !CT OF HAVE BEEN CARRIED OUT AND CONSENTED FOR
SETTING UP OF THE PROPOSED PROJECT )T IS CONTENDED THAT THEREFORE THE #HIEF -INISTER
COULD NOT HAVE ISSUED A GENERAL LETTER AND IN ANY CASE THAT CANNOT BE MADE BASIS TO
ASSUME THAT COMPLIANCE OF ALL THE FORMALITIES HAVE BEEN EFFECTED
4HE ARGUMENT THOUGH ATTRACTIVE AT THE RST BLUSH IN OUR OPINION DESERVES TO BE STATED
TO BE REJECTED "EFORE DILATING FURTHER WE DEEM IT APPOSITE TO ADVERT TO THE CONTENTS OF
THE COMMUNICATION SENT BY THE #HIEF -INISTER ON ADDRESSED TO THE -INISTRY
OF %NVIRONMENT AND &OREST 'OVERNMENT OF )NDIA 4HE SAME READS THUS
'UIDELINES ISSUED BY THE -O%& ON REQUIRE PRIOR SETTLEMENT OF ALL CLAIMS
AND RIGHTS OVER THE PROPOSED FOREST LAND UNDER THE PROVISIONS OF THE 3CHEDULED
4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
BEFORE GRANTING FOREST CLEARANCE )N (IMACHAL 0RADESH THE POSITION IS THAT
THE 2IGHTS AND #ONCESSIONS ON FOREST LAND THROUGHOUT THE 3TATE INCLUDING THE TRIBAL
AREAS HAVE LONG BEEN SETTLED AND RECORDED IN 3ETTLEMENT 2EPORTS 4HESE RIGHTS ARE
INHERITABLE THROUGH SUCCESSION AND LOCAL PEOPLERIGHT HOLDERS HAVE BEEN ENJOYING
THEM WITHOUT ANY INFRINGEMENT SINCE THEIR ADMISSION 4HE COMMUNITIES LIVING
IN THE TRIBAL DISTRICTS OF (0 DO NOT FALL IN THE CATEGORY OF 0RIMITIVE 4RIBAL 'ROUPS
FOR 0RE !GRICULTURAL #OMMUNITIES SPECIED FOR ENTITLEMENT UNDER THIS !CT 4HESE
COMMUNITIES 34 AND /THERS ARE NOT EVEN FOREST DWELLING 6AN VASISBANBASIS
4 / \
COMMUNITIES
'IVEN THE ABOVE POSITION IT WOULD BE SEEN THAT THE GUIDELINES OF THE -O%& ARE
ADEQUATELY COMPLIED WITH IN (IMACHAL 0RADESH (OWEVER CERTICATES ISSUED BY
#OLLECTOR
CUM
$EPUTY #OMMISSIONER OF THE $ISTRICT CONCERNED THAT NO CLAIM UNDER
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT IS PENDING IN RESPECT OF FORESTLAND AND SUBMITTED ALONG WITH THE
SPECIC PROPOSALS FOR ENVIRONMENT FOREST CLEARANCE IS NOT BEING CONSIDERED BY -O%&
AS SUFCIENT EVIDENCE TO MEET THE PROCEDURAL REQUIREMENT OF THE !CT 4HIS IS UNDULY
DELAYING CLEARANCE OF MANY DEVELOPMENT PROJECTS AND SPECIALLY HYDEL PROJECTS
) HAD RAISED THIS ISSUE ALONG WITH OTHER CLEARANCE RELATED CONCERNS VIDE MY EARLIER
$/ LETTER .O -00
& DATED TH 3EPTEMBER COPY ENCLOSED ALSO BUT
SO FAR NO RESOLUTION HAS BEEN CONVEYED ) WOULD THEREFORE REQUEST YOUR PERSONAL
INTERVENTION TO RESOLVE THE MATTER WHICH IS IMPEDING THE RAPID DEVELOPMENT OF THE
(YDRO 0OWER POTENTIAL OF (IMACHAL 0RADESH
)T IS ON THE BASIS OF THIS COMMUNICATION THE -INISTRY OF %NVIRONMENT AND &OREST RESPONDED
AND NOTED THAT THE STATEMENT MADE IN THE COMMUNICATION OF THE #HIEF -INISTER WAS
ACCEPTED AND CONSIDERED AS SUFCIENT EVIDENCE TO MEET THE PROCEDURAL REQUIREMENT OF
THE !CT OF )N ADDITION THE $EPUTY #OMMISSIONER #HAMBA ON ISSUED
REQUISITE CERTICATE REGARDING COMPLIANCE OF NECESSARY FORMALITIES UNDER THE !CT OF
AND IN PARTICULAR WITH REFERENCE TO THE SUBJECT PROJECT 4HE SAID CERTICATE READS THUS
#% 24)&)#!4%
2%'!2$).' #/-0,)!.#% /& 3#(%$5,%$ 42)"%3 /4(%2 42!$)4)/.!, &/2%34
$7%,,%23 2#'.)4)/. /& &/2%34 2)'(43 !#4 ). 2%30%#4 /& $)6%23)/.
/& &/2%34 ,!.$ -%!352).' (%#4!2%3 4/ -S '-2 "!*/,) (/,)
(9$2/0/7%2 02)6!4% ,)-)4%$ &/2#.342#)/. /& -7 "!*/,) (/,) (9$2/
%,%#42#02/*%#4 ). 35"
4%(3),
(/,) $)342# #(!-"! ()-!#(!, 02!$%3(
)T IS CERTIED THAT THE COMPLETE PROCESS FOR DIVERSION AND SETTLEMENT OF RIGHTS UNDER
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT HAS BEEN CARRIED OUT FOR THE ENTIRE &OREST AREA OF (ECTARES
PROPOSED FOR DIVERSION FOR CONSTRUCTION OF "AJOLI (OLI HYDRO %LECTRIC PROJECT IN
4EHSIL (OLI DISTRICT #HAMBA (IMACHAL 0RADESH
!S PER VERICATION DULY CONDUCTED THROUGH ELD FUNCTIONARIES IE 3UB $IVISIONAL
/FCER C "HARMOUR4EHSILDAR "HARMOUR CUM INCHARGE 3UB
4EHSIL (OLI AS PER
REPORT OF REVENUE AGENCIES THERE IS NO 0RIMITIVE 4RIBE 'ROUPS 3CHEDULE 4RIBE AND
0RE !GRICULTURE #OMMUNITIES /THER 4RADITIONAL &OREST $WELLERS WERE AVAILABLE
ON THE PROPOSED FOREST LAND PROPOSED TO BE DIVERTED AND WHOSE FOREST 2IGHT !CT
)T IS CERTIED THAT ON THE BASIS OF ELD VERICATION THERE ARE NO SUCH FACILITIES
MANAGED BY 'OVERNMENT REQUIRING DIVERSION OF &OREST LAND UNDER SECTION OF
&OREST 2IGHTS !CT EXIST OVER THE FOREST LAND PROPOSED FOR DIVERSION
0LACE #HAMBA
SD
$EPUTY #OMMISSIONER
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
#HAMBA (IMACHAL 0RADESH
.OTABLY NEITHER THE DECISION OF THE -INISTRY OF %NVIRONMENT AND &OREST NOTED IN
COMMUNICATION DATED NOR THE CERTICATE ISSUED BY THE $EPUTY #OMMISSIONER
DATED HAS BEEN SPECICALLY CHALLENGED OR ANY RELIEF CLAIMED IN THAT BEHALF
)F IT IS SO THE QUESTION OF EXAMINING THE GRIEVANCE OF THE SAID PETITIONERS ANY FURTHER
DOES NOT ARISE )N OTHER WORDS THE CONDITION STIPULATED IN #LAUSE OF COMMUNICATION
DATED HAS BEEN FULLLED BY THE PROJECT PROPONENT 4HE ARGUMENT OF THE SAID
PETITIONERS HOWEVER IS THAT IT IS NOT NECESSARY TO CHALLENGE EVERY DECISION OF THE
CONCERNED AUTHORITIES OR FOR THAT MATTER ANY COMMUNICATION WHICH HAS BEEN MADE BASIS
FOR PERMITTING THE PROJECT PROPONENT TO CONTINUE WITH THE SETTING UP OF THE PROPOSED
PROJECT 4HIS ARGUMENT DOES NOT COMMEND TO US 4HE PETITIONERS CANNOT EXPECT THE
#OURT TO MAKE A ROVING ENQUIRY AND MORE SO TAKE THE OPPOSITE PARTY BY SURPRISE DURING
THE ARGUMENT 4HE GROUNDS OF CHALLENGE OUGHT TO HAVE BEEN PROPERLY ARTICULATED AND
INCLUDING NECESSARY RELIEFS CLAIMED IN THE WRIT PETITION 7E CANNOT COUNTENANCE THE
ARGUMENT THAT LAW OF PLEADINGS WILL HAVE NO APPLICATION TO THE WRIT PETITIONS LED AS
0UBLIC )NTEREST ,ITIGATION .O DOUBT IN THE MATTER OF 0UBLIC )NTEREST ,ITIGATION THE #OURT
MAY BE SOMEWHAT LIBERAL IF THE LARGER PUBLIC INTEREST WARRANTS INTERFERENCE BY THE
#OURT AND NOT TO NON
SUIT THE CAUSE AT THE THRESHOLD ON TECHNICALITIES OR HYPER TECHNICAL
APPROACH 4HAT HOWEVER DOES NOT MEAN THAT WHEN THE PETITIONERS WHO HAVE THE BENET
OF COMPETENT LEGAL ADVICE AND ARE REPRESENTED BY A ,AWYER BEFORE THE #OURT AND WERE
WELL ADVISED TO LE DETAILED PLEADINGS AND INCLUDING BRINGING ON RECORD SEVERAL OFCIAL
DOCUMENTS COUPLED WITH THE FACT THAT THEY WERE FULLY AWARE OF THE STAND TAKEN BY THE
RESPONDENTS IN THE AFDAVIT LED TO OPPOSE THEIR WRIT PETITION SUCH PETITIONERS CANNOT
BE PERMITTED TO USE THE SHIELD OF 0UBLIC )NTEREST ,ITIGATION TO DISREGARD THE PALPABLE
INRMITY IN THEIR PLEADINGS .OTABLY INSPITE OF REPEATED INDICATION GIVEN BY THE #OURT
THE PETITIONERS DID NOT DEEM IT APPROPRIATE TO TAKE REMEDIAL STEPS IF THEY WERE SO
SERIOUS ABOUT PURSUING THE ARGUMENT UNDER CONSIDERATION 3UFCE IT TO OBSERVE THAT
NO ARGUMENT WORTH THE NAME HAS BEEN ADVANCED TO DEMONSTRATE THAT THE !UTHORITY
WHO HAS ACCEPTED THE STAND TAKEN BY THE 3TATE 'OVERNMENT AS INCORPORATED IN THE
COMMUNICATION SENT BY THE #HIEF -INISTER COULD NOT HAVE DONE SO OR SUCH STAND COULD
NOT BE TAKEN BY THE 3TATE OR FOR THAT MATTER TO DOUBT THE COMPETENCY OF THE $EPUTY
#OMMISSIONER IN ISSUING THE CERTICATE DATED )N OUR OPINION THE RECORD
DOES INDICATE THAT NECESSARY COMPLIANCE OF CONDITION .O IN THE COMMUNICATION
DATED HAS BEEN MADE
7E MAY ALSO ADVERT TO THE STAND TAKEN BY THE ,EARNED !SSISTANT 3OLICITOR 'ENERAL
APPEARING FOR THE -INISTRY OF %NVIRONMENT AND &ORESTS WHO HAS STATED THAT THE SAID
$EPARTMENT HAD TAKEN A CONSCIOUS DECISION AS REECTED IN THE COMMUNICATION DATED
AND THERE WAS NO INRMITY IN THE VIEW SO RECORDED )N HIS SUBMISSION THE
COMMUNICATION SENT BY THE #HIEF -INISTER OF THE 3TATE REECTS THE STAND OF THE 3TATE
AND WAS VALID IN ALL RESPECTS &OR THAT REASON NO FAULT CAN BE FOUND WITH THE OPINION
RECORDED IN THE COMMUNICATION DATED AND MORE SO WHEN THE #OMPETENT
!UTHORITY NAMELY $EPUTY #OMMISSIONER HAS ALREADY ISSUED CERTICATE ON
(E SUBMITS THAT SOME INTERDEPARTMENTAL COMMUNICATION BETWEEN THE &# DIVISION OF
-O%& AND THE 4RIBAL !FFAIRS -INISTRY CANNOT BE THE BASIS TO ASSUME THAT THE CERTICATE
ISSUED BY THE #OMPETENT !UTHORITY OF THE 3TATE IS ERRONEOUS 7E ND SUBSTANCE IN THIS
ARGUMENT "ESIDES THE COMMUNICATION SENT BY -INISTRY OF 4RIBAL !FFAIRS TITLED AS /FCE
-EMORANDUM ISSUED UNDER THE SIGNATURE OF $IRECTOR 3' -INISTRY OF 4RIBAL !FFAIRS
DATED IS A GENERAL STAND OF THE SAID -INISTRY AND NOT SPECIC MUCH LESS TO
IMPACT THE APPROVALSPERMISSIONS ALREADY GRANTED BY THE -INISTRY OF %NVIRONMENT TO
THE SUBJECT PROJECT 7E DEEM IT APPOSITE TO REPRODUCE THE SAID COMMUNICATION DATED
WHICH READS THUS
4 / \
& .O
&2!
-INISTRY OF 4RIBAL !FFAIRS
&2! DIVISION
2OOM .O " 7ING
3HASTRI "HAWAN .EW $ELHI
$ATED
/FCE -EMORANDUM
4HE -INISTRY OF %NVIRONMENT AND &ORESTS VIDE LETTER NO & .O &# PT DATED
COPY ATTACHED ADDRESSED TO 0RINCIPAL 3ECRETARY &OREST (IMACHAL
0RADESH HAS ACCEPTED THE REQUEST OF THE (ONBLE #HIEF -INISTER (IMACHAL 0RADESH
THAT IN CASE OF (IMACHAL 0RADESH A CERTICATE ISSUED BY THE #OLLECTOR OF THE $ISTRICT
CONCERNED THAT NO CLAIM UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT EXISTS OR PENDING IN RESPECT
OF FOREST LAND CAN BE CONSIDERED AS A SUFCIENT EVIDENCE TO MEET PROCEDURAL
REQUIREMENT OF THE AFORE MENTIONED !CT 4HIS LETTER HAS BEEN BROUGHT TO THE NOTICE
OF THIS -INISTRY RECENTLY
4HE (ONBLE #HIEF -INISTER (IMACHAL 0RADESH VIDE HIS $/ LETTER NO
-00
&
DATED HAD SOUGHT EXEMPTION FROM COMPLIANCE OF
&2! REGARDING DIVERSION OF FOREST LAND FOR NON
FOREST PURPOSES ON THE GROUND THAT
RIGHTS AND CONCESSION ON FOREST LAND THROUGHOUT THE STATE INCLUDING THE TRIBAL
AREAS HAVE BEEN SETTLED LONG BACK AND RECORDED IN SETTLEMENT REPORTS AND THAT NO
&2! COMPLIANCE ISSUES EXIST WHICH NEED TO BE SETTLED
4HIS -INISTRY IS CONCERNED ABOUT THE LETTER ISSUED BY -O%& CITED ABOVE )N THIS
CONNECTION ) WOULD LIKE TO ONCE AGAIN BRING TO YOUR NOTICE THAT &2! HAS BEEN
ENACTED WITH THE PURPOSE CLEARLY LAID DOWN IN 0REAMBLE OF THE !CT RSTLY TO
RECOGNIZE AND RECORD RIGHTS OF THE FOREST DWELLERS WHO HAVE BEEN RESIDING IN
SUCH FORESTS FOR GENERATIONS AND WHOSE RIGHTS COULD NOT BE RECORDED SECONDLY TO
EMPOWER THEM AND THEIR COMMUNITY INSTITUTIONS AS STATUTORY AUTHORITIES WITH
THE POWER TO PROTECT AND MANAGE FORESTS 4HE 0REAMBLE OF THE !CT STIPULATES THAT
BOTH THESE MEASURES ARE REQUIRED TO ENSURE CONSERVATION OF FORESTS AND ADDRESS
HISTORICAL INJUSTICE DONE TO THE FOREST DWELLERS INCLUDING THOSE FORCED TO RELOCATE
DUE TO 3TATE DEVELOPMENT INTERVENTIONS
)T IS PERTINENT TO MENTION HERE THAT THIS LETTER OF -O%& TO THE 3TATE OF (IMACHAL
0RADESH IS NOT ONLY VIOLATIVE OF THE SPIRIT OF THE &2! BUT ALSO GOES AGAINST
THE CIRCULAR ISSUED BY -O%& ON WHEREIN CLAUSE C REQUIRES CERTICATION
OF 'RAM 3ABHA INDICATING THAT ALL FORMALITIES AND PROCESSES UNDER &2! HAVE BEEN
CARRIED OUT 3INCE CLAIMS UNDER &2! ARE RST RECEIVED BY THE 'RAM 3ABHA THEREFORE
CERTICATES FROM THE 'RAM 3ABHAS MUST BE OBTAINED BEFORE CONCLUDING THAT ALL
RIGHTS UNDER &2! HAVE BEEN SETTLED
(ONBLE -INISTER OF 4RIBAL !FFAIRS ALSO IN HIS LETTER TO (ONBLE -O3 )# -O%&
DATED COPY ATTACHED HAD REITERATED THAT ANY TAKEOVER OR DIVERSION
OF FOREST LAND UNDER ANY OTHER LAW HAS TO RESPECT BOTH PARTS OF THE &OREST 2IGHTS
!CT AS MENTIONED ABOVE )N PARTICULAR IT CANNOT TAKE PLACE UNTIL THE RECOGNITION
OF RIGHTS IS COMPLETE IN THE AREAS AND THE FOREST DWELLERS HAVE EXPRESSED THEIR
COLLECTIVE PRIOR INFORMED CONSENT TO THE DESTRUCTION ANDOR TAKEOVER OF THE FOREST
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
AND TO THE REHABILITATIONCOMPENSATION PLAN THAT IS BEING PROVIDED TO THEM 4HE
SAME LETTER ALSO POINTS THAT 5NDER 3ECTION AND 2ULE 'RAM 3ABHA IS THE
INSTITUTION THAT INITIATES RIGHTS RECOGNITION AND MAY EXTEND IT AS LONG AS REQUIRED
(ENCE IT MUST CERTIFY THAT THE PROCESS IS DONE
&URTHER (ONBLE -INISTER OF 4RIBAL !FFAIRS HAS RECENTLY WRITTEN TO (ONBLE #HIEF
-INISTER OF (IMACHAL 0RADESH $/ .O
&2!PT DATED
COPY ATTACHED STATING THAT 4HE 3TATE 'OVERNMENT HAS BEEN CONSISTENTLY BEEN
TAKING THE STAND THAT RIGHTS OVER FOREST LAND HAS BEEN SETTLED LONG BACK AND
RECORDED IN SETTLEMENT AND THEREFORE THERE IS LIMITED SCOPE OF IMPLEMENTATION
OF &OREST 2IGHTS !CT IN THE 3TATE OF (IMACHAL 0RADESH 4HIS STAND IS NOT CORRECT AS
IN MANY 3TATES RIGHTS OVER FOREST LAND HAS BEEN SETTLED BUT THAT RIGHTS OF FOREST
DWELLERS WERE NOT RECORDED PROPERLY AND AS THE 0REAMBLE OF &2! STATES THAT
THIS !CT IS MEANT TO UNDO THE HISTORICAL INJUSTICE )T IS ALSO PERTINENT TO MENTION
THAT EVEN AFTER SETTLEMENT FRESH RIGHTS ACCRUE OVER A PERIOD TIME 4HEREFORE
IMPLEMENTATION OF &2! CANNOT BE SET ASIDE DUE TO SETTLEMENTS DONE IN THE PAST
4HEREFORE IT IS REQUESTED THAT THIS LETTER IS IMMEDIATELY WITHDRAWN AND THE 3TATE
OF (IMACHAL 0RADESH IS DIRECTED TO COMPLY WITH THE CIRCULAR OF -O%& ISSUED ON
AND ENSURE THAT ALL RIGHTS ARE RECOGNIZED AND VESTED BEFORE ANY FOREST
LAND IS DIVERTED FOR NON
FOREST PURPOSE ) WOULD ALSO REQUEST YOU THAT IN FUTURE
THE -INISTRY OF 4RIBAL !FFAIRS MUST BE CONSULTED BEFORE ANY DIRECTIONS ARE ISSUED
IN MATTERS RELATING TO ENSURING COMPLIANCE OF &2! IN DIVERSION OF FOREST LAND FOR
NON
FOREST PURPOSES
!SIT 'OPAL
$IR3'
EMPHASIS SUPPLIED
4HE STAND TAKEN BY THE LEARNED !SSISTANT 3OLICITOR 'ENERAL IS REINFORCED FROM THIS
COMMUNICATION ANDOR ON FAIR READING OF #LAUSE OF THIS COMMUNICATION IT CONTAINS
GENERAL REMARK THAT IN MANY 3TATES RIGHTS OVER &OREST LAND HAVE BEEN SETTLED BUT
THAT RIGHTS OF DWELLERS WERE NOT RECORDED PROPERLY 4HE PETITIONERS ARE NOT IN A POSITION
TO DEMONSTRATE THAT THE -INISTRY OF 4RIBAL !FFAIRS HAS ISSUED ANY COMMUNICATION
SPECICALLY WITH REFERENCE TO THE SUBJECT PROJECT AND INDICATING THAT THE PROCEDURE
FOLLOWED BY THE 3TATE !UTHORITIES AND APPROVED BY THE -INISTRY OF -O%& 'OVERNMENT
OF )NDIA WAS NOT IN ACCORDANCE WITH LAW MUCH LESS VOID
ABINITIO #ONSIDERING THE
ABOVE AND TAKING OVER ALL VIEW OF THE MATTER WE HAVE NO HESITATION IN CONCLUDING
THAT EVEN THE THIRD GROUND UNDER CONSIDERATION IS COMPLETELY DEVOID OF MERIT AND HAS
BEEN RAISED ONLY ON THE BASIS OF SOME ASSUMPTIONS OR GMENT OF IMAGINATION OF THE
PETITIONERS WHICH ARE NOT SUPPORTED BY ANY TANGIBLE MATERIAL AND DECISIVE ENOUGH TO
INTERDICT THE ACTIVITIES FOR SETTING UP OF THE PROPOSED PROJECT
#OUNSEL FOR THE SAID PETITIONERS WOULD THEN RELY ON THE UNREPORTED DECISION OF THE !PEX
#OURT IN THE CASE OF /RISSA -INING #ORPORATION ,IMITED 6ERSUS -INISTRY OF %NVIRONMENT
AND &ORESTS AND OTHERS BEING WRIT PETITION .O OF DECIDED ON
%MPHASIS WAS PLACED ON PARAGRAPH IN WHICH GUIDELINES ISSUED BY THE -INISTRY OF
%NVIRONMENT AND &ORESTS VIDE LETTER DATED HAVE BEEN REPRODUCED /NE OF
THE GUIDELINE PERTAINS TO THE COMMUNITY RIGHTS AND IN PARTICULAR RELATES TO THE FOREST
PRODUCE RIGHTS INTER ALIA IN THE 3TATE OF (IMACHAL 0RADESH 4HE GUIDELINES FROM WHICH
THE $ISTRICT ,EVEL #OMMITTEE SHOULD ENSURE THAT THE RECORDS OF PRIOR RECORDED NISTRI OR
OTHER TRADITIONAL COMMUNITY RIGHTS ARE PROVIDED TO 'RAM 3ABHAS AND IF CLAIMS ARE LED
FOR RECOGNITION OF SUCH AGE
OLD USUFRUCTORY RIGHTS SUCH CLAIMS ARE NOT REJECTED EXCEPT
4 / \
FOR VALID REASON 7E FAIL TO UNDERSTAND AS TO HOW THIS GUIDELINE HAS ANY BEARING ON THE
FACTUAL MATRIX OF THIS CASE AND IN PARTICULAR IN THE BACKDROP OF ACCEPTANCE OF THE STAND
TAKEN BY THE 3TATE OF (IMACHAL 0RADESH ABOUT THE COMPLIANCE OF NECESSARY FORMALITIES
UNDER THE !CT OF AS NOTED IN THE COMMUNICATION OF -INISTRY OF %NVIRONMENT AND
&ORESTS DATED ,EARNED COUNSEL FOR THE PETITIONERS HAS NOT ADVERTED TO ANY
OTHER PORTION OF THE SAID UNREPORTED JUDGMENT IN SUPPORT OF THE THIRD GROUND WHICH IS
UNDER CONSIDERATION 4HEREFORE WE DO NOT DEEM IT NECESSARY TO DILATE ANY FURTHER ON
THIS JUDGMENT
7E MAY NOW TURN TO THE PRELIMINARY OBJECTIONS TAKEN BY THE RESPONDENTS THAT THE RST
TWO WRIT PETITIONS LED AS 0UBLIC )NTEREST ,ITIGATION SUFFER FROM DELAY AND LACHES AND
FOR WHICH REASON THE #OURT MUST BE LOATH TO INTERFERE AT THIS STAGE WHEN THE PROJECT
PROPONENT HAS ACTED TO ITS DETRIMENT ON THE BASIS OF THE APPROVALPERMISSION GIVEN
BY THE COMPETENT !UTHORITIES )T IS SUBMITTED THAT THE PROJECT PROPONENT RESPONDED
TO THE INTERNATIONAL BIDDING IN !UGUST !S PER THE ONEROUS CONDITIONS TO
PARTICIPATE IN THE SAID BIDDING IT HAD TO PAY SUBSTANTIAL UPFRONT AMOUNT AND AFTER
BEING SUCCESSFUL BIDDER AT THE TIME OF EXECUTION OF PRE
IMPLEMENTATION AGREEMENT
DATED THE PROJECT PROPONENT PAID FURTHER AMOUNT OF 2S CRORES AS ONE OF THE
STIPULATION FOR EXECUTION OF THE SAID AGREEMENT !FTER EXECUTING THAT AGREEMENT THE
PROJECT PROPONENT UNDERTOOK SURVEY AND INVESTIGATIONS AND CONSIDERING ALL ASPECTS
INCLUDING OF SUSTAINABLE DEVELOPMENT $02 WAS SUBMITTED ON 4HE SAME WAS
DONE WITHIN THE TIME SPECIED BY THE 3TATE 'OVERNMENT AS PER THE CONDITIONS IN THE
AGREEMENT .OT ONLY THAT INFORMATION REGARDING SETTING UP OF THE PROPOSED PROJECT
WAS IN PUBLIC DOMAIN AND THE STAGE
) APPROVALSPERMISSIONS WERE ACCORDED BY THE
COMPETENT !UTHORITY ONLY AFTER COMPLIANCE OF ALL THE FORMALITIES AND AFTER TAKING INTO
ACCOUNT THE OBJECTIONS RECEIVED FROM DIFFERENT QUARTERS INCLUDING THE LOCALS 4HE VE
'RAM 0ANCHAYATS GAVE .O /BJECTION #ERTICATES FOR THE SETTING UP OF THE PROPOSED
PROJECT .OTABLY PUBLIC HEARING WAS HELD ON MORE THAN ONE OCCASION !T THAT TIME NOT
ONLY REPRESENTATIVES OF THE CONCERNED 'RAM 3ABHA BUT ALSO THE LOCALS PARTICIPATED !LL
OBJECTIONS RAISED DURING THE SAID MEETINGS WERE DISCUSSED AND SOLUTION WAS OFFERED
IN THOSE MEETINGS %VEN THE %XPERT !PPRAISAL #OMMITTEE ACCORDED APPROVAL TO THE
SETTING UP OF THE PROPOSED PROJECT ON THE LEFT BANK OF THE RIVER /N THE BASIS OF THE
PRE
APPRAISAL REPORT THE 2EVENUE $EPARTMENT IN THE RST PLACE ISSUED )NESCAPABILITY
#ERTICATE IN THE YEAR WHICH WAS FOLLOWED BY THE %SSENTIALITY #ERTICATE ISSUED
BY THE $IRECTOR OF %NERGY ON 4HE PROJECT PROPONENT THEN PROACTIVELY PURSUED
THE PROPOSAL AND WITHOUT WAITING FOR THE CULMINATION OF THE PROCEEDINGS UNDER THE
,AND !CQUISITION !CT ACQUIRED THE LANDS REQUIRED FOR THE PROPOSED PROJECT BY PRIVATE
NEGOTIATIONS WITH THE CONCERNED LAND OWNERS ,AND TO THE EXTENT OF REQUIRED
FOR THE PROJECT HAS ALREADY BEEN PURCHASED BY THE PROJECT PROPONENT BY PAYING
COMPENSATION TO THE EXTENT OF 2S CRORES !LL THESE ACTIVITIES WERE IN PUBLIC DOMAIN
AND AFTER DUE NOTICE TO ALL CONCERNED (OWEVER IT IS ONLY AFTER GRANT OF STAGE
) APPROVAL
TO THE PROPOSED PROJECT THE PETITIONERS IN THE RST PETITION CHOSE TO LE WRIT PETITION
IN &EBRUARY ASKING FOR LIMITED RELIEFS !FTER THE STAGE
)) APPROVAL WAS ACCORDED
BY THE COMPETENT !UTHORITIES THE SECOND WRIT PETITION CAME TO BE LED ON
SEEKING FURTHER RELIEFS THROUGH THE SAME !DVOCATE WITHOUT CHALLENGING THE BASIC
PERMISSIONS AND DECISIONS OF THE COMPETENT !UTHORITIES #ONSIDERING THE ABOVE IT WAS
SUBMITTED BY THE COUNSEL FOR THE PROJECT PROPONENT THAT BOTH THE PETITIONS SHOULD BE
DISMISSED AT THE THRESHOLD ON THE GROUND OF UNEXPLAINED DELAY AND LACHES 4O BUTTRESS
THIS SUBMISSION RELIANCE WAS PLACED ON THE DICTUM OF THE !PEX #OURT IN THE CASE OF
3TATE OF -0 V .ANDLAL )N PARAGRAPH OF THIS DECISION THE #OURT ADVERTED TO FACTS OF
THAT CASE AND FOUND THAT THE WRIT PETITION WAS LED AFTER MONTHS FROM THE PASSING
!)2 3#
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
OF THE POLICY DECISION AND THE RESPONDENTS HAVING ACTED ON THE SAID DECISION AND SPENT
SUBSTANTIAL AMOUNT OF 2S CRORES THE PETITION CANNOT BE ENTERTAINED !PEX #OURT IN
PARAGRAPH OF THE DECISION NOTED THUS
.OW IT IS WELL SETTLED THAT THE POWER OF THE (IGH #OURT TO ISSUE AN APPROPRIATE
WRIT UNDER !RTICLE OF THE #ONSTITUTION IS DISCRETIONARY AND THE (IGH #OURT IN THE
EXERCISE OF ITS DISCRETION DOES NOT ORDINARILY ASSIST THE TARDY AND THE INDOLENT OR THE
ACQUIESCENT AND THE LETHARGIC )F THERE IS INORDINATE DELAY ON THE PART OF THE PETITIONER
IN LING A WRIT PETITION AND SUCH DELAY IS NOT SATISFACTORILY EXPLAINED THE (IGH #OURT
MAY DECLINE TO INTERVENE AND GRANT RELIEF IN THE EXERCISE OF ITS WRIT JURISDICTION
4HE EVOLUTION OF THIS RULE OF LACHES OR DELAY IS PREMISED UPON A NUMBER OF FACTORS
4HE (IGH #OURT DOES NOT ORDINARILY PERMIT A BELATED RESORT TO THE EXTRAORDINARY
REMEDY UNDER THE WRIT JURISDICTION BECAUSE IT IS LIKELY TO CAUSE CONFUSION AND PUBLIC
INCONVENIENCE AND BRING IN ITS TRAIN NEW INJUSTICES 4HE RIGHTS OF THIRD PARTIES
MAY INTERVENE AND IF THE WRIT JURISDICTION IS EXERCISED ON A WRIT PETITION LED AFTER
UNREASONABLE DELAY IT MAY HAVE THE EFFECT OF INICTING NOT ONLY HARDSHIP AND
INCONVENIENCE BUT ALSO INJUSTICE ON THIRD PARTIES 7HEN THE WRIT JURISDICTION OF THE
(IGH #OURT IS INVOKED UNEXPLAINED DELAY COUPLED WITH THE CREATION OF THIRD PARTY
RIGHTS IN THE MEANWHILE IS AN IMPORTANT FACTOR WHICH ALWAYS WEIGHS WITH THE (IGH
#OURT IN DECIDING WHETHER OR NOT TO EXERCISE SUCH JURISDICTION 7E DO NOT THINK IT
NECESSARY TO BURDEN THIS JUDGMENT WITH REFERENCE TO VARIOUS DECISIONS OF THIS #OURT
WHERE IT HAS BEEN EMPHASIZED TIME AND AGAIN THAT WHERE THERE IS INORDINATE AND
UNEXPLAINED DELAY AND THIRD PARTY RIGHTS ARE CREATED IN THE INTERVENING PERIOD
THE (IGH #OURT WOULD DECLINE TO INTERFERE EVEN IF THE 3TATE ACTION COMPLAINED OF
IS UNCONSTITUTIONAL OR ILLEGAL 7E MAY ONLY MENTION IN THE PASSING TWO DECISIONS
OF THIS #OURT ONE IN 2AMANNA $AYARAM 3HETTY V )NTERNATIONAL !IRPORT !UTHORITY OF
)NDIA 3#2 !)2 3# AND THE OTHER IN !SHOK +UMAR V #OLLECTOR
2AIPUR 3#2 !)2 3# 7E MAY POINT OUT THAT IN 2$ 3HETTYS
CASE SUPRA EVEN THOUGH THE 3TATE ACTION WAS HELD TO BE UNCONSTITUTIONAL AS BEING
VIOLATIVE OF !RTICLE OF THE #ONSTITUTION THIS #OURT REFUSED TO GRANT RELIEF TO THE
PETITIONER ON THE GROUND THAT THE WRIT PETITION HAD BEEN LED BY THE PETITIONER MORE
THAN VE MONTHS AFTER THE ACCEPTANCE OF THE TENDER OF THE FOURTH RESPONDENT AND
DURING THAT PERIOD THE FOURTH RESPONDENT HAD INCURRED CONSIDERABLE EXPENDITURE
AGGREGATING TO ABOUT 2S LAKHS IN MAKING ARRANGEMENTS FOR PUTTING UP THE
RESTAURANT AND THE SNACK BAR /F COURSE THIS RULE OF LACHES OR DELAY IS NOT A RIGID RULE
WHICH CAN BE CAST IN A STRAITJACKET FORMULA FOR THERE MAY BE CASES WHERE DESPITE
DELAY AND CREATION OF THIRD PARTY RIGHTS THE (IGH #OURT MAY STILL IN THE EXERCISE OF
ITS DISCRETION INTERFERE AND GRANT RELIEF TO THE PETITIONER "UT SUCH CASES WHERE THE
DEMAND OF JUSTICE IS SO COMPELLING THAT THE (IGH #OURT WOULD BE INCLINED TO INTERFERE
IN SPITE OF DELAY OR CREATION OF THIRD PARTY RIGHTS WOULD BY THEIR VERY NATURE BE FEW
AND FAR BETWEEN 5LTIMATELY IT WOULD BE A MATTER WITHIN THE DISCRETION OF THE #OURT
EX HYPOTHESIS EVERY DISCRETION MUST BE EXERCISED FAIRLY AND JUSTLY SO AS TO PROMOTE
JUSTICE AND NOT TO DEFEAT IT
2ELIANCE IS THEN PLACED ON THE DECISION OF THE !PEX #OURT IN THE CASE OF "OMBAY $YEING
-ANUFACTURING #O ,TD VS "OMBAY %NVIRONMENTAL !CTION 'ROUP /THERS IN PARTICULAR
AT PARAGRAPHS AND THEREOF 4HE SAME READ THUS
$ELAY AND LACHES ON THE PART OF THE WRIT PETITIONERS INDISPUTABLY HAVE A
ROLE TO PLAY IN THE MATTER OF GRANT OF RELIEF IN A WRIT PETITION 4HIS #OURT IN A
LARGE NUMBER OF DECISIONS HAS CATEGORICALLY LAID DOWN THAT WHERE BY REASON
OF DELAY ANDOR LACHES ON THE PART OF THE WRIT PETITIONERS THE PARTIES ALTERED
THEIR POSITIONS ANDOR THIRD
PARTY INTERESTS HAVE BEEN CREATED PUBLIC INTEREST
))) 3##
4 / \
LITIGATIONS MAY BE SUMMARILY DISMISSED $ELAY ALTHOUGH MAY NOT BE THE SOLE
GROUND FOR DISMISSING A PUBLIC INTEREST LITIGATION IN SOME CASES AND THUS
EACH CASE MUST BE CONSIDERED HAVING REGARD TO THE FACTS AND CIRCUMSTANCES
OBTAINING THEREIN THE UNDERLYING EQUITABLE PRINCIPLES CANNOT BE IGNORED !S
REGARDS APPLICABILITY OF THE SAID PRINCIPLES PUBLIC INTEREST LITIGATIONS ARE NO
EXCEPTIONS 7E HAVE HERE TO BEFORE NOTICED THE SCOPE AND OBJECT OF PUBLIC
INTEREST LITIGATION $ELAY OF SUCH A NATURE IN SOME CASES IS CONSIDERED TO BE OF
VITAL IMPORTANCE 3EE #HAIRMAN -$ "0, ,TD 6 30 'URURAJA
(OWEVER WE DO NOT INTEND TO LAY DOWN A LAW THAT DELAY OR LACHES ALONE SHOULD
BE THE SOLE GROUND FOR THROWING OUT A PUBLIC INTEREST LITIGATION IRRESPECTIVE OF
THE MERIT OF THE MATTER OR THE STAGE THEREOF +EEPING IN VIEW THE MAGNITUDE OF
PUBLIC INTEREST THE COURT MAY CONSIDER THE DESIRABILITY TO RELAX THE RIGOURS OF
THE ACCEPTED NORMS 7E DO NOT ACCEPT THE EXPLANATION IN THIS REGARD SOUGHT TO
BE OFFERED BY THE WRIT PETITIONERS 7E HAVE NO DOUBT IN OUR MIND THAT THE WRIT
PETITIONERS ARE GUILTY OF SERIOUS DELAY AND LACHES ON THEIR PART
2ELIANCE IS ALSO PLACED ON THE DECISION IN CASE OF 2 - 4RUST VS +ORAMANGALA 2ESIDENTS
6IGILANCE 'ROUP AND /THERS IN PARTICULAR PARAGRAPHS THEREOF WHICH READ THUS
)N THE CASE OF 3TATE OF -AHARASHTRA VS $IGAMBAR 4HEIR ,ORDSHIPS OBSERVED AS
FOLLOWS 3## P
4HE POWER OF THE (IGH #OURT TO BE EXERCISED UNDER !RTICLE OF THE #ONSTITUTION
IF IS DISCRETIONARY ITS EXERCISE MUST BE JUDICIOUS AND REASONABLE ADMITS OF NO
CONTROVERSY 0ERSONS SEEKING RELIEF AGAINST THE 3TATE UNDER !RTICLE OF THE
#ONSTITUTION BE THEY CITIZENS OR OTHERWISE CANNOT GET DISCRETIONARY RELIEF
OBTAINABLE THEREUNDER UNLESS THEY FULLY SATISFY THE (IGH #OURT THAT THE FACTS AND
CIRCUMSTANCES OF THE CASE CLEARLY JUSTIED THE LACHES OR UNDUE DELAY ON THEIR PART
IN APPROACHING THE #OURT FOR GRANT OF SUCH DISCRETIONARY RELIEF 4HEREFORE WHERE
THE (IGH #OURT GRANTS RELIEF TO A CITIZEN OR ANY OTHER PERSON UNDER !RTICLE OF
THE #ONSTITUTION AGAINST ANY PERSON INCLUDING THE 3TATE WITHOUT CONSIDERING HIS
BLAMEWORTHY CONDUCT SUCH AS LACHES OR UNDUE DELAY ACQUIESCENCE OR WAIVER
THE RELIEF SO GRANTED BECOMES UNSUSTAINABLE EVEN IF THE RELIEF WAS GRANTED IN
RESPECT OF ALLEGED DEPRIVATION OF HIS LEGAL RIGHT BY THE 3TATE
7E ARE IN AGREEMENT WITH THE GRIEVANCE OF RESPONDENT .O PROJECT PROPONENT
#OMPANY THAT IN THE FACT SITUATION OF THE PRESENT CASE THE #OURT SHOULD BE LOATH IN
INTERFERING AT THE INSTANCE OF THESE PETITIONERS
4HE COUNSEL FOR THE SAID WRIT PETITIONERS HOWEVER WAS AT PAINS TO PERSUADE THE #OURT
THAT THE PETITIONER .O IN THE RST PETITION HAD PARTICIPATED IN THE PUBLIC HEARING AND
ALSO RAISED OBJECTIONS THAT CANNOT BE THE BASIS TO NON SUIT THE OTHER PETITIONERS %VEN
THIS ARGUMENT DESERVES TO BE STATED TO BE REJECTED )NASMUCH AS IT IS NOT THE CASE OF THE
OTHER PETITIONERS THAT THE ACTIVITIES REGARDING SETTING UP OF THE PROPOSED PROJECT WERE
NOT IN PUBLIC DOMAIN AT ALL AND WERE DONE SECRETIVELY )T IS NOT THEIR CASE THAT PUBLIC
HEARING WAS NOT HELD AT ALL OR FOR THAT MATTER MEETING WAS CONVENED AT SHORT NOTICE 4HE
RECORD CLEARLY INDICATES THAT SUFCIENT NOTICE WAS GIVEN REGARDING THE PUBLIC HEARING
)F THE OTHER PETITIONERS FAILED TO ATTEND THE MEETING CONVENED TO HOLD PUBLIC HEARING
NOW CANNOT BE HEARD TO COMPLAIN ABOUT THE SAME )N ANY CASE THE GROUNDS ON WHICH
THE PROPOSED PROJECT IS SOUGHT TO BE STALLED OR OBJECTED TO AS FOUND IN THE EARLIER PART OF
THIS JUDGMENT ARE COMPLETELY UNTENABLE AND GMENT OF IMAGINATION OF THE PETITIONERS
4HE SAME HAVE NOT BEEN SUBSTANTIATED FROM THE RECORD AT ALL /N THE OTHER HAND THE
))) 3##
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
RECORD INDICATES TO THE CONTRARY AND SUPPORTS THE STAND OF THE RESPONDENTS 3UFCE IT TO
OBSERVE THAT IN THE WRIT PETITIONS NO EXPLANATION WHATSOEVER MUCHLESS SATISFACTORY OR
PLAUSIBLE EXPLANATION HAS BEEN GIVEN FOR LING OF THE WRIT PETITIONS BELATEDLY AND FOR
WAITING TILL THE APPROVALSPERMISSIONS WERE GRANTED OF 3TAGE
) AND ALSO 3TAGE
)) "OTH
THESE PETITIONS THEREFORE DESERVE TO BE DISMISSED BECAUSE OF UNEXPLAINED DELAY AND
LACHES
4HE LAST ASPECT THAT NEEDS TO BE CONSIDERED IS THE ARGUMENT OF RESPONDENT .O PROJECT
PROPONENT
#OMPANY THAT IN THE FACTS OF THE PRESENT CASE IT IS BUT APPROPRIATE THAT
#OURT MUST NOT ONLY PROVIDE FOR COSTS TO THE RESPONDENTS FOR HAVING BEEN EMBROILED IN
FRIVOLOUS AND VEXATIOUS LITIGATION BUT ALSO EXEMPLARY COSTS AS EACH OF THESE PETITIONS
ARE MOTIVATED 4O BUTTRESS THIS ARGUMENT LEARNED COUNSEL HAS INVITED OUR ATTENTION
TO THE DECISION OF THE !PEX #OURT IN THE CASE OF 2AGHBIR 3INGH 3EHRAWAT VS 3TATE OF
(ARYANA AND /THERS IN WHICH THE #OURT DIRECTED THE OPPOSITE PARTY TO PAY COSTS TO THE
APPELLANT QUANTIED OF 2S LACKS (E SUBMITS THAT SIMILAR AMOUNT BE DIRECTED TO BE
PAID BY EACH OF THE PETITIONERS TO THE RESPECTIVE RESPONDENTS 7E ND SUBSTANCE IN THIS
ARGUMENT 7E HAVE ALREADY NOTICED THAT THE ALLEGATIONS ANDOR GROUNDS URGED IN THE
RESPECTIVE PETITIONS ARE NOT ONLY UNTENABLE BUT IRRESPONSIBLE FRIVOLOUS AND VEXATIOUS
4HESE PETITIONS HAVE BEEN LED WITH PURPOSE BEST KNOWN TO THE PETITIONERS THEREIN
4HE LING OF SUCH PETITIONS INEVITABLY CAUSES CONFUSION AMONGST THE STAKEHOLDERS
3UCH ACTION MUST BE HELD TO BE AGAINST THE LARGER PUBLIC INTEREST AND IS NOT A GENUINE
PUBLIC INTEREST LITIGATION 4HE PETITIONS BEING MOTIVATED AND BEING AN ATTEMPT TO STALL
THE PROJECT WHICH IS BEING SET UP IN LARGER PUBLIC INTEREST AND HAS BEEN VARIOUSLY
SUPPORTED BY THE LOCALS IN ALL RESPECTS EXCEPT THE PETITIONERS OR FEW OTHER DISGRUNTLED
PERSONS ACTING AT THE BEHEST OF THE PETITIONERS HEREIN COUPLED WITH THE FACT THAT THE
!DVOCATE FOR THE PETITIONERS MADE INCOHERENT SUBMISSIONS FOR ALMOST ONE HOUR ON TH
-AY AND THE #OURT HAD NO OPTION BUT TO GIVE HIM SOME MORE TIME FOR BETTER
PREPARATION AND ARTICULATION OF THE ISSUES AND ON TH -AY THE #OURT HAD TO AGAIN
SPEND SUBSTANTIAL PART OF THE DAY IN HEARING THESE MATTERS WHICH AS AFORESAID RAISE
FRIVOLOUS AND VEXATIOUS GROUNDS WE ACCEDE TO THE REQUEST OF RESPONDENT .O PROJECT
PROPONENT
COMPANY THAT THE #OURT WHILE DISMISSING THESE PETITIONS MUST IMPOSE
ATLEAST COSTS TO BE PAID TO THE CONTESTING RESPONDENTS IF NOT EXEMPLARY COSTS
)N THE CIRCUMSTANCES WE ARE NOT ONLY INCLINED TO DISMISS THE RST TWO PETITIONS BUT ALSO
DIRECT THE PETITIONERS IN EACH OF THESE PETITIONS TO PAY COSTS QUANTIED AT 2S
2UPEES 4WENTY &IVE 4HOUSAND EACH TO BE MADE OVER TO THE CONTESTING RESPONDENTS
EQUALLY )N OTHER WORDS FOUR PETITIONERS IN THE RST PETITION SHALL PAY 2S
EACH
IE 2S /NE LAKH AND THE SOLE PETITIONER IN THE SECOND PETITION SHALL ALSO PAY 2S
4HE AGGREGATE AMOUNT OF 2S LAKHS SHALL BE DISTRIBUTED EQUALLY AMONGST I -INISTRY
OF %NVIRONMENT AND &OREST 'OVERNMENT OF )NDIA II (0 3TATE 0OLLUTION #ONTROL "OARD
III (0 3TATE %LECTRICITY "OARD ,IMITED IV (0 3TATE &OREST $EPARTMENT AND V 4HE
0ROJECT 0ROPONENT '-2 "AJOLI
(OLI (YDRO 0OWER 0VT ,TD WHO ARE THE CONTESTING
RESPONDENTS )N OTHER WORDS EACH OF THE ABOVENAMED PARTIES WILL BE ENTITLED TO COSTS
OF 2S
RESPECTIVELY 4HE AMOUNT OF COSTS SHALL BE PAID BY THE PETITIONERS WITHIN
FOUR WEEKS FROM TODAY FAILING WHICH THE #OLLECTOR #HAMBA IS DIRECTED TO RECOVER THE
AFORESAID AMOUNT FROM THE RESPECTIVE PETITIONERS JOINTLY AND SEVERALLY WITHIN EIGHT
WEEKS FROM TODAY AS ARREARS OF LAND REVENUE AND DEPOSIT THE SAME IN THE 2EGISTRY OF
THIS #OURT WITHIN THE SAME TIME
4HAT TAKES US TO THE THIRD PETITION LED BY THE PROJECT PROPONENT 4HAT PETITION WAS
LED BECAUSE OF THE OBSTRUCTIONIST ATTITUDE ADOPTED BY THE RESPONDENT .O TO WHEN
3##
4 / \
THE FURTHER CONSTRUCTION ACTIVITY OF THE PROPOSED PROJECT WAS IN PROGRESS (OWEVER
THE COUNSEL FOR THE PETITIONER THEREIN IN ALL FAIRNESS SUBMITS THAT IN VIEW OF THE REPLY
AFDAVIT LED BY THE 3TATE AND MORE PARTICULARLY BECAUSE THE SITUATION IS NOW UNDER
CONTROL AFTER REGISTRATION OF CRIMINAL CASES AGAINST THE MISCREANTS NOTHING SURVIVES FOR
CONSIDERATION IN THIS PETITION !S A RESULT THIS PETITION IS BEING DISPOSED OF WITH LIBERTY
TO THE SAID PETITIONER PROJECT PROPONENT TO RESORT TO APPROPRIATE REMEDY AGAINST THE
CONCERNED PERSONS IF AND WHEN OCCASION ARISES AND INCLUDING TO PURSUE THE CRIMINAL
CASE ALREADY REGISTERED AGAINST THE CONCERNED ACCUSED AND ALSO FOR CLAIM FOR DAMAGES
AGAINST THEM IF SO ADVISED )N VIEW OF THE ABOVE WE PASS THE FOLLOWING ORDER
I 7RIT PETITION .O OF AND 7RIT 0ETITION .O OF ARE DISMISSED
WITH COSTS QUANTIED AT 2S
TO BE PAID BY EACH OF THE PETITIONERS IN THE
RESPECTIVE PETITIONS TO THE ABOVENAMED CONTESTING RESPONDENTS WITHIN FOUR
WEEKS FROM TODAY FAILING WHICH THE #OLLECTOR #HAMBA IS DIRECTED TO RECOVER THE
AGGREGATE AMOUNT OF 2S LAKHS 2UPEES /NE ,ACK 4WENTY &IVE 4HOUSAND JOINTLY
AND SEVERALLY FROM THE FOUR PETITIONERS IN THE RST PETITION ANDOR SOLE PETITIONER IN
THE SECOND PETITION WITHIN EIGHT WEEKS FROM TODAY AS ARREARS OF LAND REVENUE AND
DEPOSIT THAT AMOUNT IN THE 2EGISTRY OF THIS #OURT TO BE MADE OVER TO I -INISTRY
OF %NVIRONMENT AND &OREST 'OVERNMENT OF )NDIA II (0 3TATE 0OLLUTION #ONTROL
"OARD III (0 3TATE %LECTRICITY "OARD ,IMITED IV (0 3TATE &OREST $EPARTMENT
AND V THE 0ROJECT 0ROPONENT '-2 "AJOLI
(OLI (YDRO 0OWER 0VT ,TD EQUALLY IE
2S
EACH
II 7RIT 0ETITION .O OF IS DISPOSED OF WITH LIBERTY TO THE PETITIONER TO PURSUE
REMEDY AGAINST THE CONCERNED PERSONS IN ACCORDANCE WITH LAW AND INCLUDING
WITHOUT EXPRESSING ANY OPINION ON THE CRIMINAL CASE ALREADY REGISTERED AGAINST
THEM 7ITHDRAWAL OF WRIT PETITION SHOULD NOT BE CONSTRUED AS PETITIONERS HAVING
DILUTED OR WITHDRAWN THE ALLEGATIONS AGAINST THE CONCERNED ACCUSED IN THE
CRIMINAL CASE IN ANY MANNER )N OTHER WORDS THE PETITIONERS ARE FREE TO PURSUE
OTHER REMEDIES AS MAY BE PERMISSIBLE IN LAW
III /RDERED ACCORDINGLY
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
3HER 3INGH /RS VS 3TATE OF
(IMACHAL 0RADESH !NR
23! ./ /& !
()'( #/524 /& ()-!#(!, 02!$%3(
#/2!- +5,$)0 3).'( *
3 5--!29
4HE APPELLANTS HAD FILED A CIVIL SUIT IN THE #OURT OF THE #IVIL *UDGE 3OLAN AS FAR BACK
AS SEEKING DECLARATION THAT THEY HAVE BECOME OWNERS IN POSSESSION OF LAND
AT VILLAGE 3IHARDI #HAMARA BY EFFLUX OF TIME AND FURTHER SEEKING AN INJUNCTION
AGAINST RESPONDENT 3TATE GOVERNMENT FROM DISPOSSESSION
(AVING LOST BEFORE BOTH THE #OURTS BEFORE THEY HAD FILED A SECOND APPEAL BEFORE THE
(IGH #OURT RAISING AN ADDITIONAL GROUND THAT THEY ARE CLAIMANTS UNDER 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2!
4HE APPELLANTS ARGUED THAT THEY BELONG TO THE 3CHEDULED #ASTE COMMUNITY CALLED
"ANGALA RESIDING IN THE VILLAGE FOR LAST SIXTY YEARS 4HEY ALSO CLAIMED THAT THEY
BELONG TO A 3CHEDULED 4RIBE AND TRADITIONALLY DWELL IN THE FOREST AREA BEING
DEPENDENT ON FOREST AND FOREST LAND FOR LIVELIHOOD 4HE APPELLANTS FURTHER ARGUED
THAT THEY WERE ALLOWED TO OCCUPY THE LAND BY THE -AHARAJA OF 0ATIALA IN
!CCORDINGLY THEY CLAIMED OWNERSHIP AND TITLE BY ADVERSE POSSESSION OVER THE LAND
4HE APPELLANTS ALSO ASSERTED THAT THEY HAVE BEEN RECOGNIZED BY THE 'RAM 3ABHA BY
PROVIDING FACILITIES LIKE ROADS STREET LIGHTS AND SO ON
4HE RESPONDENT 3TATE GOVERNMENT ARGUED THAT THE SUIT LAND WAS NEVER ALLOTTED TO
THE APPELLANTS &URTHER THE APPELLANTS ARE NOT DEPENDENT UPON THE FOREST FOR THEIR
LIVELIHOOD THUS THE PROTECTION UNDER THE &2! IS NOT AVAILABLE TO THEM
&).$ ) .' 3 /& 4( % #/524
4HE #OURT HELD THAT THE APPELLANTS HAVE FAILED TO PROVE THAT THE SUIT LAND WAS
ALLOTTED TO THEM BY THE -AHARAJA OF 0ATIALA IN NOR DEMONSTRATED ANY REVENUE
RECORD INDICATING THEIR POSSESSION OVER THE LAND 4HE #OURT EXAMINED IN CLOSE
DETAIL THE EVIDENCE OF SEVERAL WITNESSES AS WELL AS THE DOCUMENTARY EVIDENCE IN
4 / \
THIS REGARD AND CONCLUDED THAT THE TITLE OF THE PETITIONERS WHETHER BY GRANT OR BY
ADVERSE POSSESSION IS NOT PROVED
2EGARDING THE CLAIM OF PROTECTION UNDER THE &2! THE #OURT EXAMINED THE DEFINITION
OF FOREST DWELLING 3CHEDULED 4RIBES 3EC C AND OTHER TRADITIONAL FOREST
DWELLERS 3EC O 4HE #OURT HELD THAT THE APPELLANTS ARE NOT SURE ABOUT WHICH
COMMUNITY OR CASTE THEY BELONG TO AND HAVE FAILED TO PROVE THAT THEY PRIMARILY
RESIDE IN FORESTS AND ARE DEPENDENT ON FORESTS FOR THEIR LIVELIHOOD 4HE #OURT WAS OF
THE VIEW THAT ENCROACHERS ON GOVERNMENT LAND CANNOT ACQUIRE TITLE WITH PASSAGE OF
TIME !CCORDINGLY THE APPEAL WAS DISMISSED
% $ ) 4 /23 . /4%
4HE PRESENT CASE IS A CIVIL SUIT FOR DECLARATION FILED WELL BEFORE THE ENACTMENT OF THE
&2! 4HE EFFORT OF THE APPELLANTS TO RELY UPON THE &2! TO BUTTRESS THEIR FAILING CLAIM
TO OWNERSHIP WAS NOT SURPRISINGLY UNSUCCESSFUL
* 5 $ ' -% . 4
4HE APPELLANTS ARE PLAINTIFFS THEY HAVE LOST IN BOTH THE #OURTS BELOW THEY HAVE ASSAILED
JUDGMENT DECREE DATED PASSED BY LEARNED !DDL $ISTRICT *UDGE 3OLAN IN #IVIL
!PPEAL .O 3 OF AFRMING JUDGMENT DECREE DATED PASSED BY LEARNED
#IVIL *UDGE 3ENIOR $IVISION +ASAULI $ISTRICT 3OLAN (0 IN #IVIL 3UIT .O OF
4HE APPELLANTS HAD LED A SUIT FOR DECLARATION AND INJUNCTION AGAINST THE RESPONDENTS
THAT THEY HAVE BECOME OWNERS IN POSSESSION OF THE LAND AT 3IHARDI #HAMARA BY AFUX
OF TIME 4HEY HAVE ASSAILED THE ORDER PASSED BY THE #OLLECTOR ON IN CASE 3TATE
VS 3HERU AND OTHERS AND ALSO THE ORDER DATED PASSED BY THE #OMMISSIONER
2EVENUE IN APPEAL TITLED 3HERU VS 3TATE OF (0 4HEY HAVE SOUGHT CONSEQUENTIAL RELIEF
OF PERMANENT PROHIBITORY INJUNCTION RESTRAINING THE RESPONDENTS FROM INTERFERING IN THE
OWNERSHIP AND POSSESSION OF THE APPELLANTS OVER THE SUIT LAND
4HE PLEADED CASE OF THE APPELLANTS IS THAT THEY ARE RESIDENTS OF VILLAGE 3IHARDI WHERE
THEY ARE RESIDING FOR THE LAST MORE THAN YEARS 4HE APPELLANTS BELONG TO "ANGALA CASTE
WHICH IS A BACKWARD SECTION OF THE SOCIETY BESIDES BEING SCHEDULED CASTE )T HAS ALSO
BEEN ALLEGED THAT THE APPELLANTS BEING SCHEDULED TRIBES AND TRADITIONALLY DWELL IN FOREST
AREA 4HE APPELLANTS SINCE TIME IMMEMORIAL HAD BEEN ROAMING IN THE FORESTS RESIDING
THERE AND WERE DEPENDENT ON FOREST AND FOREST LAND FOR THEIR LIVELIHOOD
4HE RESPONDENTS .O ISSUED NOTICE TO THE APPELLANTS OF UNAUTHORISED POSSESSION OVER
THE SUIT LAND 4HE #OLLECTOR
CUM
$&/ 3OLAN INITIATED THE PROCEEDING WHICH WAS
CONTESTED BY THE APPELLANTS 4HEY PLEADED THEIR ADVERSE POSSESSION OVER THE SUIT LAND
4HE OWNERSHIP OF THE APPELLANTS WAS RECOGNIZED BY THE 3TATE OF (IMACHAL 0RADESH AS
IT HAD BEEN PROVIDING VARIOUS SUBSIDIES AND GRANTS TO THE APPELLANTS FOR THE PURPOSE OF
CONSTRUCTION OF HOUSES ETC 4HE RESPONDENTS AT NO POINT OF TIME RAISED ANY OBJECTION TO
THE POSSESSION OF THE APPELLANTS
)N THE YEAR "ALDEV 3INGH $&/ VISITED THE SPOT AND ASKED THE APPELLANTS TO REMOVE
THEIR CONSTRUCTIONS FROM THE SUIT LAND 4HE APPELLANTS ASSERTED THAT THEY HAD BEEN
ALLOWED TO OCCUPY THE LAND BY THE 2ULERS AND HAD BEEN GIVEN OWNERSHIP OF THE SAME
4HE APPELLANTS ASSERTED THEIR HOSTILE POSSESSION AND CLAIMED TITLE BY WAY OF ADVERSE
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
POSSESSION OVER THE SUIT LAND
4HE RESPONDENT .O HAS NO JURISDICTION TO ISSUE NOTICE UNDER 3ECTION OF THE (IMACHAL
0RADESH 0UBLIC 0REMISES AND ,AND %VICTION AND 2ENT 2ECOVERY !CT FOR SHORT !CT
)N THE PROCEEDINGS UNDER THE !CT THE APPELLANTS RAISED QUESTION OF TITLE WHICH COULD NOT
BE DECIDED IN SUMMARY MANNER BY THE #OLLECTOR 4HE ORDER DATED PASSED BY THE
#OLLECTOR IS WRONG AND ILLEGAL 3IMILARLY THE ORDER DATED OF THE #OMMISSIONER
2EVENUE IS ALSO WRONG AND ILLEGAL
)T HAS BEEN ALLEGED THAT 'RAM 3ABHA $HARAMPUR UNDER WHOSE JURISDICTION THE SUIT LAND
FALLS HAS RECOGNIZED RIGHTS OF THE PLAINTIFFSAPPELLANTS OVER THE SUIT LAND BY PROVIDING
FACILITIES OF ROADS STREET LIGHTS ETC 4HE RIGHTS OF THE PLAINTIFFS HAVE BEEN RECOGNIZED
UNDER THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT FOR SHORT !CT WHICH PROVIDES PROTECTION TO THE APPELLANTS FROM
THEIR EVICTION
4HE SUIT WAS CONTESTED BY THE RESPONDENTS BY LING WRITTEN STATEMENT 4HEY HAVE
TAKEN PRELIMINARY OBJECTIONS OF JURISDICTION MAINTAINABILITY VALUATION /N MERITS
IT HAS BEEN DENIED THAT THE APPELLANTS ARE RESIDENTS OF VILLAGE 3IHARDI #HAMARA FOR
THE LAST MORE THAN YEARS 4HEY HAVE DEFENDED THE ORDERS PASSED BY THE #OLLECTOR
AS WELL AS #OMMISSIONER 2EVENUE 4HE SUBSIDIES WERE GIVEN BY THE 'OVERNMENT TO
THE APPELLANTS FOR THEIR WELFARE AND NOT FOR ENCROACHING THE FOREST LAND 4HE SUIT LAND
WAS NEVER ALLOTTED TO THE APPELLANTS THEY ARE ENCROACHERS )T HAS BEEN DENIED THAT THE
APPELLANTS HAVE BECOME OWNERS OF THE SUIT LAND BY WAY OF ADVERSE POSSESSION )T HAS
BEEN DENIED THAT THE APPELLANTS ARE DEPENDENT UPON THE FOREST FOR THEIR LIVELIHOOD 4HE
PROTECTION OF !CT IS NOT AVAILABLE TO THE APPELLANTS 4HE APPELLANTS ARE NOT DOING
AGRICULTURAL ACTIVITIES ON THE FOREST LAND NOR THEY ARE SELLING WOOD OR OTHER PRODUCE OF
THE FOREST IN THE MARKET FOR THEIR LIVELIHOOD 4HEY ARE ALSO NOT EARNING THEIR LIVELIHOOD BY
HUNTING 4HE REMAINING CLAIM OF THE APPELLANTS WAS DENIED
4HE APPELLANTS LED REPLICATION /N THE PLEADINGS OF THE PARTIES THE FOLLOWING ISSUES
WERE FRAMED
7HETHER THE ORDER PASSED BY THE DEFENDANT .O IN CASE 3TATE OF (0 VS 3HERU AND
OTHERS ON AND THE ORDER DATED PASSED BY #OMMISSIONER 2EVENUE
IN APPEAL .O TITLED AS 3HERU VS 3TATE OF (0 ARE WRONG ILLEGAL NULL AND
VOID AS ALLEGED /00
7HETHER THE PLAINTIFFS HAVE PERFECTED THEIR TITLE QUA THE SUIT LAND BY WAY OF
ADVERSE POSSESSION AS ALLEGED /00
A 7HETHER THE PLAINTIFFS ARE PROTECTED FROM THEIR EVICTION IN VIEW OF THE PROVISIONS
OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT AS ALLEGED /00
7HETHER THE JURISDICTION OF THIS #OURT TO TRY AND DECIDE THE MATTER IS BARRED UNDER
(0 0UBLIC 0REMISES AND ,AND %VICTION AND 2ENT 2ECOVERY !CT AS ALLEGED /0$
7HETHER THE SUIT IS NOT MAINTAINABLE IN THE PRESENT FORM IN THE EYES OF LAW /0$
7HETHER THE PLAINT DOES NOT DISCLOSE ANY CAUSE OF ACTION AS ALLEGED /0$
7HETHER THE SUIT HAS NOT BEEN PROPERLY VALUED FOR THE PURPOSE OF COURT FEE AND
JURISDICTION /0$
4 / \
2ELIEF
4HE ISSUES .O A AND WERE ANSWERED IN NEGATIVE ISSUE .O IN AFRMATIVE
AND ISSUE .O WAS NOT PRESSED 4HE SUIT OF THE APPELLANT WAS DISMISSED BY THE
LEARNED TRIAL #OURT ON 4HE RST APPEAL LED BY THE APPELLANT WAS DISMISSED
ON HENCE SECOND APPEAL
) HAVE HEARD -R $INESH +UMAR LEARNED COUNSEL FOR THE APPELLANTS AND -R -,
#HAUHAN !DDITIONAL !DVOCATE 'ENERAL FOR THE RESPONDENTS AND HAVE ALSO GONE
THROUGH THE RECORDS /N BEHALF OF THE APPELLANTS IT HAS BEEN SUBMITTED THAT THE LEARNED
#OURTS BELOW HAVE ERRED IN HOLDING THAT THE JURISDICTION OF THE #IVIL #OURT TO TRY THE
SUIT IS BARRED 4HE #OURTS BELOW HAVE WRONGLY HELD AGAINST THE APPELLANTS REGARDING
THEIR PLEA OF ADVERSE POSSESSION 4HE APPELLANTS ARE OTHERWISE PROTECTED UNDER THE
!CT 4HE EVIDENCE HAS BEEN MISCONSTRUED #HAMARU 2AM VS 4HE !DDITIONAL
#OMMISSIONER !PPEALS AND OTHERS #UR ,*(0 AND 2AVINDER 3INGH AND
OTHERS VS 3TATE OF (0 AND OTHERS #UR ,*(0 HAVE BEEN RELIED BY LEARNED
COUNSEL FOR THE APPELLANTS 4HE LEARNED !DDITIONAL !DVOCATE 'ENERAL HAS SUPPORTED
THE IMPUGNED JUDGMENT DECREE AND HAS SUBMITTED THAT THE TWO #OURTS BELOW AFTER
PROPER APPRECIATION OF THE EVIDENCE HAVE CATEGORICALLY RECORDED NDINGS OF FACTS
AGAINST THE APPELLANTS .O SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THE APPEAL )N THE
SECOND APPEAL RE
APPRECIATION OF EVIDENCE IS NOT PERMISSIBLE
4HE SUIT WAS INITIALLY DISMISSED ON )N APPEAL LEARNED $ISTRICT *UDGE ALLOWED
THE AMENDMENT APPLICATION OF THE APPELLANTS 4HE APPEAL WAS ACCEPTED ON
AND THE SUIT WAS REMANDED WITH A DIRECTION TO THE TRIAL #OURT TO GIVE OPPORTUNITY TO THE
RESPONDENTS TO LE WRITTEN STATEMENT TO THE AMENDED PLAINT 4HE PARTIES WERE GIVEN
OPPORTUNITY TO LEAD EVIDENCE ON NEW ISSUES IF ANY 4HE TRIAL #OURT THEREAFTER DISMISSED
THE SUIT ON AND LEARNED !DDITIONAL $ISTRICT *UDGE ON AFRMED THE
JUDGMENT DECREE DATED OF THE LEARNED TRIAL #OURT
4HE APPELLANTS HAVE ASSAILED THE ORDERS DATED AND 4HEY HAVE SOUGHT
DECLARATION THAT THEY ARE OWNERS OF THE LAND AND STRUCTURES MENTIONED IN THE ORDER
DATED 4HEY HAVE ACQUIRED THEIR TITLE ON THE BASIS OF ADVERSE POSSESSION OF
OVER YEARS )N ALTERNATIVE THEY HAVE RIGHT TO HOLD AND POSSESS THE LAND UNDER
!CT 4HEY HAVE PRAYED INJUNCTION AGAINST THE RESPONDENTS FROM INTERFERENCE OVER THE
SUIT LAND 4HE APPELLANTS HAVE PLEADED THAT RESPONDENT .O HAD ISSUED NOTICES TO
APPELLANTS IDENTIFYING THEIR POSSESSION OVER DIFFERENT PARTS OF KHASRA .O FROM TO
BISWAS ON FOREST LAND SITUATE IN 3IHARDI
4HE APPELLANTS HAVE PLEADED THAT THEY HAVE BEEN RESIDING IN A VILLAGE 3IHARDI #HAMARA
FOR THE LAST MORE THAN
YEARS AND THEY ARE SCHEDULED CASTE 4HEY ARE DEPENDENT
UPON FOREST LAND FOR BONADE LIVELIHOOD 4HEY ARE SCHEDULED TRIBES AND TRADITIONALLY
DWELL IN FOREST AREA 4HE RESPONDENT .O HAS NO JURISDICTION UNDER THE !CT TO PROCEED
AGAINST THE APPELLANTS WHO ARE OTHERWISE PROTECTED UNDER THE !CT
4HE APPELLANTS HAVE NOT PLACED ON RECORD THE REVENUE RECORD INDICATING THEIR POSSESSION
OVER THE SUIT LAND 4HEY HAVE PRODUCED APPLICATIONS AND ELECTRICITY CONNECTION ORDERS
%X 07
" TO %X 07
& %X 07
& IS THE APPLICATION DATED AND %X 07
%
IS THE CONNECTION ORDER IN FAVOUR OF "HONDOO 2AM %X 07
$ IS THE APPLICATION DATED
AND %X 07
# IS THE CONNECTION ORDER DATED IN FAVOUR OF 3UKH 2AM
%X 07
" IS THE APPLICATION OF 3ADH 2AM PRESENTED ON
07
3ADH 2AM HAS TENDERED IN EVIDENCE HIS AFDAVIT %X 07
! THE COPY OF ORDER
DATED %X 07
" AND COPY OF GROUNDS OF APPEAL %X 07
# AND COPY OF ORDER
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
OF #OMMISSIONER MARK ! )N AFDAVIT %X 07
! HE HAS STATED THAT IN OR AROUND THE
YEAR 3HIRADI #HAMARA AREA WAS IN 0ATIALA 3TATE -AHARAJA OF 0ATIALA WAS PLEASED
WITH THE SERVICES RENDERED BY THEIR COMMUNITY AND GRANTEDGIFTED THE SUIT LAND TO THEIR
ANCESTORS AND SINCE THEN THEY ARE RESIDING OVER THE SUIT LAND (E FURTHER DEPOSED THAT
HIS ANCESTORS DISCONTINUED MOVING FROM PLACE TO PLACE DEVELOPED THE LAND AND SETTLED
THERE BY RAISING PERMANENT STRUCTURES 4HE HOUSES WERE CONSTRUCTED IN THE YEAR
4HE ANCESTORS BECAME OWNERS OF THE SUIT LAND ON THE BASIS OF THE GIFT 4HE 3TATE OF
(0 ALSO TREATED THEM AS OWNERS AND GRANTED NANCIAL HELP FOR IMPROVEMENT OF THEIR
HOUSES 4HE DEFENDANTS HAVE NO JURISDICTION TO ADJUDICATE THE COMPLICATED QUESTIONS
OF GIFT (E HAS STATED THAT IN ALTERNATIVE THE PLAINTIFFS HAVE BECOME OWNERS OF THE SUIT
LAND ON THE BASIS OF HOSTILE POSSESSION "ALDEV 3INGH $&/ VISITED THE SPOT IN THE YEAR
(E WAS TOLD THAT THE SUIT LAND WAS ALLOTTED TO THE PLAINTIFFS BY -AHARAJA 0ATIALA IN
THE YEAR "ALDEV 3INGH TOLD THE PLAINTIFFS THAT THEY WERE IN ILLEGAL POSSESSION 4HEY
ASSERTED THEIR OWNERSHIP ON THE SUIT LAND 4HE PLAINTIFFS BELONG TO 3CHEDULED #ASTE )N
CROSS
EXAMINATION HE HAS STATED THAT HIS HOUSE WAS CONSTRUCTED
YEARS AGO HIS
STATEMENT WAS RECORDED ON 4HEY NEVER GOT THEIR POSSESSION RECORDED WITH
THE 0ATWARI (E HAS NO PROOF OF ALLOTMENT OF LAND BY WAY OF GIFT (E DENIED THAT HOUSES
WERE CONSTRUCTED BY THEM RECENTLY
07
2AJESH +UMAR TENDERED IN EVIDENCE HIS AFDAVIT %X 07
! WHICH IS MORE OR
LESS ON THE SAME LINES AS AFDAVIT %X 07
! )N CROSS
EXAMINATION HE HAS STATED
THAT HE IS WORKING IN (OT
-ILLIONS (E CONSTRUCTED HIS HOUSE IN THE YEAR 07
!SHOK 'UPTA HAS TENDERED IN EVIDENCE HIS AFDAVIT %X 07
! (E HAS STATED THAT HE
REMAINED 6ICE
0RADHAN OF 'RAM 0ANCHAYAT $HARAMPUR 4HE VILLAGE 3IHARDI #HAMARA
IS PART OF 'RAM 0ANCHAYAT $HARAMPUR (E HAS STATED THAT IN THE YEAR RE BROKE
OUT IN 3IHARDI #HAMARA 4HE ANCESTORS OF THE PLAINTIFFS HELPED THE OFCIALS OF -AHARAJA
0ATIALA IN EXTINGUISHING THE RE -AHARAJA 0ATIALA GIFTED THE SUIT LAND TO THE ANCESTORS
OF THE PLAINTIFFS !LL HOUSES OF THE PLAINTIFFS WERE CONSTRUCTED BEFORE INDEPENDENCE IN
THE YEAR
-AHARAJA 0ATIALA WAS THE OWNER OF THE SUIT LAND THEREAFTER THE LAND
VESTED IN THE 3TATE OF (IMACHAL 0RADESH BUT POSSESSION REMAINED WITH PREDECESSORS
IN
INTEREST OF THE PLAINTIFFS "ALDEV 3INGH $&/ VISITED THE AREA IN THE YEAR (E ASKED
THE PLAINTIFFS OR THEIR ANCESTORS TO VACATE THE FOREST LAND (E WAS INFORMED THAT THE SUIT
LAND HAD BEEN ALLOTTED TO THE PLAINTIFFS OR THEIR PREDECESSORS BY -AHARAJA 0ATIALA )N
CROSS
EXAMINATION HE HAS STATED THAT HE HEARD OF RE BUT DID NOT SEE HIMSELF (E HAS
GIVEN HIS DATE OF BIRTH (E IS THE 0RESIDENT OF 'RAM 0ANCHAYAT $HARAMPUR (E
NEVER ENQUIRED THAT COLONY OF THE PLAINTIFFS IS ILLEGAL AND THEREFORE PANCHAYAT FUNDS
SHOULD NOT BE SPENT IN SUCH COLONY
07 'URDEV 3INGH IN EXAMINATION IN CHIEF HAS TENDERED HIS AFDAVIT %X 07 ! WHICH
IS MORE OR LESS ON THE SAME LINES AS %X 07 ! )N CROSS EXAMINATION HE HAS STATED THAT
HE IS LIVING IN $HARAMPUR SINCE -AHARAJA 0ATIALA HAD GIVEN THE LAND IN DISPUTE
4HE COLONY IS IN FOREST LAND (E REMAINED MEMBER 'RAM 0ANCHAYAT $HARAMPUR TWICE
4HE FOREST LAND CANNOT BE ALLOTTED BY THE 'OVERNMENT 4HE 'OVERNMENT DOES NOT
PROVIDE ANY AID TO UNAUTHORISED COLONY 07 .ANAK 3INGH IN EXAMINATION IN CHIEF HAS
TENDERED HIS AFDAVIT %X 07 ! IN WHICH HE HAS DEPOSED LIKE THE AFDAVITS OF OTHER
WITNESSES )N CROSS EXAMINATION HE HAS STATED THAT HE HAD HEARD THAT IN #HAMARA
FOREST THERE WAS AN INCIDENT OF RE -AHARAJA 0ATIALA ORALLY REHABILITATED THE PLAINTIFFS
(E REMAINED MEMBER AND 6ICE 0RESIDENT OF THE 0ANCHAYAT FROM TO (E NEVER
ENQUIRED THAT COLONY IS AUTHORIZED OR UNAUTHORISED 07 *AI +RISHAN -ETER 2EADER
%LECTRICAL 3UB $IVISION $HARAMPUR HAS PROVED APPLICATIONS AND CONNECTION ORDERS %X
07 ! TO %X 07 &
07 "ALDEV 3INGH HAS TENDERED IN EVIDENCE HIS AFDAVIT %X 07 ! IN WHICH HE HAS
STATED THAT IN HE WAS POSTED AS $&/ 3OLAN )N HE FOUND VARIOUS HOUSES ON
4 / \
THE FOREST LAND (E WAS TOLD THAT THE LAND WAS GIVEN TO THE "ANGALA COMMUNITY PEOPLE
BY -AHARAJA 0ATIALA IN GIFT )T WAS FOUND THAT THOSE PERSONS WERE IN POSSESSION OF THE
LAND SINCE )N CROSS
EXAMINATION HE HAS STATED THAT "ANGALA COMMUNITY PEOPLE
ARE ENGAGED IN SMALL TRADES )N HE FOUND ABOUT HOUSES ON THE LAND SOME WERE
KATCHA AND SOME WERE PUCCA 07
"EER 3INGH OFCE 3UPERINTENDENT 'RAM 0ANCHAYAT
$HARAMPUR HAS PROVED PANCHAYAT RESOLUTIONS %X 07
! TO %X 07
( AND %X 07
* TO %X 07
,
!FTER REMAND OF THE CASE 07
3ADH 2AM TENDERED HIS AFDAVIT %X 07
!
IN
EXAMINATION IN CHIEF AND STATED THAT THEIR MAIN SOURCE OF LIVELIHOOD HAS BEEN TO COLLECT
FOREST PRODUCE CATCH SNAKES ETC IN THE JUNGLE 4HEY ARE "ANGALA BY CASTE 4HEY HAD
BEEN COLLECTING DRY WOOD FROM JUNGLE SELLING IT TO MEET THEIR BASIC NEEDS )N CROSS
EXAMINATION HE HAS STATED THAT THEY ARE NOT HUNTING THEY COLLECT WASTE MATERIAL MANY
OF THEM ARE EMPLOYED IN DIFFERENT JOBS 07
2AJESH +UMAR HAS TENDERED IN EVIDENCE
HIS AFDAVIT %X 07
!
(E HAS DEPOSED LIKE 07
)N FACT ON MATERIAL PARTICULARS %X
07
!
AND %X 07
!
ARE IDENTICAL )N CROSS
EXAMINATION 07
HAS STATED THAT
"ANGALA COMMUNITY PEOPLE ROAM HERE AND THERE (E STATED THAT HE IS EMPLOYED IN A
HOTEL 07
!SHOK +UMAR 'UPTA 0RESIDENT 'RAM 0ANCHAYAT $HARAMPUR HAS TENDERED
IN EVIDENCE HIS AFDAVIT %X 07
!
WHICH ON MATERIAL PARTICULARS IS IDENTICAL TO %X
07
!
)N CROSS
EXAMINATION HE HAS DENIED THAT THE SUIT LAND IS FOREST LAND 4HE FOREST
LAND CANNOT BE ALLOTTED TO ANYONE (E HAS STATED THAT "ANGALA COMMUNITY PEOPLE DO
NOT STAY AT ONE PLACE THEY ROAM ABOUT 07
'URDEV 3INGH HAS TENDERED IN EVIDENCE
HIS AFDAVIT %X 07
!
WHICH ON MATERIAL PARTICULARS IS IDENTICAL TO THE EXAMINATION
IN CHIEF OF 07
TO 07
)N CROSS
EXAMINATION HE HAS STATED THAT IN 3IHARDI #HAMARA
FOREST "ANGALA COMMUNITY PEOPLE ARE RESIDING
$7 (ITENDER 3HARMA 2/ 3UBATHU 2ANGE HAS TENDERED IN EVIDENCE HIS AFDAVIT %X
$7 ! AND HAS STATED THAT THE PLAINTIFFS HAD BEEN OCCUPYING FOREST LAND ILLEGALLY
NOTICE WAS ISSUED UNDER THE !CT 4HE SUIT LAND WAS NEVER ALLOTTED TO THE PLAINTIFFS
BY -AHARAJA 0ATIALA 4HE SUIT LAND CAME IN POSSESSION OF &OREST $EPARTMENT IN
SETTLEMENT AND IS CONTINUING 4HE POSSESSION OF THE PLAINTIFFS WAS DETECTED DURING
FOREST SETTLEMENT "ALDEV 3INGH 2ETD $&/ DID NOT VISIT THE SUIT LAND IN
4HE FOREST LAND CANNOT BE ALLOTTED )N CROSS EXAMINATION HE ADMITTED THAT %X 0 %X
0 AND %X 0 ARE OF THE SUIT LAND (E DENIED THAT %X 07 ! TO %X 07 , ARE THE
DETAILS OF WORKS DONE ON THE SPOT
$7 +AKA 2AM &OREST +ANUNGO HAS TENDERED IN EVIDENCE HIS AFDAVIT %X $7 ! IN
WHICH HE HAS STATED THAT OWNERSHIP OF THE 3TATE AND POSSESSION OF &OREST $EPARTMENT
HAS BEEN CORRECTLY RECORDED IN THE REVENUE RECORD (E WAS POSTED AS 0ATWARI IN 3OLAN
&OREST $IVISION DURING )N ENCROACHMENTS OF PLAINTIFFS WERE DETECTED
DURING FOREST SETTLEMENT )N CROSS EXAMINATION HE HAS STATED THAT PHOTOGRAPHS %X 0
TO %X 0 ARE OF THE SPOT (E HAS NO KNOWLEDGE OF THE SPOT SITUATION BEFORE FOREST
SETTLEMENT 4HE RESPONDENTS DID NOT LEAD EVIDENCE AFTER REMAND
4HE CASE OF THE APPELLANTS IN BRIEF IS THAT -AHARAJA 0ATIALA GIFTED THE SUIT LAND TO THE
PREDECESSORS OF THE APPELLANTS AROUND THE YEAR THEY CONSTRUCTED THEIR HOUSES
IMMEDIATELY THEREAFTER AND SINCE THEN THEY ARE RESIDING IN THE HOUSES CONSTRUCTED
OVER THE SUIT LAND )N ALTERNATIVE THE APPELLANTS HAVE PROJECTED THEIR CASE OF ADVERSE
POSSESSION 4HEY HAVE ALSO SOUGHT PROTECTION UNDER THE !CT 4HE CONSTRUCTION
OF HOUSES OVER THE SUIT LAND SOME KATCHA AND SOME PUCCA HAS BEEN ESTABLISHED BUT
IT IS THE CASE OF THE RESPONDENTS THAT ENCROACHMENTS OF THE APPELLANTS OVER THE SUIT
LAND WERE DETECTED IN THE YEAR
DURING FOREST SETTLEMENT THEREAFTER STEPS WERE
TAKEN FOR EVICTING THE APPELLANTS FROM THE SUIT LAND 4HE #OLLECTOR FOUND THE APPELLANTS
AND OTHERS ENCROACHERS OVER THE SUIT LAND THEY WERE ORDERED TO BE EJECTED VIDE ORDER
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
DATED %X 07 " WHICH WAS UPHELD BY THE #OMMISSIONER ON
4HE APPELLANTS HAVE MISERABLY FAILED TO PROVE THAT THE SUIT LAND WAS ALLOTTED TO THEM
BY -AHARAJA 0ATIALA AROUND THE YEAR 4HE APPELLANTS HAVE NOT PRODUCED ANY
WRITTEN ORDER OR ORAL ORDER OF -AHARAJA GIVEN EFFECT IN THE REVENUE RECORD TO SHOW
THAT THE SUIT LAND IN FACT WAS ALLOTTED TO THE APPELLANTS BY -AHARAJA 0ATIALA IN THE YEAR
4HE APPELLANTS HAVE ALLEGED THAT EVEN RESPONDENT .O WHILE ACKNOWLEDGING
THE OWNERSHIP OF APPELLANTS IN THE PAST HAD PROVIDED SEVERAL COMMON FACILITIES TO THE
APPELLANTS )T HAS BEEN PROVED ON RECORD THAT THE SUIT LAND IS PART OF FOREST LAND 4HE
WITNESSES OF THE APPELLANTS HAVE STATED THAT THE FOREST LAND CANNOT BE ALLOTTED AND
FOR ILLEGAL COLONIES NO FACILITIES CAN BE PROVIDED BY THE 0ANCHAYAT "UT IT APPEARS THAT
0ANCHAYAT REPRESENTATIVES IN ORDER TO WOO THE VOTERS OF THE UNAUTHORISED COLONY OF
THE APPELLANTS PROVIDED THEM SOME COMMON FACILITIES BUT THAT WILL NOT LEGALIZE THE
UNAUTHORISED COLONY OF APPELLANTS AND OTHERS OVER FOREST LAND 4HE SIMPLE POSSESSION
OF THE APPELLANTS OVER THE SUIT LAND WILL NOT TRANSFORM INTO LEGAL TITLE
4HE APPELLANTS HAVE TAKEN CONTRADICTORY PLEA OF OWNERSHIP BY WAY OF GIFT OVER THE
SUIT LAND AND TITLE OVER THE SUIT PROPERTY BY WAY OF ADVERSE POSSESSION 4HE POSSESSION
HOWSOEVER LONG IS NOT ENOUGH TO RECORD A NDING OF ADVERSE POSSESSION UNLESS IT
STARTS WITH HOSTILE ANIMUS AND CONTINUE AS SUCH OVER STATUTORY PERIOD SO AS TO CLAIM
ADVERSE POSSESSION 4HE 3TATE WAS ALSO NOT AWARE TILL FOREST SETTLEMENT IN
THAT
APPELLANTS ARE IN UNAUTHORISED POSSESSION OVER THE SUIT LAND 4HE 3TATE DURING FOREST
SETTLEMENT ONLY IN
CAME TO KNOW UNAUTHORISED POSSESSION OF APPELLANTS OVER
THE SUIT LAND
4HE STATEMENT OF 07
"ALDEV 3INGH THAT HE AS $&/ FOREST IN THE YEAR CAME
TO KNOW THE UNAUTHORISED POSSESSION OF THE APPELLANTS OVER THE SUIT LAND IS NOT
BELIEVABLE 4HERE IS NO EXPLANATION WHY 07
AFTER HAVING COME TO KNOW UNAUTHORISED
POSSESSION OF APPELLANTS OVER THE SUIT LAND DID NOT TAKE ANY ACTION FOR EVICTING THE
APPELLANTS FROM THE SUIT LAND OR TO BRING TO THE NOTICE OF THE HIGHER AUTHORITIES THE
UNAUTHORISED POSSESSION OF THE APPELLANTS OVER THE SUIT LAND 4HUS TAKEN FROM ANY
ANGLE THE APPELLANTS HAVE FAILED TO PROVE THEIR ADVERSE POSSESSION OVER THE SUIT LAND
4HE LEARNED COUNSEL FOR THE APPELLANTS HAS SUBMITTED THAT THE TWO #OURTS BELOW HAVE
ERRED IN HOLDING THAT THE #IVIL #OURT HAS NO JURISDICTION TO GO INTO THE QUESTION OF
TITLE OF APPELLANTS IN VIEW OF THE NDINGS RECORDED BY THE #OLLECTOR IN THE ORDER DATED
AND BY THE #OMMISSIONER IN THE ORDER DATED UNDER THE !CT )N VIEW
OF #HAMARU 2AM SUPRA THERE IS SUBSTANCE IN THIS SUBMISSION OF LEARNED COUNSEL
FOR THE APPELLANTS )N #HAMARU 2AM IT HAS BEEN HELD THAT BAR IMPOSED BY 3ECTION
OF THE !CT CANNOT DEPRIVE THE PLAINTIFFS OF THEIR RIGHT TO CLAIM TITLE BY LING CIVIL SUIT
(OWEVER THE APPELLANTS HAVE INDEPENDENTLY FAILED TO PROVE THEIR TITLE OVER THE SUIT
LAND )T HAS ALSO BEEN SUBMITTED ON BEHALF OF THE APPELLANTS THAT THE #OLLECTOR AND THE
#OMMISSIONER ERRED IN PROCEEDING AGAINST THE APPELLANTS COLLECTIVELY THE SUBMISSION
IS THAT INDIVIDUAL APPELLANT IS IN POSSESSION OF CERTAIN PORTION OF THE LAND IN DISPUTE
THEREFORE ALL THE APPELLANTS COULD NOT HAVE BEEN PROCEEDED BY THE #OLLECTOR AND
THE #OMMISSIONER IN ONE PROCEEDING )N SUPPORT OF THIS SUBMISSION HELP HAS BEEN
TAKEN FROM 2AVINDER 3INGH SUPRA 4HE APPELLANTS HAVE NOT SHOWN ANY PREJUDICE FOR
PROCEEDING AGAINST THEM JOINTLY IN ONE PROCEEDING 4HEREFORE THE APPELLANTS CANNOT
TAKE ADVANTAGE OF 2AVINDER 3INGH SUPRA
)T HAS BEEN LASTLY CONTENDED THAT THE APPELLANTS ARE PROTECTED UNDER THE !CT 4HE
APPELLANTS HAVE TAKEN DIFFERENT STANDS IN THE PLAINT 4HEY HAVE PLEADED THEY BELONG TO
3CHEDULED #ASTE 4HEY HAVE ALSO PLEADED THAT THEY ARE 3CHEDULED 4RIBE 4HEIR CASE IS ALSO
THAT THEY BELONG TO "ANGALA COMMUNITY 4HE #LAUSE C OF 3ECTION OF !CT DENES
4 / \
FOREST DWELLING 3CHEDULED 4RIBES MEANS THE MEMBERS OR COMMUNITY OF THE 3CHEDULED
4RIBES WHO PRIMARILY RESIDE IN AND WHO DEPEND ON THE FORESTS OR FOREST LANDS FOR BONA
DE LIVELIHOOD NEEDS AND INCLUDES THE 3CHEDULED 4RIBE PASTORALIST COMMUNITIES 4HE
#LAUSEO OF 3ECTION DENES OTHER TRADITIONAL FOREST DWELLER MEANS ANY MEMBER OR
COMMUNITY WHO HAS FOR AT LEAST THREE GENERATIONS PRIOR TO THE TH DAY OF $ECEMBER
PRIMARILY RESIDED IN AND WHO DEPEND ON THE FOREST OR FORESTS LAND FOR BONA DE
LIVELIHOOD NEEDS 4HE EXPLANATION TO #LAUSE O PROVIDES GENERATION MEANS A PERIOD
COMPRISING OF TWENTY VE YEARS 4HE 3ECTION OF !CT IDENTIES FOREST RIGHTS OF
&OREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
4HE APPELLANTS IN THE PLAINT HAVE PLEADED THAT THEY BELONG TO "ANGALA CASTE AND ARE
3CHEDULED #ASTE 4HEY HAVE ALSO PLEADED THAT THEY ARE 3CHEDULED 4RIBE AND TRADITIONALLY
DWELL IN THE FOREST AREA 4HEY ARE NOT SURE TO WHICH COMMUNITY OR CASTE THEY BELONG
4HE APPELLANTS HAVE NOT PROVED THAT THEIR COMMUNITY PRIMARILY RESIDED IN FORESTS AND
DEPEND ON FORESTS OR FOREST LAND FOR BONA DE LIVELIHOOD NEEDS /N THE CONTRARY IT HAS
COME IN EVIDENCE THAT SOME OF THE APPELLANTS ARE EMPLOYED AT DIFFERENT PLACES 4HE SUIT
WAS LED IN THE YEAR 4HE APPELLANTS HAVE PLEADED THAT THEY ARE RESIDING IN VILLAGE
3IHARDI FOR THE LAST MORE THAN YEARS 4HEREFORE AS PER APPELLANTS THEY ARE OCCUPYING
THE SUIT LAND SINCE OR AROUND 4HE !CT RECOGNIZES OTHER TRADITIONAL FOREST
DWELLERS OCCUPYING SUCH LAND FOR THE LAST THREE GENERATIONS PRIOR TO WITH
EACH GENERATION OF YEARS )N OTHER WORDS THE !CT RECOGNIZES OTHER TRADITIONAL
FOREST DWELLERS IF THEY ARE OCCUPYING THE FOREST LAND SINCE 4HE APPELLANTS ARE
THUS NOT OTHER TRADITIONAL FOREST DWELLERS UNDER THE !CT EVEN AS PER THEIR PLEADED CASE
4HE APPELLANTS SIMPLY ON THE BASIS OF THEIR POSSESSION OVER THE SUIT LAND WHICH IS PART
OF FOREST LAND CANNOT CLAIM PROTECTION UNDER THE !CT )T IS COMMON KNOWLEDGE
THAT PEOPLE INDIVIDUALLY OR IN GROUP ENCROACH UPON THE 'OVERNMENT LAND THEY
MANAGE THEIR STAY OVER ENCROACHED LAND BY PULLING STRINGS HERE AND THERE TOGETHER
WITH INTENTIONAL OR UNINTENTIONAL INACTION OF AUTHORITIES FOR EVICTING THEM FROM THE
ENCROACHED LAND BUT THAT DOES NOT MEAN THAT SUCH ENCROACHERS WITH THE PASSAGE OF
TIME ONLY ACQUIRE TITLE OVER THE 'OVERNMENT LAND 4HE APPELLANTS HAVE MISERABLY
FAILED TO PROVE THEIR TITLE OVER THE SUIT LAND 4HE TWO #OURTS BELOW HAVE CONCURRENTLY
HELD AGAINST THE APPELLANTS 4HERE IS NO SUBSTANTIAL QUESTION OF INVOLVED IN THE APPEAL
4HE APPEAL IS DEVOID OF ANY MERIT )N VIEW OF ABOVE THE APPEAL FAILS AND IS ACCORDINGLY
DISMISSED
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
#OURT ON ITS /WN -OTION AND $UNGAR
3INGH VS 3TATE OF (IMACHAL 0RADESH
/RS
#70 0), ./ /&
()'( #/524 /& ()-!#(!, 02!$%3( 3()-,! "%.#(
#/2!- !- +(!.7),+!2 #* !.$ 2" -)32! *
3 5--!29
4HE $IVISION "ENCH OF THE (IGH #OURT HAD EARLIER THE SAME YEAR ISSUED DIRECTIONS
FOR REMOVAL OF ALL UNAUTHORISED DHABAS HOTELS ETC BETWEEN +OTHI AND 2OHTANG 0ASS
ON GOVERNMENT FOREST LAND 0URSUANT THERETO AN ORDER WAS PASSED BY THE $ISTRICT
&OREST /FFICER $&/ EVICTING THE APPLICANT AMONG OTHERS
4HE APPLICANT ARGUED THAT HE BELONGED TO A 3CHEDULED 4RIBE COMMUNITY AND THE
DHABAS WERE CONSTRUCTED MANY YEARS AGO AS A STOPPAGE BETWEEN TRANSITS FROM ONE
PLACE TO ANOTHER SINCE THE TIME OF HIS FOREFATHERS (E ALSO ARGUED THAT THEIR LIVELIHOOD
IS BASED ON COLLECTION OF HERBS AND OTHER MINOR FOREST PRODUCE AND SELLING THESE
IN THE DHABAS 4HE LICENSE GIVEN BY THE CONCERNED AUTHORITY WAS ALSO PRODUCED IN
SUPPORT OF THIS ARGUMENT 4HE APPLICANT ASSERTED THAT HE CANNOT BE EVICTED FROM
THE PLACE AS HE IS A FOREST DWELLING 3CHEDULED 4RIBE IN TERMS OF THE 3CHEDULED 4RIBES
AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
AND UNDER 3EC HE CANNOT BE DISPOSSESSED TILL THE RECOGNITION AND VERIFICATION
PROCEDURE IS COMPLETE
4HE #OURT NOTICED THAT A PREVIOUS CASE OF EVICTION AGAINST THE APPLICANT IS PENDING
IN THE #OURT OF THE $IVISIONAL #OMMISSIONER -ANDI INITIATED BY THE &OREST 2ANGE
/FFICER UNDER THE (IMACHAL 0RADESH 0UBLIC 0REMISES AND ,AND %VICTION AND 2ENT
2ECOVERY !CT
2ELYING ON THE REPORT BY THE &OREST 2ANGE /FFICER AND THE ORDER OF THE $ISTRICT
#OLLECTOR THE #OURT HELD THAT THE APPLICANT IS NOT ENTITLED TO THE PROTECTION OF
THE &2! 4HE #OURT HELD THAT MERELY BEING A 3CHEDULED 4RIBE DOES NOT FULFILL THE
QUALIFICATION OF A FOREST DWELLING 3CHEDULED 4RIBE FOR THE REASON THAT THE CLAIMANT
MUST NOT ONLY BE RESIDING IN THE FOREST BUT ALSO BE DEPENDENT ON FOREST FOR LIVELIHOOD
4 / \
4HE #OURT WAS OF THE VIEW THAT THE FOREST RIGHTS UNDER 3ECTION OF &2! DO NOT
INCLUDE CONSTRUCTION OF A STRUCTURE FOR RUNNING A DHABA ON FOREST LAND 4HE #OURT
THUS HELD THAT THE APPLICANT DOES NOT FULFILL THE DEFINITION OF FOREST DWELLING
3CHEDULED 4RIBE AND HELD THAT THE APPLICANT IS AN UNAUTHORISED OCCUPANT 4HE
ORDER OF EVICTION WAS ACCORDINGLY UPHELD AND THE APPLICATION WAS DISMISSED
% $ ) 4 /23 . /4%
4HIS IS A VERY PECULIAR ORDER WHERE IN EXERCISE OF ITS POWERS UNDER !RTICLE OF
THE #ONSTITUTION THE (IGH #OURT HAS ENTERED INTO DECIDING A QUESTION OF FACT IN A
DECISIVE MANNER )T IS EVEN MORE INCOMPREHENSIBLE THAT THE QUESTION OF FACT WAS
DECIDED BY THE (IGH #OURT EVEN WHILE THE SAME ISSUE WAS PENDING ADJUDICATION
BEFORE THE $IVISIONAL #OMMISSIONER -ANDI 4HE PRECEDENT VALUE OF THIS JUDGMENT
IS ON THE FACE OF IT QUESTIONABLE
* 5 $ ' -% . 4
4HIS APPLICATION HAS BEEN LED BY THIRD PARTY IN THE PENDING PUBLIC INTEREST LITIGATION
/N RD -AY THE $IVISION "ENCH OF THIS #OURT ISSUED CERTAIN DIRECTIONS TO THE 3TATE
!UTHORITIES INTER ALIA TO FORTHWITH REMOVE ALL THE UNAUTHORISED DHABASHOTELSCATERING
FOOD STALLS IN SEGMENT .OS AND BETWEEN +OTHI TO 2OHTANG 0ASS !S A CONSEQUENCE OF
THAT ORDER THE $IVISIONAL &OREST /FCER +ULLU &OREST $IVISION ISSUED NOTICE FOR EVICTION
CUM
REMOVAL OF ENCROACHMENT UPON THE 'OVERNMENT FOREST LAND TO THE APPLICANT
DATED TH -AY 4HE SAID COMMUNICATION READS THUS
). 4(% /&&)#% /& $)6)3)/.!, &/2%34 /&&)#%2 +5,,5 (0
.O
$ATED +ULLU
4O
3H $HUNGER 3INGH 3O 3H 5DHEY 3INGH 2O 'OMPA 2OAD -ANALI 4EHSIL -ANALI
$ISTRICT +ULLU (0
3UBJECT .OTICE FOR REMOVAL OF ENCROACHMENT UPON THE 'OVERNMENT &OREST LAND
7HEREAS THE #OLLECTOR #UM $&/ %NCROACHMENT +ULLU PASSED AN ORDER TO VACATE
THE UNAUTHORISEDUNLAWFUL POSSESSION OF 0UBLIC PREMISES IE 'OVERNMENT &OREST
,AND COMPRISING +HASRA .O .IL -ANALI ))) -ARHI 50& MEASURING AREA HAC IN
4UKTA .O ) AND )) SITUATED IN 0HATI 0ALCHAN 4EHSIL -ANALI $ISTRICT +ULLU (0 UNDER
3ECTION OF OF THE (IMACHAL 0RADESH 0UBLIC 0REMISES ,AND %VICTION 2ENT
2ECOVERY !CT VIDE ORDER DATED WHICH IS NOW PENDING ADJUDICATION
BEFORE THE #OURT OF $IVISIONAL #OMMISSIONER -ANDI (0
!ND WHEREAS THE (ONBLE (IGH #OURT #OURT ON ITS OWN MOTION V 3TATE OF (0 AND
OTHERS #70), .O DATED HAS HELD THAT
3INCE THE ENTIRE ISSUE CONCERNING THE STRETCH OF +OTHI TO 2OHTANG 0ASS IS PENDING
BEFORE THIS #OURT EVERY ACTION INCLUDING THE PROPOSED ACTION OF REMOVAL OF
UNAUTHORISED DHABASHOTELSCATERINGSFOOD STALLS IN SEGMENT .O )6 AND 6
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
WILL BE MADE SUBJECT MATTER OF CHALLENGE ONLY BEFORE THIS #OURT IN THE PRESENT
PROCEEDINGS .O OTHER FORUM IN THE 3TATE BE IT OF #OMMISSIONER OR THE #IVIL #OURT
SHOULD ENTERTAIN THE SAME 4HE APPEALS IF ANY SHALL STAND TRANSFERRED TO THE
#OURT FORTHWITH
4HE (ONBLE (IGH #OURT HAS FURTHER DIRECTED TO STATE AUTHORITIES TO FORTHWITH REMOVE
ALL THE UNAUTHORISED DHABASHOTELSCATERINGSFOOD STALLS IN SEGMENT .OS )6 AND 6
BETWEEN +OTHI TO 2OHTANG 0ASS AND REPORT COMPLIANCE OR BEFORE TH *UNE
.OW THEREFORE IN COMPLIANCE OF THE (ONBLE (IGH #OURT ORDER DATED AND
0R 3ECRETARY &ORESTS TO THE 'OVERNMENT OF (IMACHAL 0RADESH VIDE LETTER .O &&%
" & DATED ) HEREBY SERVE UPON YOU NOTICE TO YOU AND ALL CONCERN
TO VACATE THE +HOKHA AND STORE FOR RUNNING SHOPDHABA BY DEMOLISHING THE
STRUCTURE ON OR BEFORE FAILING WHICH THE UNAUTHORISEDUNLAWFUL STRUCTURE
POSSESSION OF THE LAND IN QUESTION SHALL BE TAKEN BY THE &OREST DEPARTMENT BY
REMOVAL OF THE SAID STRUCTURE AT YOUR EXPENSES FORCEFULLY WITH THE HELP OF 0OLICE AND
$ISTRICT !DMINISTRATION
$ATED
0LACE +ULLU
3D
$IVISIONAL &OREST /FCER
+ULLU &OREST $IVISION +ULLU
4HIS EVICTION NOTICE HAS BEEN ISSUED NOTWITHSTANDING THE PENDENCY OF PROCEEDINGS
BEFORE THE $IVISIONAL #OMMISSIONER -ANDI AGAINST THE ORDER OF EVICTION PASSED
AGAINST THE APPLICANT ON THE GROUND OF UNAUTHORISED AND UNLAWFUL POSSESSION OF PUBLIC
PREMISES IE 'OVERNMENT FOREST LAND COMPRISING +HASRA .O NIL -ANALI
))) -ARHI 50&
MEASURING AREA HAC IN 4UKTA .O ) AND )) SITUATED IN 0HATI 0ALCHAN 4EHSIL -ANALI
$ISTRICT +ULLU (0 4HIS HAS BEEN DONE PRESUMABLY ON THE BASIS OF THE OBSERVATIONS
IN THE ORDER PASSED BY THIS #OURT DATED RD -AY THAT THE ACTION OF REMOVAL OF
UNAUTHORISED STRUCTURES IN THE SPECIED SEGMENT WILL BE MADE SUBJECT MATTER OF
CHALLENGE ONLY BEFORE THIS #OURT IN THE PENDING WRIT PETITION AND NO OTHER FORUM IN THE
3TATE SHOULD ENTERTAIN THE SAME
)N THE PRESENT APPLICATION THE APPLICANT HAS RELIED ON SEVERAL DOCUMENTS INDICATIVE OF
APPLICANTS POSSESSION OF THE DISPUTED LAND AND INCLUDING THAT HE BELONGS TO 3CHEDULED
4RIBE COMMUNITY )T IS THE APPLICANTS CASE THAT HIS FOREFATHERS WERE ENGAGED IN THE TRADE
OF CATTLE CLOTHING FOOD SUPPLIES ETC 4HEY USED TO TRAVEL FROM -ANDI TO ,AHAUL AND 3PITI
,EH ,ADAKH AND 0ANGI $URING THEIR TRANSIT THEY USED TO TAKE A BREAK AT -ARHI )T IS STATED
IN THE APPLICATION THAT IN DUE COURSE THEY CONSTRUCTED KATCHA DHARA AT -ARHI FOR THE
RESIDENTIAL PURPOSE OF THE FAMILY 4HAT WAS LATER ON CONVERTED INTO A DHABA WHICH WAS
RUN IN THE NAME AND STYLE OF -ANSAROVAR $HABA %VEN OTHER TRIBALS ENGAGED IN SIMILAR
TRADE HAD CONSTRUCTED SUCH DHARAS 4HE SAID DHARAS WERE CONSTRUCTED TO ACCOMMODATE
THE LADIES ALONG WITH CHILDREN AND OTHER PERSONS WHO VISITED WITH THE MALE MEMBERS
TO -ARHI 4HE MALE MEMBERS OF THE FAMILY USED TO ACCOMPANY THE MULES IN CONNECTION
WITH THEIR TRADE IN DIFFERENT PARTS OF THE 3TATE AND WOULD RETURN TO -ARHI IN THE MONTH
OF -ARCH )T IS ALSO ASSERTED THAT THE PRIMARY SOURCE OF EARNING LIVELIHOOD OF THE FATHER
OF THE APPLICANT AND THE APPLICANT WAS DHABA COLLECTION OF HERBS SUCH AS +ARU 0ATISH
$HOOP 0HARNA #HURA 0ANJA #HUJI ETC 4HESE HERBS WERE PUT UP FOR SALE IN THE DHABA AT
-ARHI WHICH PRACTICE IS STILL CONTINUING 4HE APPLICANT ADMITS THAT HE DID NOT MENTION
ABOUT THIS FACT IN THE EARLIER PROCEEDINGAPPLICATION LED BY HIM DUE TO INADVERTENCE
4 / \
4HE APPLICANT HAS ALSO RELIED ON LICENSE GIVEN BY THE CONCERNED AUTHORITY FOR RUNNING OF
THE DHABA AND INCLUDING ELECTRICITY SUPPLY PROVIDED TO THE DHABA )N THIS BACKDROP THE
APPLICANT HAS ASSERTED THAT HE CANNOT BE EVICTED FROM THE DISPUTED LAND MUCH LESS THE
DHABA CANNOT BE REMOVED BY VIRTUE OF THE PROVISIONS CONTAINED IN THE 3CHEDULED 4RIBES
AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
)T IS HOWEVER NOTICED FROM THE RECORD THAT THE 2ANGE &OREST /FCER -ANALI ON THE BASIS
OF SPOT REPORT DATED HAD INITIATED PROCEEDINGS AGAINST THE APPLICANT BY ISSUING
SHOW CAUSE NOTICE UNDER 3ECTION OF (IMACHAL 0RADESH 0UBLIC 0REMISES AND ,AND
%VICTION AND 2ENT 2ECOVERY !CT WHICH WAS REGISTERED AS CASE .O IN
THE #OURT OF #OLLECTOR CUM $&/ %NCROACHMENT +ULLU )N THE SAID CASE TWO ISSUES WERE
CONSIDERED RSTLY WHETHER THE APPLICANT HAD ENCROACHED UPON THE LAND IN DISPUTE OR
NOT AND SECONDLY WHETHER THE EVICTION ORDER WAS REQUIRED TO BE ISSUED UNDER 3ECTION
OF THE !CT OF 4HE #OLLECTOR AFTER CONSIDERING RELEVANT MATERIAL ON RECORD CONCLUDED
THAT THE APPLICANT HAS ENCROACHED UPON THE FOREST LAND AND THEREFORE ORDERED EVICTION
VIDE ORDER DATED TH -AY 4HE RELEVANT EXTRACT OF THE SAID ORDER READS THUS
&INAL /RDER
&OR THE REASON RECORDED HERE IN AFTER THE NDING ON THE ABOVE PARAS ARE AS UNDER
0OINT .O 9ES
0OINT .O !PPLICATION ALLOWED
) HAVE PERUSED THE RECORD TO THE CASE THE REASON FOR NAL ORDER IS AS UNDER 4HE
APPLICANT HAS ALLEGE IN HIS PLAINT THAT RESPONDENT IS IN UNAUTHORISED OCCUPATION OF
FOREST LAND BY ENCROACHING UPON FOREST LAND IN -ANALI ))) MEASURING
HA BY
#ONSTRUCTING A STONE WALLED AND TIN ROOFED KHOKHA OVER LAND MEASURING IN
TUKRA .O AND USING AS STORE AND ALSO ERECTED A STORE WITH STONE WALL AND TIN ROOFED
MEASURING HA IN TUKRA .O )) AND MEASURING IN 4UKRA .O ))) RUNNING
COLD DRINK SHOP AND DHABA THEREIN
4HE PROSECUTION WITNESSES 07
AND 07
AND 07 EXAMINED AND CONRMED IN
THEIR STATEMENTS THAT THE RESPONDENT WITHOUT AUTHORITY HAS ENCROACHED UPON FOREST
LAND IN -ANALI ))) AT -ARHI MEASURING
HA BY #ONSTRUCTING A STONE WALLED AND
TIN ROOFED KHOKHA OVER LAND MEASURING IN TUKRA .O ) AND USING AS STORE AND
ALSO ERECTED A STORE WITH STONE WALL AND TIN ROOFED MEASURING HA IN TUKRA .O
)) AND MEASURING IN 4UKRA .O ))) RUNNING COLD DRINK SHOP AND DHABA THEREIN
4HE 07S ALSO CONRMED IN THE STATEMENT THAT THE SUIT LAND IS A FOREST LAND THE RECORD
PREPARED BY THE HALQAU PATWARI AND SAME IS VERIED BY THE ELD KANUNGO OF THE
CONCERNED AREA ALSO THE TATIMA AND REPORT IS COUNTERSIGNED BY THE TEHSILDAR -ANALI
7HICH IS ALSO CONRMED BY THE REVENUE RECORD ENTRY WHERE THE SUIT LAND IS ENTERED
AS BILA PAIMUD AND AS PER .OTICATION .O DATED ST *UNE THE SUIT LAND IS
OWNED AND POSSESSED BY THE FOREST DEPARTMENT 4HE RESPONDENT IS WELL AWARE OF THE
FACT THAT HE IS IN UNAUTHORISED OCCUPATION OF FOREST LAND 4HE RESPONDENT PRODUCE
THREE WITNESS IN HIS FAVOUR BOTH COULD NOT PROVE TO THE SATISFACTION OF THE #OURT
AS ALLEGED BY RESPONDENT 4HE PETITIONER HAS ALSO MADE REFERENCES OF HONORABLE
SUPREME #OURT ORDER IN #70 .O DATED THE 3# ORDER IS PRODUCED
VERBATIM IS AS UNDER
4HE WORD FOREST MUST BE UNDERSTOOD ACCORDING TO ITS DICTIONARY MEANING THIS
DESCRIPTION COVER ALL STATUTORILY RECOGNIZED FOREST WHETHER DESIGNATED RESERVED
OR PROTECTED OR OTHERWISE FOR THE PURPOSE OF 3ECTION I OF THE &#! 4HE TERM
FOREST LAND OCCURRING IN 3ECTION WILL NOT ONLY INCLUDE FOREST AS UNDERSTOOD
IN THE DICTIONARY SENSE BUT ALSO ANY AREA RECORDED AS FOREST IN GOVERNMENT RECORD
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
IRRESPECTIVE OF THE OWNERSHIP
4HEREFORE ) HOLD THE APPLICANT HAS PROVED THAT THE RESPONDENT HAS ENCROACH UPON
FOREST ,AND IN -ANALI ))) MEASURING
HA BY #ONSTRUCTING A STONE WALLED
AND TIN ROOFED KHOKHA OVER LAND MEASURING IN TUKRA .O ) AND USING AS
STORE AND ALSO ERECTED A STORE WITH STONE WALL AND TIN ROOFED MEASURING
HA IN TUKRA .O )) AND MEASURING IN 4UKRA .O ))) RUNNING COLD DURING SHOP
AND DHABA THEREIN WHICH IS LOCATED IN THE HEART OF FOREST LAND 4HERE IS NO PRIVATE
LAND ADJOINING TO THE SUIT LAND )N VIEW OF NDINGS THE POINT .O IS PROVED TO THE
SATISFACTION OF THE #OURT 4HE APPLICATION IS ALLOWED AND EVICTION ORDER PASSED
4HE CASE LE IS CONSIGNED TO THE RECORD ROOM OF $&/ +ULLU AFTER COMPLETION
!NNOUNCED IN /PEN #OURT
EMPHASIS SUPPLIED
/N THE BASIS OF THE ABOVE SAID ORDER THE #OLLECTOR ISSUED EVICTION ORDER IN &ORM " ON
TH -AY WHICH READS THUS
4HE (IMACHAL 0RADESH 0UBLIC 0REMISES AND ,AND %VICTION AND 2ENT 2ECOVERY 2ULES
&/2- "
/RDER UNDER SUB
SECTION OF 3ECTION OF THE (IMACHAL 0RADESH 0UBLIC 0REMISES
AND ,AND %VICTION AND 2ENT 2ECOVERY !CT
7HEREAS ) 60 0ATHANIA $&/ ENCROACHMENT CUM COLLECTOR +ULLU IS SATISED FOR THE
REASON RECORDED BELOW THAT THAT 3H $HUNGER 3INGH 3O 3H 5DHEY 3INGH 2O 'OMPA
2OAD -ANALI 4EHSIL -ANALI $ISTT +ULLU (0 IS IN THE UNAUTHORISED OCCUPATION OF
0UBLIC 0REMISES SPECIED IN THE SCHEDULED BELOW 2EASON $ETAIL ORDER OF THE CASE
.O DECIDED ON IS ATTACHED HEREWITH
.OW THEREFORE IN EXERCISE OF THE POWERS CONFERRED ON ME BY SUB 3ECTION OF 3ECTION
OF THE (IMACHAL 0RADESH 0UBLIC 0REMISES AND ,AND %VICTION AND 2ENT 2ECOVERY
2ULES ) HEREBY ORDER THE SAID THAT 3H $HUNGER 3INGH 3O 3H 5DHEY 3INGH 2O
'OMPA 2OAD -ANALI 4EHSIL -ANALI $ISTT +ULLU (0 AND ALL PERSONS WHO MAY BE
IN OCCUPATION OF THE SAID PREMISES OR ANY PART THEREOF TO VACATE THE SAID PREMISES
WITHIN DAYS OF THE PUBLICATION OF THIS ORDER )T IS FURTHER ORDERED THAT APPLICANT
2/ -ANALI WILL TAKE OVER THE POSSESSION OF SUIT LAND WITHIN DAYS OF PUBLICATION
OF THE ORDER )N THE EVENT OF REFUSAL OR FAILURE TO COMPLY WITH THIS ORDER WITH IN THE
PERIOD SPECIED ABOVE THE SAID THAT 3H $HUNGER 3INGH 3O 3H 5DHEY 3INGH 2O
'OMPA 2OAD -ANALI 4EHSIL -ANALI $ISTT +ULLU (0 AND ALL OTHER PERSONS CONCERNED
ARE LIABLE TO BE EVICTED FROM THE SAID PREMISES IF NEED BE BY THE USE OF SUCH FORCE AS
MAY BE NECESSARY
3#(%$5,%
4HE APPLICANT HAS PROVED TO THE SATISFACTION OF THE #OURT THAT THAT 3H $HUNGER 3INGH
3O 3H 5DHEY 3INGH 2O 'OMPA 2OAD -ANALI 4EHSIL -ANALI $ISTT +ULLU (0 IS IN
UNAUTHORISED OCCUPATION OF FOREST LAND BY ENCROACHING UPON FOREST LAND IN -ANALI
MEASURING
HA BY #ONSTRUCTING A STONE WALLED AND TIN ROOFED KHOKHA OVER
LAND MEASURING IN TUKRA .O ) AND USING AS STORE AND ALSO ERECTED A STORE WITH
STONE WALL AND TIN ROOFED MEASURING HA IN TUKRA .O )) AND MEASURING
IN TUKRA .O ))) RUNNING COLD DRINK SHOP AND DHABA THEREIN
4 / \
)T IS PROVED TO THE SATISFACTION OF THE #OURT 4HE EVICTION ORDER PASSED $ATE
SD
3IGNATURE AND SEAL OF THE #OLLECTOR
!GAINST THIS DECISION THE APPLICANT HAS PREFERRED APPEAL BEFORE THE $IVISIONAL
#OMMISSIONER -ANDI WHICH WAS STATED TO BE PENDING WHEN THE IMPUGNED EVICTION
NOTICE DATED TH -AY CAME TO BE PASSED PURSUANT TO THE ORDER OF THIS #OURT
DATED RD -AY &ROM THE ORDER PASSED BY THE #OLLECTOR DATED TH -AY IT
CAN BE DISCERNED THAT THE APPLICANT CLAIMS TO HAVE ERECTED STRUCTURE ON LAND WHICH
IS ADMITTEDLY A FOREST LAND .O VALID AND SUBSISTING LICENSE HAS BEEN PRODUCED BY
THE APPLICANT TO DISPEL THE FACTUAL POSITION NOTED IN THE SHOW CAUSE NOTICE ABOUT
UNAUTHORISED OCCUPATION OF FOREST LAND BY THE APPLICANT 4HE REVENUE RECORD CONRMS
THE POSITION THAT THE SUIT LAND IS OWNED AND POSSESSED BY THE &OREST $EPARTMENT 4HE
APPLICANT WAS FULLY AWARE OF THAT FACT 4HE APPLICANT HAD PRODUCED THREE WITNESSES IN
THE PROCEEDINGS BEFORE THE #OLLECTOR BUT THEY COULD NOT PROVE THE FACT THAT THE APPLICANT
WAS IN AUTHORIZED POSSESSION OF THE LAND IN QUESTION !S A RESULT ORDER OF EVICTION HAS
BEEN PASSED
%VEN BEFORE THIS #OURT THE POSITION IS NO DIFFERENT EXCEPT THAT THE APPLICANT HAS NOW
PRODUCED DOCUMENTS AT BEST INDICATIVE OF OCCUPATION OF THE APPLICANT OF THREE KHOKHAS
IN #LASS
))) FOREST AREA -ARHI 4HE DAMAGE REPORT ISSUED IN THIS RESPECT BY THE 2ANGE
&OREST /FCER -ANALI DATED TH *ULY AT PAGE TESTIES THAT THE APPLICANT IS IN
UNAUTHORISED OCCUPATION OF THOSE THREE KHOKHAS IN FOREST AREA 4O GET OVER THIS POSITION
THE APPLICANT HAS NOW RESTED HIS ARGUMENT ON THE FOREST RIGHTS RECOGNIZED BY THE !CT
OF AND WHICH ACCORDING TO HIM HAS VESTED IN HIM GUARANTEEING PROTECTION OF HIS
POSSESSION IN RESPECT OF SAID DISPUTED STRUCTURE 4HE FACT THAT THE STRUCTURES IN QUESTION
ARE IN EXISTENCE FOR QUITE SOME TIME WILL BE OF NO AVAIL 4HAT CANNOT BESTOW ANY RIGHT ON
THE APPLICANT MUCH LESS GUARANTEED BY THE !CT OF
7E MAY STRAIGHTWAY TURN TO THE PROVISIONS OF THE !CT OF 4HE PREAMBLE OF THE
!CT MAKES IT AMPLY CLEAR THAT IT IS AN !CT TO RECOGNIZE AND VEST THE FOREST RIGHTS AND
OCCUPATION IN FOREST LAND IN FOREST DWELLING SCHEDULED TRIBES AND OTHER TRADITIONAL
FOREST DWELLERS )N THE PRESENT CASE WE ARE CONCERNED WITH THE APPLICANT WHO CLAIMS
TO BE SCHEDULED TRIBE (OWEVER TO FULL THE QUALICATION OF FOREST DWELLING SCHEDULED
TRIBE THE PERSON MUST ESTABLISH THE FACT THAT HE WAS PRIMARILY RESIDING IN FOREST OR THE
FOREST LAND AND FURTHER THAT HE DEPENDS ON THE FORESTS OR FOREST LANDS FOR HIS BONADE
LIVELIHOOD NEEDS 4HUS MERELY BEING A 3CHEDULED 4RIBE IS NOT ENOUGH 4HIS POSITION IS
REINFORCED FROM THE DENITION OF EXPRESSION FOREST DWELLING SCHEDULED TRIBES AS DENED
IN 3ECTION C OF THE !CT WHICH READS THUS
C FOREST DWELLING 3CHEDULED 4RIBES MEANS THE MEMBERS OR COMMUNITY OF THE
3CHEDULED 4RIBES WHO PRIMARILY RESIDE IN AND WHO DEPEND ON THE FOREST OR FOREST
LANDS FOR BONADE LIVELIHOOD NEEDS AND INCLUDES THE 3CHEDULED 4RIBE PASTORALIST
COMMUNITIES
)T MAY BE USEFUL TO ADVERT TO THE DENITION OF FOREST LAND AND FOREST RIGHTS AS CONTAINED
IN 3ECTIONS D AND E OF THE !CT RESPECTIVELY WHICH READ THUS
D FOREST LAND MEANS LAND OF ANY DESCRIPTION FALLING WITHIN ANY FOREST AREA AND
INCLUDES UNCLASSIED FOREST UNDEMARCATED FORESTS EXISTING OR DEEMED FOREST
PROTECTED FORESTS RESERVED FORESTS 3ANCTUARIES AND .ATIONAL 0ARKS
E FOREST RIGHTS MEANS THE FOREST RIGHTS REFERRED TO IN 3ECTION
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
3ECTION OF THE !CT OF SPELLS OUT THE RIGHTS OF PERSONS COVERED UNDER THE !CT
IN CLAUSES A TO M OF SUB
SECTION THEREOF 4HE APPLICANT HAS PRESSED INTO SERVICE
CLAUSES A AND C THEREOF
/N A BARE READING OF CLAUSE A IT IS OBVIOUS THAT THE PERSON MUST BE PRIMARILY RESIDING
IN THE FOREST LAND &URTHER HE WOULD GET RIGHT TO HOLD THAT LAND AND LIVE IN THE FOREST
LAND FOR THE ACTIVITIES SPECIED IN CLAUSE A FOR HABITATION OR FOR SELF CULTIVATION FOR
LIVELIHOOD #ONSTRUCTING A STRUCTURE FOR RUNNING OF A DHABA ON A FOREST LAND IS NOT
COVERED BY THIS CLAUSE AT ALL )T IS NOT THE CASE OF THE APPLICANT THAT ALL THREE KHOKHAS
UNAUTHORISEDLY CONSTRUCTED ON THE FOREST LAND WERE FOR HABITATION /N THE OTHER HAND IT
IS THE POSITIVE CASE OF THE APPLICANT THAT HE WAS RUNNING DHABA FROM THE SAID PREMISES
!SSUMING THAT THE APPLICANT HAS BEEN ABLE TO ESTABLISH THE FACT THAT HE WAS PRIMARILY
RESIDING IN THE FOREST OR FOREST LAND THE ONLY RIGHT PROTECTED IS FOR HIS INDIVIDUAL
OCCUPATION FOR HABITATION /N THE BASIS OF THE AVERMENTS MADE IN THE APPLICATION
WHICH IS THE CASE MADE OUT FOR THE RST TIME THE APPLICANT HAS ALSO RELIED ON CLAUSE
C OF 3ECTION 4HAT SPEAKS ABOUT THE RIGHT OF OWNERSHIP ACCESS TO COLLECT USE AND
DISPOSE OF MINOR FOREST PRODUCE WHICH HAS BEEN TRADITIONALLY COLLECTED WITHIN OR
OUTSIDE VILLAGE BOUNDARIES "Y REMOVING THE THREE UNAUTHORISED STRUCTURES NONE OF
THESE RIGHTS OF THE APPLICANT ASSUMING THAT HE HAS THOSE RIGHTS WOULD BE AFFECTED &OR
HIS RIGHT OF ACCESS TO FORESTS OR FOREST LAND TO COLLECT USE AND DISPOSE OF MINOR FOREST
PRODUCE WHICH HAS BEEN TRADITIONALLY COLLECTED WILL NOT BE AFFECTED 4HIS ONCE AGAIN IS
ON THE ASSUMPTION THAT THE APPLICANT HAS BEEN ABLE TO ESTABLISH THE FACT THAT HE IS FOREST
DWELLING SCHEDULED TRIBE
!S NOTED EARLIER THERE IS HARDLY ANY MATERIAL ON RECORD TO SUGGEST THAT THE APPLICANT
FULLS THE DENITION OF FOREST DWELLING 3CHEDULED 4RIBE 4HAT CLAIM IS OBVIOUSLY AN
ARGUMENT OF DESPERATION )N THE PRESENT CASE THE ACTION FOR UNAUTHORISED OCCUPATION
OF THE STRUCTURES WAS COMMENCED AGAINST THE APPLICANT ON THE BASIS OF DAMAGE REPORT
OF THE 2ANGE &OREST /FCER -ANALI DATED TH *ULY AND TH 3EPTEMBER
AND THE EVICTION ORDER HAS BEEN PASSED UNDER THE !CT OF BY THE #OLLECTOR ON TH
-AY ON THE NDING THAT THE APPLICANT WAS UNAUTHORISED OCCUPANT IN THE STATED
PREMISES
#OUNSEL FOR THE APPLICANT WOULD THEN RELY ON SUB
SECTION OF 3ECTION OF THE !CT
TO CONTEND THAT THE APPLICANT CANNOT BE EVICTED OR REMOVED FROM FOREST LAND IN HIS
POSSESSION TILL THE RECOGNITION AND VERICATION PROCEDURE IS COMPLETE 4HE SAID PROVISION
CANNOT BE READ IN ISOLATION 4HE RECOGNITION AND VERICATION PROCEDURE IS IN RESPECT OF
VESTING OF FOREST RIGHTS IN THE PERSON 7E HAVE ALREADY NOTICED THAT CONSTRUCTION OF
STRUCTURE ON THE FOREST LAND FOR RUNNING A DHABA PER SE DOES NOT CREATE ANY FOREST RIGHTS
4HE FOREST RIGHTS ARE SPECIED IN 3ECTION OF THE !CT 4HE RECOGNITION AND VERICATION
PROCEDURE IS ONLY IN RELATION TO THOSE RIGHTS AND NOT IN RESPECT OF UNAUTHORISED STRUCTURES
HAVING NO CAUSAL CONNECTION WITH THE RIGHTS SPECIED IN 3ECTION OF THE !CT OF
&OR THE SAME REASON RELIANCE PLACED BY THE APPLICANT ON 3ECTION OF THE !CT AS TO THE
AUTHORITY COMPETENT TO VEST FOREST RIGHTS IN FOREST DWELLING 3CHEDULED 4RIBE WILL BE OF
NO AVAIL TO THE APPLICANT
#ONSIDERING THE FACT THAT THE APPLICANT HAS FAILED TO PRODUCE ANY TANGIBLE MATERIAL
OR LICENSELEASE GRANTED TO THE APPLICANT TO OCCUPY THE FOREST LAND IN QUESTION OR TO
PUT UP THE SUBJECT STRUCTURES THEREON GIVEN BY THE COMPETENT AUTHORITY AND THAT THE
SAID LICENSELEASE IS A SUBSISTING ONE IT WOULD NECESSARILY FOLLOW THAT THE APPLICANT IS
UNAUTHORISED OCCUPANT ON THE FOREST LAND /N THIS NDING NO FAULT CAN BE FOUND WITH
THE ORDER OF EVICTION PASSED BY THE #OLLECTOR WHICH IS SUBJECT MATTER OF THE PRESENT
APPLICATION !CCORDINGLY THE SAID ORDER IS UPHELD AS A RESULT OF WHICH THE #OLLECTOR
4 / \
+ULLU ANDOR $IVISIONAL &OREST /FCER +ULLU &OREST $IVISION +ULLU ARE FREE TO PROCEED
IN THE MATTER ON THE BASIS OF EVICTION NOTICE DATED TH -AY OR TH -AY
RESPECTIVELY AND TAKE THE SAME TO ITS LOGICAL END WITHIN FOUR WEEKS FROM TODAY 4HIS
APPLICATION IS DISMISSED
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
+!2.!4!+! ()'(
#/524
4!",% /& *5$'-%.43 !.$ /2$%23
,AKSHMANRAO -ANIKRAO 3HINDE VS 3TATE OF +ARNATAKA /RS
70 OF \
4 / \
,AKSHMIRAO -ANIKRAO 3HINDE VS
3TATE OF +ARNATAKA /RS
70 /&
+!2.!4!+! ()'( #/524
#/2!- !26).$ +5-!2 *
3 5 - -!29
4HE PETITIONER HAS SOUGHT A MANDAMUS DIRECTING THE RESPONDENTS TO REGULARISE
OCCUPATION OF THE LAND IN QUESTION MEASURING ACRES IN HIM AS PER THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2! AND 2ULES (E IS AGGRIEVED DUE TO NON
CONSIDERATION OF VARIOUS APPLICATIONS
AND BY THREAT OF COERCIVE STEPS TO BE TAKEN AGAINST HIM
7ITHOUT EXPRESSING ANY OPINION ON DECIDING THE MERITS OF THE CASE THE #OURT
DIRECTED THAT THE &OREST 2IGHTS #OMMITTEE CONSIDER THE APPLICATION OF THE 0ETITIONER
EXPEDITIOUSLY WITHIN MONTHS AND FURTHER DIRECTED THAT THE PETITIONER NOT BE
DISPOSSESSED OF THE LAND TILL THE DISPOSAL OF THE APPLICATION
/2$%2
(EARD 3RI (- $HARIGOND LEARNED COUNSEL APPEARING FOR THE PETITIONER AND 3MT
+6IDYAVATHI LEARNED !DDITIONAL 'OVERNMENT !DVOCATE APPEARING FOR RESPONDENTS
0ERUSED THE CASE PAPERS AND ANNEXURES LED THERETO AS ALSO THE STATEMENT OF OBJECTIONS
4HOUGH PETITION IS LISTED FOR PRELIMINARY HEARING BY CONSENT IT IS TAKEN UP FOR NAL
DISPOSAL
0ETITIONER IS SEEKING FOR A MANDAMUS TO DIRECT THE RESPONDENTS TO REGULARISE
OCCUPATION OF LAND BEARING 3Y.O! MEASURING ACRES SITUATED AT 'ONAGNUR VILLAGE
2AMDURGTALUK "ELGAUM DISTRICT IN FAVOUR OF THE PETITIONER AS PER THE PROVISIONS OF
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT AND THE 2ULES MADE THEREUNDER 0ETITIONER CLAIMS TO BE )N POSSESSION OF ACRES
OF RESERVED FOREST LAND SITUATED IN 3Y.O! AND HE CLAIMS TO HAVE LED AN APPLICATION
ON !NNEXURE
# SEEKING REGULARISATION OF HIS OCCUPATION AND ON ACCOUNT OF
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
NON
CONSIDERATION OF SAID APPLICATION ONE MORE APPLICATION WAS TILED BY THE PETITIONER
ON !NNEXURE
$ 0HOTOGRAPHS PRODUCED AT !NNEXURE
% WOULD INDICATE
THERE ARE STANDING CROPS IN THE LANDS IN QUESTION /N ACCOUNT OF NON
CONSIDERATION OF
HIS APPLICATION AND ON THE THREAT OF COERCIVE STEPS PROPOSED TO BE TAKEN AGAINST THE
PETITIONER BY RESPONDENTS PETITIONER HAS SOUGHT FOR THE RELIEF OF REGULARISATION OF HIS
OCCUPATION OF THE SAID LAND 3TATEMENT OF OBJECTIONS HAVE BEEN LED BY RESPONDENTS
CONTENDING THAT PETITIONER IS NOT A FOREST DWELLER AND A SUCH HE IS NOT ENTITLED FOR BEING
REGULARISED
5NDISPUTEDLY APPLICATION LED BY THE PETITIONER BEFORE THE RESPONDENTS ARE STILL
PENDING )T IS NOT YET DISPOSED OF )T IS FOR THE AUTHORITIES TO TAKE A DECISION AS TO WHETHER
THE SAID APPLICATION MERITS ACCEPTANCE OR REJECTION )F PETITIONERS CLAIM IS OUTSIDE THE
PURVIEW OF THE !CT AND THE 2ULES FRAMED THEREUNDER RESPONDENTS WOULD BE AT LIBERTY TO
REJECT HIS APPLICATION OR THEY ARE AT LIBERTY TO REGULARISE HIS POSSESSION IF THE PETITIONER
IS ENTITLED UNDER LAW (ENCE WITHOUT EXPRESSING ANY OPINION ON THE MERIT OF THE CLAIM
MADE BY THE PETITIONER A DIRECTION IS ISSUED TO &OREST 2IGHTS #OMMITTEE IE THE TH
RESPONDENT TO CONSIDER THE APPLICATIONS OF PETITIONER SUBMITTED ON AND
!NNEXURE # AND $ RESPECTIVELY EXPEDITIOUSLY AT ANY RATE WITHIN AN OUTER
LIMIT OF SIX MONTHS FROM TODAY
)T IS NEEDLESS TO STATE THAT TILL THE DISPOSAL OF THE APPLICATION RESPONDENTS SHALL NOT
DISPOSSESS THE PETITIONER FROM THE LAND IN QUESTION
4 / \
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
+%2!,! ()'(
#/524
4!",% /& *5$'-%.43 !.$ /2$%23
* ANAKI /RS VS 3TATE OF +ERALA /RS
20 .O OF \
+
UTTAN /RS VS 3TATE OF +ERALA /RS
33# /N,INE +ER \
/
NE %ARTH /NE ,IFE VS 3TATE OF +ERALA
3## /N,INE +ER \
4 / \
*ANAKI /RS VS 3TATE OF +ERALA /RS
20 ./ /&
+%2!,! ()'( #/524
#/2!- - 3!3)$(!2!. .!-")!2 *
3 5 - -!29
4HIS JUDGMENT WAS PASSED IN A REVIEW PETITION /RIGINALLY THE PETITIONERS HAD
FILED A SUIT FOR PERMANENT PROHIBITORY INJUNCTION UNDER /RDER 8,6)) 2ULE OF THE
#IVIL 0ROCEDURE #ODE #0# AGAINST THE RESPONDENT 3TATE GOVERNMENT IN 4HE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! WAS NOT ENACTED AT THE TIME AND NO PLEADING OR PRAYER
WAS MADE IN THAT REGARD !T THE TIME OF THE HEARING AND DISPOSAL OF THE SECOND
APPEAL BY THE (IGH #OURT IN THE &2! WAS ENACTED BUT NOT YET IN FORCE 4HE
PRESENT REVIEW PETITION WAS FILED SEEKING RECONSIDERATION OF THE JUDGMENT ON THE
GROUND THAT WHEN THE SECOND APPEAL WAS HEARD AND DISPOSED OF THE RIGHTS OF THE
PETITIONERS UNDER &2! WERE NOT BROUGHT TO THE NOTICE OF THE #OURT AND THEREFORE
WERE NOT CONSIDERED
4HE #OURT REJECTED THIS ARGUMENT ON THE GROUND THAT IN A SUIT FOR INJUNCTION THE
QUESTION OF ENTITLEMENT UNDER THE #ENTRAL !CT COULD NOT BE CONSIDERED AT THE STAGE
OF APPEAL AND IN ANY EVENT THIS WOULD NOT BE A GROUND FOR REVIEW
7HILE DISMISSING THE REVIEW PETITION FOR THE ABOVE MENTIONED REASON THE #OURT
DID GRANT SOME RELIEF TO THE PETITIONERS BY DIRECTING AS FOLLOWS
)T IS MADE CLEAR THAT DISMISSAL OF THE APPEAL WILL NOT DISENTITLE APPELLANTS FROM
CLAIMING THE BENEFIT IF ANY AVAILABLE TO THEM UNDER 3CHEDULED 4RIBES AND OTHER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
/2$%2
4HIS PETITION IS LED UNDER /RDER 8,6)) 2ULE OF #ODE OF #IVIL 0ROCEDURE BY THE APPELLANTS
TO REVIEW THE JUDGMENT IN 23! DATED #ASE OF THE APPELLANTS IN
THE SECOND APPEAL IS THAT WHEN THE SECOND APPEAL WAS HEARD AND DISPOSED OF RIGHTS
AVAILABLE TO THE PETITIONERS UNDER 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT !CT OF WAS NOT BROUGHT TO THE NOTICE OF
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
THE #OURT AND UNDER THE SAID !CT APPELLANTS ARE ENTITLED TO THE PROTECTION AND THEREFORE
JUDGMENT IS TO BE REVIEWED
4HE SECOND APPEAL WAS LED AGAINST THE DISMISSAL OF THE SUIT FOR PERMANENT PROHIBITORY
INJUNCTION INSTITUTED BY THE APPELLANTS BEFORE -UNSIFF #OURT 4HODUPUZHA )T WAS
CONRMED BY THE &IRST !PPELLATE #OURT IN!3 !PPELLANTS DID NOT CLAIM ANY
RIGHT UNDER THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 2IGHTS !CT 20 %VIDENTLY THE @!CT WAS NOT IN FORCE AT THAT TIME
"EING A SUIT FOR INJUNCTION QUESTION OF ENTITLEMENT OF THE APPELLANTS TO THE BENET OF
#ENTRAL !CT OF IS NOT TO BE CONSIDERED IN THE APPEAL )N ANY EVENT IT IS NOT A GROUND
TO ORDER REVIEW OF THE JUDGMENT IN THIS APPEAL
2EVIEW 0ETITION IS DISMISSED )T IS MADE CLEAR THAT DISMISSAL OF THE APPEAL WILL NOT DISENTITLE
APPELLANTS FROM CLAIMING THE BENET IF ANY AVAILABLE TO THEM UNDER 3CHEDULED 4RIBES
AND OTHER 4RADITIONAL &OREST $WELLERS2ECOGNITION OF &OREST 2IGHTS !CT
4 / \
+UTTAN /RS VS 3TATE OF +ERALA
/RS
70 #
+%2!,! ()'( #/524
#/2!- !6 2!-!+2)3(.! 0),,!) *
3 5 - -!29
4HE PETITIONER IS THE CONVENER OF !DIVASI 0UNARADHIVASA 3AMITHY AN ASSOCIATION
OF THE RESIDENTS OF 7ARRIAM #OLONY WHO ARE TRADITIONAL FOREST DWELLERS AND WERE
LIVING IN 7ARRIAM LOCATED IN THE DENSE 0OOYAMKUTTY 2ESERVE &OREST FOR THE PAST
YEARS 4HE SETTLERS LIVED IN THE FOREST AREAS BY COLLECTING HONEY BAMBOO AND
OTHER WILD ITEMS FROM THERE SUBSEQUENTLY THEY SHIFTED TO AGRICULTURAL OPERATIONS
BY CULTIVATING VARIOUS CROPS OVERTIME THEY SHIFTED TO SETTLED CULTIVATION (OWEVER
DUE TO VARIOUS PROBLEMS INCLUDING ATTACKS BY WILD ANIMALS THEY HAD TO BE
SHIFTED TO A SETTLEMENT COLONY AT THE PERIPHERY OF THE 2ESERVE &OREST 4HERE ARE NO
INFRASTRUCTURAL FACILITIES IN THE SETTLEMENT AREA AND NOW THE &OREST $EPARTMENT IS
DEMANDING PAYMENT OF NET PRESENT VALUE .06
! 2 ' 5- % .43 !$6!.#% $
)T WAS CONTENDED THAT DUE TO LACK OF DEVELOPMENTAL ACTIVITIES IN THE AREA THE 3TATE
GOVERNMENT MUST ALLOT ANOTHER PROPERTY TO THE SETTLERS 4HE PETITIONERS ALLEGE
THAT UNDER THE 3CHEDULED 4RIBES AND /THER &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! THE SETTLERS HAD EVERY RIGHT TO BE ALLOTTED ANOTHER PROPERTY
AND ACCORDINGLY THE 4RIBAL $EPARTMENT DECIDED TO PREPARE A DETAILED SCHEME
FOR REHABILITATION INCORPORATING THEIR PRESENT RIGHTS AND PRIVILEGES AND ALSO
REALLOCATING ALTERNATE SITES
4HE &OREST $EPARTMENT DEMANDED THAT .06COMPENSATORY AFFORESTATION BE PAID
4HEREAFTER THE 3TATE #ABINET RESOLVED TO APPROACH THE #ENTRAL 'OVERNMENT FOR AN
EXEMPTION
(OWEVER COUNSEL FOR THE RESPONDENT 3TATE ,EGAL 3ERVICES !UTHORITY +%,3!
SUBMITTED THAT IT WAS NOT A CASE WHERE ANY SUCH PROPOSAL NEEDED TO BE FORWARDED
TO THE #ENTRE -O%& FOR EXEMPTION FROM .06 AS IT WAS A CASE OF REHABILITATING THE
TRIBALS AND NOT A CASE OF DIVERSION OF FOREST LAND
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
!N INTERIM ORDER HAD BEEN PASSED DIRECTING THE 3TATE GOVERNMENT TO FILE AN
AFFIDAVIT GIVING THE STATUS OF REHABILITATION WHICH IT DID NOT DO 2ATHER IT WAS THE
+%,3! COUNSEL WHO PRODUCED DOCUMENTATION TO SHOW THAT THE AREA AMOUNTING TO
ACRES AND FALLING IN VARIOUS PLANTATIONS HAD BEEN EARMARKED FOR REHABILITATION
OF THE TRIBALS FOR VACATING ALMOST TWICE THAT AREA ACRES IN THE INTERIOR FOREST
AREAS 4HE PLANTATION JOURNALS AVAILABLE AT THE RANGE OFFICE SHOWED THAT THESE
PLANTATIONS HAVE BEEN FORMED AFTER CLEARING FORESTS AND WAS BEING MAINTAINED AS
SUCH FOR A LONG PERIOD AS PER THE WORKING PLAN ALREADY APPROVED BY THE #ENTRAL
'OVERNMENT
&).$ ) .' 3 /& 4( % #/524
5NDER THE &2! FOREST RIGHTS ARE TO BE CONFERRED FREE OF THE REQUIREMENT OF PAYING OF
.06 AND COST OF COMPENSATORY AFFORESTATION 5NDER THE WORKING PLANS REHABILITATION
OF TRIBALS IS ALSO PART OF FOREST MANAGEMENT 4HE COURT DECLARED THAT THIS IS NOT
A CASE WHERE THERE IS ANY QUESTION OF .06 OR COST OF COMPENSATORY AFFORESTATION
IS INVOLVED )T DIRECTED THE -INISTRY OF 4RIBAL !FFAIRS TO RENDER ALL ASSISTANCE TO
ST RESPONDENT TO REHABILITATE THE TRIBAL BY INCLUDING THEM IN THE NEXT WORKING
PLAN OF THE AREA AND THAT EARNEST EFFORTS SHALL BE MADE BY BOTH GOVERNMENTS )T
EXPRESSED ITS APPRECIATION TOWARDS THE COUNSEL FOR 3TATE ,EGAL 3ERVICES !UTHORITY
FOR THE ABLE AND VALUABLE ASSISTANCE RENDERED BY HER IN THE CASE
* 5$ '-% . 4
4HE PETITIONERS WHO ARE TRADITIONAL FOREST DWELLERS AT 7ARRIAM NEAR 0OOYAMKUTTY
HAVE APPROACHED THIS #OURT SEEKING A DIRECTION TO ALLOT FOREST LAND TO 7ARRIAM SETTLERS
AT +ANDANPARA FOR THEIR SETTLEMENT AND ALSO FOR A DIRECTION TO RESPONDENTS TO TO TAKE
IMMEDIATE STEPS FOR ALLOTTING ALTERNATE LAND FOR 7ARRIAM !DIVASY #OLONY SETTLERS ON THE
BASIS OF %XT0 CONSIDERING THE FACT THAT THEY HAVE ALREADY SURRENDERED ACRES OF
FOREST LAND TO THE 'OVERNMENT
4HE PETITIONERS ALLEGE THAT THEY BELONG TO THE TRADITIONAL FOREST DWELLERS AT 7ARRIAM
SETTLEMENT AND THEIR ANCESTORS WERE LIVING IN 7ARRIAM SETTLEMENT AREA SINCE YEARS
4HE FOREST DEPARTMENT IN THE YEAR SURVEYED AND DEMARCATED THE SETTLEMENT
AREA AND ERECTED JUNTAS &ORMERLY THE SETTLERS LIVED IN THE FOREST BY COLLECTING HONEY
BAMBOO AND OTHER WILD ITEMS FROM THERE (OWEVER AFTER THE ALLOTMENT OF LAND BY
THE 'OVERNMENT THE SETTLERS MOVED TO AGRICULTURAL OPERATIONS BY CULTIVATING CROPS
LIKE CARDAMOM PEPPER WINES COCONUT TREES AND OTHER SEASONAL IMPROVEMENTS 4HEY
)T IS WORTH NOTING THAT THE #OURT HAD EARLY IN THE PROCEEDINGS DIRECTED IMPLEADMENT OF THE 3TATE ,EGAL
3ERVICES !UTHORITY AS A RESPONDENT WHICH GREATLY ASSISTED IN PRESENTING THE CORRECT LEGAL POSITION &OR
INSTANCE THE LIST OF DOCUMENTS SUBMITTED BY HER BEFORE THE #OURT IS AS UNDER
#OPY OF ,ETTER $ATED OF THE #HAIRMAN 4ALUK ,EGAL 3ERVICE #OMMITTEE +OTHAMANGALAM ADDRESSED
TO THE -EMBER 3ECRETARY +ELSA +ERALA 3TATE ,EGAL 3ERVICES !UTHORITY
#OPY OF ,ETTER $ATED OF THE 4RIBAL $EVELOPMENT /FCER -UVATTUPUZHA TH 2ESPONDENT
ADDRESSED TO THE $IVISIONAL &OREST /FCER -ALAYATTOOR
#OPY OF THE -INUTES OF THE -EETING (ELD ON IN THE #HIEF -INISTERS #HAMBER
#OPY OF /RDER $ATED OF THE -INISTRY OF %NVIRONMENT AND &ORESTS 'OVERNMENT /F )NDIA
4RUE #OPY OF THE ,ETTER $ATED SENT BY THE $& /MALAYATTOOR TO THE &OREST #ONSERVATOR 4HRISSUR
4RUE #OPY OF THE %NTRIES IN THE 0LANTATION *OURNAL WITH REGARD TO THE 40 "IT
0LANTATION
4RUE #OPY OF THE 0LANTATION *OURNAL WITH REGARD TO THE 40 "IT
)) 0LANTATION
4RUE #OPY OF THE 0LANTATION *OURNAL WITH REGARD TO THE 40 0LANTATION
4RUE #OPY OF 0LANTATION *OURNAL WITH REGARD TO 40 0LANTATION
4 / \
FURTHER ALLEGE THAT 0OOYAMKUTTY IS A DENSE RESERVED FOREST AND AS PER PRESENT CENSUS
OF THE FOREST DEPARTMENT MAJORITY OF ELEPHANTS ARE IN THE SAID FOREST AREA $UE TO THE
ATTACK OF WILD ANIMALS THE CULTIVATIONS IN THE SETTLEMENT AREA ARE DESTROYED AND THERE
ARE NO SCHOOLS HOSPITALS OR ANY OTHER INFRASTRUCTURAL FACILITIES TO LIVE IN IT IS ALLEGED
)T IS FURTHER ALLEGED THAT AS PER %XT0 THE 'OVERNMENT ADMITTED THAT SINCE DEVELOPMENTAL
ACTIVITIES ARE NOT GOING ON IN THE AREA THEY HAVE DECIDED TO ALLOT ANOTHER PROPERTY TO THE
SETTLERS /N THE BASIS OF %XT0 AND ALSO AT THE REQUEST OF THE 'OVERNMENT THE PETITIONERS
SETTLEMENT COLONY HAVE DECIDED TO SURRENDER THEIR PROPERTY TO THE 'OVERNMENT ON THE
PROMISE MADE BY THE AUTHORITIES !BOUT ACRES OF LAND WAS SURRENDERED BY THE
7ARRIAM SETTLERS TO THE 'OVERNMENT AND THE 'OVERNMENT INFORMED THE SETTLERS THAT
THEY WOULD TAKE IMMEDIATE STEPS TO REHABILITATE THEM NEAR 0OOYAMKUTTY AT +ANDANPARA
4HE PETITIONERS ALLEGE THAT AS PER THE 3CHEDULE 4RIBE AND OTHER &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT THE SETTLERS HAVE EVERY RIGHT TO GET ALLOTMENT
OF ANOTHER PROPERTY %XT0 'OVERNMENT /RDER AFRMED THE SAID FACT AND AS PER %XT
0 DECISION THE TRIBAL DEPARTMENT WAS DIRECTED TO PREPARE A DETAILED SCHEME FOR
REHABILITATION INCORPORATING THEIR PRESENT RIGHTS AND PRIVILEGES AND ALSO TO REALLOCATE
ALTERNATE SITES 4HE PETITIONERS FURTHER ALLEGE THAT BELIEVING THE WORDS OF THE 'OVERNMENT
AUTHORITIES THEY THOUGHT THAT ALTERNATE LAND WOULD BE ALLOTTED TO THEM IMMEDIATELY
4HAT WAS NOT DONE $UE TO THE HEAVY ATTACK OF THE WILD ANIMALS AND OTHER DECEASES ALL
THE IMPROVEMENTS IN THE SETTLEMENT AREA WERE RUINED AND THE PETITIONERS WERE NOT IN A
POSITION TO LIVE AT 7ARRIAM IT IS ALLEGED
4HE PETITIONERS FURTHER ALLEGE THAT THE 'OVERNMENT HAVE PROMISED THAT FOREST PROPERTY
AT +ANDANPARA WOULD BE ALLOTTED TO THEM AND HENCE ON FAMILIES HAVING
MEMBERS SHIFTED THEIR RESIDENCE FROM 7ARRIAM TO +ANDANPARA 4HE SAID AREA IS A
PLAIN ROCKY LAND WHICH IS ON THE BANK OF 0OOYAMKUTTY RIVER 3MALL THATCHED SHEDS WERE
ERECTED THERE AND ABOUT FOUR FAMILIES ARE RESIDING IN A SINGLE SHED $URING RAINY SEASON
HEAVY OOD IS LIKELY TO COME AND ALL THE SETTLERS WOULD BE WASHED AWAY IT IS ALLEGED
4HEREFORE THEY SAY THAT AS PER LAW THEY ARE ENTITLED TO GET ALTERNATE LAND AND THE
'OVERNMENT HAVE THE DUTY TO REHABILITATE THE SETTLERS IN A SUITABLE PLACE AT +ANDANPARA
NEAR 0OOYAMKUTTY
4HE RST RESPONDENT ON LED A STATEMENT AS DIRECTED BY THIS #OURT REGARDING
THE STEPS TAKEN BY THE DEPARTMENTS FOR THE REHABILITATION OF FAMILIES AT 7ARRIAM
5RIYAMPETTY SETTLEMENT )T IS SUBMITTED THAT ANOTHER AFDAVIT WAS ALSO LED ON
ON BEHALF OF THE RESPONDENTS STATING THE STEPS TAKEN FOR THE REHABILITATION OF TRIBALS ,ATER
IN THE STATEMENT BY THE 3PECIAL 'OVERNMENT 0LEADER ON IT WAS AVERRED THAT
IN CONTINUATION OF THE STEPS TAKEN BY THE DEPARTMENT A MEETING WAS AGAIN CONVENED
ON BY THE #HIEF -INISTER AND THE -INISTER FOR 3CHEDULED 4RIBE $EVELOPMENT
$EPARTMENT THE -EMBER OF 0ARLIAMENT AND OTHER OFCERS CONCERNED )N THE MEETING
DISCUSSIONS WERE MADE FOR TAKING EFFECTIVE STEPS FOR REHABILITATION 4HE COPY OF THE
MINUTES IS PRODUCED AS !NNEXURE
2A ALONG WITH THE STATEMENT
!S DIRECTED BY THIS #OURT THE +ERALA 3TATE ,EGAL 3ERVICES !UTHORITY WAS IMPLEADED IN
THIS CASE AS ADDITIONAL THRESPONDENT 4HE TH RESPONDENT WAS REPRESENTED BY !DV
0INKU ( 4HALIATH
) HAVE HEARD THE LEARNED COUNSEL FOR THE PETITIONERS THE LEARNED 3PECIAL 'OVERNMENT
0LEADER &ORESTS AS WELL AS THE LEARNED COUNSEL APPEARING FOR THE +ERALA ,EGAL 3ERVICES
!UTHORITY
4HOUGH IT IS SUBMITTED BY THE 'OVERNMENT THAT EFFECTIVE STEPS ARE BEING TAKEN THE
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
GRIEVANCE OF THE PETITIONERS HAVE NOT BEEN REDRESSED SO FAR )T WAS POINTED OUT BY THE
LEARNED COUNSEL APPEARING FOR THE TH RESPONDENT THETAS PER '/-3 .O&7,$
DATED WHICH IS PRODUCED AS !NNEXURE 2B THE 3TATE #ABINET IS SEEN TO HAVE
GIVEN PERMISSION TO APPROACH THE #ENTRAL 'OVERNMENT FOR EXEMPTION FROM .ET 0RESENT
6ALUE .06 AND COST OF COMPENSATORY AFFORESTATION IN ORDER TO REHABILITATE THE TRIBAL
FROM 7ARRIAM COLONY IN +UTTAMPUZHA TO THE 5RULANTHANNY TEAK PLANTATION 4HE 3TATE
'OVERNMENT SEEMS TO HAVE BEEN ADVISED THAT THERE IS AN ISSUE OF PAYMENT OF .06 AND
COST OF COMPENSATORY AFFORESTATION IN THE MATTER AT HAND AS ACCORDING TO THE 0RINCIPAL
#HIEF #ONSERVATOR OF FORESTS THE REHABILITATION CONSTITUTES A DIVERSION OF FOREST LAND
(OWEVER THE LEARNED COUNSEL FOR THE TH RESPONDENT SUBMITTED THAT IT IS NOT A CASE
WHERE ANY SUCH PROPOSAL NEED BE FORWARDED TO THE #ENTRAL 'OVERNMENT -INISTER
OF %NVIRONMENT AND &ORESTS FOR EXEMPTION FROM .06 AND COST OF COMPENSATORY
AFFORESTATION )N SUPPORT OF HER ARGUMENT IT WAS POINTED OUT THAT THIS IS A CASE OF
REHABILITATING THE TRIBALS AND NOT A CASE OF DIVERSION OF FOREST LAND 4HE TRIBALS ARE
ENTITLED TO FOREST RIGHTS AND BY SHIFTING THEM FROM THEIR ORIGINAL PLACE FROM THE
THICK FOREST AREAS THE 3TATE 'OVERNMENT IS MERELY MODIFYING THEIR FOREST RIGHTS AND
RESETTLING THEM SO SUBMITTED THE LEARNED COUNSEL FOR THE PETITIONERS ) SEE FORCE IN THE
SAID SUBMISSION )T IS NOT A CASE OF DIVERSION OF FOREST LAND BUT IT IS A CASE OF MODICATION
OF FOREST RIGHTS
!S PER THE PROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT FOREST RIGHTS WERE TO BE CONFERRED FREE OF THE
REQUIREMENT OF PAYING OF .06 AND COST OF COMPENSATORY AFFORESTATION )T IS SUBMITTED
THAT THE PRESENT AREA IN WHICH THE TRIBALS ARE TO BE REHABILITATED IS A TEAK
ELAVU
PLANTATION !S THESE ARE BEING MAINTAINED AS PLANTATIONS SINCE LONG AGO THEY CANNOT
BE TREATED AS PUKKA FOREST LAND -OREOVER THERE IS NO LOSS OF FOREST LAND AS THE TRIBALS ARE
SURRENDERING CLOSE TO DOUBLE THE EXTENT OF THICK FOREST LAND IE ACRES !S ADMITTED
EVEN BY THE #HIEF #ONSERVATOR OF &ORESTS THERE IS NO NEED FOR AFFORESTATION AS THE AREA
GIVEN BY THE TRIBALS IS HIGHLY THICK FOREST AREA
4HIS #OURT ON HAD DIRECTED THE 'OVERNMENT TO LE A STATEMENT INCORPORATING
THE STATUS OF THE LAND TO WHICH THE TRIBALS ARE TO BE RELOCATED WHICH WAS NOT COMPLIED
WITH %NQUIRIES MADE BY THE TH RESPONDENT WOULD REVEAL THAT THE 5RULANTHANNY
PLANTATIONS TO WHERE THE TRIBALS ARE TO BE REHABILITATED COMPRISE AN AREA OF ACRES
FALLING IN 40 "IT ) PLANTATION 40 "IT )) 0LANTATION 40 0LANTATION AND
40 0LANTATION 4HE PLANTATION JOURNALS BEING KEPT WITH REGARD TO THE ABOVE PLANTATIONS
IN THE +UTTAMPUZHA RANGE OFCE WHICH IS PRODUCED BY THE TH RESPONDENT WOULD
SHOW THAT THESE PLANTATIONS HAVE BEEN FORMED AFTER CLEARING FOREST IN AND
RESPECTIVELY AND IS BEING MAINTAINED AS SUCH SINCE LONG BACK AS PER A WORKING PLAN
ALREADY APPROVED BY THE #ENTRAL 'OVERNMENT 5SUALLY WORKING PLANS ARE REVISED ONCE
IN YEARS ACCORDING TO THE PROCEDURE LAID DOWN IN THE .ATIONAL 7ORKING 0LAN #ODE
4WO YEARS TIME WAS USUALLY GRANTED TO THE 3TATE 'OVERNMENT TO INCORPORATE
CHANGES IN THE PRESENT WORKING PLAN FOR EACH AREA AND TO SUBMIT IT TO THE #ENTRAL
'OVERNMENT FOR APPROVAL 4HE PRESENT WORKING PLAN FOR -ALAYATTOOR FOREST DIVISION
IN WHICH THE 5RULANTHANNY PLANTATIONS ARE SITUATED IS DUE TO BE SUBMITTED FOR REVISION
AND APPROVAL FOR THE NEXT YEARS 4HEREFORE THE PROPOSED REHABILITATION PACKAGE FOR
THESE TRIBALS HAS TO BE INCLUDED IN THE WORKING PLAN OF THIS AREA IE THE -ALAYATTOOR
FOREST DIVISION BEFORE SUBMITTING IT FOR APPROVAL OF THE #ENTRAL 'OVERNMENT AS
REHABILITATING TRIBALS IS ALSO A PART OF FOREST MANAGEMENT
/N EXAMINING THE REHABILITATION PACKAGE IT IS SEEN THAT OTHER THAN THE ACRES OF LAND
ALLOCATED TO EACH TRIBAL FAMILY IN RECOGNITION OF THEIR FOREST RIGHTS ACRES OF LAND HAS
BEEN SET APART FOR INFRASTRUCTURE DEVELOPMENT !S PER SECTION OF THE 3CHEDULED
4 / \
4RIBES AND OTHER TRADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
EVEN IN CASE OF FOREST LAND IT IS POSSIBLE TO DIVERT AN EXTENT OF LESS THAN HECTARE EACH
FOR EACH DEVELOPMENTAL INITIATIVE OF THE 'OVERNMENT SUBJECT TO CERTAIN CONDITIONS AND
IN SUCH CASES THE #ENTRAL 'OVERNMENT IS BOUND TO ALLOW DIVERSION (ERE IN THE CASE
OF 5RULANTHANNY PLANTATION THE SITUATION IS EVEN MORE FAVOURABLE AS THE AREA IS NOT
A PUKKA FOREST BUT A TEAK ELAVU PLANTATION EXISTING SINCE LONG BACK THAT TOO AS PER A
WORKING PLAN APPROVED BY THE #ENTRAL 'OVERNMENT )F THE MATTER IS HANDLED BY THE
3TATE 'OVERNMENT IN THE ABOVE MANNER THE TRIBALS CAN BE REHABILITATED SPEEDILY
)N ORDER TO FACILITATE THE SPEEDY AND COMPULSORY REHABILITATION OF THE TRIBALS THE 7RIT
0ETITION IS DISPOSED OF ASUNDER
A )T IS HEREBY DECLARED THAT THIS IS NOT A CASE WHERE THERE IS ANY QUESTION OF .06 OR
COST OF COMPENSATORY AFFORESTATION IS INVOLVED
B 4HE RD RESPONDENT IS DIRECTED TO RENDER ALL ASSISTANCE TO THE ST RESPONDENT TO
REHABILITATE THE TRIBALS TO WHICH THE PETITIONERS BELONG IF NECESSARY BY INCLUDING
THEM IN THE NEXT WORKING PLAN OF THE AREA IN FURTHERANCE OF MODICATION OF THEIR
FOREST RIGHTS
C !S THE WORKING PLAN OF THE AREA -ALAYATTOOR FOREST DIVISION IN WHICH THE
5RULANTHANNY TEAK PLANTATION IS SITUATED IS BEING REVISED EARNEST EFFORTS SHALL BE
MADE BY BOTH 'OVERNMENTS TO SEE THAT THE GRIEVANCE OF THE PETITIONERS ARE REDRESSED
DURING THE NEXT PLAN ITSELF BY COMPLYING WITH THE AFORESAID DIRECTION
"EFORE PARTING WITH THIS JUDGMENT ) WOULD LIKE TO PLACE ON RECORD THE APPRECIATION TOWARDS
THE LEARNED COUNSEL FOR THE SIXTH RESPONDENT FOR THE ABLE AND VALUABLE ASSISTANCE RENDERED
BY HER IN THIS CASE
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
/NE %ARTH /NE ,IFE VS 3TATE OF +ERALA
/RS
70 # ./ /&
()'( #/524 /& +%2!,!
#/2!- !3(/+ "(53(!. #* !.$ !- 3(!&&)15% *
#)4!4)/. 3## /.,).% +%2
3 5--!29
4HE PETITION WAS FILED AS A PUBLIC INTEREST LITIGATION SEEKING DIRECTIONS AGAINST
THE RESPONDENT 3TATE GOVERNMENT TO STOP ILLEGAL ASSIGNMENT OF FOREST LAND UNDER
THE GUISE OF IMPLEMENTATION OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! AND &2 2ULES
4HE PETITIONER SUBMITTED THAT LARGE SCALE ENCROACHMENTS IN FOREST LANDS HAVE BEEN
MADE IN THE FORESTS OF 0ALAKKAD AND -ANNARKAD FOREST DIVISIONS !LTHOUGH A JOINT
VERIFICATION WAS CONDUCTED BY THE 2EVENUE AND &OREST $EPARTMENTS IN THE SAID
AREA IN WHEN THE CLAIMS WERE SUBMITTED THOSE CLAIMS BY TRIBALS BELOW ACRE
WERE RETURNED WITH INSTRUCTIONS TO CLAIM A MINIMUM OF ACRE OF LAND EACH 4HE
PETITIONER ARGUED THAT THIS DECISION IS IN VIOLATION OF THE &2! WHICH UNDER 3ECTION
ONLY PERMITS RECOGNITION OF LAND IN POSSESSION ON
#ONTESTING THE CLAIMS MADE BY THE PETITIONER THE RESPONDENT 3TATE DECLARED
THAT ALTHOUGH A DECISION TO THIS EFFECT HAD BEEN TAKEN AT THE MINISTERIAL LEVEL NO
SUCH 'OVERNMENT ORDER WAS ISSUED NOR WAS IT EVER IMPLEMENTED 3UBSTANTIATING
THE CONTENTION THE RESPONDENTS CLAIMED THAT THE NECESSARY '03 SURVEY OF TRIBAL
SETTLEMENTS HAS BEEN COMPLETED AS PER THE INSTRUCTION OF THE #HIEF #ONSERVATOR
OF &OREST 0ROTECTION IN THE WHOLE 3TATE ON THE BASIS OF WHICH MAPS HAVE BEEN
PREPARED )N AREAS WHERE ENCROACHMENT HAS TAKEN PLACE NO TITLE HAS BEEN ISSUED
UNDER &2!
4HE #OURT HELD THAT FOREST DWELLERS ARE ENTITLED TO ASSIGNMENT OF LAND ONLY IN
ACCORDANCE WITH THE PROVISIONS OF THE &2! IN PARTICULAR 3ECTION WHICH REQUIRES
THEY SHOULD HAVE OCCUPIED THE FOREST LAND BEFORE 4HE #OURT STATED THAT
THERE CAN BE NO DOUBT THAT THE FOREST RIGHT WILL BE ASSIGNED ONLY WITH REFERENCE
TO THE PROPERTY IN POSSESSION OF THE FOREST DWELLER OR THE TRIBAL AND IT CANNOT BE
EXTENDED TO ANY OTHER AREA
4 / \
$ISPOSING OF THE WRIT PETITION THE #OURT MADE IT CLEAR THAT THE MINISTERIAL DECISION
REGARDING ASSIGNMENT OF A MINIMUM OF ONE ACRE OF LAND TO EACH CLAIMANT SHALL NOT
OPERATE AND THE RECOGNITION OF RIGHTS SHALL BE STRICTLY IN ACCORDANCE WITH LAW
% $ ) 4 /23 . /4%
!LTHOUGH THIS JUDGMENT IS RECENT THE MINISTERIAL DECISION IS AN OLD ONE FROM
WHICH HAD BEEN REVOKED SOON THEREAFTER !FTER AN EARLY COURSE CORRECTION THE 3TATE
OF +ERALA HAS DEMONSTRATED EXEMPLARY ADVANCES IN THE IMPLEMENTATION OF THE
&2! BOTH WITH REGARD TO INDIVIDUAL AS WELL AS COMMUNITY AND COMMUNITY FOREST
RESOURCE RIGHTS
* 5 $ ' -% . 4
THE *UDGMENT OF THE #OURT WAS DELIVERED BY !- 3HAFQUE *
4HIS WRIT PETITION IS LED IN THE FORM OF A 0UBLIC )NTEREST ,ITIGATION INTER ALIA SEEKING FOR
THE FOLLOWING RELIEFS
I )SSUE A WRIT OF MANDAMUS DIRECTING RESPONDENTS TO NOT TO ASSIGN &OREST LANDS TO
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS WHICH IS NOT IN THEIR
ACTUAL POSSESSION AS ON AND NOT MORE THAN THE ACTUAL EXTENT POSSESSED
BY THEM
II )SSUE A WRIT OF CERTIORARI CALLING FOR THE RECORDS RELATING TO %XHIBIT 0 AND QUASH
THE PORTION OF %XHIBIT 0 BY WHICH IT WAS DECIDED TO RETURN THE APPLICATION FOR
CLAIMS OF RIGHT BY THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS IF
THE AREA CLAIMED IS BELOW ONE ACRE AND TO GET REVISED CLAIMS FROM SUCH APPLICANTS
SO THAT AT LEAST ONE ACRE CAN BE ASSIGNED TO EACH CLAIMANT
III )SSUE A WRIT OF MANDAMUS DIRECTING RESPONDENTS .O TO CANCEL ALL THE PATTAS
ISSUED ON TO THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
IN RESPECT OF UNOCCUPIED FOREST LANDS COMING UNDER -ANNARKKAD AND 0ALAKKAD
&OREST $IVISIONS )MMEDIATELY
IV )SSUE A WRIT OF MANDAMUS DIRECTING RESPONDENTS TO TO ISSUE RECORD OF RIGHTS
TO THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS ONLY AFTER A JOINT
VERICATION BY THE &OREST AND 2EVENUE $EPARTMENTS IN RESPECT OF THE CLAIMS
V )SSUE A WRIT OF MANDAMUS DIRECTING RESPONDENTS AND TO X THE BOUNDARIES BY
PUTTING JUNDAS BETWEEN THE LANDS FOR WHICH RECORDS OF RIGHTS ARE ISSUED TO THE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS AND THE ADJACENT FOREST
LANDS AND TO PROTECT THE NEIGHBORING FOREST LANDS FROM BEING FURTHER ENCROACHED
4HE FACTS INVOLVED IN THE WRIT PETITION DISCLOSE THAT THE PETITIONER BEING A VOLUNTARY
ORGANIZATION ON BEING AGGRIEVED BY THE DESTRUCTION OF VARIOUS FOREST LAND BY 2EVENUE
AND 4RIBAL DEPARTMENTS HAS APPROACHED THIS #OURT CONTENDING THAT THE FOREST LANDS
ARE BEING ASSIGNED ILLEGALLY UNDER THE GUISE OF IMPLEMENTATION OF 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT HEREINAFTER
REFERRED TO AS THE !CT AND THE 2ULES FRAMED THEREUNDER
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
)T IS STATED THAT IN RESPECT OF LANDS COMING WITHIN THE FOREST RANGE OF -ANNARKKAD FOREST
DIVISION OF 0ALAKKAD LARGE SCALE ENCROACHMENTS HAVE BEEN MADE WITH RESPECT OF
ACRES OF VIRGIN FOREST LAND THEREBY DESTROYING THE UNDERGROWTH 3UCH AN INCIDENT HAS
BEEN REPORTED IN NEWSPAPERS AS EVIDENCED FROM %XT0 DATED )T IS SUBMITTED
BY THE PETITIONER THAT IN IMPLEMENTATION OF THE PROVISIONS OF THE !CT A JOINT VERICATION
WAS CONDUCTED BY THE 2EVENUE AND &OREST $EPARTMENT IN -ANNARKKAD 4ALUK IN
!LL LANDS UNDER THE POSSESSION AND CULTIVATION OF THE DWELLERS HAVE BEEN SURVEYED
DEMARCATED AND THE JOINT VERICATION LIST HAS BEEN PREPARED IN RESPECT OF 6ETTILACHOLA
COLONY WHICH IS PRODUCED AS %XT0 '03 SURVEY WAS ALSO CONDUCTED IN THE FOREST AREAS
AND ALL THE TRIBAL SETTLEMENTS HAVE BEEN MARKED BY THE FOREST DEPARTMENT (OWEVER
IN A JOINT MEETING OF THE -INISTERS FOR &OREST 4RIBUNAL 7ELFARE AND 2EVENUE A DECISION
WAS TAKEN TO TAKE BACK THE APPLICATION FOR CLAIMS OF THE RIGHTS CLAIMED BY TRIBALS BELOW
ACRE AND THEY WERE ASKED TO SUBMIT REVISED CLAIMS SO THAT AT LEAST ONE ACRE LAND CAN BE
ASSIGNED TO THEM %XT0 IS THE SAID MINUTES
0ETITIONER POINTS OUT THAT THE AFORESAID DECISION IN THE MINUTES IS IN TOTAL VIOLATION OF
THE STATUTORY PROVISIONS UNDER THE !CT &URTHER IT IS POINTED OUT THAT THE AUTHORITIES
PROCEEDED TO ASSIGN LANDS TO INELIGIBLE PERSONS AND LARGER EXTENT OF FOREST LAND IS
PROPOSED TO BE ASSIGNED IN VIOLATION OF THE PROVISIONS OF THE !CT AND THE 2ULES WHICH
ACCORDING TO THE PETITIONER WILL DENUDE THE FOREST AND HENCE THE WRIT PETITION IS LED
SEEKING THE RELIEFS AFORESAID
#OUNTER AFDAVIT HAS BEEN LED BY THE TH RESPONDENT VIRTUALLY ADMITTING THE FACTUAL
STATEMENTS IN THE WRIT PETITION AND STATING THAT THOUGH A DECISION HAD BEEN TAKEN BY
VIRTUE OF %XT0 MINUTES THE INTENTION TO PROVIDE ONE ACRE OF LAND TO TRIBALS NO SUCH
'OVERNMENT /RDER HAD BEEN ISSUED IN THAT REGARD &URTHER A PERUSAL OF THE COUNTER
AFDAVIT CLEARLY INDICATES THAT NECESSARY '03 SURVEY OF TRIBAL SETTLEMENTS BASED ON THE
DECISION IN 4HE 3TATE ,EVEL -ONITORING #OMMITTEE AND AS PER THE INSTRUCTIONS OF THE #HIEF
#ONSERVATOR OF &ORESTS 0ROTECTION HAD BEEN COMPLETED IN ALL THE FOREST SETTLEMENTS IN
THE 3TATE AND MAPS HAVE BEEN PREPARED
)T IS ALSO ADMITTED THAT THERE HAD BEEN ENCROACHMENT OVER ACRES OF VIRGIN FOREST LAND
IN 6ETTILACHOLA 4RIBAL 3ETTLEMENT WHICH TOOK PLACE IN
AND (OWEVER
IT IS STATED THAT NO TITLE HAVE BEEN ISSUED IN 6ETTILACHOLA 4RIBAL 3ETTLEMENTS UNDER THE
PROVISIONS OF THE !CT SINCE THE CORRECT LEGAL POSITION WAS BROUGHT TO THE NOTICE OF THE
3UB $IVISIONAL ,EVEL #OMMITTEE AND $ISTRICT ,EVEL #OMMITTEE BY THE FOREST OFCIALS
(OWEVER IN PARA IT IS STATED AS UNDER
4HE ALLEGATION RAISED IN 'ROUND $ IT IS SUBMITTED THAT THE FOREST OFCIALS HAVE
NOT BEEN DULY INTIMATED ABOUT THE SURVEY OF LAND FOR WHICH CLAIMS HAVE BEEN
PREFERRED AND RECEIVED BY THE 'RAMA 3ABHA WHICH WOULD LEAD TO ASSIGNMENT OF
VIRGIN FOREST LAND IN CONTRAVENTION OF THE PROVISIONS OF THE &OREST 2IGHTS !CT 4HIS
WOULD ALSO LEAD TO RECOGNIZING FAKE CLAIMS ON FOREST LANDS )N THIS CONNECTION IT HAS
BEEN REPORTED BY THE $IVISIONAL &OREST /FCER -ANNARKKAD THAT AS ON
OUT OF RECORDS OF RIGHTS ISSUED ARE FOR LAND UNDER FOREST VEGETATION 4HESE
RECORDS OF RIGHTS INCLUDE RECORDS OF RIGHTS IN 0AZHAYUR SETTLEMENT OF !TTAPPADI
2ANGE RECORDS OF RIGHTS IN 6AKKODAN 3ETTLEMENT OF -ANNARKKAD 2ANGE AND
RECORDS OF RIGHTS IN !GALY 2ANGE 4HE RECORDS OF RIGHTS GIVEN IN !GALY RANGE ARE TO
TRIBALS RESIDING OUTSIDE FOREST
(AVING REGARD TO THE ABOVE FACTUAL SITUATION THERE IS NO DISPUTE ABOUT THE FACT THAT THE
TRIBALS ARE ENTITLED FOR ASSIGNMENT OF LAND ONLY UNDER THE PROVISIONS OF !CT 3ECTION
OF THE !CT IS RELEVANT WHICH READS AS UNDER
4HE RECOGNITION AND VESTING OF FOREST RIGHTS UNDER THIS !CT TO THE FOREST
DWELLING 3CHEDULED 4RIBES AND TO OTHER TRADITIONAL FOREST DWELLERS IN RELATION TO ANY
4 / \
3TATE OR 5NION TERRITORY IN RESPECT OF FOREST LAND AND THEIR HABITAT SHALL BE SUBJECT TO
THE CONDITION THAT SUCH 3CHEDULED 4RIBES OR TRIBAL COMMUNITIES OR OTHER TRADITIONAL
FOREST DWELLERS HAD OCCUPIED FOREST LAND BEFORE THE TH DAY OF $ECEMBER
4HERE CANNOT BY ANY DISPUTE REGARDING THE FACT THAT THE RECOGNITION AND VESTING OF
FOREST RIGHTS UNDER THE !CT TO THE FOREST DWELLING 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS CAN ONLY BE IN RESPECT OF FOREST LAND 4HE VERY CONCEPT OF THE AFORESAID
STATUTORY PROVISION INDICATES THAT FOREST LAND CAN BE ASSIGNED ONLY WITH REFERENCE TO THE
PROPERTY IN POSSESSION OF THE FOREST DWELLER OR THE TRIBAL AS THE CASE MAY BE )T CANNOT BE
EXTENDED TO ANY OTHER AREA OF FOREST )N OTHER WORDS IT IS NOT OPEN FOR THE 'OVERNMENT
TO ASSIGN ANY EXTENT OF LAND TO THE FOREST DWELLERS OTHER THAN THE LAND IN THEIR ACTUAL
POSSESSION 7HEN THIS LEGAL POSITION IS CLEAR WE DO NOT THINK THAT THE 'OVERNMENT WILL
HAVE ANY RIGHT TO ISSUE ANY ASSIGNMENT ORDERS OR ISSUE PATTAS BASED ON THE MINUTES OF
DISCUSSION AS STATED IN %XT0
)T IS FOR THE 'OVERNMENT AND ITS AUTHORITIES ESPECIALLY THE &OREST $EPARTMENT TO ENSURE
THAT THE FOREST LAND IS NOT MISUTILIZED BY ISSUING ASSIGNMENT ORDERSPATTAS TO PERSONS
WHO ARE NOT ELIGIBLE FOR THE SAME )F THERE IS ANY ENCROACHMENT ON THE FOREST LAND IT IS
FOR THE CONCERNED OFCERS TO ENSURE THAT ENCROACHMENT IS REMOVED AT THE EARLIEST
4HEREFORE HAVING REGARD TO THE LIMITED SCOPE OF THE ABOVE WRIT PETITION WE DIRECT
THE RESPONDENT AUTHORITIES TO ENSURE THAT NO LAND SHALL BE ASSIGNED OTHER THAN IN
ACCORDANCE WITH THE PROVISIONS OF THE !CT AND THE 2ULES FRAMED THEREUNDER )T IS MADE
CLEAR THAT PARA OF THE MINUTES OF THE MEETING %XT0 SHALL NOT ENABLE ANY PERSON TO
CLAIM ACRE OF LAND FROM THE FOREST AREA OTHER THAN THE LAND IN THEIR POSSESSION 4HE
FOREST DEPARTMENT SHALL ALSO VERIFY WHETHER APPROPRIATE DEMARCATION CAN BE MADE TO
THE AFORESAID HABITATS DEPENDING UPON THE GROUND REALITY INVOLVED IN THE MATTER
7RIT PETITION IS CLOSED AS ABOVE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
-!$(9! 02!$%3(
()'( #/524
4!",% /& *5$'-%.43 !.$ /2$%23
2
AVINDRA -ASANE !NR VS 3TATE OF -ADHYA 0RADESH /RS
70 0), .O OF \
-
S 3HAMIM -ODI VS -S 3UDHA #HOWDHARY $ISTRICT #OLLECTOR /RS
-0(4 \
-
ADHU /RS VS 3TATE OF -ADHYA 0RADESH !NR ETC
-ISC !PPEAL .O OF ETC \
-
ANAJI -AWASI /RS VS 3TATE OF -ADHYA 0RADESH /RS
70 .O OF \
2AVINDRA -ASANE !NR VS 3TATE OF -ADHYA 0RADESH /RS
70 0), .O OF \
"
AIGA -AHAPANCHAYAT -ADHYA 0RADESH VS 3TATE OF -ADHYA 0RADESH
70 .O OF \
!
JMAL +HAN VS 3TATE OF -ADHYA 0RADESH
3## /N,INE -0 \
$
HARMENDRA VS 3TATE OF -ADHYA 0RADESH
3## /N,INE -0 \
(
AMEER 3INGH !NR VS 3TATE OF -ADHYA 0RADESH /RS
3## /N,INE -0 \
3
HIVAJI 3UNE VS 5NION OF )NDIA
3## /N,INE -0 \
0
ANDURANG 3ITARAM -AHAJAN VS 3TATE OF -ADHYA 0RADESH
3## /NLINE -0 \
4 / \
-
ANGAL 3INGH ,OKHANDE VS 3TATE OF -ADHYA 0RADESH
70 0), .O OF \
3
HIV 2ATAN VS 3TATE OF -ADHYA 0RADESH
3ECOND !PPEAL .O OF \
+UMAN 3INGH !RMO VS 3TATE OF -ADHYA 0RADESH /RS
70 .O OF \
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
2AVINDRA -ASANE !NR VS 3TATE OF
-ADHYA 0RADESH /RS
70 ./ /& 0),
()'( #/524 /& -!$(9! 02!$%3( *!"!,052 "%.#(
).4%2)- /2$%2
#/2!- !+ 0!4.!)+ #* !.$ 3!.*!9 9!$!6 *
3 5--!29
4HE PETITIONERS BOTH OF WHOM ARE PART OF THE TRIBAL RIGHTS MOVEMENTS FILED THE
PRESENT WRIT PETITION AS A PUBLIC INTEREST LITIGATION IN ORDER TO PROTECT THE FOREST
DWELLERS OF THE DISTRICTS IN WHICH THEY ARE WORKING FROM FORCIBLE DISPOSSESSION
FROM THE FOREST LANDS IN LIGHT OF THE THEN RECENTLY ENACTED 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
4AKING NOTE OF THE SUBSTANTIVE PROVISIONS OF THE LAW UNDER 3ECTION AND 3ECTION
AND IN PARTICULAR THE STATUTORY INJUNCTION FROM DISPOSSESSION FROM LANDS WHILE
RIGHTS RECOGNITION PROCESS IS UNDERWAY THE #OURT PASSED THE FOLLOWING INTERIM
ORDER AS UNDER
AS AN INTERIM MEASURE THAT NO MEMBER OF FOREST DWELLING 3CHEDULED 4RIBE OR NO
OTHER TRADITIONAL FOREST DWELLER OF 'RAM 0ANCHAYAT 'ARHTAAL 4AHSIL AND $ISTRICT
"URHANPUR SHALL BE EVICTED FROM FOREST LAND UNDER THE OCCUPATION OR WILL BE
PREVENTED FROM CULTIVATING OR DWELLING ON SUCH FOREST LAND UNTIL FURTHER ORDERS
% $ )4/23 . /4%
/NE OF THE EARLIEST ORDERS PASSED BY A CONSTITUTIONAL COURT UNDER THE &2! THESE
PROTECTIVE DIRECTIONS REMAINED IN FORCE UNTIL THE WRIT PETITION WAS FINALLY DISPOSED
OF VIDE ORDER DATED EXTRACTED ELSEWHERE IN THIS COMPENDIUM ALBEIT BY A
DIFFERENT BENCH
/2$ % 2
0ARTICULARS OF THE 0ETITIONER
4 / \
A 4HE PETITIONER .O IS A PUBLIC SPIRITED PERSON A PUBLIC GURE AND HAS BEEN
ASSOCIATED WITH -ASS TRIBAL MOVEMENTS IN THE $ISTRICT OF "URHANPUR (E WAS ELECTED AS
WARD MEMBER OF 7ARD .O OF "URHANPUR.AGARPALIKA DURING (E HAS BEEN
ASSOCIATED WITH THE RESIDENTS OF THE AFFECTED VILLAGES DESCRIBED IN THIS PETITION AND HAS
BEEN THEIR FRIEND AND GUIDE IN THEIR STRUGGLE FOR SURVIVAL
B 4HE PETITIONER .O IS A COMMUNITY LEADER OF THE "HIL "HILALA TRIBESMEN TRADITIONALLY
KNOWN AS 0ATELS OF ONE OF THE AFFECTED 6ILLAGES *UNIBADI $ISTRICT
"URHANPUR (E
ENJOYS THE CONDENCE OF HIS TRIBESMEN AND HAS BEEN MANDATED BY HIS PEOPLE TO BRING
LITIGATIONS IF ANY FOR SECURING THEIR RIGHTS AND PROTECTING THEIR INTERESTS
(EARD -R 2AGHVENDRA +UMAR LEARNED COUNSEL FOR THE PETITIONER AND -R 6+ 3HUKLA
LEARNED $EPUTY !DVOCATE 'ENERAL FOR THE 3TATE
4HIS MATTER HAS COME UP TODAY FOR CONSIDERING THE INTERIM PRAYER INTERIM PRAYER MADE
IN THE WRIT PETITION IS THE NO VILLAGER OF 'RAM 0ANCHAYAT 'ARHTAAL SHOULD BE EVICTED FROM
THE LAND OR PROHIBITED FROM CULTIVATING AND DWELLING ON THEIR LAND TILL THE PROCEDURE
FOR RECOGNITION AND VERICATION OF THEIR RIGHTS IS COMPLETE AS PER THE MANDATE OF THE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT FOR SHORT THE !CT OF
7E ND THAT UNDER 3ECTION A OF THE !CT OF FOREST DWELLING 3CHEDULED 4RIBES AND
OTHER TRADITIONAL FOREST DWELLERS WOULD NOW HAVE THE RIGHT TO HOLD AND LIVE IN THE FOREST
LAND UNDER THE INDIVIDUAL OR COMMON OCCUPATION FOR HABITATION OR FOR SELF
CULTIVATION
3ECTION OF THE !CT OF FURTHER STATES THAT NOTWITHSTANDING ANYTHING CONTAINED
IN ANY OTHER LAW FOR THE TIME BEING IN FORCE AND SUBJECT TO THE PROVISIONS OF THE !CT THE
#ENTRAL 'OVERNMENT RECOGNIZES AND VESTS FOREST RIGHTS IN THE FOREST DWELLING 3CHEDULED
4RIBES AND OTHER TRADITIONAL FOREST DWELLERS IN RESPECT OF ALL FOREST RIGHTS MENTIONED IN
3ECTION 3ECTION OF THE !CT OF FURTHER SAYS THAT SAVE AS OTHERWISE PROVIDED
NO MEMBER OF A FOREST DWELLING 3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLER SHALL
BE EVICTED OR REMOVED FROM FOREST LAND UNDER HIS OCCUPATION TILL THE RECOGNITION AND
VERICATION PROCEDURE IS COMPLETE
#ONSIDERING THE AFORESAID PROVISIONS IN THE !CT OF WHICH HAVE COME INTO FORCE
WITH EFFECT FROM ST $ECEMBER BY NOTICATION DATED ST $ECEMBER WE
DIRECT AS AN INTERIM MEASURE THAT NO MEMBER OF FOREST DWELLING 3CHEDULED 4RIBE OR
NO OTHER TRADITIONAL FOREST DWELLER OF 'RAM 0ANCHAYAT 'ARHTAAL 4AHSIL AND $ISTRICT
"URHANPUR SHALL BE EVICTED FROM FOREST LAND UNDER THE OCCUPATION OR WILL BE PREVENTED
FROM CULTIVATING OR DWELLING ON SUCH FOREST LAND UNTIL FURTHER ORDERS
## AS PER RULES BY TOMORROW
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
-S 3HAMIM -ODI VS -S 3UDHA
#HOWDHARY $ISTRICT #OLLECTOR /RS
70 -0(4
-!$(9! 02!$%3( ()'( #/524
#/2!- !+ 0!4.!)+ #* !.$ 02!+!3( 3(2)6!34!6% *
#)4!4)/. -0(4
3 5--!29
"2 )% & &! #43
4HE PETITIONER A FOUNDING MEMBER OF 3HRAMIK !DIVASI 3ANGHATAN WHICH IS AN
ORGANIZATION FOR BETTERMENT OF THE CONDITIONS OF TRIBALS FILED A 0), TO PROTECT THE
RIGHTS OF TRIBALS RESIDING IN THE TRIBAL VILLAGE OF 'HORPODMAL IN "HAISDEHI 4EHSIL
7EST "ETUL -ADHYA 0RADESH 4HE PETITIONER HAD ALLEGED THAT THE FOREST OFFICERS
OF THE &OREST $EPARTMENT OF THE 'OVERNMENT OF -ADHYA 0RADESH HAD THREATENED
THE TRIBAL PEOPLE IF THEY DIDNT REFRAIN FROM PARTICIPATING IN THE ACTIVITIES OF THE
3ANGATHAN THAT THEY WOULD BE DISPOSSESSED FROM THEIR RIGHT TO CONTINUE CULTIVATING
THEIR ANCESTRAL LANDS IN THE FOREST
4HE PETITIONER FURTHER ALLEGED THAT ARMED POLICEMEN AND FOREST DEPARTMENT
PERSONNEL HAD FORCIBLY ENTERED THE HOUSE OF A MEMBER OF THE COMMUNITY WHEN HE
WAS NOT PRESENT AND THEN MOLESTED AND BEATEN UP TWO WOMEN IN THE HOUSEHOLD
4HEY ALSO ASSAULTED VARIOUS INDIVIDUALS WHO IN SELF
DEFENSE PELTED STONES AT
THEM SUBSEQUENT TO WHICH THE OFFICIALS LEFT ,ATER POLICE PERSONNEL REGISTERED
A FALSE CASE OF DACOITY AND ATTEMPT TO MURDER AGAINST PERSONS -OREOVER THE
COMPLAINTS MADE BY THE PETITIONER WERE NOT BEING INVESTIGATED AND THE MEMBERS
OF THE COMMUNITY WERE BEING FORCED BY THE POLICE TO WITHDRAW THEIR COMPLAINTS
EVEN AS THEY REGISTERED FALSE CRIMINAL CASES AGAINST THE TRIBALS AND THE PETITIONER
HERSELF 4HE TRIBALS WERE BEING KEPT IN JUDICIAL CUSTODY AND WERE BEING PRODUCED IN
HANDCUFFS BEFORE THE #OURTS
$URING THE PENDENCY OF THE WRIT PROCEEDINGS THE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! WAS
ENACTED AND THE 0ETITIONER FURTHER SOUGHT TO RELY UPON THE SAID !CT TO SUBSTANTIATE
THE CLAIMS OF THE TRIBALS
4 / \
4HE RESPONDENT 3TATE GOVERNMENT CLAIMED THAT THE PETITIONER AND HER HUSBAND HAD
INSTIGATED MEMBERS OF THE TRIBAL COMMUNITY TO COMMIT FOREST OFFENCES REGULARLY
4HE FOREST DEPARTMENT HAD BEEN TAKING SUITABLE ACTION BY REGISTERING CASES OF FOREST
OFFENCES ENCROACHMENTS ETC AGAINST THESE OFFENDERS &URTHER THE RESPONDENTS
ARGUED THE TRIBALS WERE ENCROACHERS AND INDULGING IN CRIMINAL ACTIVITIES INCLUDING
ILLEGALLY PLOUGHING THE FIELDS %FFORTS TO STOP THEM RESULTED IN THE TRIBALS ATTACKING
THE STATE PERSONNEL WITH LATHIS
& ) . $ ).' 3
3INCE A NUMBER OF DIFFERENT ISSUES WERE RAISED THE #OURT DEALT WITH THEM ONE BY
ONE AS UNDER
4HE ARGUMENT OF THE PETITIONER THAT JUDICIAL DETENTION OF TRIBALS CHARGED
UNDER THE VARIOUS OFFENCES WAS A VIOLATION OF !RTICLE OF THE #ONSTITUTION
WAS REJECTED -ONETARY COMPENSATION THEREFORE CANNOT BE CLAIMED FOR SUCH
DETENTION
4HE ARGUMENT OF THE PETITIONER THAT THE ACTIONS OF THE POLICE AND FOREST OFFICERS
AMOUNT TO VARIOUS OFFENCES UNDER THE 3CHEDULED #ASTES AND 4RIBES 0REVENTION
OF !TROCITIES !CT AND PROSECUTIONS BE INITIATED WAS REJECTED 4HE #OURT
WAS OF THE VIEW IT DOES NOT HAVE THE JURISDICTION TO DIRECT REGISTRATION OF &)2S
AND THE AVENUES UNDER THE #RIMINAL 0ROCEDURE #ODE #R0# SHOULD BE ADOPTED
BY THE PETITIONER
4HE PRODUCTION OF THREE TRIBAL ACCUSED IN HANDCUFFS BEFORE THE #OURT OF THE
3$- WAS FOUND TO BE CONTRARY TO THE LAW AND TO THE JUDGMENT OF THE 3UPREME
#OURT IN 3UNIL 'UPTA VS 3TATE OF -ADHYA 0RADESH !CCORDINGLY THE 3TATE WAS
DIRECTED TO PAY COMPENSATION OF 2S TO EACH OF THEM
2EGARDING ILLEGAL MINING AND EXCAVATION OF SAND FROM THE FOREST AREA BY
THE FOREST OFFICIALS THE #OURT PASSED DIRECTIONS THAT THIS MUST BE STOPPED
IMMEDIATELY IN TERMS OF 3ECTION OF THE &OREST #ONSERVATION !CT OR
&#! AND VARIOUS ORDERS OF THE 3UPREME #OURT 4HE RESPONDENTS WERE DIRECTED
TO ENSURE THAT NO EXCAVATIONS IN LAND RECORDED IN GOVERNMENT RECORDS AS
FORESTS TAKES PLACE EITHER BY THE 3TATE OR OTHER AUTHORITIES OR PRIVATE PERSONS
INCLUDING CONTRACTORS WITHOUT PRIOR APPROVAL OF THE #ENTRAL GOVERNMENT )N
CASE SUCH EXCAVATIONS ARE CONDUCTED STEPS WILL BE TAKEN FOR PROSECUTION FOR
OFFENCES UNDER 3
!
" OF THE &#!
4HE PETITIONER ALSO PLACED ON RECORD THE 'OVERNMENT /RDER DATED OF
THE 'OVERNMENT OF )NDIA DIRECTING THAT FOREST DWELLERS INCLUDING TRIBALS WHO
ARE IN CONTINUOUS POSSESSION OF FOREST LAND AT LEAST FROM PRIOR TO
IE THE DATE OF ENACTMENT OF THE &#! SHALL BE ELIGIBLE TO BE CONSIDERED FOR
SETTLEMENT OF LAND RIGHTS INCLUDING REGULARIZATION OF ENCROACHMENT OF FOREST
LAND )T MAY BE NOTED THAT IN TERMS OF THE SAID 'OVERNMENT /RDER THE #OURT
HAD PASSED AN INTERIM ORDER ON DIRECTING THAT NO STEPS SHALL BE TAKEN
3#2
3ECTION ! &#! 0ENALTY FOR CONTRAVENTION OF THE PROVISIONS OF THE !CT 7HOEVER CONTRAVENES OR ABETS
THE CONTRAVENTION OF ANY OF THE PROVISIONS OF SECTION SHALL BE PUNISHABLE WITH SIMPLE IMPRISONMENT FOR A
PERIOD WHICH MAY EXTEND TO FTEEN DAYS
3ECTION " &#! DEALS WITH OFFENCES BY THE AUTHORITIES AND 'OVERNMENT $EPARTMENTS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
BY THE 3TATE 'OVERNMENT TO EVICT ANY FOREST DWELLERS WHO ARE IN CONTINUOUS
POSSESSION AS STATED
4HE ARGUMENTS OF THE 0ETITIONER WITH REGARD TO THE &2! WERE ACCEPTED BY THE
#OURT !T THE TIME OF FILING OF THE WRIT PETITION THE !CT HAD NOT COME INTO
FORCE BUT THE PETITIONER PLACED ON RECORD THE $RAFT "ILL OF WHICH WAS
UNDER CONSIDERATION IN 0ARLIAMENT
.OW THAT THE &2! HAS COME INTO FORCE THE #OURT OBSERVED 3ECTION OF THE SAID
!CT PREVENTS EVICTION OF FOREST DWELLERS UNTIL RECOGNITION OF RIGHTS IS COMPLETE
!CCORDINGLY THE #OURT DIRECTED THAT THE CLAIMS OF THE MEMBERS OF THE 3CHEDULED
4RIBES AND OTHER TRADITIONAL FOREST DWELLERS OF 6ILLAGE 'HORPODMAL $ISTRICT
"ETUL WILL BE DECIDED IN ACCORDANCE WITH THE PROVISIONS OF THE !CT AND THE
AUTHORITIES WILL NOT EVICT A MEMBER OF A FOREST DWELLING 3CHEDULED 4RIBE OR ANY
OTHER TRADITIONAL FOREST DWELLER FROM THE FOREST LAND UNDER HIS OCCUPATION TILL THE
RECOGNITION AND VERIFICATION PROCEDURE IS COMPLETE
7ITH THESE DIRECTIONS THE WRIT PETITION WAS DISPOSED OF
* 5$ '-% . 4
THE JUDGMENT OF THE #OURT WAS PRONOUNCED BY !+ 0ATNAIK #*
4HE PETITIONER HAS LED THIS 0UBLIC )NTEREST ,ITIGATION TO PROTECT THE RIGHTS OF TRIBALS
RESIDING IN THE 4RIBAL 6ILLAGE 'HORPODMAL IN "HAISDEHI 4EHSIL IN THE -OHADA FOREST RANGE
IN THE 7EST "ETUL &OREST $IVISION IN THE 3TATE OF -ADHYA 0RADESH
4HE PETITIONER IS A 0SYCHOLOGY GRADUATE FROM *ESUS AND -ARY #OLLEGE $ELHI AND HOLDS A
-ASTERS $EGREE IN 0SYCHOLOGY FROM ,ADY 2AM #OLLEGE $ELHI 3HE DID HER -0HIL IN 3OCIAL
3CIENCE FROM THE 4ATA )NSTITUTE OF 3OCIAL 3CIENCE -UMBAI AND GRADUATION IN ,AW FROM
THE "ARKATULLAH 5NIVERSITY "HOPAL AND THEREAFTER BECAME A 0ROJECT /FCER OF /8&!-
)NDIA 4RUST A "RITISH &UNDING !GENCY IN
3HE HAS STATED IN THE WRIT PETITION
THAT WHILE WORKING AS 0ROJECT /FCER OF /8&!- )NDIA 4RUST SHE GOT AN OPPORTUNITY TO
SERVE IN THE TRIBAL AREAS OF -ADHYA 0RADESH AND SHE WAS SHOCKED TO ND THE PATHETIC
CONDITIONS IN WHICH THE TRIBALS ARE LIVING AND SHE HAS THEREFORE FORMED AN ORGANISATION
OF THE TRIBALS CALLED THE 3HRAMIK !DIVASI 3ANGATHAN FOR SHORT THE 3ANGATHAN FOR THE
WELFARE OF THE TRIBALS
4HE PETITIONER HAS ALLEGED IN THE WRIT PETITION THAT THE "EAT 'UARD $EPUTY 2ANGER AND
THE 2ANGER OF THE &OREST $EPARTMENT OF THE 'OVERNMENT OF -ADHYA 0RADESH HAVE BEEN
THREATENING THE TRIBALS OF 'HORPODMAL VILLAGE OF DIRE CONSEQUENCES IF THEY DO NOT RESTRAIN
FROM PARTICIPATING IN THE ACTIVITIES OF THE 3ANGATHAN 3HE HAS ALLEGED THAT ON TH *ULY
AT ABOUT PM FTY ARMED PERSONNEL OF THE 0OLICE AND THE &OREST $EPARTMENTS
MARCHED THROUGH 6ILLAGE 'HORPODMAL AND CREATED HAVOC 3HE HAS ALLEGED THAT THESE
PERSONNEL OF THE 0OLICE AND THE &OREST $EPARTMENTS WERE ARMED WITH RIES AND MOST
OF THEM WERE DRUNK AND THEY CAME IN TO JEEPS TO MOTORCYCLES AND ABUSED THE
TRIBALS IN FOUL LANGUAGE 4HE PETITIONER HAS FURTHER ALLEGED THAT THESE ARMED PERSONNEL
OF THE 0OLICE AND THE &OREST $EPARTMENTS ENTERED 3OMA +ORKUS HUTMENT AND ON BEING
TOLD BY HIS WIFE 3UKHIYABAI THAT 3OMA WAS NOT PRESENT THE DRUNK INTRUDERS STARTED
MOLESTING TWO TRIBAL WOMEN 3UKHIYA "AI AND -UNDLI AND WHEN THE WOMEN PROTESTED
VEHEMENTLY THEY WERE BEATEN UP WITH THE BUTTS OF RIES 3HE HAS FURTHER ALLEGED THAT
THESE ASSAULTERS WENT ON RAMPAGE AND STARTED ASSAULTING ANYONE AND EVERYONE IN THE
4 / \
NIGHT AND IN THESE CIRCUMSTANCES THE VILLAGERS GOT PANICKY AND IN SELF DEFENCE STARTED
PELTING STONES AT THE ASSAULTERS AND THEY LEFT THE PLACE 4HE PETITIONER HAS ALSO ALLEGED
THAT THE 0OLICE PERSONNEL THEN REGISTERED A FALSE CASE OF DACOITY AND ATTEMPT TO MURDER
AGAINST TRIBALS 4O AVOID ARREST AND FEARING FURTHER ASSAULT THE TRIBALS HAD TO RUN
FROM PILLAR TO POST AND COULD NOT HARVEST THEIR CROP OR DO ANY OTHER LABOUR AND ALSO COULD
NOT HANDLE THEIR RESPONSIBILITIES TOWARDS THEIR FAMILY MEMBERS
4HE PETITIONER HAS STATED IN THE WRIT PETITION THAT ALTHOUGH COMPLAINTS OF THE INCIDENTS
OF TH *ULY WERE LED BEFORE DIFFERENT AUTHORITIES NO INVESTIGATION WAS INITIATED
BY ANY #OMPETENT !UTHORITY AND ON THE OTHER HAND -UNJI 9ADAV AND TWO OTHER
TRIBAL ACTIVISTS NAMELY "ALARAM AND "HOOTA WERE ASKED BY 4HANEDAR 4RIPATHI ON
TH 3EPTEMBER TO WITHDRAW THE COMPLAINTS AGAINST THE 0OLICE PERSONNEL 4HE
PETITIONER HAS ALSO STATED THAT ON ST !UGUST THE &OREST PERSONNEL WENT TO #HAMIL
*UNGLE NEAR +ABRA VILLAGE WHICH IS IN VICINITY OF 'HORPODMAL VILLAGE AND ARRESTED
TRIBALS WHO WERE MERCILESSLY BEATEN UP AND TAKEN TO -OHADA 0OLICE 3TATION /F THESE
TRIBALS (ANNU AND 3HYAMLAL WERE BEATEN THE MOST AND WERE IMPLICATED IN THE OFFENCE
OF DACOITY ALONGWITH OTHER TRIBALS OF 6ILLAGE 'HORPODMAL 4HE PETITIONER HAS FURTHER
STATED THAT (ANNU AND 3HYAMLAL WERE ARRESTED ON ST !UGUST AND WERE KEPT IN
CUSTODY TILL RD !UGUST AT THE -OHADA 0OLICE 3TATION AND PRODUCED BEFORE THE
-AGISTRATE ON TH !UGUST AND WERE REMANDED TO JUDICIAL CUSTODY AND WERE
DENIED BAIL AND THEY LANGUISHED IN "ETUL *AIL FOR ATLEAST FOUR AND HALF MONTHS 4HE
PETITIONER HAS INTER ALIA PRAYED THAT AN ENQUIRY BE CONDUCTED INTO THE INCIDENTS OF TH
*ULY IN THE 'HORPODMAL VILLAGE BY AN INDEPENDENT AGENCY AND THAT THE ARREST OF
TRIBALS OF 'HORPODMAL BE STOPPED IMMEDIATELY
)N THE PRELIMINARY SUBMISSIONS THE RESPONDENT .OS A B AND C HAVE STATED THAT
APPROXIMATELY FAMILIES OF LOCAL TRIBES LIVE IN 6ILLAGES +ABRA AND 'HORPODMAL WITHIN
THE FOREST RANGES OF -OHADA AND 4AWDI UNDER 7EST "ETUL ' &OREST $IVISION AND TAKING
ADVANTAGE OF THE PROXIMITY TO FOREST SOME OF THEM ON THE INSTIGATION OF THE PETITIONER
AND HER HUSBAND ARE INVOLVED IN VARIOUS TYPES OF FOREST OFFENCES ON REGULAR BASIS IN
THE NEARBY COMPARTMENT .OS AND OF 7EST &OREST $IVISION "ETUL
4HEY HAVE ALSO STATED THAT THE $EPARTMENT OF &OREST HAS BEEN TAKING SUITABLE ACTION BY
REGISTERING CASES OF FOREST OFFENCES ENCROACHMENTS ETC AGAINST THE OFFENDERS
2EGARDING THE INCIDENTS WHICH TOOK PLACE ON TH *ULY IN 6ILLAGE 'HORPODMAL
RESPONDENT .OS A B AND C HAVE ALLEGED THAT 3OMA AND -ER 3INGH INCLUDING
(ANNUA AND 3HYAMLAL ENCROACHED UPON THE FOREST LAND OF COMPARTMENT .O 4HESE
RESPONDENTS HAVE FURTHER STATED THAT A 4ASK &ORCE CONSISTING OF OFCIALS OF &OREST 2EVENUE
AND 0OLICE $EPARTMENTS REACHED THE SPOT WHERE THE ENCROACHMENT WAS BEING MADE AT
ABOUT PM ON TH *ULY AND ON SEEING THE 4ASK &ORCE THE ENCROACHERS ED
FROM THE SPOT AND WERE CHASED BY THE 4ASK &ORCE TO THE 'HORPODMAL 6ILLAGE 4HEY HAVE
ALSO ALLEGED THAT ON TH OF *ULY AT PM WHEN THE MEMBERS OF THE 4ASK &ORCE
REACHED 3OMAS HOUSE AND DIRECTED HIM TO COME OUT SO THAT FURTHER LEGAL ACTION COULD BE
TAKEN AGAINST HIM SUPPORTERS OF THE PETITIONER AND MEMBERS OF THE ORGANISATION FROM
SURROUNDING 6ILLAGES +ABRA +ELI
2AWANG -ALEGAON "ATKI +AYADA ETC INCLUDING 3OMA
(ANNU AND 3HYAMLAL WHO COULD BE TO IN NUMBER STARTED SHOUTING SLOGANS AND
ATTACKING AND ASSAULTING THE MEMBERS OF THE 4ASK &ORCE BY DEADLY WEAPONS LIKE LATHI
AXE FARSA AND STONES AND AS A RESULT THE EMPLOYEES OF THE &OREST $EPARTMENT SUSTAINED
GRIEVOUS INJURIES 4HEY HAVE ALSO STATED THAT THESE TRIBALS DAMAGED POLICE VEHICLE .O
-0
AND ALSO TOOK AWAY A WIRELESS SET 4HEY HAVE FURTHER STATED THAT THE 4ASK
&ORCE SHOWED TREMENDOUS RESTRAINT IN NOT TAKING ANY COERCIVE ACTION THOUGH THEY WERE
FULLY EQUIPPED AND TO SAVE THEIR LIVES THEY HAD TO EE IN DIFFERENT DIRECTIONS AND SOME OF
THEM HAD TO SPEND THE NIGHT IN THE FOREST AND REACHED SAFER PLACES ONLY ON THE NEXT DAY
4HEY HAVE ALSO STATED THAT A CASE WAS REGISTERED AGAINST 3OMA AND OTHERS BEARING #RIME
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
.O OF OF 03 -OHADA ON TH *ULY AND AFTER INVESTIGATION CHALLAN HAS ALSO
BEEN LED IN THE #OURT OF *UDICIAL -AGISTRATE &IRST #LASS "HAISDEHI AGAINST (ANNU AND
3HYAMLAL AND INVESTIGATION IN RESPECT OF OTHER PERSONS IS STILL IN PROGRESS AND AS THEY
ARE ABSCONDING CHALLAN COULD NOT BE LED AGAINST 3OMA AND OTHERS
2EGARDING THE INCIDENTS OF ST !UGUST THE RESPONDENT .OS A B AND C HAVE
STATED IN THEIR PRELIMINARY SUBMISSIONS THAT THE &OREST #HOWKIDARS MADE A COMPLAINT
THAT SOME PEOPLE IN THE 6ILLAGE +ABRA 4EMAR 'HORPODMAL AND "ATKI WERE PLOUGHING
THE ELD BY ILLEGALLY CUTTING TEAK TREES AND +ESHO ,ODHI !SSISTANT &OREST 2ANGE /FCER
0IPARIA "EAT 'UARD 7AMANRAO AND THE COMPLAINANT &OREST #HOWKIDARS WENT TO THE
0RESIDENT OF 6AN 3URAKSHA 3AMITI 3ULLO "AI AND 6ILLAGE 3ARPANCH 6ISHRAM 3INGH AND
INFORMED THEM ABOUT THE COMPLAINT AND ABOUT PERSONS WENT TO #HIMLAKHEDA AND
SAW PEOPLE PLOUGHING THE ELD AND SOME WOMEN WERE SITTING AND WHEN THEY
DID NOT STOP PLOUGHING THE ELD DESPITE WARNING 0/2 .O DATED ST !UGUST
WAS ISSUED AGAINST (ANNU 4HATHIA 3HAMU 'OND -UNNILAL 4ULSIRAM 0REM 'OND
3AMMAL 'OND -ANGAL (OJI 3HIV AND OTHERS AND GETTING ANNOYED THEY ATTACKED +ESHO
,ODHI WITH LATHIS ETC AND TORE DOWN HIS SHIRT 4HEREAFTER +ESHO ,ODHI ALONGWITH "EAT
'UARD 7AMANRAO CAME TO THE 0OLICE 3TATION AND LODGED A REPORT OF THE INCIDENT AND
#RIME .O OF DATED ND !UGUST UNDER 3ECTIONS
" AND )NDIAN 0ENAL #ODE WAS REGISTERED AGAINST (ANNU 4HATHIA 3HYAMLAL AND
OTHERS 4HEREAFTER (ANNU 3HYAMLAL AND NINE OTHERS WERE ARRESTED AND PRODUCED BEFORE
THE *UDICIAL -AGISTRATE &IRST #LASS ON TH !UGUST (ANNU AND 3HYAMLAL THEN
LED BAIL APPLICATIONS BEFORE THE *UDICIAL -AGISTRATE &IRST #LASS "HENSDEHI WHICH WAS
REJECTED 7HEN THEY LED A SECOND BAIL APPLICATION THE SAME WAS ALLOWED BY ORDER DATED
ST $ECEMBER AND (ANNU AND 3HYAMLAL WERE RELEASED ON BAIL )N THE PARAWISE
RETURN LED ON BEHALF OF THE RESPONDENT .OS A B AND C THE AVERMENTS MADE IN
THEIR PRELIMINARY SUBMISSIONS HAVE BEEN REITERATED WITH REGARD TO THE INCIDENTS WHICH
TOOK PLACE ON TH *ULY AND ST !UGUST
3INCE THERE WERE TWO DIVERGENT VERSIONS ONE OF THE PETITIONER AND THE OTHER OF THE
RESPONDENT .OS A B AND C REGARDING THE INCIDENT OF TH *ULY THE #OURT
PASSED AN ORDER ON RD /CTOBER DIRECTING THE LEARNED $ISTRICT *UDGE "ETUL WITHIN
WHOSE JURISDICTION 6ILLAGE 'HORPODMAL IS SITUATED TO MAKE AN ENQUIRY INTO THE INCIDENT
ON TH *ULY AND SUBMIT A REPORT TO THIS #OURT WITHIN A PERIOD OF TWO MONTHS
"Y THE ORDER PASSED BY THE #OURT ON RD /CTOBER THE LEARNED $ISTRICT *UDGE WAS
ALSO DIRECTED TO HEAR THE PETITIONER RESPONDENT .O A B C OR THEIR REPRESENTATIVES
EXAMINE WITNESSES AND ALLOW THE CONCERNED PARTIES TO CROSS EXAMINE THE WITNESSES
0URSUANT TO THE ORDER OF THE #OURT THE LEARNED $ISTRICT *UDGE "ETUL CONDUCTED THE
ENQUIRY AND SUBMITTED A REPORT THAT IF ANY OPINION IS GIVEN BY HIM IT WILL AFFECT THE
INTEREST OF THE PARTIES IN THE SESSIONS TRIAL PENDING IN THE 3ESSIONS #OURT AND ALSO IN THE
CRIMINAL CASE PENDING BEFORE THE *UDICIAL -AGISTRATE &IRST #LASS 4HEREAFTER ON TH *ULY
THE 4HIRD !DDITIONAL 3ESSIONS *UDGE "ETUL PASSED AN ORDER IN 3ESSIONS 4RIAL .O
OF THAT THERE WAS ABSOLUTELY NO EVIDENCE TO IMPLICATE THE TRIBALS IN OFFENCES
UNDER 3ECTIONS AND )NDIAN 0ENAL #ODE AND THE CASE HAS BEEN SENT FOR TRIAL BY
-AGISTRATE UNDER 3ECTIONS AND )0#
!T THE HEARING OF THE WRIT PETITION THE PETITIONER APPEARING IN PERSON SUBMITTED THAT
THE ORDER PASSED BY THE LEARNED !DDITIONAL 3ESSIONS *UDGE ON TH *ULY WOULD
CLEARLY SHOW THAT INNOCENT TRIBALS WERE FALSELY BOOKED FOR DACOITY AND ATTEMPT TO
MURDER BY THE &OREST /FCIALS OF THE 3TATE OF -0 3HE SUBMITTED THAT ON ACCOUNT OF THE
FALSE IMPLICATION OF TRIBALS IN THE OFFENCES OF DACOITY AND ATTEMPT TO MURDER THEY
WERE ARRESTED AND TWO OF THEM NAMELY (ANNU AND 3HYAMLAL WERE DETAINED IN CUSTODY
FOR ABOUT FOUR AND HALF MONTHS AND HENCE THEY ARE ENTITLED TO COMPENSATION FOR GROSS
VIOLATION OF THEIR RIGHTS UNDER !RTICLE OF THE #ONSTITUTION 3HE CITED 2UDUL 3HAH VS
4 / \
3TATE OF "IHAR AND !NR #RI,* IN WHICH THE 3UPREME #OURT HAS HELD THAT THE
RIGHT TO COMPENSATION IS SOME PALLIATIVE FOR THE UNLAWFUL ACTS OF INSTRUMENTALITIES
IN THE NAME OF PUBLIC INTEREST AND THAT THE 3TATE MUST REPAIR THE DAMAGE DONE BY ITS
OFCERS BY PAYING COMPENSATION TO THOSE WHOSE RIGHTS ARE VIOLATED 3HE ALSO RELIED ON
THE OBSERVATIONS OF *3 6ERMA * AS HE THEN WAS IN .ILABATI "EHERA VS 3TATE OF /RISSA AND
/RS #RI,* THAT THE #OURT SHOULD FORGE NEW TOOLS AND DEVISE NEW REMEDIES
FOR ENFORCING THE FUNDAMENTAL RIGHTS GUARANTEED BY THE #ONSTITUTION AND AWARD
MONETARY COMPENSATION IN APPROPRIATE CASES 3HE SUBMITTED THAT IN $+ "ASU V 3TATE
OF 7EST "ENGAL #RI,* THE 3UPREME #OURT RELYING ON THE LEGAL MAXIM 5BI JUS
IBI REMEDIUM HAS HELD THAT MONETARY COMPENSATION FOR REDRESSAL BY THE #OURT NDING
THE INFRINGEMENT OF THE INDEFEASIBLE RIGHT TO LIFE OF THE CITIZEN IS THEREFORE USEFUL AND
AT TIMES PERHAPS THE ONLY EFFECTIVE REMEDY TO APPLY BALM TO THE WOUNDS OF THE FAMILY
MEMBERS OF THE DECEASED VICTIM WHO MAY HAVE BEEN THE BREAD WINNER OF THE FAMILY
-R +UMARESH 0ATHAK LEARNED $EPUTY !DVOCATE 'ENERAL APPEARING FOR THE RESPONDENT
.OS A B AND C ON THE OTHER HAND SUBMITTED THAT ALL THE TRIBALS WERE ARRESTED FOR
COMMISSION OF FOREST AND OTHER OFFENCES IN ACCORDANCE WITH THE PROVISIONS OF THE #ODE
OF #RIMINAL 0ROCEDURE FOR SHORT THE #R0# AND THE APPLICATIONS FOR BAIL OF SOME
OF THE ARRESTED TRIBALS WERE REJECTED BY THE #OURT BUT AT THE LATER STAGE ALLOWED BY THE
#OURT IN ACCORDANCE WITH THE #R0# (ENCE THE ARREST AND DETENTION OF THE TRIBALS WERE
IN ACCORDANCE WITH THE PROCEDURE ESTABLISHED BY LAW AND THE RIGHTS OF THESE TRIBALS
UNDER !RTICLE OF THE #ONSTITUTION HAVE NOT BEEN VIOLATED AND THEREFORE THESE TRIBALS
ARE NOT ENTITLED TO COMPENSATION FOR THEIR ARREST AND DETENTION AS CONTENDED BY THE
PETITIONER
7E ND FULL FORCE IN THE AFORESAID SUBMISSIONS OF -R 0ATHAK !RTICLE OF THE #ONSTITUTION
PROVIDES THAT NO PERSON SHALL BE DEPRIVED OF HIS LIFE AND PERSONAL LIBERTY EXCEPT ACCORDING
TO THE PROCEDURE ESTABLISHED BY LAW 4HE PERSONAL LIBERTY OF PERSON THUS CAN BE TAKEN
AWAY BY A REASONABLE PROCEDURE LAID DOWN IN LAW 4HE TRIBALS INCLUDING (ANNU AND
3HYAMLAL WERE ARRESTED FOR VARIOUS OFFENCES ALLEGED TO HAVE BEEN COMMITTED BY THEM
AND THEY WERE PRODUCED BEFORE THE #OURT OF THE *UDICIAL -AGISTRATE &IRST #LASS "HAISDEHI
ON TH !UGUST 7HILE THE BAIL APPLICATIONS OF TWO TRIBALS WERE REJECTED THE OTHER
TRIBALS WERE RELEASED ON BAIL 3UBSEQUENTLY HOWEVER THE SECOND BAIL APPLICATIONS OF
(ANNU AND 3HYAMLAL WERE ALLOWED BY ORDER DATED ST $ECEMBER AND (ANNU AND
3HYAMLAL WERE RELEASED ON BAIL 4HE ARREST AND DETENTION OF THE TRIBALS INCLUDING (ANNU
AND 3HYAMLAL ARE THEREFORE IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN THE #R0#
4HE FUNDAMENTAL RIGHTS OF THE TRIBALS INCLUDING (ANNU AND 3HYAMLAL UNDER !RTICLE
OF THE #ONSTITUTION HAVE NOT BEEN VIOLATED AND THEY ARE NOT ENTITLED TO AWARD OF
COMPENSATION
)N 2UDUL 3HAH V 3TATE OF "IHAR SUPRA CITED BY THE PETITIONER THE FACTS WERE THAT 2UDUL
3HAH WAS ACQUITTED BY THE #OURT OF 3ESSIONS -UZAFFARPUR "IHAR ON RD *UNE
BUT HE WAS RELEASED FROM JAIL ON TH /CTOBER MORE THAN YEARS AFTER HE WAS
ACQUITTED /N THESE FACTS THE 3UPREME #OURT HELD THAT THE DETENTION OF 2UDUL 3HAH FOR
ABOUT YEARS FROM TO WAS UNAUTHORISED AND ILLEGAL AND HENCE HIS LIBERTY HAD
BEEN TAKEN AWAY FOR THE PERIOD OF YEARS WITHOUT FOLLOWING THE PROCEDURE UNDER THE
LAW 4HE 3UPREME #OURT THEREFORE GRANTED COMPENSATION OF 2S IN ADDITION
TO COMPENSATION OF 2S PAID TO 2UDUL 3HAH )N THE PRESENT CASE ON THE OTHER
HAND AS WE HAVE FOUND THE DETENTION OF TRIBALS WAS IN ACCORDANCE WITH LAW AND
WE CANNOT HOLD THAT THEIR PERSONAL LIBERTY HAD BEEN TAKEN AWAY WITHOUT FOLLOWING THE
PROCEDURE ESTABLISHED BY LAW
)N .ILABATI "EHERA V 3TATE OF /RISSA AND /RS SUPRA CITED BY THE PETITIONER THE SON OF
.ILABATI "EHERA AGED ABOUT YEARS WAS KILLED WHILE IN CUSTODY AND ON THESE FACTS THE
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
3UPREME #OURT HELD THAT THE RIGHT GUARANTEED UNDER !RTICLE OF THE #ONSTITUTION THAT
NO PERSON SHALL BE DEPRIVED OF HIS LIFE WITHOUT FOLLOWING THE PRESCRIBED PROCEDURE OF
LAW WAS VIOLATED AND ACCORDINGLY AWARDED COMPENSATION OF 2S TO .ILABATI
"EHERA FROM THE 3TATE OF /RISSA )N THE PRESENT CASE NONE OF THE TRIBALS HAS BEEN KILLED
IN CUSTODY
$+ "ASU V 3TATE OF 7EST "ENGAL SUPRA CITED BY THE PETITIONER WAS A CASE REGISTERED
PURSUANT TO A LETTER DATED
TO THE #HIEF *USTICE OF )NDIA BY THE %XECUTIVE
#HAIRMAN ,EGAL !ID 3ERVICES 7EST "ENGAL A NON
POLITICAL ORGANISATION REGISTERED
UNDER THE 3OCIETIES 2EGISTRATION !CT DRAWING (IS ,ORDSHIPS ATTENTION TO NEWS ITEMS
PUBLISHED IN 4HE 4ELEGRAPH DATED
AND
AND IN THE
3TATESMAN AND )NDIAN %XPRESS DATED
REGARDING DEATHS IN POLICE CUSTODY
AND IT IS IN THIS CONTEXT THAT THE 3UPREME #OURT HELD THAT AWARD OF COMPENSATION FOR
ESTABLISHED INFRINGEMENT OF THE INDEFEASIBLE RIGHTS GUARANTEED UNDER !RTICLE IS A
REMEDY AVAILABLE IN PUBLIC LAW SINCE THE PURPOSE OF PUBLIC LAW IS NOT ONLY TO CIVILISE
PUBLIC POWER BUT ALSO TO ASSURE THE CITIZENS THAT THEY LIVE UNDER A LEGAL SYSTEM WHEREIN
THEIR RIGHTS AND INTERESTS SHALL BE PROTECTED AND PRESERVED 4HE PRESENT CASE IS NOT A
CASE OF CUSTODIAL VIOLENCE OR CUSTODIAL DEATH AND THERE IS NO VIOLATION OF THE RIGHTS OF
THE TRIBALS GUARANTEED UNDER !RTICLE OF THE #ONSTITUTION ON ACCOUNT OF ARREST AND
DETENTION FOR COMMISSION OF ALLEGED OFFENCES ACCORDING THE PROVISIONS OF THE #R0#
4HE PETITIONER NEXT SUBMITTED THAT 3ECTION VIII OF THE 3CHEDULED #ASTES AND 4HE
3CHEDULED 4RIBES 0REVENTION OF !TROCITIES !CT FOR SHORT THE !CT PROVIDES
THAT ANY PERSON WHO IS NOT A MEMBER OF 3CHEDULED #ASTE OR A 3CHEDULED 4RIBE AND WHO
INSTITUTES FALSE MALICIOUS OR VEXATIOUS SUIT OR CRIMINAL OR OTHER PROCEEDINGS AGAINST A
MEMBER OF A 3CHEDULED #ASTE OR A 3CHEDULED 4RIBE IS PUNISHABLE WITH IMPRISONMENT
3HE SUBMITTED THAT SIMILARLY 3ECTION IX OF THE !CT PROVIDES THAT ANY PERSON
WHO IS NOT A MEMBER OF 3CHEDULED #ASTE OR A 3CHEDULED 4RIBE AND WHO GIVES ANY FALSE
OR FRIVOLOUS INFORMATION TO ANY PUBLIC SERVANT AND THEREBY CAUSES SUCH PUBLIC SERVANT
TO USE HIS LAWFUL POWER TO CAUSE INJURY OR ANNOYANCE TO A MEMBER OF A 3CHEDULED #ASTE
OR A 3CHEDULED 4RIBE IS PUNISHABLE WITH IMPRISONMENT 3HE SUBMITTED THAT THE &OREST
AND 0OLICE /FCIALS ARE GUILTY OF THESE OFFENCES AS THEY INSTITUTED FALSE MALICIOUS OR
VEXATIOUS CRIMINAL PROCEEDINGS OR GAVE FALSE OR FRIVOLOUS INFORMATION TO THE 0OLICE
AGAINST THE MEMBERS OF THE 3CHEDULED 4RIBES BECAUSE OF WHICH CRIMINAL CASES WERE
INSTITUTED AGAINST THE MEMBERS OF THE 3CHEDULED 4RIBES 3HE SUBMITTED THAT THE FACT
THAT THE 4HIRD !DDITIONAL 3ESSIONS *UDGE "ETUL PASSED THE ORDER DATED TH *ULY
SAYING THAT THERE WAS ABSOLUTELY NO EVIDENCE TO IMPLICATE THE ACCUSED PERSONS IN
THE OFFENCES UNDER 3ECTIONS AND )NDIAN 0ENAL #ODE WOULD SHOW THAT A FALSE
MALICIOUS AND VEXATIOUS CRIMINAL CASE HAD BEEN INSTITUTED AGAINST THE MEMBERS OF THE
3CHEDULED 4RIBES FOR WHICH THE 0OLICE AND &OREST PERSONNEL ARE LIABLE TO BE PROSECUTED
FOR THE OFFENCES UNDER 3ECTION VIII AND IX OF THE !CT
-R 0ATHAK LEARNED $EPUTY !DVOCATE 'ENERAL ON THE OTHER HAND SUBMITTED THAT
RST AN &)2 HAS TO BE LODGED AND AN INVESTIGATION HAS TO BE CARRIED OUT BY THE 0OLICE
IN ACCORDANCE WITH THE PROVISIONS OF THE !CT AND THE 2ULES MADE THEREUNDER AS
WELL AS THE #R0# AND THEREAFTER IF A CHARGE
SHEET IS LED WITH MATERIALS TO SHOW THAT
THE 0OLICE OR &OREST /FCIALS HAVE COMMITTED THE OFFENCES UNDER 3ECTION VIII AND
IX OF THE !CT THEN ONLY THE CASE CAN BE TRIED BY THE 3PECIAL #OURT CONSTITUTED
UNDER 3ECTION OF THE !CT AND THE (IGH #OURT IN EXERCISE OF ITS POWERS UNDER !RTICLE
OF THE #ONSTITUTION CANNOT DIRECT PROSECUTION OF THE 0OLICE AND &OREST PERSONNEL
STRAIGHT AWAY ON THE BASIS OF ALLEGATIONS MADE BY THE PETITIONER IN THE WRIT PETITION
4HE PETITIONER HOWEVER SUBMITTED IF THE &)2 IS LODGED AGAINST THE 0OLICE AND &OREST
/FCIALS THE 0OLICE WILL NOT REGISTER THE CASE AND IF THE 0OLICE REGISTERS THE CASE A FAIR
4 / \
INVESTIGATION INTO THE OFFENCES ALLEGED TO HAVE BEEN COMMITTED BY THE 0OLICE AND &OREST
PERSONNEL IS NOT POSSIBLE AND FOR THIS REASON THE #OURT SHOULD STRAIGHT AWAY DIRECT
PROSECUTION OF THE 0OLICE AND &OREST PERSONNEL GUILTY OF THE OFFENCES UNDER 3ECTIONS
VIII AND IX OF THE !CT
7E ARE UNABLE TO ACCEPT THE SUBMISSION OF THE PETITIONER 4HE (IGH #OURT IN EXERCISE OF
ITS POWERS UNDER !RTICLE OF THE #ONSTITUTION CANNOT DIRECT PROSECUTION OF 0OLICE AND
&OREST PERSONNEL MERELY ON THE ALLEGATIONS MADE BY THE PETITIONER IN THE WRIT PETITION
THAT THEY HAVE COMMITTED OFFENCES UNDER 3ECTIONS VIII AND IX OF THE !CT
3ECTION OF THE #R0# PROVIDES THAT ALL OFFENCES UNDER THE )NDIAN 0ENAL #ODE SHALL
BE INVESTIGATED INQUIRED INTO TRIED AND OTHERWISE DEALT WITH IN ACCORDANCE WITH THE
PROVISIONS CONTAINED IN THE #R0# AND 3ECTION OF THE #R0# PROVIDES THAT ALL OFFENCES
UNDER ANY OTHER LAW SHALL BE INVESTIGATED INQUIRED INTO TRIED AND OTHERWISE DEALT WITH
IN ACCORDANCE WITH THE SAME PROVISIONS BUT SUBJECT TO ANY ENACTMENT FOR THE TIME
BEING IN FORCE REGULATING THE MANNER OR PLACE OF INVESTIGATING INQUIRING INTO TRYING OR
OTHERWISE DEALING WITH SUCH OFFENCES (ENCE THE PROVISIONS OF THE #R0# ARE APPLICABLE
TO INVESTIGATION INQUIRY AND TRIAL OF OFFENCES UNDER THE !CT SUBJECT TO SPECIC
PROVISIONS OF THE !CT REGULATING THE MANNER OR PLACE OF INVESTIGATION INQUIRY AND
TRIAL DEALING WITH THE OFFENCES UNDER THE !CT 5NLESS THEREFORE OFFENCES UNDER
THE !CT ARE INVESTIGATED BY THE 0OLICE PURSUANT TO AN &)2 OR INQUIRED INTO BY THE
-AGISTRATE PURSUANT TO A COMPLAINT AND UNLESS AN ORDER IS PASSED BY THE -AGISTRATE
COMMITTING THE CASE TO THE 3PECIAL #OURT CONSTITUTED UNDER 3ECTION OF THE !CT
AS PROVIDED IN THE #R0# THE 3PECIAL #OURT CANNOT TAKE COGNIZANCE OF THE OFFENCES )N
'ANGULA !SHOK AND !NR VS 3TATE OF !0 #RIMES 3# THE 3UPREME #OURT
HAD THE OCCASION TO DECIDE THE QUESTION WHETHER THE 3PECIAL #OURT CONSTITUTED UNDER
3ECTION OF THE !CT COULD STRAIGHT AWAY TAKE COGNIZANCE OF OFFENCES UNDER THE
!CT AND REFERRING TO THE PROVISIONS OF #R0# AND THE !CT AS THE #ODE AND THE
3PECIAL !CT HELD IN 0ARAGRAPHS AND
4HIS #OURT ON A READING OF 3ECTION IS JUXTAPOSITION WITH 3ECTION OF THE #ODE
HAS HELD THAT IT ONLY RELATES TO THE EXTENT OF APPLICATION OF THE #ODE IN THE MATTER
OF TERRITORIAL AND OTHER JURISDICTION BUT DOES NOT NULLIFY THE EFFECT OF 3ECTION )N
SHORT THE PROVISIONS OF THIS #ODE WOULD BE APPLICABLE TO THE EXTENT IN THE ABSENCE
OF ANY CONTRARY PROVISION IN THE 3PECIAL !CT OR ANY SPECIAL PROVISION INCLUDING THE
JURISDICTION OR APPLICABILITY OF THE #ODE VIDE 0ARA IN $IRECTORATE OF %NFORCEMENT
V $EEPAK -AHAJAN (ENCE WE HAVE NO DOUBT THAT A 3PECIAL #OURT UNDER THIS !CT IS
ESSENTIALLY A #OURT OF 3ESSION AND IT CAN TAKE COGNIZANCE OF THE OFFENCE WHEN THE
CASE IS COMMITTED TO IT BY THE -AGISTRATE IN ACCORDANCE WITH THE PROVISIONS OF THE
#ODE )N OTHER WORDS A COMPLAINT OR A CHARGE
SHEET CANNOT STRAIGHT AWAY BE LAID
BEFORE THE 3PECIAL #OURT UNDER THE !CT
4HUS IN CASE THE PETITIONER IS APPREHENSIVE THAT THE 0OLICE MAY NOT REGISTER A CASE AT ALL
PURSUANT TO THE &)2 LODGED AGAINST THE 0OLICE AND &OREST PERSONNEL AND INVESTIGATE INTO
THE OFFENCES WITH FAIRNESS AND IMPARTIALITY IT IS OPEN TO THE MEMBERS OF THE 3CHEDULED
4RIBES TO LE COMPLAINTS BEFORE THE CONCERNED -AGISTRATE FOR INQUIRY IN ACCORDANCE
WITH THE #R0# AND IN CASE THE -AGISTRATE NDS THAT THE CASE IS ONE FOR COMMITTAL TO THE
3PECIAL #OURT HE CAN PASS ORDERS ACCORDINGLY AND ONLY THEN THE 3PECIAL #OURT CAN TAKE
COGNIZANCE OF THE OFFENCES UNDER THE !CT ALLEGED TO BE COMMITTED BY THE 0OLICE
AND THE &OREST 0ERSONNEL
4HE PETITIONER HAS LED WRITTEN SUBMISSIONS CONTENDING THAT ON
THREE
TRIBALS NAMELY -ANGAL 3INGH 0HOOL 3INGH AND 3UKHRAM WERE ARRESTED HANDCUFFED
AND PARADED THROUGH THE PUBLIC THOROUGHFARE IN "ETUL DURING THEIR TRANSIT TO THE #OURT
OF 3$- AND MADE TO SIT HANDCUFFED OUTSIDE THE #OURT OF THE 3$- 3HE SUBMITTED THAT
SUCH HANDCUFNG WAS IN CLEAR VIOLATION OF THE JUDGMENT OF THE 3UPREME #OURT IN
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
3UNIL 'UPTA AND /RS V 3TATE OF -0 AND /RS ;=3#2 3HE FURTHER SUBMITTED
THAT ALL THIS WAS BROUGHT TO THE NOTICE OF THIS #OURT AND ON
THE #OURT AFTER
CONSIDERING THE REPLY LED BY THE RESPONDENTS PASSED AN ORDER SAYING THAT IT WAS NOT
PRIMA FACIE CONVINCED WITH THE REPLY LED ON BEHALF OF THE RESPONDENTS AND GAVE AN
OPPORTUNITY OF HEARING TO -R !, 0ATEL !3) ON WHOSE INSTRUCTIONS -ANGAL 3INGH
0HOOL 3INGH AND 3UKHRAM WERE HANDCUFFED 4HEREAFTER -R 0ATEL APPEARED BEFORE THE
#OURT AND HE WAS ASKED TO SUBMIT AN EXPLANATION TO THE HIGHER AUTHORITIES WHY THREE
PERSONS WERE HANDCUFFED WITH A LONG CHAIN CONTRARY TO THE JUDGMENT OF THE 3UPREME
#OURT IN 3UNIL 'UPTAS CASE AND -R 0ATEL SUBMITTED AN EXPLANATION BUT THE ORDER IS YET
TO BE PASSED BY THE AUTHORITIES 3HE SUBMITTED THAT HANDCUFNG OF -ANGAL 3INGH 0HOOL
3INGH AND 3UKHRAM WAS A CLEAR VIOLATION OF RIGHT TO DIGNITY GUARANTEED UNDER !RTICLE
OF THE #ONSTITUTION AND THE #OURT MUST AWARD COMPENSATION TO -ANGAL 3INGH 0HOOL
3INGH AND 3UKHRAM FOR SUCH VIOLATION OF THEIR RIGHTS
!FTER TAKING INTO CONSIDERATION THE OBSERVATIONS OF THE 3UPREME #OURT IN 0REM 3HANKAR
3HUKLA AND /RS V $ELHI !DMINISTRATION ;=3#2 THE 3UPREME #OURT HAD HELD IN
3UNIL 'UPTA AND /RS V 3TATE OF -0 AND /RS SUPRA CITED BY THE PETITIONER THAT TAKING
OF PERSONS FROM PRISON TO THE #OURT OR BACK FROM THE #OURT TO THE PRISON BY THE ESCORT
PARTY IS ONLY UNDER THE JUDICIAL ORDERS OF THE #OURT AND THEREFORE EVEN IF EXTREME
CIRCUMSTANCES NECESSITATE THE ESCORT PARTY TO BIND THE PRISONERS IN FETTERS THE ESCORT
PARTY SHOULD RECORD THE REASONS FOR DOING SO IN WRITING AND INTIMATE THE #OURT SO THAT
THE #OURT CONSIDERING THE CIRCUMSTANCES EITHER APPROVE OR DISAPPROVE THE ACTION OF THE
ESCORT PARTY AND ISSUE NECESSARY DIRECTIONS )N THE AFORESAID CASE OF 3UNIL 'UPTA AND
/RS V 3TATE OF -0 AND /RS SUPRA THE 3UPREME #OURT FOUND THAT THE ESCORT PARTY
WITHOUT ANY JUSTICATION HAD HANDCUFFED THE PETITIONERS WHEN TAKING THEM FROM THE
PRISON TO THE #OURT AND THEN FROM #OURT TO PRISON AND ACCORDINGLY DIRECTED THE 3TATE
'OVERNMENT TO TAKE APPROPRIATE ACTION AGAINST THE ERRING OFCIALS WHO HAD UNJUSTLY
AND UNREASONABLY HANDCUFFED THE PETITIONERS IN VIOLATION OF THE RIGHTS GUARANTEED
UNDER !RTICLE OF THE #ONSTITUTION
)N 3TATE OF -AHARASHTRA AND /RS VS 2AVIKANT 3 0ATEL 3## THE 3UPREME #OURT
RELYING ON 3UNIL 'UPTA AND /RS VS 3TATE OF -0 AND /RS SUPRA AND 2UDUL 3HAH V 3TATE
OF "IHAR AND !NR SUPRA UPHELD THE AWARD OF COMPENSATION OF 2S BY THE
(IGH #OURT OF "OMBAY TO AN UNDER TRIAL PRISONER WHO HAD BEEN HANDCUFFED AND TAKEN
THROUGH THE STREETS IN A PROCESSION BY THE 0OLICE DURING INVESTIGATION FOR VIOLATION OF
HIS RIGHT UNDER !RTICLE OF THE #ONSTITUTION
4HE RECORDS OF THE PRESENT CASE REVEAL THAT -R 0ATEL !3) WHO WAS HEADING THE 0OLICE
PERSONNEL CARRYING -ANGAL 3INGH 0HOOL 3INGH AND 3UKHRAM FROM JAIL TO THE #OURT OF
3$- STATED BEFORE THE #OURT ON THAT AS PER THE DIRECTIONS OF THE 3$- "ETUL
HE BROUGHT THE THREE PERSONS FROM JAIL TO THE #OURT -R 0ATEL DID NOT DISPUTE THAT THE
THREE PERSONS WERE HANDCUFFED BY A LONG CHAIN WHEN THEY WERE BROUGHT TO THE #OURT
OF 3$- "ETUL 4HE 3$- "ETUL WHO APPEARED BEFORE THE #OURT ON HOWEVER
STATED THAT THE THREE PERSONS WERE NOT HANDCUFFED WHEN THEY WERE PRODUCED BEFORE
THE #OURT .O VALID JUSTICATION HAS THUS BEEN GIVEN FOR THE HANDCUFNG OF THE THREE
PERSONS WHEN THEY WERE BROUGHT FROM JAIL TO THE #OURT AND NO ORDERS APPEAR TO
HAVE BEEN PASSED BY THE 3$- FOR HANDCUFNG ALL THESE THREE PERSONS 3INCE NO VALID
JUSTICATION HAS BEEN SHOWN IN THE RETURNS LED BY THE RESPONDENTS FOR HANDCUFNG
-ANGAL 3INGH 0HOOL 3INGH AND 3UKHRAM WE AWARD A COMPENSATION OF 2S
2UPEES 4EN THOUSAND TO EACH ONE OF THESE THREE PERSONS NAMELY -ANGAL 3INGH 0HOOL
3INGH AND 3UKHRAM AND THE RESPONDENT .O 3TATE OF -ADHYA 0RADESH IS DIRECTED TO
PAY THE COMPENSATION WITHIN A PERIOD OF TWO MONTHS FROM TODAY )T WILL BE OPEN FOR
THE 3TATE OF -0 TO RECOVER THE COMPENSATION FROM THE POLICE PERSONNEL OR THE OFCERS
FOUND GUILTY IN THE DISCIPLINARY PROCEEDINGS FOR SUCH BLATANT VIOLATION OF THE LAW LAID
4 / \
DOWN BY THE 3UPREME #OURT
4HE PETITIONER HAS ALSO CONTENDED IN HER WRITTEN SUBMISSIONS THAT THE 3CHEDULED 4RIBES
AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT FOR SHORT
THE !CT PROVIDES IN 3ECTION FOR RECOGNITION OF AND VESTING OF FOREST RIGHTS IN
FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS AND 3UB
SECTION
OF 3ECTION OF THE !CT STATES THAT SAVE AS OTHERWISE PROVIDED NO MEMBER OF
A FOREST DWELLING 3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLER SHALL BE EVICTED
OR REMOVED FROM FOREST LAND UNDER HIS OCCUPATION TILL THE RECOGNITION AND VERICATION
PROCEDURE IS COMPLETE 3HE HAS SUBMITTED THAT THE #OURT SHOULD ACCORDINGLY DIRECT THE
RESPONDENTS NOT TO EVICT THE TRIBALS OF 6ILLAGE 'HORPODMAL FROM THE FOREST LAND IN THEIR
OCCUPATION TILL THEIR CLAIMS ARE SETTLED IN ACCORDANCE WITH THE PROVISIONS OF THE
!CT
$URING THE PENDENCY OF THIS CASE THE PETITIONER HAD LED )! .O OF PRAYING
FOR AN ORDER RESTRAINING THE &OREST !UTHORITIES OF THE 3TATE 'OVERNMENT FROM TAKING
ANY COERCIVE STEPS AGAINST ANY 3CHEDULED 4RIBE PEOPLE OF 6ILLAGE 'HORPODMAL $ISTRICT
"ETUL AND ALONGWITH THE )! HAD LED A $RAFT OF 3CHEDULED 4RIBES 2ECOGNITION OF &OREST
2IGHTS "ILL AND INSTRUCTIONS OF 'OVERNMENT OF )NDIA -INISTRY OF %NVIRONMENT
&OREST IN CONNECTION WITH THE $RAFT 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS "ILL
/NE SUCH INSTRUCTION WAS A COMMUNICATION DATED TH -AY ISSUED BY THE
'OVERNMENT OF )NDIA -INISTRY OF %NVIRONMENT AND &ORESTS TO THE 0RINCIPAL 3ECRETARIES
&ORESTS TO ALL THE 3TATES AND THE 5NION 4ERRITORIES IN WHICH IT WAS INTER ALIA STATED
THAT FOREST DWELLERS INCLUDING TRIBALS WHO ARE IN CONTINUOUS POSSESSION OF FOREST LAND
AT LEAST FROM PRIOR TO
,E THE DATE OF ENACTMENT OF &OREST #ONSERVATION !CT
FOR SHORT THE !CT SHALL BE ELIGIBLE TO BE CONSIDERED FOR SETTLEMENT OF LAND
RIGHT INCLUDING REGULARISATION OF ENCROACHMENT ON FOREST LAND 4HE COMMUNICATION
DATED TH -AY ALSO CONTAINED INSTRUCTIONS OF THE 'OVERNMENT OF )NDIA TO THE
3TATE 'OVERNMENTS NOT TO TAKE ACTION FOR EVICTION OF 3CHEDULED 4RIBES INCLUDING TRIBALS
WHO ARE IN OCCUPATION OF 'OVERNMENT LAND ON OR AFTER TH /CTOBER )N VIEW OF
THESE INSTRUCTIONS OF THE 'OVERNMENT OF )NDIA BY ORDER DATED TH /CTOBER THE
#OURT DIRECTED AS AN INTERIM MEASURE THAT NO COERCIVE STEPS WOULD BE TAKEN TO EVICT
ANY OF THE FOREST DWELLERS INCLUDING TRIBALS WHO ARE IN CONTINUOUS POSSESSION OF FOREST
LAND PRIOR TO TH /CTOBER )N THE ORDER DATED TH /CTOBER THE #OURT ALSO
MADE IT CLEAR THAT IN ANY PROCEEDINGS FOR EVICTION OF ENCROACHERS THE PERSON WHO IS
SERVED WITH SHOW
CAUSE NOTICE CAN TAKE A STAND BEFORE THE AUTHORITY IN WRITING THAT
HE HAS BEEN IN CONTINUOUS OCCUPATION OF FOREST LAND FROM A DATE PRIOR TO TH /CTOBER
AND IF SUCH A STAND IS TAKEN THE #OMPETENT !UTHORITY WILL CONSIDER THE SAME IN
ACCORDANCE WITH LAW
4HE "ILL HAS NOW BECOME THE !CT AND A NOTICATION DATED ST $ECEMBER HAS
BEEN ISSUED BY THE #ENTRAL 'OVERNMENT UNDER 3ECTION OF THE !CT APPOINTING
ST $ECEMBER AS THE DATE ON WHICH THE PROVISIONS OF THE !CT CAME INTO
FORCE 3ECTION A AND 3ECTION AND OF THE !CT ARE QUOTED HERE IN BELOW
&OREST RIGHTS OF &OREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST
DWELLERS
&OR THE PURPOSES OF THIS !CT THE FOLLOWING RIGHTS WHICH SECURE
INDIVIDUAL OR COMMUNITY TENURE OR BOTH SHALL BE THE FOREST RIGHTS OF FOREST DWELLING
3CHEDULED 4RIBES 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 3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLERS
2ECOGNITION OF AND VESTING OF FOREST RIGHTS IN FOREST DWELLING 3CHEDULED 4RIBES
AND OTHER TRADITIONAL FOREST DWELLERS .OTWITHSTANDING ANYTHING CONTAINED IN
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
ANY OTHER LAW FOR THE TIME BEING IN FORCE AND SUBJECT TO THE PROVISIONS OF THIS !CT
THE #ENTRAL 'OVERNMENT HEREBY RECOGNISES AND VESTS FOREST RIGHTS IN
A THE FOREST DWELLING 3CHEDULED 4RIBES IN 3TATES OR AREAS IN 3TATES WHERE THEY ARE
DECLARED AS 3CHEDULED 4RIBES IN RESPECT OF ALL FOREST RIGHTS MENTIONED IN 3ECTION
B THE OTHER TRADITIONAL FOREST DWELLERS IN RESPECT OF ALL FOREST RIGHTS MENTIONED
IN 3ECTION
3AVE AS OTHERWISE PROVIDED NO MEMBER OF A FOREST DWELLING 3CHEDULED 4RIBES
OR OTHER TRADITIONAL FOREST DWELLER SHALL BE EVICTED OR REMOVED FROM FOREST LAND
UNDER HIS OCCUPATION TILL THE RECOGNITION AND VERICATION PROCEDURE IS COMPLETE
)T IS CLEAR FROM 3UB
SECTION OF 3ECTION OF THE !CT THAT NOTWITHSTANDING
ANYTHING CONTAINED IN ANY OTHER LAW THE FOREST RIGHTS INCLUDING THE RIGHT TO HOLD AND
CULTIVATE LAND AS MENTIONED IN 3ECTION A OF &OREST $WELLING 3CHEDULED 4RIBES AND
OTHER TRADITIONAL FOREST DWELLERS ARE NOW RECOGNIZED 3UB
SECTION OF 3ECTION OF
THE !CT FURTHER PROVIDES THAT SAVE AS OTHERWISE PROVIDED NO MEMBER OF A FOREST
DWELLING 3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLER SHALL BE EVICTED OR REMOVED
FROM FOREST LAND UNDER HIS OCCUPATION TILL THE RECOGNITION AND VERICATION PROCEDURE
IS COMPLETE !CCORDINGLY WE DIRECT THAT THE CLAIMS OF THE MEMBERS OF THE 3CHEDULED
4RIBES AND OTHER TRADITIONAL FOREST DWELLERS OF 6ILLAGE 'HORPODMAL $ISTRICT "ETUL WILL
BE DECIDED IN ACCORDANCE WITH THE PROVISIONS OF THE !CT AND THE AUTHORITIES WILL
NOT EVICT A MEMBER OF A FOREST DWELLING 3CHEDULED 4RIBE OR ANY OTHER TRADITIONAL FOREST
DWELLER FROM THE FOREST LAND UNDER HIS OCCUPATION TILL THE RECOGNITION AND VERICATION
PROCEDURE IS COMPLETE
4HE PETITIONER HAS NEXT SUBMITTED IN THE WRITTEN SUBMISSIONS THAT SOME CONTRACTORS
VERY CLOSE TO THE RULING PARTY POLITICIANS IN THE 3TATE ARE INVOLVED IN ILLEGAL EXCAVATIONS IN
THE FOREST AREAS OF $ISTRICTS "ETUL AND (ARDA AND THE 0OLICE AND $ISTRICT !DMINISTRATION
OF "ETUL AND (ARDA ARE NOT TAKING ANY ACTION TO STOP SUCH ILLEGAL EXCAVATIONS 3HE
FURTHER SUBMITTED THAT BY A LETTER DATED RD 3EPTEMBER OF THE 5NDER 3ECRETARY
&OREST 'OVERNMENT OF -ADHYA 0RADESH AND BY LETTER DATED TH .OVEMBER THE
#HIEF #ONSERVATOR OF &OREST 'OVERNMENT OF -ADHYA 0RADESH HAVE PERMITTED SUCH
ILLEGAL EXCAVATIONS IN CONTRAVENTION OF THE PROVISIONS OF THE !CT AND THEREFORE A
DIRECTION SHOULD BE GIVEN FOR PROSECUTION OF OFCERS UNDER 3ECTION " OF THE !CT
WHO IN COLLUSION WITH POLITICALLY INUENTIAL CONTRACTORS HAVE PERMITTED SUCH ILLEGAL
EXCAVATIONS IN THE FOREST AREAS
4HESE ALLEGATIONS OF ILLEGAL EXCAVATIONS WERE MADE IN )! .OS AND
OF LED BY THE PETITIONER AND WERE DENIED BY THE RESPONDENT .OS A B AND
C IN THEIR REPLIES (ENCE THE #OURT PASSED AN ORDER ON
DIRECTING THAT AN
INQUIRY BE CONDUCTED BY -R ,, 3HUKLA THE THEN 2EGISTRAR 6IGILANCE OF THIS #OURT "Y
THE ORDER DATED
THE #OURT DIRECTED THAT -R 3HUKLA WILL VISIT THE CONCERNED
AREAS IN "ETUL $ISTRICT ALONGWITH A PHOTOGRAPHER AND WILL SUBMIT A REPORT WHETHER
OR NOT SUCH ILLEGAL EXCAVATIONS HAVE TAKEN PLACE IN THE "ETUL $ISTRICT AS ALLEGED IN THE
)!S 4HE #OURT FURTHER DIRECTED THAT THE PETITIONER AND THE 'OVERNMENT MAY DEPUTE
THEIR REPRESENTATIVES TO THE SPOTS AT THE TIME -R 3HUKLA VISITS THE SPOT 4HEREAFTER -R
3HUKLA CONDUCTED THE INQUIRY AND SUBMITTED A REPORT DATED ST -ARCH THAT ILLEGAL
EXCAVATION HAS TAKEN PLACE IN SOME OF THE PLACES 4HE #OURT ACCORDINGLY PASSED ORDERS
ON TH !PRIL DIRECTING THE #OLLECTOR "ETUL TO ENSURE THAT SUCH ILLEGAL EXCAVATIONS
ARE STOPPED IMMEDIATELY AND FURTHER DIRECTED THE #OLLECTOR TO EXERCISE ALL POWERS
UNDER THE LAW TO SEIZE ANY MATERIAL COLLECTED BY SUCH ILLEGAL EXCAVATIONS
!GAIN AN APPLICATION )! .O OF WAS LED BY THE PETITIONER COMPLAINING OF
4 / \
FRESH ILLEGAL EXCAVATIONS IN THE RESERVED FOREST AND REVENUE AREAS IN (ARDA AND "ETUL
$ISTRICTS AND THE RESPONDENTS IN THEIR REPLY DENIED SUCH FRESH ILLEGAL EXCAVATIONS 4HE
#OURT PASSED ORDERS ON TH .OVEMBER DIRECTING THE 2EGISTRAR 6IGILANCE TO
MAKE SPOT INSPECTION OF THE AREAS MENTIONED IN THE ) ! AND SUBMIT A REPORT TO THIS
#OURT AND IN THE ORDER DATED TH .OVEMBER THE #OURT FURTHER DIRECTED THAT
NOTICE BE ISSUED TO THE PETITIONER AND THE #OLLECTOR ABOUT THE DATE AND TIME OF THE SPOT
INSPECTION SO THAT THEY MAY REMAIN PRESENT AT THE TIME OF SPOT INSPECTION 0URSUANT
TO THE ORDER DATED TH .OVEMBER THE 2EGISTRAR 6IGILANCE -R *AYANT #HOUHAN
REACHED THE SPOT CARRIED OUT THE INSPECTION AND SUBMITTED A REPORT DATED
IN
WHICH HE HAS AGAIN CONRMED ILLEGAL EXCAVATIONS IN SOME OF RESERVED FOREST AREAS AND
REVENUE AREAS OF (ARDA AND "ETUL $ISTRICTS
3ECTION OF THE !CT IS QUOTED HEREINBELOW
3ECTION 2ESTRICTION ON THE PRESERVATION OF FORESTS OR USE OF FOREST LAND FOR NON
FOREST PURPOSE
.OTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE IN
A 3TATE NO 3TATE 'OVERNMENT OR OTHER !UTHORITY SHALL MAKE EXCEPT WITH THE PRIOR
APPROVAL OF THE #ENTRAL 'OVERNMENT 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 THE 3TATE 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 ORGANISATION NOT OWNED MANAGED OR CONTROLLED BY 'OVERNMENT
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
%XPLANATION &OR THE PURPOSE OF THIS 3ECTION 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 WILD LIFE NAMELY THE ESTABLISHMENT OF CHECK
POSTS RE LINES WIRELESS
COMMUNICATIONS AND CONSTRUCTION OF FENCING BRIDGES AND CULVERTS DAMS
WATERHOLES TRENCH MARKS BOUNDARY MARKS PIPELINES OR OTHER LIKE PURPOSES
)T WILL BE CLEAR FROM A READING OF 3ECTION II OF THE !CT QUOTED ABOVE THAT
NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE NO
3TATE 'OVERNMENT OR OTHER AUTHORITY SHALL MAKE EXCEPT WITH THE PRIOR APPROVAL OF THE
#ENTRAL 'OVERNMENT ANY ORDER DIRECTING THAT ANY FOREST LAND OR ANY PORTION THEREOF
MAY BE USED FOR ANY NON
FOREST PURPOSE #LAUSE B TO THE %XPLANATION APPENDED TO
3ECTION STATES THAT FOR THE PURPOSES OF THIS 3ECTION NON
FOREST PURPOSE MEANS THE
BREAKING UP OR CLEARING OF ANY FOREST LAND OR PORTION THEREOF FOR ANY PURPOSE OTHER
THAN REAFFORESTATION (ENCE NO FOREST LAND OR PORTION OF FOREST LAND CAN BE BROKEN UP
FOR ANY PURPOSE OTHER THAN REAFFORESTATION WITHOUT THE PRIOR APPROVAL OF THE #ENTRAL
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
'OVERNMENT 4HIS BEING THE CLEAR POSITION OF LAW EXCAVATIONS IN FOREST LAND WITHOUT
THE PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT ARE PROHIBITED UNDER 3ECTION OF THE
!CT
)N 4. 'ODAVARMAN 4HIRUMULKPAD VS 5NION OF )NDIA AND /RS !)23# THE
3UPREME #OURT INTERPRETING 3ECTION OF THE !CT HELD
4HE TERM FOREST LAND OCCURRING IN 3ECTION WILL NOT ONLY INCLUDE FOREST AS
UNDERSTOOD IN THE DICTIONARY SENSE BUT ALSO ANY AREA RECORDED AS FOREST IN
THE 'OVERNMENT RECORD IRRESPECTIVE OF THE OWNERSHIP 4HIS IS HOW IT HAS TO BE
UNDERSTOOD FOR THE PURPOSE OF 3ECTION OF THE !CT 4HE PROVISIONS ENACTED IN THE
&OREST #ONSERVATION !CT FOR THE CONSERVATION OF FORESTS AND THE MATTERS
CONNECTED THEREWITH MUST APPLY CLEARLY TO ALL FORESTS SO UNDERSTOOD IRRESPECTIVE OF
THE OWNERSHIP OR CLASSICATION THEREOF
4HUS NO LAND IN AREAS RECORDED AS FOREST IN 'OVERNMENT RECORDS CAN BE BROKEN UP BY
EXCAVATIONS WITHOUT THE PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT AS PROVIDED IN
3ECTION OF THE !CT 7E ACCORDINGLY DIRECT THE RESPONDENT .OS A B AND C
TO ENSURE THAT NO EXCAVATIONS IN LAND RECORDED IN 'OVERNMENT RECORDS AS FOREST TAKES
PLACE EITHER THE 3TATE OR OTHER AUTHORITIES OR PRIVATE PERSONS INCLUDING CONTRACTORS
WITHOUT THE PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT AND IN CASE SUCH EXCAVATIONS
ARE CONDUCTED BY THE 'OVERNMENT $EPARTMENTS AUTHORITIES OR BY PRIVATE PERSONS
INCLUDING CONTRACTORS STEPS WILL BE TAKEN FOR THEIR PROSECUTION FOR THE OFFENCES UNDER
3ECTIONS
! AND
" OF THE !CT
4HE PETITIONER NALLY SUBMITTED THAT THE PETITIONER AND HER HUSBAND ARE BEING
HARASSED BY THE &OREST AND 0OLICE /FCIALS BY REGISTRATION OF VARIOUS CRIMINAL CASES AND
APPROPRIATE DIRECTIONS BE GIVEN TO THE AUTHORITIES NOT TO HARASS THE PETITIONER AND HER
HUSBAND IN ANY MANNER 4HIS RELIEF CANNOT BE GRANTED TO THE PETITIONER IN THIS 0), WHICH
HAS BEEN LED FOR THE PROTECTION OF RIGHTS OF THE TRIBALS )N CASE THE PETITIONER OR HER
HUSBAND IS INDIVIDUALLY AGGRIEVED BY ANY PARTICULAR ACTION OR ORDER OF THE AUTHORITIES
IT IS OPEN FOR THEM TO SEEK THEIR REMEDIES EITHER UNDER THE #R0# OR BY SEPARATE WRIT
PETITIONS UNDER !RTICLE OF THE #ONSTITUTION AS THEY MAY BE ADVISED
7ITH THE AFORESAID DIRECTIONS THE WRIT PETITION IS DISPOSED OF )NTERIM ORDERS PASSED BY
THE #OURT ARE VACATED
4 / \
-ADHU /RS VS 3TATE OF -ADHYA
0RADESH /RS
-)3# !00%!, ./ /& %4#
-!$(9! 02!$%3( ()'( #/524 *!"!,052 "%.#(
#/2!- *+ -!(%3(7!2) *
3 5 - -!29
4HIS WAS A BATCH OF THREE SUITS UNDER /RDER 2ULES AND OF THE #IVIL 0ROCEDURE
#ODE #0# FOR THE DECLARATION OF TITLE OVER LANDS IN QUESTION ON THE GROUND THAT
THEY ARE FOREST DWELLERS HAVING POSSESSION ON THE SAID LAND ACRES OF LAND
IN VILLAGE 3AEEDGANJ 3EHORE DISTRICT AND CULTIVATING THE SAME 4HE PLAINTIFFS ALSO
BELONG TO THE 3CHEDULED 4RIBE COMMUNITY HAVING NO OTHER SOURCE OF LIVELIHOOD
EXCEPT THE SAID AGRICULTURAL LAND
/N RESISTANCE BY THE PLAINTIFFS TO EFFORTS AT FORCIBLE DISPOSSESSION THE RESPONDENT
3TATE AUTHORITIES HAVE REGISTERED OFFENCES (OWEVER THESE SUITS WERE FILED BY THE
PLAINTIFFS RESTRAINING THE 2ESPONDENTS FROM INTERFERING IN THE POSSESSION OF THE
PLAINTIFFS
4HE PLAINTIFFS HAD URGED THAT THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL FOREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! HAS BEEN ENACTED TO
RECOGNIZE THE RIGHTS OF THE 3CHEDULED 4RIBE &OREST $WELLERS AND /THER 4RADITIONAL
&OREST $WELLERS AND TILL DETERMINATION OF THE RIGHTS OF THE PLAINTIFFS AS PER 3ECTION
OF THE &2! THEIR POSSESSION SHOULD NOT BE DISTURBED )N ADDITION THE -ADHYA
0RADESH GOVERNMENT HAS ISSUED VARIOUS CIRCULARS WHEREBY IT HAS DIRECTED THAT THE
MEMBERS OF THE 3CHEDULED 4RIBES WHO ARE IN POSSESSION OF THE FOREST LAND SHOULD
NOT BE EVICTED TILL DETERMINATION OF THEIR RIGHTS OVER THE LAND IN QUESTION
4HE RESPONDENTS ARGUED THAT THE &2! HAS BEEN ENACTED TO PROTECT A SPECIAL CATEGORY
OF FOREST DWELLERS AND THE PLAINTIFFS WERE NOT PERMANENT RESIDENTS OF THE VILLAGE
3AEEDGANJ BUT HAD BEEN SHIFTED FROM *HABUA AND SUBSEQUENTLY WERE NOT COVERED
BY THE !CT /DDLY THE 3TATE GOVERNMENT ARGUED THAT THE RESTORATION AND VESTING OF
FOREST RIGHTS IS ONLY FOR THE BENEFIT OF FOREST DWELLING 3CHEDULED 4RIBES AND OTHER
TRADITIONAL FOREST DWELLERS WHO ARE CRITICAL WILDLIFE HABITAT
$ % # ) 3) /. /& 4( % #/52 4
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
4HE #OURT HELD THAT A BARE READING OF THE PLAINT SHOWED THAT THE INGREDIENTS AS
REQUIRED UNDER THE !CT HAD NOT BEEN SUFFICIENTLY PLEADED 4HE PLAINTIFFS HAVE NOT
BEEN ABLE TO DEMONSTRATE THEY BELONG TO A PASTORAL OR RURAL COMMUNITY LIVING IN
CLOSE CONNECTION WITH THE ENVIRONMENT
4HE #OURT OBSERVED THAT U NTIL AND UNLESS A PERSON FALLS WITHIN THE DEFINITION OF
FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS OR CRITICAL
WILDLIFE HABITAT AFTER FOLLOWING THE PROCEDURE AS SPECIFIED UNDER SECTION OF THE
!CT OF THE APPLICATION OF THOSE CIRCULARS MUST BE REFRAINED BY THE OFFICIALS
HOWEVER THE 3TATE 'OVERNMENT THE AUTHORITIES THE 3UB
$IVISIONAL #OMMITTEE AND
THE 3TATE ,EVEL #OMMITTEE ARE DUTY BOUND TO GO THROUGH THE BASIC PROVISION OF THE
ENACTMENT AND TO COMPLY IT IN ITS TRUE SENSE AND SPIRIT 3INCE THERE IS A PROCEDURE
PROVIDED IN THE &2! UNDER 3ECTION RIGHTS OUGHT TO HAVE BEEN DETERMINED IN
ACCORDANCE WITH SUCH PROCEDURE 3INCE THIS WAS NOT DONE IT IS NOT POSSIBLE TO GRANT
AN INJUNCTION UNDER /RDER 2ULES AND OF #0# !CCORDINGLY THE #OURT HELD
THAT SINCE THE PLAINTIFFS HAD NOT ESTABLISHED POSSESSION BEFORE THE 4RIAL #OURT THE
PRAYER FOR INJUNCTION WAS CORRECTLY DECLINED ON PART OF THE COURT EVEN ON MAKING
A SUBMISSION TO APPLY THE PROVISIONS OF THE &2! !CCORDINGLY THE APPEALS WERE
DISMISSED
% $ )4/23 . /4%
%VEN THOUGH THE JUDGMENT IS UNHAPPILY WORDED THE PRINCIPLE OF LAW THAT MERE
ENACTMENT OF &2! DOES NOT FULFILL THE CONDITION PRECEDENT FOR INVOKING /RDER
2ULES AND OF THE #0# IS DIFFICULT TO FAULT )N ADDITION THE #OURT CLEARLY FINDS IT
DIFFICULT TO ENFORCE A LAW MEANT FOR PROTECTION OF UNDER
PRIVILEGED CLASS OF PERSONS
IN A PETITION INVOLVING A VAST TRACT OF OVER ACRES OF LAND
* 5$ '-% . 4
#HALLENGING THREE DIFFERENT ORDERS PASSED ON IN THREE DIFFERENT SUITS REJECTING
THE APPLICATION UNDER /RDER 2ULES AND READ WITH 3ECTION OF THE #ODE OF #IVIL
0ROCEDURE BY THE RD !DDITIONAL $ISTRICT *UDGE &AST 4RACK #OURT .ASRULLAGANJ DISTRICT
3EHORE THE PLAINTIFFS HAVE LED THREE DIFFERENT APPEALS WHICH ARE BEING DECIDED BY THIS
COMMON ORDER AS THE FACTS AND QUESTION OF LAW AS INVOLVED FOR ADJUDICATION IS SIMILAR
4HE PLAINTIFFS HAVE LED THREE SUITS FOR DECLARATION OF THEIR TITLE OVER THE LAND OF VARIOUS
SURVEY NUMBERS TOTAL AREA ACRES SITUATED IN VILLAGE 3AEEDGANJ TAHSIL"UDHNI
DISTRICT 3EHORE ON THE GROUND THAT THEY ARE FOREST DWELLERS CAME FROM *HABUA HAVING
POSSESSION ON THE SAID LAND AND CULTIVATING THE SAME 4HEY ALSO BELONG TO THE 3CHEDULED
4RIBES COMMUNITY AND HAVING NO OTHER SOURCE OF LIVELIHOOD EXCEPT THE SAID AGRICULTURAL
LAND 4HE #OLLECTOR DISTRICT 3EHORE BY PASSING THE ORDER DATED IN #ASE .O
!
DIRECTED TO CONVERT THE REVENUE LAND INTO FOREST LAND WITH FURTHER
DIRECTION TO DELIVER POSSESSION AFTER DEMARCATION TO THE &OREST $EPARTMENT 4HE
COMPLIANCE REPORT HAS ALSO BEEN SOUGHT BY THE #OLLECTOR $ISTRICT 3EHORE )T IS STATED
THAT THE PLAINTIFFS BELONG TO THE 3CHEDULED 4RIBE COMMUNITY AND FOREST DWELLERS HAVING
POSSESSION ON THE SAID LAND HOWEVER DECLARE THEM AS OWNER OF THE DISPUTED LAND
/N RESISTANCE TO TAKE FORCIBLE POSSESSION FROM THEM THE RESPONDENT AUTHORITIES HAVE
REGISTERED OFFENCE HOWEVER BY ISSUING A NOTICE THE SUITS FOR DECLARATION AND PERMANENT
INJUNCTION RESTRAINING THE DEFENDANTS TO NOT TO INTERFERE IN POSSESSION OF PLAINTIFFS HAVE
4 / \
BEEN LED !N APPLICATION SEEKING TEMPORARY INJUNCTION OF THE SAME NATURE WAS ALSO
LED BY THE PLAINTIFFS WHICH HAS BEEN REJECTED BY THE ORDER IMPUGNED
4HE DEFENDANTS BY LING THE REPLY TO APPLICATION FOR TEMPORARY INJUNCTION DENIED ALL THE
ALLEGATIONS AND CONTENDED THAT THE PLAINTIFFS ARE NOT IN POSSESSION ON THE SUIT LAND )T IS
ALSO DENIED THAT ANCESTORS OF THE PLAINTIFFS WERE IN POSSESSION AND CULTIVATING THEREON
)T IS SAID THAT ON THE DISPUTED LAND AREA ACRES DENSE FOREST IS SITUATED WHICH
WAS RECORDED IN THE REVENUE PAPERS IN THE NAME OF 2EVENUE $EPARTMENT HOWEVER VIDE
ORDER DATED PASSED BY THE #OLLECTOR $ISTRICT 3EHORE THE SAID LAND HAS RIGHTLY
ALLOCATED TO THE &OREST $EPARTMENT /N THE SAID LAND 3AGON TREES ARE STANDING AND THE
PLAINTIFFS ARE CREATING HINDRANCE TO PROTECT THE FOREST PRODUCTS AND LAND HOWEVER DENIED
ALL OTHER ALLEGATIONS AS ALLEGED IN THE APPLICATION ARE DENIED )T IS FURTHER DENIED THAT THE
PLAINTIFFS HAVE BECOME OWNERS UNDER THE -0 +RISHI 0RAYOJAN +E ,IYE +I *A 2AHI $AKHAL
2AHIT "HOOMI 0AR "HOOMISWAMI !DHIKARON +A 0RADAN +YA *ANA VSESH 5PABANDH
!DHINIYAM )T IS STATED THAT WHEN THE EMPLOYEES OF THE DEFENDANTS HAVE RESTRAINED
TO PLAINTIFFS TO CUT THE 3AGON TREES THEY MADE ASSAULT THEREFORE OFFENCE HAS RIGHTLY BEEN
REGISTERED AGAINST THEM AND THE CASE IS PENDING BEFORE THE COMPETENT #OURT )N SUCH
CIRCUMSTANCES PRAYER IS MADE TO REJECT THE APPLICATION LED BY THE PLAINTIFFS UPHOLDING
THE ORDER IMPUGNED
"EFORE THE TRIAL #OURT THE ARGUMENT WAS ADVANCED ON THE BASIS OF THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
HEREINAFTER IT BE CALLED AS 4HE !CT OF CONTENDING THAT UNDER THE SAID !CT THEY
ARE HAVING RIGHT TO CONTINUE IN POSSESSION OF THE LANDS IN QUESTION AND BE DECLARED
OWNER THEREOF 4HE DEFENDANTS ARE NOT ENTITLED TO TAKE THE POSSESSION FROM PLAINTIFFS
WHO BELONG TO SCHEDULED TRIBE COMMUNITY IN VIEW OF THE PROVISIONS OF THE SAID !CT
,EARNED TRIAL #OURT CONSIDERING VARIOUS DOCUMENTS LED BY THE &OREST $EPARTMENT
3THAL .IRIKSHAN0ANCHNAMA REFERRING THE CASES REGISTERED AGAINST VARIOUS PERSONS AND
THE REPORT ON THE CLAIMS AS SET
FORTH BY THE PLAINTIFFS PASSED AN ORDER THAT THE PLAINTIFFS
ARE NOT IN POSSESSION ON THE DISPUTED LAND HOWEVER NO PRIMA FACIE CASE IS MADE OUT IN
THEIR FAVOUR !S THE LAND BELONGS TO THE &OREST $EPARTMENT TO WHICH THEY WANT TO GRAB
FORCIBLY HOWEVER BALANCE OF CONVENIENCE DO NOT LIE IN THEIR FAVOUR )T IS FURTHER HELD
THAT THERE IS NO IRREPARABLE LOSS TO THE PLAINTIFFS 4HUS BY PASSING THE ORDER IMPUGNED
THE PRAYER FOR GRANT OF TEMPORARY INJUNCTION HAS BEEN DISALLOWED
3HRI 'REESHM *AIN LEARNED COUNSEL APPEARING ON BEHALF OF THE PLAINTIFFS HAS STRENUOUSLY
URGED THAT THE !CT OF HAS BEEN ENACTED TO RECOGNIZE THE RIGHTS OF THE SCHEDULED
TRIBE FOREST DWELLERS AND OTHER TRADITIONAL FOREST DWELLERS ALIKE THE PLAINTIFFS HOWEVER
TILL DETERMINATION OF THEIR RIGHT AS PER SECTION OF THE OF !CT THEIR POSSESSION SHOULD
NOT BE DISTURBED 4HE 'OVERNMENT OF -ADHYA 0RADESH THROUGH &OREST $EPARTMENT
HAS ISSUED VARIOUS CIRCULARS DATED ST *ANUARY TH &EBRUARY AND TH
3EPTEMBER WHEREBY IT WAS DIRECTED THAT THE MEMBERS OF THE 3CHEDULED 4RIBES
WHO ARE IN POSSESSION OF THE FOREST LANDS BE NOT EVICTED TILL DETERMINATION OF THEIR RIGHTS
OVER THE LAND IN QUESTION )T IS SUBMITTED THAT AS PER THE VARIOUS AFDAVITS LED BEFORE THE
TRIAL #OURT IT IS APPARENT THAT THEY ARE IN POSSESSION OF THE DISPUTED LAND THEREFORE TILL
ADJUDICATION OF THEIR RIGHT WHICH ARE THE ISSUES TRIABLE BY THE #IVIL #OURT THE INJUNCTION
PROTECTING THEIR POSSESSION MAY BE DIRECTED HOWEVER TRIAL #OURT COMMITTED AN ERROR
IGNORING THE PROVISIONS OF THE !CT OF AND VARIOUS CIRCULARS THEREFORE BY SETTING
ASIDE THE ORDER IMPUGNED APPLICATION LED BY THE PLAINTIFFS MAY BE ALLOWED AND THE
DEFENDANTS MAY BE RESTRAINED FROM INTERFERING IN PLAINTIFFS POSSESSION BY ALLOWING THE
APPEALS
0ER CONTRA 3MT 3HEETAL $UBEY LEARNED 'OVT !DVOCATE APPEARING ON BEHALF OF THE
RESPONDENTS CONTENDS THAT THE !CT OF HAS BEEN ENACTED TO PROTECT THE SPECIAL
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
CATEGORY OF 3CHEDULED 4RIBES AND TRADITIONAL FOREST DWELLERS WHICH ARE PASTORAL OR
EXPRESSIVE OF THE LIFE OF SHEPHERDS LIVING LIKE A CONVENTIONALIZED MANNER AND NOMADIC
IE WANDERER NOT HAVING XED HOME AND ALSO NOT THE URBAN HAVE BEEN PROTECTED )T IS
SUBMITTED THAT RESTORATION AND VESTING OF FOREST RIGHTS ARE ONLY TO THE FOREST DWELLING
3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS WHO ARE CRITICAL WILDLIFE HABITAT
!S PER 3ECTION OF THE !CT OF THE AUTHORITIES ARE REQUIRED TO DETERMINE THEIR
RIGHTS AND NOT OF THE PLAINTIFFS AS PER THE PROCEDURE PRESCRIBED THEREIN !S PER 3ECTION
IF THE AUTHORITIES HAVE COMMITTED AN ERROR THEY ARE LIABLE TO FACE THE PROSECUTION
4HE PLAINTIFFS ARE NOT THE FOREST DWELLING 3CHEDULED 4RIBES OR OTHER TRADITIONAL FOREST
DWELLERS HOWEVER UNDER THE GARB OF THE PROVISIONS OF THE !CT OF THEY ARE HAVING
NO RIGHT TO GET PROTECTION UNDER THE LAW !S PER THE PLAINT ALLEGATIONS IT IS APPARENT THAT
THE PLAINTIFFS WERE NOT THE PERMANENT RESIDENT OF VILLAGE 3AEEDGANJ IN FACT THEY HAVE
BEEN SHIFTED FROM *HABUA (OWEVER MERELY BEING MEMBERS OF A TRIBAL COMMUNITY AND
ON COMMENCEMENT OF THE !CT OF THEY WANT TO GRAB THE FOREST LAND CONTRARY TO THE
OBJECT OF THE SAID ENACTMENT )T IS FURTHER SAID THAT AS PER 3THAL .IRIKRATON 0ANCHNAMA
AND VARIOUS REPORTS THE PLAINTIFFS ARE NOT IN POSSESSION OF THE LAND IN DISPUTE HOWEVER
THE TRIAL #OURT REFERRING THOSE REPORTS RIGHTLY RECORDED THE NDING AND THREE INGREDIENTS
OF TEMPORARY INJUNCTION IE PRIMA FACIE CASE BALANCE OF CONVENIENCE OR IRREPARABLE
INJURY ARE NOT IN FAVOUR OF THE PLAINTIFF THUS RIGHTLY REJECTED THE APPLICATION LED BY THE
PLAINTIFFS UNDER /RDER 2ULES AND READ WITH 3ECTION OF #0# HOWEVER THE APPEALS
LED BY THE APPELLANTS MAY BE DISMISSED
!FTER HAVING HEARD LEARNED COUNSEL APPEARING ON BEHALF OF THE PARTIES IT IS SEEN THAT
THE PLAINTIFFS HAVE PRAYED FOR TEMPORARY INJUNCTION SEEKING PROTECTION UNDER THE
!CT OF !S PER THE PLAINT ALLEGATIONS IT IS SAID THAT THEY ARE THE 3CHEDULED 4RIBE
BELONGING TO THE TRIBAL AREA HAVING POSSESSION OVER THE FOREST LAND HOWEVER THEIR
POSSESSION DESERVES TO BE PROTECTED AS THEY FALL WITHIN THE DENITION OF THE FOREST
DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS )T IS ALSO SUBMITTED THAT
THE POSSESSION ON THE FOREST LAND WHICH THEY ARE HAVING MAY BE PROTECTED BY ISSUING
TEMPORARY INJUNCTION TILL DECISION IN THE CIVIL SUIT 7HILE DEALING WITH THE CONTENTION AS
ADVANCED BY LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANTS AND ON GOING THROUGH
THE PROVISIONS OF THE !CT OF IN THE OPINION OF THIS #OURT THE OBJECT TO WHICH THE
SAID !CT WAS ENACTED IS PIOUS "Y THE THE SAID !CT VESTING OF FOREST RIGHT AND OCCUPATION
IN FOREST LAND IN FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
RESIDING IN FOREST FOR GENERATIONS BUT WHOSE RIGHT COULD NOT BE RECORDED WERE REQUIRED
TO PROVIDE SOME FRAMEWORK FOR RECOGNITION OF THEIR RIGHT 7HILE DETERMINING THE RIGHTS
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 TO SUCH PERSONS IS REQUIRED TO BE SEEN )N THE SAID CONTEXT
FOREST RIGHTS ON ANCESTRAL LANDS AND THEIR HABITAT WHICH WERE NOT ADEQUATELY RECOGNISED
IN THE CONSOLIDATION OF 3TATE FORESTS DURING THE COLONIAL PERIOD AS WELL AS IN INDEPENDENT
)NDIA RESULTING IN HISTORICAL INJUSTICE TO THE FOREST DWELLING 3CHEDULED 4RIBES AND OTHER
TRADITIONAL FOREST DWELLERS WHO ARE INTEGRAL TO THE VERY SURVIVAL AND SUSTAINABILITY OF THE
FOREST ECOSYSTEM )T WAS ALSO THOUGHTFUL THAT THE LONG STANDING INSECURITY OF TENURIAL AND
ACCESS RIGHTS OF FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
INCLUDING THOSE WHO WERE FORCED TO RELOCATE THEIR DWELLING DUE TO 3TATE DEVELOPMENT
INTERVENTIONS IS REQUIRED TO BE SETTLED
5NDER THE !CT OF IN 3ECTION VARIOUS DENITIONS HAVE BEEN GIVEN SOME OF THEM
ARE RELEVANT FOR DETERMINATION OF THE ISSUE INVOLVED IN THIS CASE WHICH ARE REPRODUCED
HEREINUNDER
B CRITICAL WILDLIFE HABITAT MEANS SUCH AREAS OF .ATIONAL 0ARK AND 3ANCTUARIES
WHERE IT HAS BEEN SPECICALLY AND CLEARLY ESTABLISHED CASE BY CASE ON THE BASIS OF
SCIENTIC AND OBJECTIVE CRITERIA THAT SUCH AREAS ARE REQUIRED TO BE KEPT AS INVIOLATE
4 / \
FOR THE PURPOSES OF WILDLIFE CONSERVATION AS MAY BE DETERMINED AND NOTIED BY THE
#ENTRAL 'OVERNMENT IN THE -INISTRY OF %NVIRONMENT AND &ORESTS AFTER OPEN PROCESS
OF CONSULTATION BY AN %XPERT #OMMITTEE WHICH INCLUDES EXPERTS FROM THE LOCALITY
APPOINTED BY THE 'OVERNMENT WHEREIN A REPRESENTATIVE OF THE -INISTRY OF 4RIBAL
!FFAIRS SHALL ALSO BE INCLUDED IN DETERMINING SUCH AREAS ACCORDING TO THE PROCEDURAL
REQUIREMENTS ARISING FROM SUB
SECTIONS AND OF 3ECTION
C FOREST DWELLING 3CHEDULED 4RIBES MEANS THE MEMBERS OR COMMUNITY OF THE
3CHEDULED 4RIBES WHO PRIMARILY RESIDE IN AND WHO DEPEND ON THE FOREST OR FOREST
LANDS FOR BONA DE LIVELIHOOD NEEDS AND INCLUDES 4RIBE PASTORALIST COMMUNITIES
D FOREST LAND MEANS LAND OF ANY DESCRIPTION FALLING WITHIN ANY FOREST AREA AND
INCLUDES UNCLASSIED FORESTS UNDEMARCATED FORESTS EXISTING OR DEEMED FORESTS
PROTECTED FORESTS RESERVED FORESTS 3ANCTUARIES AND .ATIONAL 0ARKS
E FOREST RIGHTS MEANS THE FOREST RIGHTS REFERRED TO IN 3ECTION
H HABITAT INCLUDES THE AREA COMPRISING THE CUSTOMARY HABITAT AND SUCH OTHER
HABITANTS IN RESERVED FORESTS AND PROTECTED FORESTS OF PRIMITIVE TRIBAL GROUP AND
PREAGRICULTURAL COMMUNITIES AND OTHER FOREST DWELLING 3CHEDULED 4RIBES
O OTHER TRADITIONAL FOREST DWELLER MEANS ANY MEMBER OR COMMUNITY WHO HAS FOR
AT LEAST THREE GENERATIONS PRIOR TO THE TH DAY OF $ECEMBER PRIMARILY RESIDED
IN AND WHO DEPEND ON THE FOREST OR FORESTS LAND FOR BONA DE LIVELIHOOD NEEDS
%XPLANATION &OR THE PURPOSE OF THIS CLAUSE GENERATION MEANS A PERIOD COMPRISING
TWENTY VE YEARS
5NDER THE !CT OF #HAPTER )) 3ECTION DEALS WITH FOREST RIGHTS OF FOREST DWELLING
3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS WHEREIN RIGHT TO HOLD AND LIVE
IN THE FOREST LAND TO THE HABITATS COMMUNITY RIGHT ON THE LAND RIGHT OF OWNERSHIP
ACCESS TO COLLECT USE AND DISPOSE OF MINOR FOREST PRODUCE WITHIN OR OUTSIDE THE
VILLAGE BOUNDARIES OTHER COMMUNITY RIGHTS SUCH AS SH AND OTHER PRODUCTS OF WATER
BODIES GRAZING AND TRADITIONAL SEASONAL RESOURCE ACCESS OF NOMADIC OR PASTORALIST
COMMUNITIES TENURES OF HABITAT AND HABITATION FOR PRIMITIVE TRIBAL GROUPS AND PRE
AGRICULTURAL COMMUNITIES RIGHT IN OR OVER DISPUTED LANDS RIGHTS FOR CONVERSION OF 0ATTAS
OR LEASES OR GRANTS ISSUED BY ANY LOCAL AUTHORITY OR ANY 3TATE 'OVERNMENT ON FOREST
LANDS TO TITLE RIGHTS OF SETTLEMENT AND CONVERSION OF ALL FOREST VILLAGES OLD HABITATION
UNSURVEYED VILLAGES AND OTHER VILLAGES WHETHER RECORDED NOTIED OR NOT INTO REVENUE
VILLAGES RIGHT TO PROTECT REGENERATE OR CONSERVE OR MANAGE ANY COMMUNITY FOREST
RESOURCE ARE REQUIRED TO BE PROTECTED TRADITIONALLY AND CONSERVING FOR SUSTAINABLE USE
RIGHTS RECOGNISED UNDER ANY 3TATE LAW RIGHT OF ACCESS TO BIODIVERSITY AND COMMUNITY
RIGHT TO INTELLECTUAL PROPERTY AND TRADITIONALLY KNOWLEDGE RELATED TO BIODIVERSITY AND
CULTURAL DIVERSITY AND ANY OTHER TRADITIONAL RIGHT CUSTOMARILY ENJOYED BY THE FOREST
DWELLING 3CHEDULED 4RIBES OR OTHER TRADITIONAL FOREST DWELLERS AS THE CASE MAY BE AND
RIGHT TO REHABILITATION INCLUDING ALTERNATIVE LAND TO THE 3CHEDULED 4RIBES AND OTHER
TRADITIONAL FOREST DWELLERS
3ECTION RECOGNISES 3TATE FOREST RIGHTS IN FOREST DWELLING 3CHEDULED 4RIBES IN 3TATE
OR AREAS IN 3TATE WHERE THEY ARE DECLARED AS 3CHEDULED 4RIBES AND OTHER TRADITIONAL
FOREST DWELLERS IN CONTEXT OF 3ECTION 3UB
SECTION OF 3ECTION DEALS WITH CRITICAL
WILDLIFE HABITATS OF .ATIONAL 0ARKS AND 3ANCTUARIES 3ECTION SPECIES DUTIES OF HOLDERS
OF FOREST RIGHT #HAPTER )6 STARTS FROM 3ECTION AND SPECIES AUTHORITIES FOR VESTING THE
FOREST RIGHTS IN FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
"ARE READING OF #HAPTER )6 WHICH DEALS THE AUTHORITIES AND PROCEDURE FOR VESTING OF
FOREST RIGHTS IT IS APPARENT THAT 'RAM 3ABHA SHALL BE THE AUTHORITY WHO MAY INITIATE
THE PROCESS FOR DETERMINING THE NATURE AND EXTENT OF INDIVIDUAL OR COMMUNITY FOREST
RIGHTS OR BOTH GIVEN TO THE FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST
DWELLERS WITHIN THE LOCAL LIMITS OF ITS JURISDICTION )T IS FURTHER CLEAR THAT ON RECEIVING
THE CLAIM UNDER THIS !CT AFTER CONSOLIDATING VERIFYING AND ON PREPARING A MAP
DELINEATING THE AREA OF EACH RECOMMENDED CLAIM BE PREPARED AND THEN 'RAM 3ABHA
SHALL PASS A RESOLUTION TO THAT EFFECT !FTER RESOLUTION A COPY THEREOF BE FORWARDED
TO THE 3UB
$IVISIONAL ,EVEL #OMMITTEE )F A PERSON IS AGGRIEVED BY THE RESOLUTION
OF THE 'RAM 3ABHA HE MAY PREFER A PETITION TO THE 3UB
$IVISIONAL ,EVEL #OMMITTEE
CONSTITUTED UNDER 3UB
3ECTION IF SUCH PETITION IS PREFERRED WITHIN DAYS FROM
THE DATE OF PASSING OF THE RESOLUTION BY THE 'RAM 0ANCHAYAT IT SHALL BE DECIDED AFTER
GIVING AN OPPORTUNITY OF HEARING TO THE AGGRIEVED PERSON 4HE 'OVERNMENT IS DUTY
BOUND TO CONSTITUTE 3UB
$IVISIONAL ,EVEL #OMMITTEE AND $ISTRICT ,EVEL COMMITTEE )F A
PERSON FEELS AGGRIEVED BY THE DECISION OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE HE MAY
PREFER A PETITION BEFORE THE $ISTRICT ,EVEL #OMMITTEE AND THE DECISION OF THE $ISTRICT
,EVEL #OMMITTEE SHALL BE NAL AND BINDING 4HE 3TATE 'OVERNMENT IS ALSO REQUIRED TO
CONSTITUTE 3TATE ,EVEL -ONITORING #OMMITTEE WITH A VIEW TO ASSESS THAT THE PROCEDURE
FOR RECOGNITION AND VESTING OF RIGHT HAS BEEN PROPERLY OBSERVED OR NOT 3ECTION MAKES
IT CLEAR THAT CONTRAVENTION OF THE AFORESAID PROVISION BY ANY AUTHORITY OR COMMITTEE OR
OFCER OR MEMBER OF SUCH AUTHORITY OR AUTHORITIES IS LIABLE TO FACE PROSECUTION WHICH
IS PUNISHABLE ALSO AS PER 3ECTION
3ECTION DEALS WITH .ODAL !GENCY 4HE -INISTRY
OF THE #ENTRAL 'OVERNMENT DEALING WITH 4RIBAL !FFAIRS OR ANY OFCER OR AUTHORITY
AUTHORIZED BY THE #ENTRAL 'OVERNMENT IN THIS BEHALF SHALL BE THE .ODAL !GENCY FOR
THE IMPLEMENTATION OF THE PROVISION OF THIS !CT 4HE #ENTRAL 'OVERNMENT IS HAVING
ULTIMATE POWERS TO CARRY OUT THE PURPOSE OF #HAPTER )6 )N VIEW OF THE FOREGOING IT IS
APPARENT THAT THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT HAS BEEN ENACTED TO PROTECT 4RIBAL CULTURE AND RIGHTS OF
SUCH 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS AS DENED UNDER THE !CT
)NITIATION TO DETERMINE THEIR RIGHT AS PER THE !CT OF IS TO BE MADE BY THE 'RAM
3ABHA ! CLAIM MAY BE SUBMITTED BY FOREST DWELLER OR ANY OTHER TRADITIONAL FOREST
DWELLER SHOWING ANY OF THE FOREST RIGHT /N SUBMITTING SUCH CLAIM THE 'RAM 3ABHA
IS REQUIRED TO CONSOLIDATE VERIFY AND PREPARE A MAP DELINEATING THE AREA OF EACH
RECOMMENDED CLAIM IN THE MANNER AS PRESCRIBED AND THEREAFTER IF THE 'RAM 3ABHA IS OF
THE OPINION THAT FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLER
IS HAVING FOREST RIGHT A RESOLUTION BE PASSED IN THIS REGARD AND BE PREFERRED TO 3UB
$IVISIONAL ,EVEL #OMMITTEE )F THE CLAIM IS NOT PREFERRED AFTER RESOLUTION OF THE 'RAM
3ABHA THE AGGRIEVED PERSON MAY TAKE RECOURSE OF LAW AS PER SUB
SECTIONS AND OF
3ECTION
)F THE AUTHORITIES AND THE COMMITTEES CONTRAVENE THE PROVISION THEY MAY
BE LIABLE TO FACE THE PROSECUTION WHICH IS PUNISHABLE ALSO 4HE 3TATE 'OVERNMENT IS
REQUIRED TO CONSTITUTE A 3TATE ,EVEL -ONITORING #OMMITTEE WHICH IS BOUND TO REPORT
THE MATTER TO NODAL AGENCY 4HUS IT IS CLEAR THAT FOR DETERMINATION OF THE FOREST RIGHT OF
FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS A COMPLETE #ODE
HAS BEEN SPECIED GIVING THE CONSEQUENCES IF ANY CONTRAVENTION HAS BEEN SHOWN
(OWEVER IN THE SAID CONTEXT FACTS OF THE PRESENT CASE ARE REQUIRED TO BE SEEN
)N THE PRESENT CASE PLAINTIFFS SHOWING THEIR POSSESSION ON ACRES OF LAND OF
6ILLAGE 3AEEDGANJ SHOWING THEMSELVES TO BE FOREST DWELLING 3CHEDULED 4RIBE AND OTHER
TRADITIONAL FOREST DWELLERS LED A SUIT FOR SEEKING DECLARATION OF TILE OVER THE SAID LAND
!S PER ALLEGATIONS OF THE PLAINTIFF IT IS APPARENT THAT THEIR ANCESTORS WERE THE RESIDENT
OF *HABUA AND THEY CAME TO RESIDE IN 6ILLAGE 3AEEDGANJ $ISTRICT 3EHORE FEW YEARS BACK
4O SHOW THAT THEY BELONG TO FOREST DWELLING 3CHEDULED 4RIBE IT IS NOT ENOUGH THAT
THEY BELONG TO 3CHEDULED 4RIBE #OMMUNITY 3IMULTANEOUSLY TO DEMONSTRATE OTHER
TRADITIONAL FOREST DWELLERS IT IS NOT SUFCIENT THAT THEY BELONG TO THE 4RIBAL #OMMUNITY
4 / \
)N FACT THREE GENERATIONS NOT LESS THAN YEARS OF PERIOD WHO WERE PASTORAL LIVING IN
NON URBAN AREA LIKELY TO BE A PORTRAYING OR EXPRESSIVE OF THE LIFE OF SHEPHERDS OR COUNTRY
PEOPLE ESPECIALLY IN AN IDEALIZED AND CONVENTIONALIZED MANNER LIVING OR IN NOMADIC
HAVING NO XED RESIDENT AND WANDERING HERE AND THERE MAY FALL WITHIN THE PURVIEW OF
DENITION OF FOREST DWELLING 3CHEDULED 4RIBES OR ANY OTHER TRADITIONAL FOREST DWELLERS
"ARE READING OF THE PLAINT SHOWS THAT CONTENTS AS REQUIRED UNDER THE ACT TO FALL WITHIN
THE CATEGORY IS NOT SUFCIENTLY PLEADED )N VIEW OF THE FOREGOING IT CAN SAFELY BE SAID THAT
AS PER DENITION OF CRITICAL WILDLIFE HABITAT THEY DO NOT FALL WITHIN THAT CATEGORY )T IS TO
BE OBSERVED THAT IN VIEW OF THE OBJECT OF THE ENACTMENT IT CANNOT BE ACCEPTED THAT THE
PLAINTIFFS WHO ARE CLAIMING THEMSELVES TO BE FOREST DWELLING 3CHEDULED 4RIBES OR OTHER
TRADITIONAL FOREST DWELLERS MAY FALL WITHIN THE AFORESAID DISCUSSION HAVING POSSESSION
OF ACRES OF LAND ! WANDERER OR PASTORAL CANNOT HAVE POSSESSION OF SUCH HUGE
LAND BELONGING TO THE &OREST 4HUS IN THE FACTS OF THE PRESENT CASE THE APPLICATION OF THE
!CT OF AND THE CONTRAVENTION THEREOF AS PRAYED IN VIEW OF THE DISCUSSIONS MADE
HEREIN ABOVE CANNOT BE DIRECTED (OWEVER THE ARGUMENT AS ADVANCED BY 3HRI 'REESHM
*AIN COUNSEL REPRESENTING THE APPELLANTS IS OF NO SUBSTANCES AND LIABLE TO BE REPELLED
)N THE AFORESAID CONTEXT THE ARGUMENT AS ADVANCED IN REFERENCE TO THE CIRCULARS ISSUED
BY THE 3TATE 'OVERNMENT IS REQUIRED TO BE EXPLAINED THAT THE 3TATE 'OVERNMENT IS DUTY
BOUND TO ACT AS PER THE OBJECT AND SPIRIT OF THE PROVISIONS OF !CT OF 4HE CIRCULARS AS
ISSUED DO NOT DISCLOSE THE MANNER AND PROCEDURE FOR DETERMINATION OF RIGHTS OF FOREST
DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS )T IS TO BE OBSERVED HERE
THAT THEIR RIGHTS OUGHT TO HAVE BEEN DETERMINED IN A MANNER AND PROCEDURE AS SPECIED
UNDER THE !CT 5NTIL AND UNLESS A PERSON FALLS WITHIN THE DENITION OF FOREST DWELLING
3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS OR CRITICAL WILDLIFE HABITAT AFTER
FOLLOWING THE PROCEDURE AS SPECIED UNDER SECTION OF THE !CT OF THE APPLICATION
OF THOSE CIRCULARS MUST BE REFRAINED BY THE OFCIALS HOWEVER THE 3TATE 'OVERNMENT
THE AUTHORITIES THE 3UB
$IVISIONAL #OMMITTEE AND THE 3TATE ,EVEL #OMMITTEE ARE DUTY
BOUND TO GO THROUGH THE BASIC PROVISION OF THE ENACTMENT AND TO COMPLY IT IN ITS TRUE
SENSE AND SPIRIT
)N VIEW OF THE FOREGOING DISCUSSION MERELY ALLEGING POSSESSION OF THE PLAINTIFFS WHICH
IS PRIMA FACIE NOT FOUND ESTABLISHED BEFORE THE TRIAL #OURT FROM THE RECORD IF GRANT OF
INJUNCTION WAS DECLINED REJECTING THE APPLICATION UNDER /RDER 2ULES AND READ
WITH 3ECTION OF #0# BY THE IMPUGNED ORDER IN THE OPINION OF THIS #OURT SUCH NDING
DO NOT WARRANT ANY INTERFERENCE EVEN ON MAKING A SUBMISSION TO APPLY THE PROVISIONS
OF THE !CT OF IN VIEW OF THE DISCUSSION AS MADE HEREINABOVE
!CCORDINGLY THE APPEALS LED BY THE APPELLANTS ARE DEVOID OF ANY MERIT HENCE THEY ARE
DISMISSED 4HE IMPUGNED ORDER PASSED ON REJECTING THE APPLICATION UNDER
/RDER 2ULES AND READ WITH 3ECTION OF #0# IS HEREBY UPHELD )N THE FACTS AND
CIRCUMSTANCES OF THE CASE THERE IS NO ORDER AS TO COSTS
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
-ANAJI -AWASI VS 3TATE OF -ADHYA
0RADESH /RS
70 ./ /&
-!$(9! 02!$%3( ()'( #/524
#/2!- 23 *(! *
3 5--!29
4HE PETITIONERS HAD FILED THIS PETITION AGGRIEVED BY THE ORDER PASSED BY THE $ISTRICT
,EVEL #OMMITTEE BY WHICH THE PATTAS GRANTED TO THEM IN UNDER THE PROVISIONS
OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 2IGHTS !CT &2! HAD BEEN CANCELLED 4HE PATTAS WERE GRANTED TO THEM
ON THE BASIS THAT THEY WERE IN OCCUPATION OF THE LAND PRIOR TO (OWEVER IN A
SUBSEQUENT RE
ENQUIRY IT TURNED OUT THAT THE PETITIONERS HAD IN FACT TRIED TO TAKE
OVER POSSESSION AFTER HAVING DESTROYED &OREST $EPARTMENT PLANTATION 4HE
PETITIONERS HAD ARGUED THAT ONCE THE PATTAS HAD BEEN GRANTED TO THEM THEY COULD
NOT BE RECALLED AND THEREFORE THE ORDER OF THE $ISTRICT ,EVEL #OMMITTEE MUST BE
QUASHED
4HE #OURT DID NOT FIND MERIT IN THE WRIT PETITION RELYING UPON A DETAILED ENQUIRY BY
THE $ISTRICT ,EVEL #OMMITTEE IN WHICH THE PETITIONERS HAD PARTICIPATED AND RECORDED
THEIR STATEMENTS WHICH RECORDED THAT THE PETITIONERS WERE NOT IN POSSESSION OF THE
FOREST LAND PRIOR TO BUT HAD DELIBERATELY GIVEN INCORRECT INFORMATION IN THIS
REGARD 4HE #OURT FELT THAT THERE WAS NO REASON TO INTERFERE WITH THE FINDING GIVEN
THAT THE AUTHORITIES UNDER THE &2! HAD CONDUCTED A DETAILED ENQUIRY AND HAD ALSO
GIVEN AMPLE OPPORTUNITY TO THE PETITIONERS
% $ )4/23 . /4%
4HIS JUDGMENT IS RENDERED BY A 3INGLE *UDGE IN THE SPECIFIC FACTS OF THE CASE AND
MAY NOT FOR THIS REASON CONSTITUTE A BINDING PRECEDENT (OWEVER IT IS INTERESTING
TO NOTE THE REPEATED USE OF NEGATIVE TERMINOLOGY SUCH AS ENCROACHER BY THE #OURT
AND IT IS A MATTER OF CONCERN WHETHER SUCH APPROACH MAY HAVE WEIGHED UPON ITS
ADJUDICATION
4 / \
/ 2 $ % 2
(EARD 3HRI 6IPIN -ISHRA LEARNED COUNSEL FOR THE PETITIONERS ON THE QUESTION OF ADMISSION
AND INTERIM RELIEF
4HE PETITIONERS HAVE LED THIS PETITION BEING AGGRIEVED BY ORDERS DATED
!NNEXURE 0
TO 0
BY WHICH THE LEASE PATTA GRANTED TO THEM UNDER THE PROVISIONS
OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT IN THE YEAR HAVE BEEN CANCELLED
)T IS SUBMITTED BY THE LEARNED COUNSEL FOR THE PETITIONERS THAT THE PETITIONERS HAD BEEN
GRANTED LEASE PATTA UNDER THE AFORESAID !CT IN THE YEAR BY TREATING THEM TO BE THE
PERSONS WHO HAD ENCROACHED UPON FOREST LAND PRIOR TO HOWEVER SUBSEQUENTLY
AFTER RE
ENQUIRY THE RESPONDENT AUTHORITIES HAVE CANCELLED THE LEASE PATTA GRANTED TO
THE PETITIONERS BY THE IMPUGNED ORDERS DATED !NNEXURE 0
TO 0
ON THE
GROUND THAT THE PETITIONERS WERE IN FACT NOT ENCROACHERS PRIOR TO ON FOREST LAND AND
THEREFORE THE LEASE PATTA HAD WRONGLY BEEN GRANTED TO THEM
)T IS SUBMITTED BY THE LEARNED COUNSEL FOR THE PETITIONERS THAT ONCE THE LAND HAD BEEN
GRANTED TO THE PETITIONERS AFTER DUE ENQUIRY BY THE AUTHORITIES THEMSELVES THEY
COULD NOT HAVE REVIEWEDRECALLED THEIR ORDERS AND THEREFORE THE IMPUGNED ORDERS OF
CANCELLATION ANNEXURE
TO 0
DESERVE TO BE QUASHED
) HAVE HEARD THE LEARNED COUNSEL FOR THE PETITIONERS AT LENGTH &ROM A PERUSAL OF THE
DOCUMENTS LED BY THE PETITIONERS ALONG WITH THE PETITION IT IS CLEAR THAT IN THE YEAR
AND PRIOR TO THAT THE RESPONDENT FOREST AUTHORITIES HAD REGISTERED CASES AGAINST SEVERAL
PERSONS INCLUDING THE PETITIONERS FOR ENCROACHING THE FOREST LAND )T IS ALSO CLEAR THAT
PLANTATION ON FOREST LAND IN COMPARTMENT .O OF 3ILLEWANI RANGE IN #HHINDWARA
HAD BEEN UNDERTAKEN BY THE FOREST AUTHORITIES IN SUBSEQUENT TO WHICH THE
PETITIONERS HAD DESTROYED THE PLANTATION AND HAD TRIED TO TAKE OVER POSSESSION OF THE
FOREST LAND IN RESPECT OF WHICH FOREST OFFENCES WERE REGISTERED AGAINST THEM AND THEY
WERE PRODUCED BEFORE THE AUTHORITIES )N THESE CIRCUMSTANCES ON COMING TO KNOW OF THE
ISSUANCE OF THE LEASE THE FOREST AUTHORITIES HAD LED COMPLAINTS BEFORE THE AUTHORITIES
IE THE $ISTRICT ,EVEL &OREST 2IGHTS #OMMITTEE #HHINDWARA BRINGING TO THEIR NOTICE FACT
THAT THE PETITIONERS WERE NOT ENCROACHERS PRIOR TO BUT HAD INFACT ENCROACHED THE
FOREST LAND SUBSEQUENTLY AND BY SUPPRESSING THE AFORESAID FACTS HAD OBTAINED THE LEASE
4HE $ISTRICT ,EVEL #OMMITTEE REFERRED THE MATTER FOR ENQUIRY TO THE 3UB
$IVISIONAL ,EVEL
#OMMITTEE WHICH CONDUCTED A DETAILED ENQUIRY IN WHICH THE PETITIONERS WERE ALSO
GIVEN NOTICE PURSUANT TO WHICH THEY APPEARED BEFORE THE #OMMITTEE AND WERE HEARD
AND ALSO RECORDED THEIR STATEMENTS 4HE COMMITTEE AFTER GIVING DUE OPPORTUNITY OF
HEARING TO THE PETITIONERS HAD SUBMITTED ITS REPORT BEFORE THE $ISTRICT ,EVEL #OMMITTEE
TO THE EFFECT THAT THE PETITIONERS WERE INFACT NOT ENCROACHERS PRIOR TO WHICH IS A
PREREQUISITE FOR GRANT OF LEASE AND HAD ENCROACHED UPON FOREST LAND SUBSEQUENTLY AND
HAD OBTAINED THE LEASE IN THE YEAR BY GIVING FALSE INFORMATION /N THE BASIS OF THE
AFORESAID DETAILED ENQUIRY IN WHICH THE PETITIONERS ALSO PARTICIPATED AND RECORDED THEIR
STATEMENTS THE $ISTRICT ,EVEL &OREST 2IGHTS #OMMITTEE WHO IS THE COMPETENT AUTHORITY
HAS PASSED THE IMPUGNED ORDERS CANCELLING THE LEASE GRANTED TO THE PETITIONERS
&ROM A PERUSAL OF THE REPORT !NNEXURE 0
AND THE DOCUMENTS LED BY THE PETITIONERS
ALONG WITH THE PETITION IT IS CLEAR THAT THE ACTION OF CANCELLATION OF THE LEASE BY
THE IMPUGNED ORDERS !NNEXURE 0
TO 0
DATED HAS BEEN TAKEN BY THE
AUTHORITIES AFTER CONDUCTING A DETAILED ENQUIRY AND AFTER GIVING DUE OPPORTUNITY OF
HEARING AS WELL AS ADDUCING EVIDENCE TO ALL THE PETITIONERS )T IS FURTHER CLEAR THAT THE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
COMMITTEE HAS RECORDED A CLEAR NDING OF FACT TO THE EFFECT THAT THE PETITIONERS WERE
NOT THE ENCROACHERS OF THE FOREST LAND PRIOR TO BUT HAD DELIBERATELY GIVEN INCORRECT
INFORMATION IN THIS REGARD IN ORDER TO OBTAIN BENET OF THE PROVISIONS OF THE !CT AND HAD
INFACT ENCROACHED UPON THE FOREST LAND SUBSEQUENT TO AND IN SUCH CIRCUMSTANCES
THE LEASE GRANTED TO THE PETITIONERS IN THE YEAR HAD WRONGLY BEEN GRANTED CONTRARY
TO THE PROVISIONS OF THE !CT OF
)N VIEW OF THE FACTS AND CIRCUMSTANCES AS THE IMPUGNED ORDERS HAVE BEEN PASSED BY THE
AUTHORITIES AFTER FOLLOWING THE PROCEDURE PRESCRIBED BY LAW AND AS THE ORDER IS IN THE
INTEREST OF THE PUBLIC AS WELL AS TO SAVE THE FOREST LAND ) ND NO REASON TO INTERFERE WITH
THE SAME AS THE NDING OF FACT RECORDED AND THE PROCEDURE FOLLOWED DOES NOT SUFFER
FROM ANY LEGAL INRMITY PERVERSITY OR ILLEGALITY
4HE PETITION LED BY THE PETITIONER BEING MERITLESS AND IS ACCORDINGLY DISMISSED
4 / \
2AVINDRA -ASANE !NR VS 3TATE OF
-ADHYA 0RADESH /RS
70 /&
-!$(9! 02!$%3( ()'( #/524 *!"!,052 "%.#(
#/2!- !- +(!.7),+!2 #* !.$ +2)3(.! *5-!2 ,!(/4) *
3 5 - -!29
4HE PETITIONERS WERE APPREHENSIVE THAT THEY ARE LIKELY TO BE DISPOSSESSED FROM THE
FOREST LAND OCCUPIED BY THEM WHICH IS THEIR TRADITIONAL ABODE WITHOUT FOLLOWING
DUE PROCESS !CCORDINGLY THEY APPROACHED THE (IGH #OURT BY WAY OF THIS WRIT
PETITION
4HE #OURT WAS SATISFIED WITH THE RESPONDENTS STAND THAT IN NO CASE WOULD ANY
OCCUPANT OF THE FOREST LAND INCLUDING TRIBALS SUCH AS THE PETITIONERS BE DISPOSSESSED
WITHOUT FOLLOWING DUE PROCESS
4HE #OURT DIRECTED THAT BEFORE ANY ACTION IS TAKEN THE COMPETENT AUTHORITY MUST
DECIDE WHETHER SUCH OCCUPANT TRIBAL CAN BE PERMITTED TO CULTIVATE THE FOREST LAND
UNDER HIS OCCUPATION &URTHER IN CASE ACTION IS TAKEN AGAINST THE PETITIONERS THEY
WOULD BE FREE TO CHALLENGE THE SAME BY WAY OF APPROPRIATE PROCEEDINGS
% $ ) 4 /23 . /4%
)T MAY BE NOTED THAT BY AN INTERIM ORDER DT EXTRACTED ELSEWHERE IN THIS
COMPENDIUM THE #OURT HAD GIVEN PROTECTION FROM DISPOSSESSION TO THE PETITIONERS
IN TERMS OF 3ECTION OF &2! )T IS HEARTENING THAT THE PRESENT ORDER ALSO PROTECTS
THE PETITIONERS FROM DISPOSSESSION UNTIL THE COMPETENT AUTHORITY UNDER THE &2!
DECIDES THEIR APPLICATIONS
/ 2 $ % 2
4HE APPREHENSION OF THE PETITIONER THAT HE IS LIKELY TO BE DISPOSSESSED FROM THE LAND
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
OCCUPIED BY HIM WHICH IS HIS TRADITIONAL ABODE WITHOUT FOLLOWING DUE PROCESS IN OUR
OPINION IS MISPLACED IN VIEW OF THE CLEAR STAND TAKEN BY THE 2ESPONDENT !UTHORITIES THAT
IN NO CASE ANY OCCUPANT ON THE FOREST LAND INCLUDING TRIBAL WILL BE DISPOSSESSED WITHOUT
FOLLOWING THE DUE PROCESS !S AND WHEN THE !UTHORITY DECIDES TO OUST ANY OCCUPANT AND
HIS FAMILY MEMBERS FROM THE LAND IN THE FOREST AREA THEY ARE EXPECTED TO FOLLOW THE
PROCEDURE PRESCRIBED BY THE #ENTRAL ENACTMENT AND THE 2ULES THEREUNDER
"ESIDES THE ABOVE NOTHING MORE IS REQUIRED TO BE STATED IN THIS CASE EXCEPT OBSERVING
THAT IN CASE ACTION IS TAKEN AGAINST THE PETITIONER HE WILL BE FREE TO CHALLENGE THE SAME
BY WAY OF APPROPRIATE PROCEEDINGS
7E PLACE ON RECORD THAT UNTIL COMPETENT !UTHORITY DECIDES TO DISLODGE THE OCCUPANT
TRIBAL FROM THE FOREST LAND WHETHER HE CAN BE PERMITTED TO CULTIVATE THE LAND ALLEGEDLY
UNDER HIS OCCUPATION IS A MATTER WHICH CAN ALSO BE DECIDED BY THE COMPETENT !UTHORITY
IF AND WHEN REQUIRED 7E ARE NOT EXPRESSING ANY OPINION REGARDING CORRECTNESS OF THAT
STAND IN THIS ORDER !LL QUESTIONS ARE KEPT OPEN
0ETITION IS DISPOSED OF ACCORDINGLY
4 / \
"AIGA -AHAPANCHAYAT -ADHYA
0RADESH VS 3TATE OF -ADHYA 0RADESH
70 ./ /&
-!$(9! 02!$%3( ()'( #/524 *!"!,052 "%.#(
#/2!- !- +(!.7),+!2 #* !.$ +2)3(.! *5-!2 ,!(/4) *
3 5 - -!29
4HE WRIT PETITION SEEKS PROTECTION AND ENFORCEMENT OF THE FOREST RIGHTS VESTED IN
THE "AIGA 3CHEDULED 4RIBE COMMUNITY OF -ADHYA 0RADESH #ERTAIN ORDERS OF THE
3TATE GOVERNMENT HAVE BEEN CHALLENGED BUT THE DETAILED FACTS ARE NOT CLEAR
4HE 3TATE AUTHORITIES WERE DIRECTED TO NOT EVICT THE PETITIONERS BUT RATHER TO INITIATE
THE PROCEEDINGS UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT AND 2ULES 4HE #OURT FURTHER GRANTED THE
LIBERTY TO AFFECTED PARTIES TO CHALLENGE THE DECISION OF THE 3TATE AUTHORITIES ON A
CASE TO CASE BASIS
/2$%2
#OUNSEL FOR THE RESPONDENTS3TATE IN ALL FAIRNESS SUBMITS THAT IN VIEW OF THE #ENTRAL
ENACTMENT OF THE 3CHEDULED 4RIBE AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT THE 3TATE !UTHORITIES ARE OBLIGED TO FOLLOW THE PROCEDURE
PRESCRIBED UNDER THE SAID !CT AND THE RULES FRAMED THEREUNDER )N OTHER WORDS THE
DISPOSSESSION OF CONCERNED FOREST DWELLERSTRIBALS WILL BE DONE ONLY AFTER DUE VERICATION
OF THEIR RIGHTS IF ANY )N VIEW OF THIS SUBMISSION NOTHING MORE IS REQUIRED TO BE DONE
IN THE PRESENT PETITION .EEDLESS TO OBSERVE THAT IT NECESSARILY FOLLOWS THAT THE 3TATE
!UTHORITIES SHALL NOT ACT UPON THE IMPUGNED ORDER AND INSTEAD INITIATE PROCEEDINGS
UNDER THE !CT OF AND RULES FRAMED THEREUNDER BEFORE RESORTING TO EVICTION OF ANY
OF THE FOREST DWELLERS
4HE AFFECTED PARTY WILL BE FREE TO CHALLENGE THE DECISION TO BE TAKEN BY THE 3TATE
!UTHORITIES ON CASE TO CASE BASIS 0ETITION IS DISPOSED OF ACCORDINGLY
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
!JMAL +HAN VS 3TATE OF -ADHYA
0RADESH
70 ./ /&
-!$(9! 02!$%3( ()'( #/524
#/2!- !- +(!.7),+!2 #* !.$ ++ 42)6%$) *
#)4!4)/. 3## /.,).% -0
3 5--!29
4HIS WRIT PETITION WAS FILED IN $ECEMBER FOR A DIRECTION TO THE RESPONDENTS TO
REMOVE THE ENCROACHMENTS FROM THE FOREST LAND IN SPECIFIED FOREST COMPARTMENTS
IN $ISTRICT 3ATNA )N THE MEANTIME THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! WAS ENACTED
)T WAS ARGUED THE &2! HAS BEEN BROUGHT INTO FORCE SINCE THE FILING OF THE WRIT
PETITION AND THEREFORE THE 3TATE 'OVERNMENT HAS TO TAKE THE PROCEEDINGS UNDER
THIS !CT TO THEIR LOGICAL END BEFORE IT PROCEEDS AGAINST PERSONS PROTECTED UNDER THE
&2! (OWEVER THERE IS NOTHING TO STOP SUCH PROCEEDINGS AGAINST PERSONS WHO ARE
NOT PROTECTED UNDER THE &2!
!CCORDINGLY THE #OURT PASSED AN ORDER DIRECTING THAT THE 0ETITIONER WOULD BE FREE
TO MAKE A REPRESENTATION TO THE CONCERNED !UTHORITIES FOR TAKING ACTION IN RESPECT
OF UNAUTHORISED STRUCTURES AND ENCROACHERS NOT COVERED BY THE &2! WHICH INQUIRY
CAN BE TAKEN FORWARD BY THE #OMPETENT !UTHORITIES TO ITS LOGICAL END EXPEDITIOUSLY
WITHIN THE TIME FRAME
/2$ % 2
(EARD COUNSEL FOR THE PARTIES
4HIS PETITION WAS LED IN $ECEMBER FOR LIMITED RELIEF TO DIRECT THE RESPONDENTS TO
CONSIDER THE REPRESENTATION EXPEDITIOUSLY AND THEREAFTER TO REMOVE THE ENCROACHMENTS
FROM THE FOREST LAND COMPARTMENT .O AND OTHER #OMPARTMENT 5NCHEHARA $ISTRICT
3ATNA $URING PENDENCY OF THIS PETITION THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT HEREINAFTER REFERRED TO AS
4 / \
THE !CT OF HAS COME INTO FORCE PURSUANT TO WHICH THE #OMPETENT !UTHORITY IS
INQUIRING INTO THE RIGHTS OF THE FOREST DWELLERS 5NTIL ALL THOSE PROCEEDINGS ARE TAKEN TO
ITS LOGICAL END IT MAY NOT BE OPEN TO THE COMPETENT !UTHORITIES TO PROCEED IN THE MATTER
AGAINST THE PERSONS PROTECTED UNDER THE !CT OF
(OWEVER AT THE SAME TIME THERE WILL BE NO IMPEDIMENT TO PROCEED AGAINST THE PERSONS
WHO ARE NOT PROTECTED UNDER THE !CT OF AND THE UNAUTHORISED STRUCTURES PUT UP
IN THE FOREST LAND REFERRED TO IN THE PETITION 4HAT IS THE MATTER TO BE INQUIRED INTO BY
THE CONCERNED 3UB $IVISIONAL /FCER 2EVENUE3UB $IVISIONAL /FCER &OREST AS THE CASE
MAY BE 4HAT INQUIRY BE COMPLETED WITHIN REASONABLE TIME AND APPROPRIATE DECISION BE
TAKEN AS MAY BE ADVISED EXPEDITIOUSLY
7E HOPE AND TRUST THAT THE ENTIRE INQUIRY WILL BE COMPLETED BY THE CONCERNED
!UTHORITIES WITHIN FOUR WEEKS FROM TODAY AND THE OUTCOME THEREOF IS COMMUNICATED TO
THE PETITIONER WITHIN THE SAME TIME
4HE PETITIONER WILL BE FREE TO MAKE REPRESENTATION TO THE CONCERNED !UTHORITIES FOR
TAKING ACTION IN RESPECT OF UNAUTHORISED STRUCTURES AND ENCROACHERS NOT COVERED BY THE
!CT OF WHICH INQUIRY CAN BE TAKEN FORWARD BY THE #OMPETENT !UTHORITIES TO ITS
LOGICAL END EXPEDITIOUSLY WITHIN THE TIME FRAME
7E ARE NOT EXPRESSING ANY OPINION ON THE SAID PLEA OF THE PETITIONER OR ANY DEFENCE
AVAILABLE TO THE RESPONDENTS IN THE SAID PROCEEDINGS !LL QUESTIONS ARE LEFT OPEN 4HE
PETITION IS DISPOSED OF ACCORDINGLY
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
$HARMENDRA VS 3TATE OF -ADHYA
0RADESH
70 ./ /&
-!$(9! 02!$%3( ()'( #/524
#/2!- !,/+ .!4( *
#)4!4)/. 3## /.,).% -0
3 5--!29
4HE PETITION WAS FILED CHALLENGING THE ORDER OF THE 3TATE RESPONDENT DIRECTING THE
DEMOLITION OF THE PETITIONERS HUT WHICH IS SITUATED IN FOREST LAND 4HE PETITIONER
WHO IS AN /THER 4RADITIONAL &OREST $WELLER /4&$ CLAIMED PROTECTION UNDER THE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! (E ALSO SOUGHT LIBERTY TO FILE AN OBJECTION BEFORE THE
CONCERNED $IVISIONAL &OREST /FFICER
4HE PETITION WAS DISPOSED OF WITH THE DIRECTION THAT IN CASE THE PETITIONER SUBMITS
AN OBJECTION BEFORE THE $IVISIONAL &OREST /FFICER -ANDLA WITHIN A PERIOD OF THREE
WEEKS FROM THE DATE OF THIS ORDER THE SAID AUTHORITY SHALL DECIDE THE SAME BY A
SPEAKING ORDER WITHIN A PERIOD OF THREE MONTHS )T WAS ALSO DIRECTED THAT TILL THE
OBJECTION FILED BY THE PETITIONER IS DECIDED NO COERCIVE ACTION SHALL BE TAKEN AGAINST
HIM
% $ )4/23 . /4%
)T MAY BE NOTED THAT THE DIRECTIONS OF THE #OURT ARE CONTRARY TO THE APPEAL PROCEDURE
LAID DOWN IN THE &2! WHERE ONE APPEAL LIES FROM THE ORDER OF THE 'RAM 3ABHA TO THE
3UB
$IVISION ,EVEL #OMMITTEE AND THEREAFTER ANOTHER APPEAL CAN BE FILED BEFORE
THE $ISTRICT ,EVEL #OMMITTEE
/2$ % 2
7ITH THE CONSENT OF LEARNED COUNSEL FOR THE PARTIES THE MATTER IS HEARD NALLY )N THIS
4 / \
PETITION THE PETITIONER INTER ALIA HAS ASSAILED THE VALIDITY OF THE ORDER DATED BY
WHICH THE RESPONDENT .O HAS DIRECTED DEMOLITION OF THE HUT OF THE PETITIONER WHICH IS
SITUATE IN FOREST LAND
,EARNED COUNSEL FOR THE PETITIONER SUBMITTED THAT THE PETITIONER IS A TRADITIONAL FOREST
DWELLER AND IS ENTITLED TO ALLOTMENT OF THE LAND IN VIEW OF THE PROVISIONS OF THE 3CHEDULED
4RIBE AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT )T
IS FURTHER SUBMITTED THAT WITH REGARD TO HIS CLAIM THE PETITIONER MAY BE GRANTED LIBERTY
TO LE AN OBJECTION BEFORE THE $IVISIONAL &OREST /FCER AND THE INSTANT PETITION MAY BE
DISPOSED OF WITH THE DIRECTION TO THE SAID AUTHORITY TO CONSIDER AND DECIDE THE SAME
EXPEDITIOUSLY /N THE OTHER HAND LEARNED 0ANEL ,AWYER FAIRLY SUBMITTED THAT THE CLAIM
OF THE PETITIONER SHALL BE DECIDED IN ACCORDANCE WITH LAW
4AKING INTO ACCOUNT THE SUBMISSIONS MADE BY LEARNED COUNSEL FOR THE PARTIES AND AS
AGREED TO BY THEM THE INSTANT PETITION IS DISPOSED OF WITH THE DIRECTION THAT IN CASE
THE PETITIONER SUBMITS AN OBJECTION BEFORE THE RESPONDENT .O
$IVISIONAL &OREST
/FCER -ANDLA WITHIN A PERIOD OF THREE WEEKS FROM THE DATE OF RECEIPT OF CERTIED COPY
OF THIS ORDER THE SAID AUTHORITY SHALL CONSIDER AND DECIDE THE SAME BY A SPEAKING ORDER
EXPEDITIOUSLY PREFERABLY WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF LING OF SUCH
OBJECTION (OWEVER IN THE FACTS OF THE CASE IT IS DIRECTED THAT TILL THE OBJECTION LED BY
HIM IS DECIDED NO COERCIVE ACTION SHALL BE TAKEN AGAINST THE PETITIONER )T IS MADE CLEAR
THAT THIS #OURT HAS NOT EXPRESSED ANY OPINION ON THE MERITS OF THE CASE
7ITH THE AFORESAID DIRECTIONS THE WRIT PETITION IS DISPOSED OF
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
(AMEER 3INGH !NR VS 3TATE OF
-ADHYA 0RADESH /RS
70 ./ /&
()'( #/524 /& -!$(9! 02!$%3( '7!,)/2 "%.#(
#/2!- 3(%%, .!'5 *
#)4!4)/. 3## /.,).% -0
3 5--!29
)N THIS CASE A FAVOURABLE DECISION HAD BEEN TAKEN BY THE 'RAM 3ABHA ON THE
APPLICATIONS OF THE PETITIONERS UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! (OWEVER NO DECISION
FROM THE $ISTRICT ,EVEL #OMMITTEE $,# WAS FORTHCOMING
4HE PETITIONER FILED THIS WRIT PETITION SEEKING DIRECTIONS TO THE $,# TO TAKE SUCH
DECISION VESTING FOREST RIGHTS IN THE PETITIONER IN ACCORDANCE WITH THE &2! AND &2
2ULES AND ALSO FOR A DIRECTION THAT THEY SHOULD NOT BE EVICTED FROM THE LAND IN
QUESTION
$ISPOSING OF THE PETITION THE #OURT DIRECTED THE $,# TO TAKE UP THE CASE OF THE
PETITIONERS AND DECIDE IT EXPEDITIOUSLY 4HE #OURT ALSO DIRECTED THAT TILL SUCH
DECISION IS TAKEN THE POSSESSION OF THE PETITIONERS SHOULD NOT BE DISTURBED
/2$ % 2
4HIS PETITION LED UNDER !RTICLE OF #ONSTITUTION OF )NDIA SEEKS THE FOLLOWING RELIEFS
) 4HE RESPONDENTS MAY KINDLY BE DIRECTED TO ACT IN ACCORDANCE WITH THE !CT OF
AND THE RULES MADE THEREUNDER FOR THE PURPOSE OF VESTING THE FOREST RIGHT TO THE
PETITIONERS IN PURSUANCE TO THE RESOLUTION PASSED BY THE CONCERNING 'RAM 3ABHA
)) 4HE RESPONDENTS MAY KINDLY BE DIRECTED NOT TO EVICT THE PETITIONERS FROM THE
PROPERTY IN QUESTION
))) !NY OTHER SUITABLE DIRECTION WHICH THIS (ONBLE #OURT DEEMS T IN THE FACTS AND
CIRCUMSTANCES OF THE CASE MAY KINDLY BE PASSED
4 / \
,EARNED COUNSEL FOR THE PETITIONER IN THIS PETITION MAKES A SHORT PRAYER THAT THE $ISTRICT
,EVEL COMMITTEE HAS NOT TAKEN ANY THE DECISION U3 OF 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT DESPITE THERE BEING
FAVOURABLE RECOMMENDATION OF THE 'RAM 3ABHA U3 OF THE !CT OF IN FAVOUR
THE PETITIONERS WHO CLAIM THEMSELVES TO BE 4RADITIONAL &OREST $WELLERS $ESPITE THE
ABOVE IT IS SUBMITTED THAT THE PETITIONERS ARE BEING THREATENED TO BE EVICTED 7ITH THE
CONSENT OF BOTH THE PARTIES THIS PETITION STANDS DISPOSED OF THAT IN CASE THE $ISTRICT
,EVEL COMMITTEE HAS NOT ALREADY TAKEN ANY DECISION U3 THEN THE CASE OF PETITIONERS
SHALL BE CONSIDERED AND DECIDED BY THE SAID COMMITTEE AS EXPEDITIOUSLY AS POSSIBLE
4ILL SUCH DECISION IS TAKEN THE POSSESSION OF THE PETITIONERS SHALL NOT BE DISTURBED
7ITH THE ABOVE SAID THIS PETITION STANDS DISPOSED OF SANS COST
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
3HIVAJI 3UNE VS 5NION OF )NDIA
70 0), ./ /&
()'( #/524 /& -!$(9! 02!$%3(
#/2!- !- +(!.7),+!2 #* !.$ !.), 3(!2-! *
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3 5--!29
4HE WRIT PETITION SEEKS A RESTRAINING ORDER AGAINST THE RESPONDENT 3TATE AUTHORITIES
FROM CONSTRUCTING AND OPERATING AN !SHBUND ASSOCIATED WITH THE 4HERMAL 0OWER
PROJECT AT 3ARNI $ISTRICT "ETUL
4HE PETITIONER ARGUED THAT BEFORE ALLOTMENT OF LAND THE PROCEDURE AS PER THE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! WAS NOT FOLLOWED IN PARTICULAR THE PROCEDURE REQUIRED UNDER
#IRCULAR DT WRONGLY CITED AS OF THE -INISTRY OF %NVIRONMENT
AND &ORESTS -O%& )T WAS FURTHER ARGUED THAT NO ENVIRONMENTAL CLEARANCE WAS
OBTAINED FOR CONSTRUCTING THE !SHBUND (E ALSO ARGUED THAT BEFORE GRANTING
ENVIRONMENTAL CLEARANCE THE SOCIAL IMPACT OF SUCH ACTIVITY OUGHT TO HAVE BEEN
EXAMINED
4HE RESPONDENT 3TATE CONTESTED THESE SUBMISSIONS STATING THAT THE LAND IS
COMPLETELY FREE FROM TRIBALS WHICH EXEMPTS IT FROM ADHERING TO THE PROCEDURE
PROVIDED IN THE &2! &URTHER THE ENVIRONMENTAL CLEARANCE WAS GRANTED BY THE
-O%& ON
2EGARDING THE ARGUMENT OF THE PETITIONER POINTING OUT THERE IS FAILURE TO COMPLY
WITH THE &2! THE #OURT ACCEPTED THE IPSE DIXIT OF THE 3TATE GOVERNMENT )NSOFAR AS
THE GRANT OF ENVIRONMENTAL CLEARANCE IS CONCERNED THE #OURT WAS OF THE VIEW THAT
CLEARANCE HAS BEEN GRANTED BY THE COMPETENT AUTHORITY WHICH ORDER HAS NOT BEEN
CHALLENGED BY THE PETITIONER
4HE #OURT DISMISSED THE WRIT PETITION WITH THE FOLLOWING OBSERVATION
4HERE IS PRESUMPTION THAT THE !UTHORITY HAS ACTED IN PUBLIC INTEREST UNTIL
ESTABLISHED TO THE CONTRARY )N OUR OPINION THE BASIS ON WHICH THE PETITIONER IS
OPPOSING THE PROJECT TO SAY THE LEAST IS UNSTABLE AND FOR THAT REASON WE DECLINE
TO INTERFERE IN THIS WRIT PETITION
4 / \
% $ ) 4 /23 . /4%
4HE DECISION IS CLEARLY PER INCURIAM FAILING AS IT DOES TO TAKE NOTE OF THE BINDING
DECISION OF THE 3UPREME #OURT OF )NDIA IN /RISSA -INING #ORPORATION VS -INISTRY OF
%NVIRONMENT AND &ORESTS /RS 3## 4HE #OURT ALSO QUITE CLEARLY FAILED
TO EXERCISE ITS CONSTITUTIONAL JURISDICTION WITH REGARD TO THE VARIOUS VIOLATIONS
OF THE RIGHT TO A CLEAN ENVIRONMENT !RTICLE AS POINTED OUT BY THE PETITIONER
CHOOSING INSTEAD TO TAKE A HYPER
TECHNICAL APPROACH 4HERE CAN BE NO DOUBT THAT
THIS JUDGMENT FOR THESE REASONS DOES NOT CONSTITUTE GOOD LAW
* 5 $ ' -% . 4
(EARD COUNSEL FOR THE PARTIES
4HE RELIEF CLAIMED IN THIS PETITION IS TO RESTRAIN THE RESPONDENTS FROM CONSTRUCTING AND
OPERATING !SHBUND ASSOCIATED WITH 4HERMAL 0ROJECT AT 3ARNI $ISTRICT "ETUL 4HE RST
ARGUMENT OF THE PETITIONER IS THAT THE PROCEDURE AS WAS REQUIRED TO BE FOLLOWED IN TERMS
OF 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT BEFORE ALLOTMENT OF THE LAND TO THE RESPONDENT .O HAS NOT BEEN COMPLIED
WITH 4HAT WAS MANDATORY REQUIREMENT AND MORE SO POSTULATED IN THE CLEARANCE
ACCORDED BY THE -INISTRY OF %NVIRONMENT AND &ORESTS &# $IVISION 'OVERNMENT OF )NDIA
VIDE COMMUNICATION DATED !NNEXURE 2
IN PARTICULAR #LAUSE
THEREOF
)N RESPONSE TO THIS ARGUMENT THE RESPONDENT3TATE IS RELYING ON THE ASSERTION MADE IN THE
REPLY
AFDAVIT THAT THE LAND WHICH HAS BEEN ALLOTTED TO RESPONDENT .O IS COMPLETELY
FREE FROM TRIBALS !S A RESULT THE QUESTION OF ADHERING TO THE FORMALITIES SPECIED IN THE
!CT OF DOES NOT ARISE .O REJOINDER HAS BEEN LED TO COUNTER THIS ASSERTION )N OTHER
WORDS IF THE LAND IS FREE FROM TRIBALS THE RESPONDENTS IN PARTICULAR 3TATE WAS ENTITLED
AND COMPETENT TO ALLOT THE LAND TO THE RESPONDENT .O FOR THE STATED PURPOSE )N OUR
OPINION THEREFORE THIS GRIEVANCE OF THE PETITIONER DOES NOT TAKE THE MATTER ANY FURTHER
4HE SECOND POINT URGED BEFORE US IS THAT NO ENVIRONMENTAL CLEARANCE HAS BEEN OBTAINED
FOR CONSTRUCTING !SHBUND 4HIS SUBMISSION HAS BEEN COUNTERED BY THE RESPONDENTS
BY POINTING OUT THAT ENVIRONMENTAL CLEARANCE HAS BEEN GRANTED BY THE -INISTRY OF
%NVIRONMENT AND &ORESTS 'OVERNMENT OF )NDIA VIDE COMMUNICATION DATED
!NNEXURE 2
4O GET OVER THIS POSITION THE PETITIONER CONTENDS THAT SUCH ENVIRONMENTAL
PERMISSION COULD NOT HAVE BEEN ACCORDED UNLESS RESPONDENT .O ALREADY POSSESSED
LAND FOR THE STATED PURPOSE OR THE LAND WAS ALLOTTED TO THE RESPONDENT .O "EFORE
ALLOTMENT OF THE LAND SINCE IT WAS REQUIRED TO BE ACQUIRED THE CONCERNED AUTHORITIES
OUGHT TO HAVE EXAMINED THE SOCIAL IMPACT ISSUE ON ACCOUNT OF SUCH ACQUISITION 4HE
ARGUMENT COMPLETELY OVERLOOKS THE BASIS ON WHICH ENVIRONMENTAL CLEARANCE HAS BEEN
ACCORDED BY THE COMPETENT AUTHORITY
)N PARAGRAPH OF THE COMMUNICATION DATED IT IS PLAINLY STATED THAT THE LAND
REQUIREMENT FOR THE MAIN PLANT AND AUXILLARY FACILITIES IS HA WHICH IS AVAILABLE
WITHIN THE EXISTING PLANT BOUNDARY )T IS FURTHER NOTED THAT HA OF LAND IS TO BE ACQUIRED
FOR THE ASH DISPOSAL AREA WHICH INCLUDES HA FOR ALTERNATE ROAD IN LIEU OF THE EXISTING
ROADS TO BE INCLUDED IN THE ASH POND AREA
4HE PETITIONER HOWEVER WOULD RELY ON THE NEXT STATEMENT FOUND IN THE SAME PARAGRAPH
OF THE COMMUNICATION THAT
NO FORESTLAND IS INVOLVED IN THE LAND TO BE ACQUIRED FOR THE PROPOSED UNIT #OAL
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
REQUIREMENT WILL BE MILLION METRIC TONNES PER ANNUM AT 0,& 7ATER
REQUIREMENT IS ESTIMATED AS MHR WHICH WILL BE MET FROM 3ATPURA 2ESERVOIR
)T WAS ALSO STATED THAT ABOUT 2S CRORE PER YEAR WILL BE SPENT ON #32 ACTIVITIES
0UBLIC HEARING WAS HELD ON 4HERE WILL BE LAND OUSTEES FAMILIES DUE TO
THIS PROJECT EXTENSION .O .ATIONAL 0ARK AND 7ILDLIFE 3ANCTUARY IS LOCATED WITHIN
+M FROM PROJECT AREA 4OTAL COST OF THE PROJECT IS 2S CRORES WHICH INCLUDES
CRORES FOR ENVIRONMENTAL PROTECTION MEASURES
7E FAIL TO UNDERSTAND AS TO HOW THIS STATEMENT WILL BE OF ANY AVAIL TO THE PETITIONER
TO OPPOSE THE ENVIRONMENTAL CLEARANCE ALREADY GRANTED BY THE AUTHORITY 3UFCE IT
TO OBSERVE THAT THE COMPETENT AUTHORITY WHILST ACCORDING ENVIRONMENTAL CLEARANCE
WAS FULLY AWARE ABOUT THE FACTUM OF ACQUISITION OF HA LAND FOR !SH DISPOSAL AREA
.OTWITHSTANDING THAT INFORMATION IT THOUGHT IT APPROPRIATE TO ACCORD ENVIRONMENTAL
CLEARANCE TO THE PROJECT IN QUESTION
4HE ARGUMENT OF THE PETITIONER FURTHER PROCEEDS THAT THE ENVIRONMENTAL CLEARANCE
AUTHORITY COULD NOT HAVE EXAMINED THE PROPOSAL UNTIL THE LAND WAS ACTUALLY ALLOTTED
TO THE RESPONDENT .O 7E ARE AFRAID THERE IS NO EXPRESS PROVISION AT LEAST BROUGHT
TO OUR NOTICE IN ANY OF THE #ENTRAL OR 3TATE ,EGISLATION WHICH PROHIBITS THE AUTHORITY
AND SUCH AS THE 3TATE AND 3TATE #ORPORATION FOR OBTAINING ENVIRONMENTAL CLEARANCE
IN RESPECT OF THE PROJECT IN ANTICIPATION OF ACQUISITION OF THE LAND FOR THAT PROJECT
2ATHER THE ATTEMPT OF THE 3TATE AUTHORITIES THE RESPONDENT .O AND THE 3TATE WAS
TO ENSURE EARLY COMPLETION OF THE PROJECT 4HE PETITIONER HAS NOT CHALLENGED THE
ENVIRONMENTAL CLEARANCE GRANTED BY THE COMPETENT !UTHORITY OF 'OVERNMENT OF
)NDIA VIDE COMMUNICATION DATED )F THE COMPETENT !UTHORITY HAS GRANTED
PERMISSION AFTER CONSIDERING ALL ASPECTS OF THE MATTER IT IS NOT FOR THIS #OURT TO SIT OVER
THAT DECISION OF THE !UTHORITY AS A #OURT OF APPEAL AND THAT TOO IN ABSENCE OF CHALLENGE
TO THAT DECISION 4HERE IS PRESUMPTION THAT THE !UTHORITY HAS ACTED IN PUBLIC INTEREST
UNTIL ESTABLISHED TO THE CONTRARY )N OUR OPINION THE BASIS ON WHICH THE PETITIONER IS
OPPOSING THE PROJECT TO SAY THE LEAST IS UNSTATABLE AND FOR THAT REASON WE DECLINE TO
INTERFERE IN THIS WRIT PETITION
.OTABLY THE DECISION OF THE %NVIRONMENTAL !UTHORITY IS AN APPEALABLE ACTION AND THAT
HAS BEEN MADE AMPLY CLEAR IN PARAGRAPH OF THE COMMUNICATION DATED
!NNEXURE 2
4HE STATUTORY REMEDY OF APPEAL HAS NOT BEEN AVAILED BY ANY ONE MUCH
LESS THE PETITIONER BEFORE THIS #OURT
4AKING ANY VIEW OF THE MATTER THEREFORE THIS PETITION IS DEVOID OF MERITS 4HE SAME IS
DISMISSED
7ITH THE DISMISSAL OF WRIT PETITION THE PENDING INTERLOCUTORY APPLICATION IS ALSO
DISPOSED OF
4 / \
0ANDURANG 3ITARAM -AHAJAN VS
3TATE OF -ADHYA 0RADESH
70 0), ./ /&
()'( #/524 /& -!$(9! 02!$%3(
#/2!- !- +(!.7),+!2 #* !.$ 6!.$!.! +!32%+!2 *
#)4!4)/. 3## /.,).% -0
3 5 - -!29
! WRIT PETITION WAS FILED BY THE PETITIONER AS A PUBLIC INTEREST LITIGATION AGAINST
THE CASUAL MANNER IN WHICH CERTIFICATES WERE ISSUED FOR THE RECOGNITION OF RIGHTS AS
PER THE 3CHEDULED 4RIBES /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! 4HE PETITIONER ARGUES THAT FOREST LAND HAS BEEN ASSIGNED TO
UNAUTHORISED OCCUPANTS
$ENYING THE ALLEGATION OF THE PETITIONER THE RESPONDENT 3TATE SUBMITTED THAT THE
AUTHORITIES HAD RECEIVED APPLICATIONS OUT OF WHICH HAVE BEEN REJECTED
AND ONLY HAVE BEEN CONSIDERED FOR GRANT OF CERTIFICATES )T WAS ALSO POSITED
THAT THE 3TATE GOVERNMENT WILL TAKE CORRECTIVE MEASURES AS PER THE LAW IF ANY
ILLEGAL ISSUANCE OF CERTIFICATE IS BROUGHT TO ITS NOTICE
4HE #OURT OBSERVED THAT WITHOUT APPROACHING THE PROPER AUTHORITY THE PETITIONER
HAD FILED THIS PETITION BASED ON SOME RECORDS COLLECTED BY HIM DURING A PRIVATE
ENQUIRY )T ACCORDINGLY DISPOSED OF THE MATTER BY GRANTING AN OPPORTUNITY TO THE
PETITIONER OR ANY OTHER PERSON WHO IS AGGRIEVED BY THE ISSUANCE OF SUCH CERTIFICATE
TO PURSUE THE MATTER WITH THE #OLLECTOR 4HE #OURT ALSO DIRECTED THE #OLLECTOR TO
CONDUCT AN ENQUIRY AND TAKE CORRECTIVE MEASURES IN ACCORDANCE WITH LAW ON
RECEIVING SUCH REPRESENTATION
% $ ) 4 /23 . /4%
)NTERESTINGLY THIS WRIT PETITION HAD BEEN TRANSFERRED TO THE .ATIONAL 'REEN 4RIBUNAL
VIDE ORDERS OF THE 3UPREME #OURT 7HEN THE .ATIONAL 'REEN 4RIBUNAL TOOK UP THIS
MATTER IT TOOK THE VIEW THAT THE &2! IS NOT A 3CHEDULED !CT UNDER THE .ATIONAL
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
'REEN 4RIBUNAL !CT AND ACCORDINGLY TRANSFERRED THE MATTER BACK TO THE (IGH
#OURT
/2$ % 2
(EARD COUNSEL FOR THE PARTIES
4HE GRIEVANCE IN THIS PETITION LED AS PUBLIC INTEREST LITIGATION IS ESSENTIALLY ABOUT
THE CASUAL MANNER IN WHICH CERTICATES HAVE BEEN ISSUED FOR RECOGNIZING THE RIGHTS
OF PERSONS IN THE CONTEXT OF PROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT !S A RESULT OF ISSUANCE OF SUCH
IMPROPER CERTICATES THOSE PERSONS ARE OCCUPYING THE FOREST LAND REFERRED TO IN THE
CERTICATES WHO OTHERWISE WOULD BE UNAUTHORISED OCCUPANTS
)N THE RST PLACE THE PETITIONERS HAVE NOT APPROACHED ANY !UTHORITY BUT HAVE RUSHED
TO THIS #OURT ON THE BASIS OF SOME RECORD COLLECTED BY THEM DURING PRIVATE ENQUIRY MADE
BY THEM 4HE REPLY AFDAVIT LED BY THE 3TATE MAKES IT AMPLY CLEAR THAT THE !UTHORITIES
HAD RECEIVED IN ALL APPLICATIONS OUT OF WHICH HAVE BEEN REJECTED AND ONLY
HAVE BEEN CONSIDERED FOR GRANT OF CERTICATES )T IS FURTHER STATED IN THE REPLY AFDAVIT
THAT IF ANY ILLEGALITY IN ISSUANCE OF SUCH CERTICATES IS BROUGHT TO THE NOTICE OF !UTHORITY
THE !UTHORITY WILL TAKE CORRECTIVE MEASURES AS MAY BE WARRANTED IN LAW
)N VIEW OF THIS POSITION WE DO NOT INTEND TO KEEP THESE PROCEEDINGS PENDING )NSTEAD
WE DEEM IT APPROPRIATE TO GIVE OPPORTUNITY TO THE PETITIONERS OR ANY OTHER PERSONS
INTERESTED IN POINTING OUT IMPROPRIETY IN ISSUANCE OF CERTICATES TO ANY PERSON OR
PERSON WHO IS AGGRIEVED BY ISSUANCE OF SUCH CERTICATE TO TAKE UP THE MATTER WITH
#OLLECTOR "URHANPUR AND IF SUCH REPRESENTATION IS RECEIVED THE #OLLECTOR "URHANPUR
WILL CAUSE TO MAKE NECESSARY INQUIRY AND TAKE CORRECTIVE MEASURES AS MAY BE WARRANTED
IN LAW EXPEDITIOUSLY AND IN ANY CASE WITHIN EIGHT WEEKS FROM THE RECEIPT OF SUCH
REPRESENTATIONCOMMUNICATION "ESIDES THIS NOTHING MORE IS REQUIRED TO BE OBSERVED
INCLUDING ABOUT THE DOCUMENTS AT PAGES AND DEPICTING THE NAMES OF SAME PERSONS
AS THE #ERTICATEE
4HE PETITIONERS ARE FREE TO POINT OUT THAT ASPECT TO THE #OLLECTOR "URHANPUR AS AFORESAID
0ETITION IS DISPOSED OF ACCORDINGLY
/RDER DT IN "HOPAL 'AS 0EEDITH -AHILA 5DYOG 3ANGATHAN /RS VS 5NION OF )NDIA /RS
3##
/RDER DT 0ANDURANG 3ITARAM /RS VS 3TATE OF -0 /RS /! .O #: 4(# .ATIONAL
'REEN 4RIBUNAL 4HIS IS EXTRACTED ELSEWHERE IN THE COMPENDIUM
4 / \
-ANGAL 3INGH ,OKHANDE VS 3TATE OF
-ADHYA 0RADESH
70 0), ./ /&
()'( #/524 /& -!$(9! 02!$%3(
#/2!- !- +(!.7),+!2 #* !.$ #6 3)2052+!2 *
3 5 - -!29
4HE PETITION FILED AS PUBLIC INTEREST LITIGATION SOUGHT TWO COMPLEMENTARY RELIEFS
/NE IT SOUGHT QUASHING OF EVICTION NOTICES ISSUED BY THE RESPONDENT 3TATE AUTHORITIES
3ECONDLY IT SOUGHT DIRECTION TO THE RESPONDENT TO CONSTITUTE 6ILLAGE &OREST 2IGHTS
#OMMITTEES IN -ARKAADHANA AND $ANWAAKHEDA VILLAGES AS PER THE PROVISIONS OF
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! AND TO START THE PROCESS OF VERIFICATION AND RECOGNITION OF
INDIVIDUAL AND COMMUNITY FOREST RIGHTS OF THE CONCERNED VILLAGES
7HILE THE RESPONDENT 3TATE ARGUED THAT THE MECHANISMS AS PER THE &2! ARE ALREADY
AVAILABLE THE PETITIONERS ARGUED THAT THE #OMMITTEES HAVE NOT BEEN CONSTITUTED IN
ACCORDANCE WITH LAW
4HE #OURT REFUSING TO GO INTO THESE QUESTIONS IN A PUBLIC INTEREST LITIGATION
OBSERVED THAT THOSE WHO ARE IN RECEIPT OF EVICTION NOTICES CAN RAISE THESE ARGUMENTS
IN RESPONSE TO THOSE NOTICES 4HE #OURT ALSO OBSERVED THAT THE CLAIMANTS ARE FREE TO
PURSUE THEIR REMEDY BEFORE THE #OMMITTEE ESTABLISHED BY THE RESPONDENT
3TATE
IN THAT BEHALF
% $ ) 4 /23 . /4%
4HIS ORDER LIKE MANY OTHERS EMERGING FROM THE -ADHYA 0RADESH (IGH #OURT
EXTRACTED ELSEWHERE IN THIS COMPENDIUM APPEARS TO GRANT RELIEF TO THE PETITIONERS
(OWEVER WHEN EXAMINED CLOSELY WE FIND IT PROCEEDS ON THE ERRONEOUS ASSUMPTION
THAT A CHALLENGE TO INCORRECT CONSTITUTION OF &2#S WOULD CONSTITUTE A RESPONSE TO
AN EVICTION NOTICE &URTHER BY GIVING THE PETITIONERS THE FREEDOM TO APPROACH THE
&2#S FOR RECOGNITION OF THEIR FOREST RIGHTS WITHOUT ADDRESSING THEIR FUNDAMENTAL
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
CHALLENGE TO THE CONSTITUTION OF THESE VERY #OMMITTEES IS NO REMEDY IN LAW OR IN
EQUITY
/2$ % 2
(EARD COUNSEL FOR THE PARTIES
4HIS PETITION IS LED AS 0UBLIC )NTEREST ,ITIGATION BROADLY FOR TWO RELIEFS RSTLY TO SET ASIDE
THE NOTICES ISSUED BY THE APPROPRIATE !UTHORITY TO INDIVIDUALS SUCH AS !NNEXURES 0
AND 0 4HE SECOND RELIEF IS TO DIRECT THE RESPONDENTS TO CONSTITUTE 6ILLAGE &OREST 2IGHTS
#OMMITTEE IN -ARKAADHANA AND $ANWAAKHEDA VILLAGES IN TERMS OF THE &OREST 2IGHTS
!CT SO AS TO COMMENCE THE PROCESS OF VERICATION AND RECOGNITION OF INDIVIDUAL
AND COMMUNITY FOREST RIGHTS OF THE CONCERNED VILLAGERS AS PER THE REPRESENTATIONS MADE
BY THEM
!S REGARDS THE SECOND RELIEF IN THE REPLY LED BY THE RESPONDENTS3TATE DATED RD
.OVEMBER IT IS STATED THAT DISPENSATION AS PROVIDED BY THE !CT OF IS
ALREADY MADE AVAILABLE AND IT IS OPEN TO THE CLAIMANTS TO SUBMIT REPRESENTATION FOR
DETERMINATION OF THEIR TRIBAL RIGHTS AND ON RECEIPT OF SUCH REPRESENTATION THE CONCERNED
!UTHORITY WOULD EXAMINE THE CLAIM IN ACCORDANCE WITH LAW
#OUNSEL FOR THE PETITIONER HOWEVER SUBMITS THAT THE DISPENSATION PROVIDED BY THE
RESPONDENT3TATE IS NOT IN CONFORMITY WITH THE PROVISIONS OF THE !CT OF AND THE
2ULES FRAMED THEREUNDER
)T WILL BE OPEN TO THE CONCERNED NOTICEES TO TAKE UP THAT PLEA IN RESPONSE TO THE NOTICES
RECEIVED BY THEM RESPECTIVELY NAMELY OBJECTION REGARDING THE CONSTITUTION OF THE
#OMMITTEE NOT BEING IN CONFORMITY WITH THE PROVISIONS OF THE !CT OF AND THE 2ULES
FRAMED THEREUNDER IF SO ADVISED BESIDES THE RESPONSEREPRESENTATION TO BE SUBMITTED
WITH REFERENCE TO THE NOTICE RECEIVED BY THEM REGARDING THEIR TRIBAL RIGHTS IN THE
CONCERNED FOREST AREA
4HE QUESTION OF INTERFERING WITH THAT PROCESS BY WAY OF 0UBLIC )NTEREST ,ITIGATION
CONSEQUENT TO NOTICES DOES NOT ARISE AS THE NOTICEES ARE FREE TO PURSUE THEIR REMEDY
BEFORE THE #OMMITTEE ESTABLISHED BY THE RESPONDENT
3TATE IN THAT BEHALF
0ETITION IS DISPOSED OF LEAVING ALL QUESTIONS OPEN REGARDING THE MATTERS THAT MAY HAVE
TO BE DECIDED IN THE CONTEXT OF NOTICES !NNEXURES 0 AND 0 SERVED ON THE CONCERNED
NOTICEES AS ALSO ABOUT THE CONSTITUTION OF THE #OMMITTEE BY THE 3TATE 4HE SAID ISSUES BE
DECIDED EXPEDITIOUSLY
4 / \
3HIV 2ATAN VS 3TATE OF -ADHYA
0RADESH
3%#/.$ !00%!, ./ /&
()'( #/524 /& -!$(9! 02!$%3(
#/2!- 23 *(! *
3 5 - -!29
4HE APPELLANT WHO IS A NON TRIBAL HAS BEEN IN POSSESSION OF A PLOT OF FOREST LAND SINCE
WHICH IS CONTINUING 4HE LAND WAS NOTIFIED AS A FOREST VIDE NOTIFICATION
DATED AFTER WHICH EFFORTS TO REMOVE HIM BEGAN 4HE APPELLANT FILED A
CIVIL SUIT FOR INJUNCTION BEFORE THE #IVIL *UDGE 3ATNA WHO REJECTED THE PLAINT ON THE
GROUND THAT THE LAND IN QUESTION WAS FOREST LAND 4HE APPEAL BEFORE THE !DDITIONAL
$ISTRICT *UDGE WAS ALSO DISMISSED
.OW THE APPELLANTPLAINTIFF HAS FILED THIS APPEAL AGAINST THE JUDGMENT OF THE
!DDITIONAL $ISTRICT *UDGE 3ATNA AT WHICH STAGE HE SUBMITTED THAT HE IS ENTITLED TO
PROTECTION UNDER 3ECTION O OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
4HE #OURT OBSERVED THAT THE LAND HAS BEEN DECLARED AS FOREST LAND THROUGH A
NOTIFICATION DATED AND THEREFORE THE #OURTS BELOW HAVE RIGHTLY HELD
THAT SINCE THE LAND WAS NOTIFIED AS A FOREST LAND PATTA COULD NOT BE GRANTED TO THE
APPELLANT
7ITH REGARD TO THE CONTENTION OF THE APPELLANT THAT HE IS ENTITLED TO PROTECTION
UNDER THE &2! THE #OURT REJECTED THE SAME OBSERVING THAT THERE WAS NO PLEADING
OR PRAYER IN THIS REGARD BEFORE THE #OURTS BELOW AND IT CANNOT BE RAISED AT THE STAGE
OF SECOND APPEAL
% $ ) 4 /23 . /4%
4HE DECISION OF THE #OURT INSOFAR AS IT REFUSES TO ENTERTAIN A LEGAL ARGUMENT UNDER
&2! AT THE BELATED STAGE OF A SECOND APPEAL CANNOT BE FAULTED !T THE SAME TIME THE
DECISION DEMONSTRATES THE RIGID NATURE OF LEGAL PROCEEDINGS FOR PROTECTION OF RIGHTS
GOVERNED AS THEY ARE BY THE #IVIL 0ROCEDURE #ODE AND GIVES OCCASION TO REFLECT
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
UPON THE INHERENT BENEFITS OF THE NON
TECHNICAL YET ROBUST RIGHTS RECOGNITION
MECHANISM IN 3ECTION OF &2! AND THE &2 2ULES
/2$ % 2
(EARD 3HRI 0ARAG #HATURVEDI LEARNED COUNSEL APPEARING FOR THE APPELLANT ON THE QUESTION
OF ADMISSION
4HE APPELLANTPLAINTIFF HAS LED THIS APPEAL BEING AGGRIEVED BY THE JUDGMENT AND DECREE
DATED
PASSED BY THE !DDITIONAL $ISTRICT *UDGE 3ATNA IN #! .O
ARISING OUT OF THE JUDGMENT AND DECREE DATED
PASSED BY 3ECOND #IVIL *UDGE
#LASS
)) 3ATNA IN #3 .O
! WHEREBY BOTH THE #OURTS BELOW HAVE DISMISSED THE
SUIT FOR INJUNCTION LED BY THE APPELLANTPLAINTIFF BY RECORDING A CONCURRENT NDING OF
FACT TO THE EFFECT THAT THE LAND IN QUESTION IS THE FOREST LAND AND WAS WRONGLY GRANTED TO
THE APPELLANT ON 0ATTA
)T IS SUBMITTED BY THE LEARNED COUNSEL APPEARING FOR THE APPELLANT THAT AFTER DEMARCATION
THE 0ATWARI HAS GRANTED HIM POSSESSION OF THE LAND IN QUESTION IN THE YEAR
AND
SINCE THEN HE HAS BEEN IN POSSESSION OF THE LAND )T IS SUBMITTED THAT AS THE POSSESSION
OF THE APPELLANT WAS LAWFUL THE #OURT BELOW WAS BOUND TO GRANT A DECREE OF INJUNCTION
IN FAVOUR OF THE APPELLANT BUT THE #OURTS BELOW HAVE FAILED TO DO SO THEREBY GIVING RISE
TO A SUBSTANTIAL QUESTION OF LAW
(AVING HEARD THE LEARNED COUNSEL FOR THE APPELLANTPLAINTIFF AND AFTER PERUSING THE
RECORD IT IS OBSERVED THAT THE #OURTS BELOW HAVE RECORDED A NDING TO THE EFFECT THAT
THE LAND IN QUESTION HAD BEEN DECLARED AS FOREST LAND VIDE NOTICATION DATED
WHICH WAS PUBLISHED IN THE 'AZETTE AND THAT THE PROCEEDINGS AGAINST THE APPELLANT FOR
HIS REMOVAL WAS TAKEN UP IN THE YEAR AND ON ANOTHER OCCASION THEREAFTER IN SPITE OF
WHICH THE APPELLANT AGAIN TOOK OVER POSSESSION OF THE LAND ,EARNED #OURTS BELOW HAVE
RECORDED A NDING TO THE EFFECT THAT AS THE LAND WAS NOTIED AS A FOREST LAND THE SAME
COULD NOT HAVE BEEN GRANTED TO THE APPELLANT ON 0ATTA
(AVING HEARD THE LEARNED COUNSEL FOR THE APPELLANT IT IS OBSERVED THAT THE AFORESAID
CONCURRENT NDING OF FACT RECORDED BY BOTH THE #OURTS BELOW IS BASED ON THE ORAL AND
DOCUMENTARY EVIDENCE ON RECORD SPECIALLY STATEMENT OF 3ATYANARAYAN $7 AND THE
DOCUMENTS %X$
TO $
!T THIS STAGE LEARNED COUNSEL FOR THE APPELLANT SUBMITS THAT HE IS ENTITLED TO THE
PROTECTION UNDER THE PROVISIONS OF SUB
SECTION O OF 3ECTION OF 4HE 3CHEDULED 4RIBES
AND /THER 4RADITION &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
4HE CONTENTION OF THE APPELLANT IS HEARD ONLY TO BE REJECTED AS THE APPELLANT HAS FAILED
TO MAKE ANY PLEADING OR PRAYER IN THIS REGARD BEFORE ANY #OURT AND THIS #OURT IS DEALING
WITH THE VALIDITY OF THE JUDGMENT AND DECREE PASSED BY THE #OURTS BELOW WHEREIN THE
APPELLANT HAD CLAIMED A DECREE OF INJUNCTION ONLY 4HERE IS NO PLEADING OR CLAIM IN THE
PLAINT OR IN THE SUIT LED BY THE APPELLANT IN RESPECT OF THE AFORESAID !CT OF AND
THEREFORE THE CONTENTION OF THE APPELLANT IN THIS REGARD CANNOT BE CONSIDERED
)N THE CIRCUMSTANCES ) DO NOT ND ANY PERVERSITY OR MATERIAL IRREGULARITY IN THE
CONCURRENT NDING OF FACT RECORDED BY BOTH THE #OURTS BELOW WARRANTING INTERFERENCE
OF THIS #OURT IN THE PRESENT APPEAL THEREFORE THE APPEAL LED BY THE APPELLANTPLAINTIFF
BEING MERITLESS IS ACCORDINGLY DISMISSED
4 / \
+UMAN 3INGH !RMO VS 3TATE OF
-ADHYA 0RADESH /RS
70 0), ./ /&
()'( #/524 /& -!$(9! 02!$%3( *!"!,052 "%.#(
#/2!- 2!*%.$2! -%./. !.$ -# '!2' **
3 5 - -!29
4HE FACTS OF THIS CASE ARE NOT CLEAR FROM THE ORDER PASSED BY THE #OURT (OWEVER IT
IS APPARENT THAT THE PETITIONERS APPROACHED THE #OURT FOR PROTECTION OF THEIR RIGHTS
UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 2IGHTS !CT &2! AND ALSO FOR REHABILITATION 4HE #OURT DIRECTED THAT
THE PETITIONERS SUBMIT A DETAILED REPRESENTATION TO THE #OLLECTOR WITH PARTICULARS
OF PERSONS ENTITLED UNDER THE &2! AS WELL AS REHABILITATION SCHEMES 4HE #OLLECTOR
SHALL EXAMINE THE CLAIMS AND PASS APPROPRIATE ORDERS AND INTIMATE THE DECISION TO
THE CONCERNED PERSONS WITHIN A PERIOD OF SIX WEEKS
4HE #OURT ALSO OBSERVED THAT THE #OLLECTOR IS FREE TO DELEGATE THIS POWER TO SUCH
AUTHORITIES AS PROVIDED UNDER THE &2!
% $ ) 4 /23 . /4%
4HROUGH THIS ORDER THE #OURT HAS TRIED TO GIVE AN IMPETUS TO THE APPROPRIATE
AUTHORITIES TO ADDRESS THE CLAIMS RELATING TO &2! WITHIN A TIME FRAME 4HE
OBSERVATION REGARDING DELEGATION TO THE PROPER AUTHORITY UNDER THE &2! IS APT
SINCE SUCH AUTHORITY FOR DETERMINATION OF FOREST RIGHTS IS THE 'RAM 3ABHA AND NOT
THE $ISTRICT #OLLECTOR
/2$%2
(AVING HEARD LEARNED COUNSEL FOR THE PARTIES WE ARE OF THE CONSIDERED VIEW THAT
PETITIONER SHOULD SUBMIT A DETAILED REPRESENTATION INDICATING THE PARTICULARS OF THE
PERSONS WHO ARE ENTITLED FOR CLAIMING REHABILITATION IN ACCORDANCE WITH THE SCHEMES FOR
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
REHABILITATION OR THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT AND ON THE SAME BEING DONE THE #OLLECTOR SHALL EXAMINE THE
CLAIM OF THE INDIVIDUALS AND PASS APPROPRIATE ORDERS WITH REGARD TO GRANT OR OTHERWISE OF
THE REHABILITATION BENET IN ACCORDANCE WITH THE SCHEME OR STATUTORY PROVISIONS
4HE #OLLECTOR SHALL CONCLUDE THE EXERCISE AND INTIMATE THE DECISION TO THE PERSONS
CONCERNED WITHIN A PERIOD OF SIX WEEKS THEREOF
)N CASE STATUTORY PROVISIONS PERMIT DELEGATION OF POWERS TO ANY OTHER AUTHORITY THE
#OLLECTOR IS FREE TO DELEGATE THE POWERS TO THE SAID AUTHORITY AND THE SAID AUTHORITY SHALL
PROCEED TO DECIDE THE CLAIM IN THE MATTER WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF
RECEIPT OF CERTIED COPY OF THIS ORDER
7ITH THE AFORESAID THE PETITION STANDS DISPOSED OF
4 / \
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
-!$2!3 ()'(
#/524
4!",% /& *5$'-%.43 !.$ /2$%23
6 3AMBASIVAM VS 'OVT OF )NDIA THROUGH -O4! /RS
70 # .O OF \
3
ALEM -AVATTA %ZHPULLI -ALAIVAZH -AKKAL .ALA 3ANGAM VS 3TATE OF 4AMIL .ADU
3## /N,INE -AD \
) N $EFENCE OF %NVIRONMENT AND !NIMALS VS 4HE 0RINCIPAL #HIEF #ONSERVATION OF
&ORESTS /RS ETC
70 # .O OF ETC \
2
ANI VS 3TATE OF 4AMIL .ADU
3## /NLINE -AD \
) N $EFENCE OF %NVIRONMENT AND !NIMALS VS 4HE 0RINCIPAL #HIEF #ONSERVATION OF
&ORESTS /RS ETC
-,* \
2
AMAR /RS VS 5NION OF )NDIA /RS
3## /N,INE -AD \
! 0ONNUDURAI VS 'OVERNMENT OF 4AMIL .ADU
70 .O OF \
-
URUGESAN VS 4HE $ISTRICT #OLLECTOR $ISTRICT #OLLECTORATE 4UTICORIN /RS
70 -$ .O OF \
4 / \
6 3AMBASIVAM VS 'OVT OF )NDIA
THROUGH -O4! /RS
70 # /&
-!$2!3 ()'( #/524
).4%2)- /2$%2
#/2!- !*)4 02!+!3( 3(!( #* !.$ 02!"(! 32)$%6!. *
3 5 - -!29
4HE MAIN WRIT PETITION CHALLENGES THE CONSTITUTIONAL VALIDITY OF THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2!
4HE INTERIM APPLICATIONS SOUGHT STAY OF IMPLEMENTATION OF &2! BY PETITIONER AND
VACATION OF STAY BY THE 3TATE AND THE #ENTRE
4HE PETITIONER SUBMITTED THAT WHILE THE !CT MAY HAVE THE LAUDABLE PURPOSE OF
RECOGNIZING AND VESTING THE FOREST RIGHTS FOR 3CHEDULED 4RIBES ITS PROVISIONS ARE
VAGUE AND OPEN TO MISUSE 4HE IMPLEMENTATION OF THE &2! WILL RESULT IN MASSIVE
DENUDATION OF FORESTS
4HE !DDITIONAL 3OLICITOR 'ENERAL APPEARING FOR THE 5NION 'OVERNMENT SUBMITTED
THAT THERE WAS A MISCONCEPTION THAT TITLES PATTAS ARE BEING ISSUED UNDER THE !CT
WHERE IN FACT WHAT WAS BEING DONE WAS RECOGNITION OF FOREST RIGHTS AS DEFINED
UNDER 3ECTION E OF THE &2! )T WAS FURTHER SUBMITTED THAT AS PER 3ECTION OF
THE !CT THE RIGHTS CONFERRED UNDER 3ECTION ARE HERITABLE BUT NEITHER ALIENABLE
NOR TRANSFERABLE
!RGUMENTS WERE ALSO ADDRESSED ON BEHALF OF TRIBALS BY !DIVASIGAL +URUMBAS
-UNNETRA 3ANGAM WHICH SUBMITTED THAT THE RIGHTS OF THE FOREST DWELLERS AND
3CHEDULED 4RIBES CANNOT BE DEFEATED NOR CAN THE RECOGNITION OF THE RIGHTS BE
POSTPONED -OREOVER THE CONCEPTS IN THE !CT WERE NOT ENTIRELY NEW AND HAD EXISTED
IN THE FORM OF GUIDELINES IN THE PAST
4HE #OURT EXAMINED THE RELEVANT PROVISIONS OF THE &2! AND ALSO OBSERVED THAT THE
DIVERSION OF THE FOREST LANDS FOR THE TRIBALS SUBJECT TO CERTAIN CONDITIONS HAD BEEN
UNDER THE CONSIDERATION OF THE 'OVERNMENT FOR SOME TIME (OWEVER GIVEN THE
APPREHENSION OF THE PETITIONERS IT FELT THAT PENDING DISPOSAL OF THE WRIT PETITION
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
A BALANCE SHOULD BE STRUCK BETWEEN THE IMPLEMENTATION OF THE !CT AND THE RIGHTS
OF THE 3CHEDULED 4RIBES ON ONE HAND AND THE ECOLOGICAL BALANCE AND THE ISSUE OF
SUSTAINABLE DEVELOPMENT ON THE OTHER
$) 2 % #4) /.3 ) 3 3 5% $
!CCORDINGLY THE #OURT ISSUED THE FOLLOWING DIRECTIONS
I )F CLAIMS ARE MADE FOR COMMUNITY RIGHTS OR RIGHTS TO FOREST LAND THEN THE
PROCESS OF VERIFICATION OF CLAIMS AFTER INTIMATION TO THE CONCERNED CLAIMANT
SHALL GO ON BUT BEFORE THE CERTIFICATE OF TITLE IS ACTUALLY ISSUED ORDERS SHALL BE
OBTAINED FROM THE #OURT
II !S REGARDS FELLING OF TREES FOR PROVIDING DIVERSION OF FOREST LAND UNDER 3ECTION
OF THE !CT THE PROCESS SHALL GO ON TILL THE CLEARANCE OF SUCH DEVELOPMENT
PROJECTS AND ALSO THE 'RAM 3ABHAS RECOMMENDATION IS OBTAINED BUT BEFORE
THE ACTUAL FELLING OF TREES ORDERS SHALL BE OBTAINED FROM THE #OURT
% $ )4/23 . /4%
$ESPITE EFFORTS TO MOVE THE (IGH #OURT FOR VACATION OF THIS INTERIM ORDER IT REMAINED
IN FORCE FOR SEVERAL YEARS &INALLY THIS ORDER WAS SET ASIDE BY THE 3UPREME COURT IN
THE FOLLOWING TERMS ON
(AVING REGARD TO THE FACT THAT EXCEPT FOR THE 3TATE OF 4AMIL .ADU IN ALL OTHER
3TATES THE INQUIRY REGARDING THE VARIOUS CLAIMS UNDER THE ABOVE
MENTIONED !CT
PROCEEDED SUBSTANTIALLY WE DO NOT SEE ANY JUSTIFICATION TO HOLD UP THE INQUIRY
ONLY IN THE 3TATE OF 4AMIL .ADU 4HEREFORE WE DEEM IT APPROPRIATE TO VACATE THE
INTERIM ORDER DATED TH !PRIL
4HE WRIT PETITION IS PENDING BEFORE THE 3UPREME #OURT AS 4# # .O OF
/2$ % 2
/RDER DELIVERED BY 0RABHA 3RIDEVAN *
4HE WRIT PETITIONER HAS CHALLENGED THE VALIDITY OF THE 3CHEDULED 4RIBES AND OTHER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT !CT OF
HEREINAFTER REFERRED TO AS THE !CT AND IN PARTICULAR #HAPTERS )) ))) AND )6 OF THE !CT AND
SEEKS A DECLARATION THAT IT IS ILLEGAL UNCONSTITUTIONAL AND VOID
7HILE ORDERING NOTICE IN THE WRIT PETITION THE RESPONDENTS WERE DIRECTED NOT TO ALIENATE
ANY LAND BY ISSUING PATTA OR BY ANY OTHER MANNER PURSUANT TO THE PROVISIONS OF THE SAID
!CT PARTICULARLY FROM OUT OF THE 2ESERVED !REAS
!GAINST THIS A 3PECIAL ,EAVE 0ETITION WAS LED AND ON THE 3UPREME #OURT ON
THE SUBMISSIONS MADE BY THE LEARNED !TTORNEY 'ENERAL OF )NDIA THAT THE )NTERIM ORDER
WILL COME IN THE WAY OF THE IMPLEMENTATION OF THE !CT GAVE 5NION OF )NDIA THE LIBERTY TO
MOVE THE (IGH #OURT FOR VACATING OR VARYING THE ORDER AND ACCORDINGLY DISPOSED OF THE
3,0 4HE MATTER IS AGAIN LISTED BEFORE US
)N THE MEANTIME BY ORDER DATED THE !DIVASIGAL +URUMBAS -UNNETRA 3ANGAM
4 / \
HAS BEEN IMPLEADED AS THE SEVENTH RESPONDENT IN THE WRIT PETITION AND THE SEVENTH
RESPONDENT HAS ALSO MOVED AN APPLICATION TO VACATE THE INTERIM INJUNCTION
,EARNED !DDITIONAL 3OLICITOR 'ENERAL -R -OHAN 0ARASARAN SUBMITTED THAT THERE APPEARS
TO BE A MISCONCEPTION THAT PATTAS ARE ISSUED UNDER THE !CT BUT ACTUALLY WHAT IS DONE
UNDER THE !CT IS RECOGNITION OF FOREST RIGHTS AS DENED BY 3ECTION E OF THE !CT &OREST
2IGHTS ARE ENUMERATED IN 3ECTION OF THE !CT AND IT ONLY RECOGNISES THE RIGHT TO HOLD
AND LIVE IN THE FOREST LAND INTER ALIA THE RIGHT FOR CONVERSION OF PATTAS OR LEASES OR GRANTS
ISSUED BY ANY LOCAL AUTHORITY ON FOREST LANDS TO TITLES ,EARNED !DDITIONAL 3OLICITOR 'ENERAL
SUBMITTED THAT !NNEXURE
) &ORM
! IS THE SCHEME FORM FOR RIGHTS TO FOREST LAND AND
THE TITLE FOR FOREST LAND UNDER OCCUPATION IS GRANTED UNDER !NNEXURE
)) )T WAS FURTHER
SUBMITTED THAT AS PER 3ECTION OF THE !CT THE RIGHTS CONFERRED BY 3UB
3ECTION
ARE HERITABLE BUT NEITHER ALIENABLE NOR TRANSFERABLE )T WAS ALSO SUBMITTED THAT 3ECTION
OF THE !CT PROVIDES FOR DIVERSION OF FOREST LAND FOR THE FACILITIES MENTIONED IN THE
SAID SUB
SECTION WHICH INVOLVES FELLING OF TREES NOT EXCEEDING TREES PER HECTARE AND
ADEQUATE SAFEGUARD IS GIVEN UNDER THE !CT WHICH PROVIDES THAT THE CLEARANCE WILL BE
SUBJECT TO RECOMMENDATION BY 'RAM 3ABHA )T WAS ALSO SUBMITTED THAT 'RAM 3ABHAS ARE
CONSTITUTED UNDER 2ULE OF THE 3CHEDULE 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS 2ULES 4HEREFORE NOTHING HAS HAPPENED TO WARRANT
THE APPREHENSION OF THE PETITIONER TO OBTAIN AN ORDER OF INJUNCTION 5NTIL SCHEMES ARE
FRAMED AND ARE ABOUT TO BE IMPLEMENTED THERE WILL BE NO FELLING OF TREES AND FURTHER
UNDER THE !CT NO PATTA IS GRANTED
,EARNED COUNSEL APPEARING FOR THE PETITIONER -R ., 2AJAH SUBMITTED THAT WHILE THE !CT
MAY HAVE THE LAUDABLE PURPOSE OF RECOGNISING AND VESTING THE FOREST RIGHTS FOR 3CHEDULED
4RIBES THE !CT ALSO SEEKS TO PROTECT THE RIGHTS OF WHAT THE !CT TERMS AS OTHER TRADITIONAL
FOREST DWELLERS AND THE DENITION OF THIS TERM IS SO WIDELY WORDED AND VAGUE THAT IT GIVES
SCOPE FOR ABUSE 4HE LEARNED COUNSEL ALSO SUBMITTED THAT IMPLEMENTATION OF THE SCHEME
UNIFORMLY ACROSS THE COUNTRY MAY GIVE RISE TO DENUDATION OF FORESTS (E SUBMITTED THAT
OUT OF THE GEOGRAPHIC AREA OF SQ KMS FOR THE 3TATE OF 4AMIL .ADU ONLY
SQ KMS IS UNDER FOREST AND THIS IS FOR LESS THAN THE MINIMUM PRESCRIBED BY THE .ATIONAL
&OREST 0OLICY ,EARNED COUNSEL ALSO SUBMITTED THAT IT IS A MATTER OF PUBLIC KNOWLEDGE
THAT IN NORTH EASTERN 3TATES SIMILAR PROVISIONS HAVE BEEN MISUSED BY CREATING WHAT
ARE CALLED PARTNERSHIPS AMONGST ONE TRIBAL PERSON WITH PERSONS HAVE NOTHING TO DO
WITH FORESTS WHO WOULD EMBARK UPON FEELING OF TREES PURPORTEDLY SANCTIONED BY LAW
,EARNED COUNSEL RELIED UPON 4. 'ODAVARMAN 4HIRUMULKPAD VS 5NION OF )NDIA
3## WHERE AS REGARDS THE 3TATE OF 4AMIL .ADU THE 3UPREME #OURT BESIDES ISSUING
OTHER DIRECTIONS HAD DIRECTED THAT THERE WILL BE A COMPLETE BAN ON FELLING OF TREES IN
ALL FOREST AREAS WHICH WILL HOWEVER NOT APPLY TO TREES WHICH HAVE BEEN PLANTED AND
GROWN AND ARE OF SPONTANEOUS GROWTH AND ARE IN AREAS WHICH WERE NOT FORESTS EARLIER
BUT WERE CLEARED FOR ANY REASON
-S .AGASAILA LEARNED COUNSEL APPEARING FOR THE SEVENTH RESPONDENT SUBMITS THAT
WHILE THERE MAY BE SOME TRUTH IN THE APPREHENSIONS VOICED BY THE PETITIONER ON THIS
GROUND THE RIGHTS OF THE FOREST DWELLERS AND THE 3CHEDULED 4RIBES CANNOT BE DEFEATED
NOR AN THE RECOGNITION OF THE RIGHTS BE POSTPONED 3HE SUBMITTED THAT IT NOT AS IF THE !CT
IS INTRODUCING CERTAIN CONCEPTS FOR THE RST TIME THESE HAVE BEEN IN FORCE EVEN EARLIER IN
THE FORM OF GUIDELINES OR DIVERSION OF FOREST LAND FOR NON
FOREST PURPOSES
SHE POINTED OUT
'OVERNMENT OF )NDIA LETTERS IN &.O
&# DATED AND &.O
&#
DATED ,EARNED COUNSEL SUBMITTED THAT ALL THAT HAS BEEN DONE NOW IS TO PUT
THOSE GUIDELINES IN A STATUTORY FORM
7E HAVE CONSIDERED THE RELEVANT PROVISIONS 3ECTION OF THE !CT DEALS WITH FOREST RIGHTS
AS FOLLOWS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
&OREST RIGHTS OF &OREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
&OR THE PURPOSES OF THIS !CT THE FOLLOWING RIGHTS WHICH SECURE INDIVIDUAL OR
COMMUNITY TENURE OR BOTH SHALL BE THE FOREST RIGHTS OF FOREST DWELLING 3CHEDULED
4RIBES AND OTHER TRADITIONAL FOREST DWELLERS ON ALL FOREST LANDS NAMELY
A 2IGHT 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 OF
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 0RINCELY 3TATES :AMINDARI OR SUCH INTERMEDIARY REGIMES
G 2IGHTS FOR CONVERSION OF 0ATTAS OF LEASES OR GRANTS ISSUED BY ANY LOCAL AUTHORITY
OR ANY 3TATE 'OVERNMENT ON FOREST LANDS TO TITLES
3ECTION E DENES FOREST RIGHTS AS FOLLOWS
E &OREST RIGHTS MEANS THE FOREST RIGHTS REFERRED TO IN 3ECTION
3ECTION G DENES 'RAM 3ABHA AS FOLLOWS
G 'RAM 3ABHA MEANS A VILLAGE ASSEMBLY WHICH SHALL CONSIST OF ALL ADULT
MEMBERS OF A VILLAGE AND IN CASE OF 3TATE HAVING NO 0ANCHAYATS 0ADAO 4OLAS AND
OTHER TRADITIONAL VILLAGE INSTITUTIONS AND ELECTED VILLAGE COMMITTEES WITH FULL AS
UNRESTRICTED PARTICIPATION OF WOMEN
3ECTION O DENES OTHER TRADITIONAL FOREST DWELLER AS FOLLOWS
E /THER TRADITIONAL FOREST DWELLER MEANS ANY MEMBER OR COMMUNITY WHO HAS
FOR AT LEAST THREE GENERATIONS PRIOR TO THE TH DAY OF $ECEMBER PRIMARILY
RESIDED IN AND WHO DEPEND ON THE FOREST OR FORESTS LAND FOR BONADE LIVELIHOOD
NEEDS
3ECTION OF THE !CT READS THUS
2ECOGNITION OF AND VESTING OF FOREST RIGHTS IN FOREST DWELLING 3CHEDULED 4RIBES
AND OTHER TRADITIONAL FOREST DWELLERS
.OTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER LAW FOR THE TIME BEING
IN FORCE AND SUBJECT TO THE PROVISIONS OF THE !CT THE #ENTRAL 'OVERNMENT
HEREBY RECOGNISES AND VESTS FOREST RIGHTS IN
! RIGHT CONFERRED BY SUB SECTION ) SHALL BE HERITABLE BUT NOT ALIENABLE
OR TRANSFERABLE AND SHALL BE REGISTERED JOINTLY IN THE NAME OF BOTH THE
SPOUSES IN CASE OF MARRIED PERSONS AND IN THE NAME OF THE SINGLE HEAD IN
THE CASE OF A HOUSEHOLD HEADED BY A SINGLE PERSON AND IN THE ABSENCE OF A
DIRECT HEIR THE HERITABLE RIGHT SHALL PASS ON TO THE NEXT OF KIN
!NNEXURE
) TO THE .OTICATION DATED IS RELEVANT
!NNEXURE
)
3EE RULE
&ORM
!
#,!)- &/2- &/2 2)'(43 4/ &/2%34 ,!.$
3EE RULE A
3IGNATURE 4HUMB )MPRESSION OF THE #LAIMANT S
!NNEXURE )) OF THE .OTICATION READS THUS
4 / \
!NNEXURE ))
3EE RULE H
&ORM !
4)4,% &/2 &/2%34 ,!.$ 5.$%2 /##50!4)/.
$IVISIONAL &OREST /FCER $EPUTY $ISTRICT 4RIBAL 7ELFARE /FCER CONSERVATOR OF
&ORESTS
$ISTRICT #OLLECTOR $EPUTY #OMMISSIONER
! PERUSAL OF THE 'OVERNMENT GUIDELINES ALSO SHOWS THAT DIVERSION OF FOREST LANDS SUBJECT
TO CERTAIN CONDITIONS HAS BEEN UNDER THE CONSIDERATION OF THE 'OVERNMENT FOR SOME
TIME (OWEVER IN VIEW IF THE APPREHENSIONS VOICED BY THE PETITIONER AND THE POSSIBLE
ECOLOGICAL ABUSE WE FEEL THAT PENDING DISPOSAL OF THE WRIT PETITION BALANCE SHOULD BE
STRUCK BETWEEN THE IMPLEMENTATION OF THE 0OLICY AND THE RIGHTS OF THE 3CHEDULED 4RIBES
ON THE ONE HAND AND THE ECOLOGICAL BALANCE AND THE ISSUE OF SUSTAINABLE DEVELOPMENT
ON THE OTHER 7E ARE ALSO NOT VERY CONDENT OF HOW STRONG A CHECK THE 'RAM 3ABHAS
WILL PROVIDE IF A CLAIM IS MADE BY THE 'OVERNMENT THAT FELLING OF TREES IS REQUIRED FOR
THE CONSTRUCTION OF CERTAIN FACILITIES
4HEREFORE WE ISSUE THE FOLLOWING DIRECTIONS
A )F CLAIMS ARE MADE FOR COMMUNITY RIGHTS OR RIGHTS TO FOREST LAND AND APPLICATIONS
ARE SUBMITTED AS PER 3ECTIONS AND OF THE !CT READ WITH 2ULES AND OF THE
2ULES THEN THE PROCESS OF VERICATION OF THE CLAIM AFTER INTIMATION TO THE CONCERNED
CLAIMANT SHALL GO ON BUT BEFORE THE CERTICATE OF TITLE IS ACTUALLY ISSUED ORDERS SHALL
BE OBTAINED FROM THIS COURT
B !S REGARDS FELLING OF TREES FOR PROVIDING DIVERSION OF FOREST LAND UNDER 3ECTION
OF THE !CT IS CONCERNED THE PROCESS SHALL GO ON TILL THE CLEARANCE OF SUCH DEVELOPMENT
PROJECTS AND ALSO THE 'RAM 3ABHAS RECOMMENDATION IS OBTAINED BUT BEFORE THE
ACTUAL FELLING OF TREES ORDERS SHALL BE OBTAINED FROM THIS #OURT
4HE MATTER STANDS ADJOURNED TO BE LISTED AFTER VACATION
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
3ALEM -AVATTA %ZHPULLI -ALAIVAZH
-AKKAL .ALA 3ANGAM VS 3TATE /F
4AMIL .ADU
72)4 !00%!, ./ /&
-!$2!3 ()'( #/524
3* -5+(/0!$(!9! !.$ + +)2"!+!2!. **
#)4!4)/. 3## /.,).% -!$
3 5--!29
4HE ISSUE IS WHETHER THE MEMBERS OF THE APPELLANT ASSOCIATION WHO ARE 3CHEDULED
4RIBES AND OTHER TRADITIONAL FOREST DWELLERS AND WHO OTHERWISE FULFILL THE REQUISITE
CONDITIONS HAVE THE FOREST RIGHTS AND RIGHT OF OCCUPATION IN THE FOREST LANDS IN
QUESTION 4HE WRIT PETITION WAS ORIGINALLY FILED IN CHALLENGING THE DECLARATION
AS A RESERVE FOREST UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT HEREAFTER
!CT OF LANDS IN WHICH THE PETITIONERS ARE FOREST DWELLERS 4HE WRIT PETITION
WAS DISMISSED BY THE 3INGLE *UDGE AND THE WRIT PETITIONER HAS FILED THE PRESENT
APPEAL 4HE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT &2! CAME INTO FORCE DURING THE PENDENCY OF THE WRIT
APPEAL
4HE COUNSEL APPEARING FOR THE APPELLANT
ASSOCIATION ARGUED THAT THE MEMBERS OF
THE ASSOCIATION BEING TRIBAL AND THEIR ANCESTORS BEING IN POSSESSION AND ENJOYMENT
OF THE LANDS IN QUESTION FROM TIME IMMEMORIAL THE 3TATE IS BOUND TO RECOGNIZE
THEIR RIGHTS BY ISSUING PATTAS IN THEIR FAVOUR 4HE APPELLANT ARGUED THAT NOT ONLY
HAVE THEIR RIGHTS NOT BEEN SETTLED IN ACCORDANCE WITH THE PROVISIONS OF !CT
THEY NOW ARE ELIGIBLE FOR RECOGNITION OF RIGHTS UNDER THE &2! AS WELL
!CCORDING TO THE RESPONDENTS NEITHER THE 3ANGAM ASSOCIATION NOR ITS MEMBERS
PRESENTED ANY CLAIM IN DURING THE SETTLEMENT PROCEEDING BEFORE THE &OREST
3ETTLEMENT /FFICER UNDER 3ECTION OF THE !CT WHICH INDICATES THAT THEY
WERE NOT CULTIVATING DURING THE YEAR 4HEIR REPRESENTATION TO THE GOVERNMENT
FOR ALLOTMENT OF THE LANDS WAS FILED ONLY DURING CLAIMING THAT THEY WERE
CULTIVATING LANDS FROM ONWARDS 4HE RESPONDENTS ALSO SUBMITTED THAT WHEN
ONCE THE OBJECTIONS UNDER 3ECTION D AND ENQUIRY MADE UNDER 3ECTION OF THE
!CT ARE COMPLETE AND ON THAT BASIS AN ORDER HAS BEEN PASSED UNDER 3ECTION
4 / \
THE AUTHORITY HAS NO JURISDICTION TO ENTERTAIN FURTHER OBJECTIONS UNDER 3ECTION D
NOR CAN IT MAKE ANY FURTHER ENQUIRY UNDER 3ECTION OR PASS A SECOND ORDER UNDER
3ECTION OF THE SAID !CT
& ) . $ ).' 3 /& 4( % #/52 4
4HE #OURT WAS OF THE VIEW THAT THE CLAIM OF THE MEMBERS OF THE APPELLANT
ASSOCIATION SHOULD BE RE
CONSIDERED AND THE IMPUGNED *UDGMENT IN 70 .O
WAS SET ASIDE )T HELD THAT IN SO FAR AS THE !CT IS CONCERNED THE MEMBERS OF THE
APPELLANT
ASSOCIATION STILL HAD A RIGHT TO CLAIM OCCUPANCY OWNERSHIP AND OTHER
RIGHTS IF THEY SATISFY THE &OREST 3ETTLEMENT /FFICER THAT THEY HAD SUFFICIENT CAUSE
FOR NOT PREFERRING SUCH CLAIM WITHIN THE PERIOD FIXED UNDER 3ECTION OF THE SAID
!CT AND SUCH A CLAIM CAN BE MADE UNDER 3ECTION OF THE !CT AFTER PUBLICATION OF
NOTIFICATION UNDER 3ECTION OF THE !CT DECLARING THE LANDS AS A 2ESERVE &OREST
&URTHER THEY NOW ARE ELIGIBLE UNDER &2! ALSO TO CLAIM FOREST RIGHTS
!CCORDINGLY THE #OURT REMITTED THE CASE TO THE RESPONDENTS TO RE CONSIDER THE CASE
OF THE MEMBERS OF THE APPELLANT ASSOCIATION IN TERMS OF THE PROVISIONS OF THE &2!
AND &2 2ULES AND AFTER DETERMINATION OF THEIR CLAIM IF SO REQUIRED )T IS NOTEWORTHY
THAT THE #OURT TOOK NOTE OF THE INTERIM ORDER DATED IN 70 OF
EXTRACTED ELSEWHERE IN THIS COMPENDIUM WHERE IT WAS DIRECTED THE RESPONDENTS
WILL OBTAIN PERMISSION OF THIS #OURT BEFORE ISSUANCE OF CERTIFICATE OF TITLE IN FAVOUR
OF ONE OR OTHER MEMBER OF THE APPELLANT ASSOCIATION
2EITERATING THE &2! THE #OURT HELD THAT THE MEMBERS OF THE APPELLANT ASSOCIATION
HAVE A RIGHT TO CONSIDERATION OF THEIR CASES FOR FOREST RIGHTS CONFERRED UNDER
3ECTION OF THE !CT !LSO TILL THE CLAIM IS FINALIZED THEY HAVE A RIGHT TO HOLD THE
LAND IN THEIR POSSESSION AND TILL SUCH DECISION IS GIVEN IN TERMS OF THE )NTERIM
/RDER DATED IN 70 THE CLAIM AS MADE BY MEMBERS OF THE
!SSOCIATION WERE REQUIRED TO BE VERIFIED IN TERMS OF THE &2! BUT FOR ISSUANCE OF
PATTA OR CERTIFICATE OF TITLE AN ORDER IS REQUIRED TO BE OBTAINED FROM THE #OURT
% $ ) 4 /23 . /4%
4HE PRESENT APPROACH IS IN HARMONY WITH NOT ONLY THE LETTER BUT ALSO THE SPIRIT
OF &2! AS ARTICULATED IN ITS 0REAMBLE )T IS ALSO NOTEWORTHY THAT THERE IS A MARKED
DIFFERENCE BETWEEN THE MANNER IN WHICH THE -ADRAS (IGH #OURT HAS DEALT WITH THE
PRESENT CASE AND OTHER (IGH #OURTS WHICH HAVE BEEN CONFRONTED WITH SIMILAR FACT
SITUATIONS
* 5 $ ' -% . 4
4HE JUDGMENT OF THE #OURT WAS DELIVERED BY 3* -UKHOPADHAYA *
4HE MEMBERS OF THE APPELLANT
3ALEM -AVATTA %ZHPULLI -ALAIVAZH -AKKAL .ALA 3ANGAM
WRIT PETITIONER FOR SHORT !SSOCIATION ARE ALL HILL TRIBES CULTIVATING THE WASTE DRY
'OVERNMENT PORAMBOKE LANDS FROM TIME IMMEMORIAL AND ARE IN POSSESSION AND
ENJOYMENT OF 3.O -ALAYALAPATTI 6ILLAGE !TTUR4ALUK 3ALEM $ISTRICT 4HEY SOUGHT
FOR A 7RIT OF -ANDAMUS TO FORBEAR THE RESPONDENTS FROM ISSUING DECLARATION UNDER
3ECTION OF THE 4AMIL .ADU &OREST !CT FOR THE LANDS IN 3.O OF THE AFORESAID
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
-ALAYALAPATTI 6ILLAGE WITHOUT CONSIDERING THE CLAIM OF THE MEMBERS OF THE APPELLANT
!SSOCIATION TOTALLY PERSONS WHOSE NAMES WERE GIVEN IN THE ANNEXURE TO THE 7RIT
0ETITION IN QUESTION AND TO GRANT PATTA TO THEM FOR AN EXTENT OF FOUR ACRES OF EACH OF THE
SAID LANDS IN THE SAID 3.O
4HE LEARNED SINGLE *UDGE TAKING INTO CONSIDERATION THE FACTS OF THE CASE MAINTENANCE OF
ECOLOGICAL BALANCE AND ENVIRONMENTAL PROTECTION REFERRING TO SOME OF THE DECISIONS OF
THE 3UPREME #OURT AND HAVING REFUSED TO GRANT THE RELIEF THE PRESENT 7RIT !PPEAL HAS
BEEN PREFERRED BY THE APPELLANT !SSOCIATION
4HE ONLY QUESTION TO BE DETERMINED IN THE PRESENT CASE IS AS TO WHETHER THE MEMBERS OF
THE APPELLANT
!SSOCIATION WHO ARE 3CHEDULED 4RIBES AND THOSE WHO ARE OTHER TRADITIONAL
FOREST DWELLERS WHO OTHERWISE FULLL THE REQUISITE CONDITIONS HAVE THE FOREST RIGHTS AND
RIGHT OF OCCUPATION IN THE FOREST LANDS IN QUESTION
)T APPEARS THAT THE LANDS IN QUESTION IE IN 3.O OF -ALAYALAPATTI 6ILLAGE WAS
PROPOSED FOR DECLARATION AS A RESERVE FOREST UNDER 3ECTION OF THE 4AMIL .ADU
&OREST !CT PUBLISHED ON THE 'AZETTE VIDE '/-S.O DATED ISSUED FROM
!GRICULTURAL $EPARTMENT FOLLOWED BY .OTICATION UNDER 3ECTION PUBLISHED IN THE
$ISTRICT 'AZETTE ON CALLING FOR CLAIMS ON RIGHT WHICH WAS EXISTING IN THE SAID
LANDS !CCORDING TO THE RESPONDENTS NEITHER THE 3ANGAM !SSOCIATION NOR ITS MEMBERS
DID PRESENT ANY CLAIM DURING BEFORE THE &OREST 3ETTLEMENT /FCER UNDER 3ECTION
OF THE 4AMIL .ADU &OREST !CT WHICH INDICATES THAT THEY WERE NOT CULTIVATING DURING THE
YEAR 4HEIR REPRESENTATION TO THE 'OVERNMENT FOR ALLOTMENT OF THE LANDS WAS LED
ONLY DURING CLAIMING THAT THEY WERE CULTIVATING LANDS FROM ONWARDS
4HE 4AHSILDAR !TTUR BY LETTER DATED FORWARDED THE CLAIM OF THE MEMBERS OF
THE APPELLANT !SSOCIATION TO THE $ISTRICT 2EVENUE /FCER 3ALEM WITH A REPORT3URVEY
.OTES AND OTHER ENCLOSURES )T WAS INFORMED THAT THE LANDS IN 3.O AN EXTENT OF
HECTARES IS MADE UP OF AT SURFACE AND HEIGHTEND LIKE A SMALL HILLOCK (UGE
THICK TREES ARE FOUND IN THE SMALL HILLOCK AND SOME BUSHES ARE FOUND IN THE FOOT OF THIS
SMALL HILLOCK PEOPLE WHOSE NAMES ARE FOUND IN THE !DANGAL HAVE REMOVED THESE
BUSHES AND HAVE CULTIVATED PUNJA CROPS AND IN SOME PLACES HAVE REMOVED THE BUSHES
AND HAVE LEVELLED THE LANDS /N ENQUIRY IT WAS LEARNT THAT SINCE THE BOUNDARIES OF THE
FOREST HAVE NOT BEEN DEMARCATED THOSE LANDS COULD NOT BE DEVELOPED ANY FURTHER )T WAS
FURTHER INFORMED THAT -ALAYALAPATTI 6ILLAGE IS SURROUNDED BY HILLOCKS ON THREE SIDES &OR
A VERY LONG PERIOD OF TIME IT IS THE !DIVASIS MALAYALIS IE THE 3CHEDULED 4RIBES WHO
ARE IN INHABITATION !LL TIME PASSED OTHER BACKWARD PEOPLE HAVE ALSO SETTLED THERE 4HE
LIST SHOWING THE LANDS WHICH WERE ALLOTTED FOR PUBLIC PURPOSE FOR THE -ALAYALAPATTI
6ILLAGE PEOPLE WAS ALSO ENCLOSED )T WAS FURTHER INFORMED THAT THE LANDS IN DISPUTE ARE
SITUATED KMS FROM -ALAYALAPATTI 6ILLAGE AND CANNOT BE USED FOR PUBLIC PURPOSE 4HERE
ARE NO -OSQUES 4EMPLES BURIAL GROUND ANCIENT SCULPTURES IN THE ABOVE SAID 3URVEY
.UMBER 4HERE ARE NO MINERAL DEPOSITS IN THE SAID 3.O AND THERE IS NO POSSIBILITY OF ANY
RIVER TO OW AND LAKES OR PONDS TO FORM FOR ANY SMALL WATER IRRIGATION 4HE LANDS ARE IN
THE NATURE OF RED SAND AND ARE FERTILE 4HE WATER SOURCE IS AVAILABLE APPROXIMATELY
TO )N THE MIDST OF THE SAME 3.O CULTIVATION IN 3.O CONSISTING OF AN EXTENT
OF ACRES WERE CLASSIED AS PATTA LANDS AND ARE ENJOYED BY FOUR PERSONS BY AN
EARLIER SETTLEMENT OF LANDS )N THE AFORESAID 3.O A 7ELL HAS BEEN DUG AND RICE CROPS ARE
BEING CULTIVATED 4HERE WAS NO OBJECTION IN THE VILLAGE FOR CONVERTING AND ALLOTTING THE
LANDS TO THE POOR SUCH AS LANDLESS POWER AND 3CHEDULED 4RIBES
4HE 2EVENUE $IVISIONAL /FCER 3ALEM IN HIS TURN BY LETTER DATED INFORMED THE
$ISTRICT 2EVENUE /FCER 3ALEM THE AFORESAID FACTS )T WAS ALSO INTIMATED THAT PURSUANT
TO '/.O DATED ISSUED FROM &OREST $EPARTMENT WITH REGARD TO
4 / \
THE ABOVESAID LANDS ACTION TO BE TAKEN ACCORDING TO THE &OREST "OUNDARY !SSESSMENT
!CT AND THE RECOMMENDATION WAS MADE TO SUB DIVIDE HECTARES IN 3.O
-ALAYALAPATTI 6ILLAGE AND TO HANDOVER THE SAME TO THE LANDLESS POOR PEOPLE
/N THE 2EVENUE $IVISIONAL /FCER 3ALEM VIDE HIS NOTE MENTIONED THAT PRIOR
TO 5$2 THE LANDS WERE CLASSIED AS 'OVERNMENT PORAMBOKE 4HE LAND VALUE WAS
2S AS WAS RECOMMENDED BY THE 4AHSILDAR AND THE LANDS HAD NOT BEEN OF ANY
USE FOR ALL THESE DAYS AND ONLY BUSHES WHICH ARE OF NO USE IS GROWN THERE !S THE FOREST
BOUNDARIES HAVE NOT BEEN DEMARCATED IT WAS RECOMMENDED TO TRANSFER THE LANDS
IN FAVOUR OF THE POOR 3IMILAR REPORT WAS SUBMITTED BY THE $ISTRICT 2EVENUE /FCER IN
BUT THE MATTER REMAINED PENDING
)T APPEARS THAT INSPITE OF FAVOURABLE REPORTS NO ACTION HAVING BEEN TAKEN BY THE 3TATE
THE APPELLANT
!SSOCIATION MOVED BEFORE THIS #OURT IN 70.O OF FOR ISSUANCE
OF A 7RIT OF -ANDAMUS TO CONSIDER THE CLAIM OF ITS MEMBERS FOR GRANT OF PATTA 4HIS
#OURT BY ORDER DATED DIRECTED THE $ISTRICT #OLLECTOR AND THE $ISTRICT 2EVENUE
/FCER TO INITIATE PROPER ENQUIRY AND COMMUNICATE THE DECISION TO THE APPELLANT
!SSOCIATION WITHIN THREE MONTHS ! DETAILED ENQUIRY WAS CONDUCTED BY THE 4AHSILDAR
AND BY PROCEEDINGS DATED A FAVOURABLE REPORT WAS SUBMITTED IN FAVOUR OF THE
MEMBERS OF THE APPELLANT
!SSOCIATION AND RECOMMENDED FOR GRANT OF PATTA IN THEIR
FAVOUR
4HE &OREST 3ETTLEMENT /FCER !TTUR BY ORDER DATED HAVING NOTICED THE FACT
THAT THE .OTICATION UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT WAS PUBLISHED
LONG AGO FOLLOWED BY THE 'AZETTE PUBLICATION ON AND THE $ISTRICT 'AZETTE
PUBLICATION ON AND THAT THE .OTICATION UNDER 3ECTION OF THE 4AMIL .ADU
&OREST !CT WAS ALSO PUBLISHED IN THE $ISTRICT 'AZETTE ON
AND AGAIN ON SUBMITTED HIS REPORT UNDER 3ECTION OF THE 4AMIL .ADU &OREST
!CT
4HE $ISTRICT #OLLECTOR 3ALEM BY PROCEEDINGS DATED FORWARDED HIS REMARKS
TO THE 3ECRETARY TO 'OVERNMENT %NVIRONMENT AND &OREST $EPARTMENT 3ECRETARIAT
#HENNAI TO THE EFFECT THAT SINCE THE 'OVERNMENT HAS ALREADY ISSUED THE .OTICATIONS
UNDER 3ECTIONS AND OF THE 4AMIL .ADU &OREST !CT PROPOSING THE DECLARATION AND
DECLARING THE AREA OF HECTARES INCLUDING THE IMPUGNED LANDS NAMELY IN
3.O -ALAYALAPATTI 6ILLAGE !TTUR4ALUK 3ALEM $ISTRICT AS RESERVE FOREST IT IS FOR
THE 'OVERNMENT TO CALL FOR THE OBJECTIONS FROM THE ENCROACHERS AND TO TAKE APPROPRIATE
DECISION
3IMILARLY THE 0RINCIPAL #HIEF #ONSERVATOR OF &ORESTS #HENNAI IN HIS PROCEEDINGS
DATED ADDRESSED TO THE 3ECRETARY TO 'OVERNMENT %NVIRONMENT AND &ORESTS
$EPARTMENT 3ECRETARIAT #HENNAI WHILE REFERRING TO '/-S.O DATED
ISSUED FROM !GRICULTURAL $EPARTMENT PROPOSING TO DECLARE THE LANDS IN QUESTION AS A
RESERVE FOREST EXPRESSED HIS OPINION THAT THERE IS NO PROVISION UNDER THE 4AMIL .ADU
&OREST !CT TO CALL FOR A FRESH APPLICATION IN THE MATTER AND SINCE THE .OTICATION
HAS ALREADY BEEN ISSUED UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT IT IS TO
CULMINATE INTO THE .OTICATION UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT AND
HENCE THE QUESTION OF RECEIVING FRESH APPLICATION NOW FROM THE ENCROACHERS DOES NOT
ARISE
,EARNED COUNSEL APPEARING ON BEHALF OF THE 3TATE SUBMITTED THAT WHEN ONCE THE
OBJECTIONS WERE RECEIVED UNDER 3ECTION D OF THE 4AMIL .ADU &OREST !CT AND ENQUIRY
MADE UNDER 3ECTION AND ON THAT BASIS AN ORDER WAS PASSED UNDER 3ECTION THE
AUTHORITY HAS NO JURISDICTION TO ENTERTAIN FURTHER OBJECTIONS UNDER 3ECTION D NOR CAN
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
MAKE ANY FURTHER ENQUIRY UNDER 3ECTION NOR CAN PASS A SECOND ORDER UNDER 3ECTION
OF THE 4AMIL .ADU &OREST !CT
0ER CONTRA ACCORDING TO THE LEARNED COUNSEL APPEARING FOR THE APPELLANT !SSOCIATION
THE MEMBERS OF ITS !SSOCIATION BEING 4RIBAL AND THEY AND THEIR ANCESTORS BEING IN
POSSESSION AND ENJOYMENT OF THE LANDS IN QUESTION FROM TIME IMMEMORIAL THE 3TATE
IS BOUND TO RECOGNISE THEIR RIGHT BY ISSUING PATTA IN THEIR FAVOUR
4HE IMPUGNED ORDER WAS DELIVERED BY THE LEARNED SINGLE *UDGE ON AGAINST
WHICH THE PRESENT 7RIT !PPEAL IS PREFERRED AND IS PENDING $URING THE PENDENCY OF THIS
7RIT !PPEAL A #ENTRAL !CT WAS PROMULGATED NAMELY 4HE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT ,EARNED COUNSEL
FOR THE APPELLANT
!SSOCIATION WHILE RELYING ON THE RELEVANT PROVISIONS OF THE SAID !CT
AND THE 2ULES FRAMED THEREUNDER ALSO REFERRED TO 3ECTIONS AND OF THE 4AMIL
.ADU &OREST !CT
7E HAVE HEARD THE LEARNED COUNSEL APPEARING FOR THE PARTIES AND NOTICED THE RIVAL
CONTENTIONS
4HE -ADRAS &OREST !CT OF NOW KNOWN AS 4AMIL .ADU &OREST !CT WAS
PROMULGATED WITH THE OBJECT TO PROVIDE FOR THE CONSTITUTION OF MORE IMPORTANT FORESTS
AS 3TATE 2ESERVES AND TO GIVE POWERS FOR THE CONSERVANCY OF FOREST LANDS NOT INCLUDED
IN THE 2ESERVE &ORESTS 7HILE 3ECTION OF THE 4AMIL .ADU &OREST !CT EMPOWERS THE
'OVERNMENT TO ISSUE .OTICATION OF PROPOSAL TO CONSTITUTE ANY LAND A 2ESERVED &OREST
UNDER #LAUSE C OF 3ECTION THE 3TATE 'OVERNMENT IS EMPOWERED TO APPOINT AN OFCER
&OREST 3ETTLEMENT /FCER TO ENQUIRE INTO AND DETERMINE THE EXISTENCE NATURE AND
EXTENT OF ANY RIGHTS CLAIMED BY OR ALLEGED TO EXIST IN FAVOUR OF ANY PERSON OR OVER ANY
LAND COMPRISED WITHIN SUCH LIMITS OR TO ANY FOREST PRODUCE OF SUCH LAND AND TO DEAL
WITH THE SAME AS PROVIDED UNDER #HAPTER
)) OF THE 4AMIL .ADU &OREST !CT 7HEN
A .OTICATION IS ISSUED UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT THE &OREST
3ETTLEMENT /FCER IS EMPOWERED TO ISSUE PROCLAMATION UNDER 3ECTION OF THE 4AMIL
.ADU &OREST !CT SPECIFYING THE SITUATION AND LIMITS OF THE LAND PROPOSED TO BE
INCLUDED IN THE RESERVED FORESTS 5NDER #LAUSE D OF 3ECTION THE &OREST 3ETTLEMENT
/FCER IS SUPPOSED TO X A PERIOD NOT LESS THAN THREE MONTHS FROM THE DATE OF PUBLICATION
OF SUCH PROCLAMATION REQUIRING EVERY PERSON CLAIMING ANY RIGHT REFERRED TO IN 3ECTION
EITHER TO PRESENT TO SUCH /FCER WITHIN SUCH PERIOD A WRITTEN NOTICE SPECIFYING OR TO
APPEAR BEFORE HIM WITHIN SUCH PERIOD AND STATE THE NATURE OF SUCH RIGHT AND IN EITHER
CASE TO PRODUCE ALL DOCUMENTS IN SUPPORT THEREOF !FTER SERVING OF NOTICE TO THE SAME
EFFECT OF EVERY KNOWN OR REPUTED OWNER OR OCCUPIER OF ANY LAND IN OR ADJOINING THE LAND
PROPOSED TO BE CONSTITUTED A RESERVED FOREST THE &OREST 3ETTLEMENT /FCER IS TO MAKE
ENQUIRY UNDER 3ECTION INTO ALL CLAIMS MADE UNDER 3ECTION RECORDING THE EVIDENCE IN
THE MANNER PRESCRIBED BY THE #ODE OF #IVIL 0ROCEDURE #ODE IN APPEALABLE CASES !T THE
SAME TIME THE &OREST 3ETTLEMENT /FCER IS TO CONSIDER AND RECORD ANY OBJECTION WHICH
THE &OREST /FCER IF ANY APPOINTED UNDER 3ECTION MAY MAKE TO ANY SUCH CLAIM
!FTER SUCH ENQUIRY THE &OREST 3ETTLEMENT /FCER SHALL PASS AN ORDER UNDER 3ECTION
SPECIFYING THE PARTICULARS OF SUCH CLAIM AND ADMIT OR REJECT THE SAME WHOLLY OR IN PART
WITH REGARD TO A RIGHT OF WAY B A RIGHT TO A WATER COURSE OR TO USE OF WATER C A RIGHT
OF PASTURE OR D A RIGHT TO FOREST PRODUCE 7ITH REGARD TO THE ADMITTED CLAIM THE &OREST
/FCER MAY COME TO THE AGREEMENT WITH THE CLAIMANT FOR THE SURRENDER OF THE RIGHT OR
EXCLUDE THE LAND FROM THE LIMITS OF THE CLOSED FORESTS OR MAY PROCEED TO ACQUIRE SUCH
LAND IN THE MANNER PROVIDED BY THE ,AND !CQUISITION !CT ,AND !CQUISITION !CT
OF (OWEVER WITH REGARD TO THE REJECTED CLAIMS THERE IS A PROVISION FOR APPEAL
PROVIDED UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT WITHIN A REASONABLE PERIOD
&INALLY UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT .OTICATION IS REQUIRED
4 / \
TO BE ISSUED DECLARING THE &OREST 2ESERVED AFTER THE PERIOD XED UNDER 3ECTION FOR
PREFERRING THE CLAIMS HAS ELAPSED AND ALL CLAIMS IF ANY MADE WITHIN SUCH PERIOD HAVE
BEEN DISPOSED OF BY THE &OREST 3ETTLEMENT /FCER AND IN CASE SUCH CLAIMS HAVE BEEN
MADE AND DETERMINED THE APPEALS PRESENTED AND DISPOSED OF BY THE APPELLATE AUTHORITY
5NDER 3ECTION C OF THE 4AMIL .ADU &OREST !CT ALL PROCEEDINGS PRESCRIBED BY
3ECTION HAVE BEEN TAKEN AND ALL LANDS IF ANY TO BE INCLUDED IN THE PROPOSED FOREST
WHICH THE &OREST 3ETTLEMENT /FCER HAS UNDER 3ECTION ELECTED TO ACQUIRE UNDER
THE ,AND !CQUISITION !CT AND ON SUCH ISSUANCE OF .OTICATION UNDER 3ECTION
THE LANDS STAND VESTED IN THE 'OVERNMENT 5NDER 3ECTION OF THE 4AMIL .ADU &OREST
!CT RIGHTS IN RESPECT OF WHICH NO CLAIM HAS BEEN PREFERRED UNDER 3ECTION SHALL
THEREAFTER BE EXTINGUISHED UNLESS BEFORE PUBLICATION OF SUCH .OTICATION THE PERSON
CLAIMING THEM HAS SATISED THE &OREST 3ETTLEMENT /FCER THAT HE HAD SUFCIENT CAUSE
FOR NOT PREFERRING SUCH CLAIM WITHIN THE PERIOD XED UNDER 3ECTION IN WHICH CASE THE
&OREST 3ETTLEMENT /FCER SHALL PROCEED TO DISPOSE OF THE CLAIM IN THE MANNER PROVIDED
UNDER THE 4AMIL .ADU &OREST !CT
&ROM THE AFORESAID PROVISIONS OF THE 4AMIL .ADU &OREST !CT IT WOULD BE EVIDENT
THAT APART FROM THE CLAIM OF RIGHT OF OCCUPATION AND OWNERSHIP WHICH CAN BE MADE
UNDER 3ECTION AND DETERMINED UNDER 3ECTION EVEN AFTER VESTING OF THE LAND ON
ISSUANCE OF THE .OTICATION UNDER 3ECTION THE &OREST 3ETTLEMENT /FCER IF ON THE
CLAIM OF SUCH RIGHT IS SATISED THAT THE CLAIMANT HAD SUFCIENT CAUSE FOR NOT PREFERRING
SUCH CLAIM WITHIN THE PERIOD XED UNDER 3ECTION CAN PREFER OBJECTION UNDER 3ECTION
AND IN SUCH A CASE THE &OREST 3ETTLEMENT /FCER SHALL PROCEED TO DISPOSE OF THE CLAIM
IN THE MANNER PROVIDED UNDER THE 4AMIL .ADU &OREST !CT
)N THE PRESENT CASE IT HAS NOT BEEN BROUGHT TO THE NOTICE OF THE #OURT AS TO WHAT WAS
THE TIME PRESCRIBED UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT BUT FROM THE
RECORDS IT APPEARS THAT SUCH A PROCLAMATION UNDER 3ECTION WAS ISSUED ON
AND IT IS INFORMED THAT THE THREE MONTHS PERIOD WAS PRESCRIBED FOR SUBMITTING THE
CLAIM OF RIGHTS AND IT IS ALSO INFORMED THAT CLAIMS WERE RECEIVED OF WHICH MANY
CLAIMS WERE REJECTED IN 4HE RIGHT TO CLAIM WATER COURSE ETC UNDER 3ECTION
ALSO LAPSED ON (OWEVER IT IS ADMITTED THAT TILL DATE NO .OTICATION HAS BEEN
ISSUED UNDER 3ECTION DECLARING THE LANDS IN QUESTION AS &OREST 2ESERVE AND THUS
IT CANNOT BE ARGUED THAT THE RIGHT TO CLAIM OCCUPANCY AND OWNERSHIP OR OTHER RIGHTS
EXTINGUISHED UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT
4HE LEARNED SINGLE *UDGE HAS FAILED TO NOTICE THE AFORESAID PROVISIONS OF LAW AND THUS
WE HOLD THAT THE MEMBERS OF THE APPELLANT
!SSOCIATION STILL HAVE A RIGHT TO CLAIM
OCCUPANCY OWNERSHIP AND OTHER RIGHTS IF THEY SATISFY THE &OREST 3ETTLEMENT /FCER
THAT THEY HAD SUFCIENT CAUSE FOR NOT PREFERRING SUCH CLAIM WITHIN THE PERIOD XED
UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT AND SUCH A CLAIM CAN BE MADE UNDER
3ECTION OF THE 4AMIL .ADU &OREST !CT AFTER PUBLICATION OF THE .OTICATION UNDER
3ECTION OF THE 4AMIL .ADU &OREST !CT DECLARING THE LANDS AS A 2ESERVE &OREST
4HE LEARNED SINGLE *UDGE HAS REFERRED TO THE DECISION OF THE 3UPREME #OURT IN THE CASE
OF -#-EHTA VS +AMAL .ATH AND OTHERS REPORTED IN 3## IN MAINTAINING
THE ECOLOGY IN THE CONTEXT OF DOCTRINE OF PUBLIC TRUST WHEREIN THE 3UPREME #OURT
HELD AS FOLLOWS 4HE NOTION THAT THE PUBLIC HAS A RIGHT TO EXPECT CERTAIN LANDS AND
NATURAL AREAS TO RETAIN THEIR NATURAL CHARACTERISTIC IS NDING ITS WAY INTO THE LAW OF
THE LAND 4HE ANCIENT 2OMAN %MPIRE DEVELOPED A LEGAL THEORY KNOWN AS THE $OCTRINE
OF THE 0UBLIC 4RUST 4HE 0UBLIC 4RUST $OCTRINE PRIMARILY RESTS ON THE PRINCIPLE THAT
CERTAIN RESOURCES LIKE AIR SEA WATERS AND THE FORESTS HAVE SUCH A GREAT IMPORTANCE
TO THE PEOPLE AS A WHOLE THAT IT WOULD BE WHOLLY UNJUSTIED TO MAKE THEM A SUBJECT
OF PRIVATE OWNERSHIP 4HE SAID RESOURCES BEING A GIFT OF NATURE THEY SHOULD BE MADE
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
FREELY AVAILABLE TO EVERYONE IRRESPECTIVE OF THE STATUS IN LIFE 4HE DOCTRINE ENJOINS
UPON THE 'OVERNMENT TO PROTECT THE RESOURCES FOR THE ENJOYMENT OF THE GENERAL PUBLIC
RATHER THAN TO PERMIT THEIR USE FOR PRIVATE OWNERSHIP OR COMMERCIAL PURPOSES 4HOUGH
THE PUBLIC TRUST DOCTRINE UNDER THE %NGLISH COMMON LAW EXTENDED ONLY TO CERTAIN
TRADITIONAL USES SUCH AS NAVIGATION COMMERCE AND SHING THE !MERICAN #OURTS IN
RECENT CASES EXPANDED THE CONCEPT OF THE PUBLIC TRUST DOCTRINE 4HE OBSERVATIONS OF
THE 3UPREME #OURT OF #ALIFORNIA IN -ONO ,AKE CASE CLEARLY SHOW THE JUDICIAL CONCERN
IN PROTECTING ALL ECOLOGICALLY IMPORTANT LANDS FOR EXAMPLE FRESH WATER WETLANDS OR
RIPARIAN FORESTS 4HE OBSERVATIONS THEREIN TO THE EFFECT THAT THE PROTECTION OF ECOLOGICAL
VALUES IS AMONG THE PURPOSES OF PUBLIC TRUST MAY GIVE RISE TO AN ARGUMENT THAT THE
ECOLOGY AND THE ENVIRONMENT PROTECTION IS A RELEVANT FACTOR TO DETERMINE WHICH LANDS
WATERS OR AIRS ARE PROTECTED BY THE PUBLIC TRUST DOCTRINE 4HE #OURTS IN 5NITED 3TATES ARE
NALLY BEGINNING TO ADOPT THIS REASONING AND ARE EXPANDING THE PUBLIC TRUST DOCTRINE
SHOULD NOT BE EXPANDED TO INCLUDE ALL ECOSYSTEMS OPERATING IN OUR NATURAL RESOURCES
/UR LEGAL SYSTEM
BASED ON %NGLISH #OMMON LAW
INCLUDES THE PUBLIC TRUST DOCTRINE AS
PART OF ITS JURISPRUDENCE 4HE 3TATE IS THE TRUSTEE OF ALL NATURAL RESOURCES WHICH ARE BY
NATURE MEANT FOR PUBLIC USE AND ENJOYMENT 0UBLIC AT LARGE IS THE BENECIARY OF THE SEA
SHORE RUNNING WATERS AIRS FORESTS AND ECOLOGICALLY FRAGILE LANDS 4HE 3TATE AS A TRUSTEE
IS UNDER A LEGAL DUTY TO PROTECT THE NATURAL RESOURCES 4HESE RESOURCES MEANT FOR PUBLIC
USE CANNOT BE CONVERTED INTO PRIVATE OWNERSHIP 4HUS THE 0UBLIC 4RUST DOCTRINE IS A
PART OF THE LAW OF THE LAND
,EARNED SINGLE *UDGE HAS ALSO PLACED RELIANCE ON THE DECISION OF THE 3UPREME #OURT
REGARDING MAINTENANCE OF ECOLOGY BALANCE AND ENVIRONMENTAL PROTECTION IN THE CASE
OF 4. 'ODAVARMAN 4HIRUMALPAD VS 5NION OF )NDIA AND OTHERS REPORTED IN
3## WHEREIN THE 3UPREME #OURT OBSERVED AS FOLLOWS
%NVIRONMENTAL LAW IS AN INSTRUMENT TO PROTECT AND IMPROVE THE ENVIRONMENT
AND TO CONTROL OR PREVENT ANY ACT OR OMISSION POLLUTING OR LIKELY TO POLLUTE THE
ENVIRONMENT )N VIEW OF THE ENORMOUS CHALLENGES THROWN BY THE INDUSTRIAL
REVOLUTION THE LEGISLATURES THROUGHOUT THE WORLD ARE BUSY IN THIS EXERCISE -ANY
HAVE ENACTED LAWS LONG BACK AND THEY ARE BUSY IN REMODELLING THE ENVIRONMENTAL
LAW 4HE OTHERS HAVE MOVED THEIR LAW
MAKING MACHINERIES IN THIS DIRECTION EXCEPT
THE UNDERDEVELOPED 3TATES WHO HAVE YET TO COME IN THIS WAVELENGTH )NDIA WAS ONE
OF THOSE FEW COUNTRIES WHICH PAID ATTENTION RIGHT FROM THE ANCIENT TIMES DOWN TO
THE PRESENT AGE AND TILL DATE THE TAILORING OF THE EXISTING LAW TO SUIT THE CHANGING
CONDITIONS IS GOING ON 4HE PROBLEM OF LAW
MAKING AND AMENDING IS A DIFCULT
TASK IN THIS AREA 4HERE ARE A VARIETY OF COLOURS OF THIS PROBLEM &OR EXAMPLE THE
INDUSTRIAL REVOLUTION AND THE EVOLUTION OF CERTAIN CULTURAL AND MORAL VALUES OF
HUMANITY AND THE RURAL AND URBAN AREA DEVELOPMENTS IN AGRICULTURAL TECHNOLOGY
WASTE BARREN OR INDUSTRIAL BELTS DEVELOPED DEVELOPING AND UNDERDEVELOPED PARTS
OF THE LANDS THE RICH AND POOR )NDIANS THE POPULATION EXPLOSION AND THE INDUSTRIAL
IMPLOSION THE PEOPLE S INCREASING AWARENESS AND THE DECREASING 3TATE EXCHEQUER
THE PROMISES IN THE POLITICAL MANIFESTOS AND THE 3TATE S DEVELOPMENT ACTION )N THIS
WHOLE GAMUT OF PROBLEMS THE 4IWARI #OMMITTEE CAME OUT WITH THE DATA THAT WE
HAVE IN )NDIA NEARLY VE HUNDRED ENVIRONMENTAL LAWS AND THE #OMMITTEE POINTED
OUT THAT NO SYSTEMATIC STUDY HAD BEEN UNDERTAKEN TO EVALUATE THOSE LEGISLATIVE
DEVELOPMENTS 3OME LEGAL CONTROLS AND TECHNIQUES HAVE BEEN ADOPTED BY THE
LEGISLATURES IN THE ELD OF )NDIAN ENVIRONMENTAL LAWS $IFFERENT LEGISLATIVE CONTROLS
RIGHT FROM THE ANCIENT TIMES DOWN TO THE MODERN PERIOD MAKE INTERESTING READING
!TTENTION HAS TO BE PAID TO IDENTIFY THE AREAS OF GREAT CONCERN TO THE LEGISLATURE
THE TECHNIQUES ADOPTED TO SOLVE THOSE PROBLEMS THE POLLUTANTS WHICH REQUIRE
CONTINUOUS EXERCISES THE ROLE OF THE LEGISLATURE AND PEOPLE S PARTICIPATION OUTSIDE
4HESE ARE SOME OF MANY AREAS WHICH ATTRACT THE ATTENTION IN THE STUDY OF HISTORY OF
THE )NDIAN ENVIRONMENTAL LAW
4 / \
3INCE TIME IMMEMORIAL NATURAL OBJECTS LIKE RIVERS ENJOYED A HIGH POSITION IN
THE LIFE OF THE SOCIETY 4HEY WERE CONSIDERED AS GODDESSES HAVING NOT ONLY PURIFYING
CAPACITY BUT ALSO SELF PURIFYING ABILITY &OULING OF THE WATER OF A RIVER WAS CONSIDERED
A SIN AND IT ATTRACTED PUNISHMENTS OF DIFFERENT GRADES WHICH INCLUDED PENANCE
OUTCASTING NE ETC 4HE EARTH OR SOIL ALSO EQUALLY HAD THE SAME IMPORTANCE AND
THE ANCIENT LITERATURE PROVIDED THE MEANS TO PURIFY THE POLLUTED SOIL 4HE ABOVE ARE
SOME OF THE MANY ILLUSTRATIONS TO SUPPORT THE VIEW THAT ENVIRONMENTAL POLLUTION
WAS CONTROLLED RIGIDLY IN THE ANCIENT TIMES )T WAS NOT AN AFFAIR LIMITED TO AN
INDIVIDUAL OR INDIVIDUALS BUT THE SOCIETY AS A WHOLE ACCEPTED ITS DUTY TO PROTECT THE
ENVIRONMENT 4HE DHARMA OF ENVIRONMENT WAS TO SUSTAIN AND ENSURE PROGRESS
AND WELFARE OF ALL 4HE INNER URGE OF THE INDIVIDUALS TO FOLLOW THE SET NORMS OF
THE SOCIETY MOTIVATED THEM TO ALLOW THE NATURAL OBJECTS TO REMAIN IN THE NATURAL
STATE !PART FROM THIS MOTIVATION THERE WAS THE FEAR OF PUNISHMENT 4HERE WERE
EFFORTS NOT JUST TO PUNISH THE CULPRIT BUT TO BALANCE THE ECOSYSTEMS 4HE NOTEWORTHY
DEVELOPMENT IN THIS PERIOD WAS THAT EACH INDIVIDUAL KNEW HIS DUTY TO PROTECT THE
ENVIRONMENT AND HE TRIED TO ACT ACCORDINGLY 4HOSE ASPECTS HAVE BEEN HIGHLIGHTED
BY A LEARNED AUTHOR #-*ARIWALA IN HIS ARTICLE #HANGING $IMENSIONS OF THE )NDIAN
%NVIRONMENTAL ,AW IN THE BOOK ,AW AND %NVIRONMENT BY 0 ,EELAKRISHNAN
4HE %CONOMIC AND 3PECIAL #OUNCIL OF THE 5NITED .ATIONS PASSED A RESOLUTION ON
ON THE QUESTION OF CONVENING AN INTERNATIONAL CONFERENCE ON PROBLEMS OF
HUMAN ENVIRONMENT )N THE 5NITED .ATIONS #ONFERENCE ON (UMAN %NVIRONMENT AT
3TOCKHOLM FROM
TO
PROCLAMATION WAS MADE ON 5NITED .ATIONS
ON (UMAN %NVIRONMENT )T WAS STATED IN THE PROCLAMATION IN THESE PROFOUND
WORDS -AN IS BOTH CREATURE AND MOULDER OF HIS ENVIRONMENT WHICH GIVES HIM
PHYSICAL SUSTENANCE AND AFFORDS HIM THE OPPORTUNITY FOR INTELLECTUAL MORAL SOCIAL
AND SPIRITUAL GROWTH )N THE LONG AND TORTUOUS EVOLUTION OF THE HUMAN RACE ON THIS
PLANET A STAGE HAS BEEN REACHED WHEN THROUGH THE RAPID ACCELERATION OF SCIENCE AND
TECHNOLOGY MAN HAS ACQUIRED THE POWER TO TRANSFORM HIS ENVIRONMENT IN COUNTLESS
WAYS AND ON AN UNPRECEDENTED SCALE "OTH ASPECTS OF MANS ENVIRONMENT THE
NATURAL AND THE MAN
MADE ARE ESSENTIAL TO HIS WELL
BEING AND TO THE ENJOYMENT OF
BASIC HUMAN RIGHTS EVEN THE RIGHT TO LIFE ITSELF 4HE PROTECTION AND IMPROVEMENT OF
THE HUMAN ENVIRONMENT IS A MAJOR ISSUE WHICH AFFECTS THE WELL
BEING OF PEOPLE AND
ECONOMIC DEVELOPMENT THROUGHOUT THE WORLD IT IS THE URGENT DESIRE OF THE PEOPLES
OF THE WHOLE WORLD AND THE DUTY OF ALL 'OVERNMENTS
7HEN THE NECESSITY TO PROMOTE THE ENVIRONMENT TURNED GRAVE DOUBT WAS
EXPRESSED BY SOME COMMENTATORS WHETHER THE ISSUE OF THE ENVIRONMENT WOULD
LAST 4HEY HAVE BEEN PROVED WRONG SINCE IT IS CLEARLY ONE OF THE BIG ISSUES PERHAPS
THE BIGGEST ISSUE OF THE S )T IS A BIG ISSUE IN POLITICAL TERMS SINCE PROTECTION
OF THE ENVIRONMENT IS HIGH ON MOST PEOPLE S PRIORITIES FOR THE S !S A RESULT
POLITICAL PARTIES AND 'OVERNMENTS ARE FALLING OVER EACH OTHER IN THEIR EAGERNESS
TO APPEAR GREEN EVEN IF AS YET THEIR ACTIONS RARELY MATCH THEIR RHETORIC )T IS BIG
IN TERMS OF THE SIZE OF THE PROBLEM FACED AND THE SOLUTIONS REQUIRED GLOBAL
WARMING THE DESTRUCTION OF THE OZONE LAYER ACID RAIN DEFORESTATION OVERPOPULATION
AND TOXIC WASTE ARE ALL GLOBAL ISSUES WHICH REQUIRE AN APPROPRIATE GLOBAL
RESPONSE )T IS BIG IN TERMS OF THE RANGE OF PROBLEMS AND ISSUES
AIR POLLUTION WATER
POLLUTION NOISE POLLUTION WASTE DISPOSAL RADIOACTIVITY PESTICIDES COUNTRYSIDE
PROTECTION CONSERVATION OF WILDLIFE
THE LIST IS VIRTUALLY ENDLESS !S OBSERVED BY
3IMON "ELL AND 3TUART "ELL IN %NVIRONMENTAL ,AW )N THE WORDS OF THE 7HITE
0APER ON THE %NVIRONMENT 4HIS #OMMON )NHERITANCE CM THE ISSUES
RANGE FROM THE STREET CORNER TO THE STRATOSPHERE &INALLY IT IS BIG IN TERMS OF THE
KNOWLEDGE AND SKILLS REQUIRED TO UNDERSTAND A PARTICULAR ISSUE ,AW IS ONLY
ONE ELEMENT IN WHAT IS A MAJOR CROSS
DISCIPLINARY TOPIC ,AWYERS NEED SOME
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
UNDERSTANDING OF THE SCIENTIC POLITICAL AND ECONOMIC PROCESSES INVOLVED IN
ENVIRONMENTAL DEGRADATION %QUALLY ALL THOSE WHOSE ACTIVITIES AND INTERESTS RELATE TO
THE ENVIRONMENT NEED TO ACQUIRE AN UNDERSTANDING OF THE STRUCTURE AND CONTENT OF
ENVIRONMENTAL LAW SINCE IT HAS A LARGE AND INCREASING ROLE TO PLAY IN ENVIRONMENTAL
PROTECTION
)T HAS NOT BEEN MADE CLEAR AS TO HOW THE AFORESAID OBSERVATIONS MADE BY THE
3UPREME #OURT WILL AFFECT THE RIGHT OF THE 3CHEDULED 4RIBES WHO CAN CLAIM THEIR
RIGHT OF OCCUPANCY AND OWNERSHIP INCLUDING THE RIGHT OF WAY RIGHT OF WATER COURSE
OR USE OF WATER RIGHT OF PASTURE OR RIGHT OF FOREST PRODUCE AS PRESCRIBED UNDER
3ECTION C READ WITH 3ECTION D AND DETERMINED UNDER 3ECTION OF THE 4AMIL
.ADU &OREST !CT
)N )NDIA ONE CANNOT THINK OF A 3CHEDULED 4RIBE WITHOUT A FOREST )N !RABIAN
COUNTRIES THERE ARE 4RIBES IN THE DESERTS )N )NDIA THE 4RIBES MOSTLY LIVE IN FORESTS
AND DEPENDS ON THE FOREST LANDS FOR BONA
DE LIVELIHOOD NEEDS !PART FROM THE
FOREST DWELLING 3CHEDULED 4RIBES THERE ARE OTHER TRADITIONAL FOREST DWELLERS WHO ARE
ALSO DEPENDING ON THE FOREST ITS PRODUCE AND THE FOREST LANDS 4HEY DO NOT DISTURB
THE CONSERVANCY OR BIO
DIVERSITY OR ECOLOGICAL BALANCE )N FACT THE FOREST DWELLING
3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS WHO ARE DEPENDING ON FOREST
PRODUCE AND THE FOREST CONSERVE BIO
DIVERSITY AND MAINTAIN THE ECOLOGICAL BALANCE
BY CONSERVING THE FOREST 4HEY DO NOT ALLOW OTHERS TO DESTROY THE FOREST )T IS FOR
THE SAID REASON EVEN UNDER THE 4AMIL .ADU &OREST !CT THE CLAIM OF RIGHTS OF
OCCUPANCY AND OWNERSHIP EVEN IN THE RESERVE FOREST WAS RECOGNISED AND IS STILL
CONTINUING
4HE !CT NAMELY 4HE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT WAS ENACTED AND PUBLISHED IN THE 'AZETTE
OF )NDIA ON TO RECOGNISE AND VEST THE FOREST RIGHTS AND OCCUPATION IN
FOREST LAND IN FOREST DWELLING 3CHEDULED 4RIBES 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 )T WAS ALSO MADE FOR STRENGTHENING THE CONSERVATION REGIME OF THE
FORESTS WHILE ENSURING LIVELIHOOD AND FOOD SECURITY OF THE FOREST DWELLING 3CHEDULED
4RIBES AND OTHER TRADITIONAL FOREST DWELLERS )T WAS ALSO NOTICED THAT THE FOREST
RIGHTS ON ANCESTRAL LANDS AND THEIR HABITAT WERE NOT ADEQUATELY RECOGNISED IN THE
CONSOLIDATION OF 3TATE FORESTS DURING THE COLONIAL PERIOD AS WELL AS IN INDEPENDENT
)NDIA RESULTING IN HISTORICAL INJUSTICE TO THE FOREST DWELLING 3CHEDULED 4RIBES
AND OTHER TRADITIONAL FOREST DWELLERS WHO ARE INTEGRAL TO THE VERY SURVIVAL AND
SUSTAINABILITY OF THE FOREST ECOSYSTEM 4HESE WILL BE EVIDENT FROM THE OBJECTS OF
THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT FOR SHORT THE !CT 3ECTION C OF THE !CT DENES THE
FOREST DWELLING 3CHEDULED 4RIBES AS UNDER
3ECTION C FOREST DWELLING 3CHEDULED 4RIBES MEANS THE MEMBERS OR
COMMUNITY OF THE 3CHEDULED 4RIBES WHO PRIMARILY RESIDE IN AND WHO DEPEND
ON THE FOREST OR FOREST LANDS FOR BONA DE LIVELIHOOD NEEDS AND INCLUDES THE
3CHEDULED 4RIBES PASTORALIST COMMUNITIES
3ECTION O DENES OTHER TRADITIONAL FOREST DWELLER AS QUOTED HEREUNDER
3ECTION O OTHER TRADITIONAL FOREST DWELLER MEANS ANY MEMBER OR COMMUNITY
WHO HAS FOR AT LEAST THREE GENERATIONS PRIOR TO THE TH DAY OF $ECEMBER
PRIMARILY RESIDED IN AND WHO DEPEND ON THE FOREST OR FORESTS LAND FOR BONA DE
LIVELIHOOD NEEDS
4 / \
&OREST LAND MEANS LAND OF ANY DESCRIPTION FALLING WITHIN ANY FOREST AREA AND
INCLUDES UNCLASSIED FORESTS UNDEMARCATED FORESTS EXISTING OR DEEMED FORESTS
PROTECTED FORESTS RESERVED FORESTS 3ANCTUARIES AND .ATIONAL 0ARKS AS EVIDENT
FROM 3ECTION D OF THE !CT 4HE &OREST 2IGHTS HAVE BEEN DEALT WITH UNDER
#HAPTER )) OF THE !CT AND RELEVANT PORTION OF THE SAME IS QUOTED HEREUNDER
3ECTION &OR THE PURPOSES OF THIS !CT THE FOLLOWING RIGHTS WHICH SECURE
INDIVIDUAL OR COMMUNITY TENURE OR BOTH SHALL BE THE FOREST RIGHTS OF FOREST
DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS ON ALL FOREST
LANDS NAMELY
G RIGHTS FOR CONVERSION OF 0ATTAS OR LEASES OR GRANTS ISSUED BY ANY LOCAL AUTHORITY
OR ANY 3TATE 'OVERNMENT 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 NOTIED 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 3TATE LAW OR LAWS OF ANY !UTONOMOUS
$ISTRICT #OUNCIL OR !UTONOMOUS 2EGIONAL #OUNCIL OR WHICH ARE ACCEPTED AS RIGHTS
OF TRIBALS UNDER ANY TRADITIONAL OR CUSTOMARY LAW OF THE CONCERNED TRIBES OF ANY
3TATE 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
3CHEDULED 4RIBES OR OTHER TRADITIONAL FOREST DWELLERS AS THE CASE MAY BE WHICH
ARE NOT MENTIONED IN CLAUSES 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
3CHEDULED 4RIBES 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 TH DAY OF $ECEMBER
)T WOULD BE EVIDENT THAT THE FOREST DWELLERS 3CHEDULED 4RIBES AND OTHER TRADITIONAL
FOREST DWELLERS HAVE RIGHT OF CONVERSION OF PATTAS OR LEASES OR GRANTS ISSUED BY ANY
LOCAL AUTHORITY OR ANY 3TATE 'OVERNMENT ON THE FOREST LANDS TO TITLES 2ECOGNITION
RESTORATION AND VESTING OF FOREST RIGHTS IN FOREST DWELLING 3CHEDULED 4RIBES AND OTHER
TRADITIONAL FOREST DWELLERS HAVE BEEN PROVIDED UNDER #HAPTER ))) OF THE !CT
RELEVANT PORTION OF WHICH ARE DISCUSSED HEREUNDER 5NDER 3ECTION WHILE SUCH
RECOGNITION AND VESTING OF FOREST RIGHTS UNDER THE !CT SHALL BE SUBJECT TO THE
CONDITION THAT SUCH 3CHEDULED 4RIBES OR TRIBAL COMMUNITIES OR OTHER TRADITIONAL FOREST
DWELLERS HAD OCCUPIED FOREST LAND BEFORE UNDER 3ECTION A RIGHT CONFERRED
BY 3ECTION 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 5NDER 3ECTION
NO MEMBER OF A FOREST DWELLING 3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST DWELLER
SHALL BE EVICTED OR REMOVED FROM FOREST LAND UNDER HIS OCCUPATION TILL THE RECOGNITION
AND VERICATION PROCEDURE IS COMPLETE #HAPTER )6 OF THE !CT PRESCRIBES THE
AUTHORITIES AND PROCEDURES FOR VESTING OF FOREST RIGHTS
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5NDER 3ECTION THE 'RAM 3ABHA IS AUTHORISED 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 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
!GAINST THE DECISION OF THE 'RAM 3ABHA ANY PERSON AGGRIEVED HAS A RIGHT TO PREFER A
PETITION UNDER 3ECTION TO THE 3UB
$IVISIONAL ,EVEL #OMMITTEE CONSTITUTED UNDER
3ECTION
4HERE IS A PROVISION FOR FURTHER PETITION UNDER 3ECTION BEFORE THE $ISTRICT ,EVEL
#OMMITTEE AGAINST THE DECISION OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE
5NDER 3ECTION THE 3TATE 'OVERNMENT IS EMPOWERED TO CONSTITUTE A $ISTRICT ,EVEL
#OMMITTEE WHOSE DECISION REGARDING THE FOREST RIGHT IS NAL UNDER 3ECTION
4HE 2ULES NAMELY THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS 2ULES FOR SHORT THE 2ULES HAVE BEEN
FRAMED UNDER 3ECTION OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT AND PUBLISHED IN THE 'AZETTE OF
)NDIA %XTRAORDINARY 0ART
)) DATED )T HAS COME INTO EFFECT AND IN THE SAID 2ULES
PROVISION HAS BEEN MADE AS TO HOW 'RAM 3ABHA SHALL BE CONVENED BY THE 'RAM
0ANCHAYAT AS EVIDENT FROM 2ULE THE FUNCTIONS OF THE 'RAM 3ABHA IS PRESCRIBED UNDER
2ULE WHICH INCLUDES INITIATING THE PROCESS OF DETERMINING THE NATURE AND EXTENT OF
FOREST RIGHTS RECEIVE AND HEAR THE CLAIMS THERETO PREPARATION OF LIST OF CLAIMANTS OF
FOREST RIGHTS AND MAINTAIN A REGISTER CONTAINING SUCH DETAILS OF CLAIMANTS AND THEIR
CLAIMS AS THE #ENTRAL 'OVERNMENT MAY BY ORDER DETERMINE ETC 3UB
$IVISIONAL ,EVEL
#OMMITTEE HAS TO BE CONSTITUTED BY THE 3TATE 'OVERNMENT IN TERMS OF 2ULE OF THE
2ULES AND THE SAID 3UB
$IVISIONAL ,EVEL #OMMITTEE IS REQUIRED TO FUNCTION AND
DETERMINE IN THE MANNER PRESCRIBED UNDER 2ULE 4HE 3TATE 'OVERNMENT IS ALSO
REQUIRED TO CONSTITUTE A $ISTRICT ,EVEL #OMMITTEE IN TERMS OF 2ULE WHICH IS REQUIRED
TO FUNCTION IN TERMS OF 2ULE
4HERE IS A 3TATE ,EVEL -ONITORING #OMMITTEE TO BE CONSTITUTED BY THE 3TATE 'OVERNMENT
IN TERMS OF 2ULE WHICH IS REQUIRED TO FUNCTION AND DEVISE THE CRITERIA AND INDICATORS FOR
MONITORING THE PROCESS OF RECOGNITION AND VESTING OF FOREST RIGHTS ETC IN THE MANNER
PRESCRIBED UNDER 2ULE 4HE PROCESS OF VERIFYING CLAIMS BY &OREST 2IGHTS #OMMITTEE
AND THE EVIDENCE FOR DETERMINATION OF FOREST RIGHTS HAVE ALSO BEEN PRESCRIBED UNDER
2ULES AND OF THE 2ULES RESPECTIVELY
&ORM ! IS ENCLOSED WITH THE SAID 2ULES IN TERMS OF 2ULE OF THE 2ULES
WHEREIN THE DETAILS OF THE CLAIMANTS HIS NAME SPOUSE NAME ETC ARE TO BE REECTED
AND THE EXTENT OF THE RIGHT CLAIMED ON THE LAND IS ALSO TO BE REECTED THEREIN
4HE FOREST RIGHT OVER THE LANDS HAS BEEN CASUALLY REFERRED TO AS TITLE FOR THE PURPOSES
OF !CT AND 2ULES AND THE 4AMIL .ADU &OREST !CT BUT LIKE TITLE UNDER
THE GENERAL LAW IT IS NOT ALIENABLE OR TRANSFERABLE THOUGH IT IS HERITABLE BY DESCENDANTS
)N VIEW OF THE AFORESAID !CT AND THE 2ULES FRAMED THEREUNDER IF ONE OR
OTHER MEMBER OF THE APPELLANT
!SSOCIATION CAN SHOW THAT HE OR SHE IS A FOREST DWELLING
3CHEDULED 4RIBE OR ANY OTHER TRADITIONAL FOREST DWELLER PRIMARILY RESIDING AND IS
DEPENDING ON THE FOREST OR FOREST LANDS FOR BONA
DE LIVELIHOOD NEEDS CAN BRING SUCH
EVIDENCE ON RECORD THEY HAVE A RIGHT TO CONSIDER THEIR CASE OF VESTING OF THE FOREST
RIGHTS AS PROVIDED UNDER 3ECTION OF THE !CT AND CANNOT BE EVICTED FROM THE
LANDS TILL SUCH RIGHTS ARE DETERMINED
)T HAS BEEN BROUGHT TO OUR NOTICE THAT THE !CT HAS BEEN CHALLENGED BEFORE THIS
4 / \
#OURT IN THE CASE OF 63AMBASIVAM VS 'OVT OF )NDIA -INISTRY OF 4RIBAL !FFAIRS REP BY
ITS 3ECRETARY 3HASTRI"HAVAN .EW $ELHI AND OTHERS IN 7RIT 0ETITION .O
OF AND IN THE SAID CASE WHILE CHALLENGING THE SAID !CT -0.O OF
WAS ALSO LED FOR GRANT OF ORDER OF INTERIM INJUNCTION RESTRAINING THE RESPONDENTS
THEREIN FROM GIVING EFFECT TO THE SAID !CT PENDING DISPOSAL OF THE ABOVE SAID
7RIT 0ETITION ! $IVISION "ENCH OF THIS #OURT BY ITS UNREPORTED ORDER DATED IN
-0.O OF IN 70.O OF WHILE NOTICING THE RELEVANT PROVISIONS OF THE
!CT REFUSED TO GRANT INTERIM INJUNCTION AS SOUGHT FOR BUT ISSUED THE FOLLOWING
DIRECTIONS BY WAY OF INTERIM ORDER
4HEREFORE WE ISSUE THE FOLLOWING DIRECTIONS
A )F CLAIMS ARE MADE FOR COMMUNITY RIGHTS OR RIGHTS TO FOREST LAND AND
APPLICATIONS ARE SUBMITTED AS PER 3ECTIONS AND OF THE !CT READ WITH 2ULES
AND OF THE 2ULES THEN THE PROCESS OF VERICATION OF THE CLAIM AFTER INTIMATION
TO THE CONCERNED CLAIMANT SHALL GO ON BUT BEFORE THE CERTICATE OF TITLE IS ACTUALLY
ISSUED ORDERS SHALL BE OBTAINED FROM THIS #OURT B !S REGARDS FELLING OF TRESS FOR
PROVIDING DIVERSION OF FOREST LAND UNDER 3ECTION OF THE !CT IS CONCERNED THE
PROCESS SHALL GO ON TILL THE CLEARANCE OF SUCH DEVELOPMENT PROJECTS AND ALSO THE
'RAM 3ABHAS RECOMMENDATION IS OBTAINED BUT BEFORE THE ACTUAL FELLING OF TRESS
ORDERS SHALL BE OBTAINED FROM THIS #OURT
4HEREFORE IT WILL BE ALSO EVIDENT THAT UNDER THE !CT THE MEMBERS OF THE APPELLANT
!SSOCIATION HAVE A RIGHT FOR CONSIDERATION OF THEIR CASES FOR FOREST RIGHTS CONFERRED
UNDER 3ECTION OF THE !CT AND TILL THE CLAIM IS NALISED THEY HAVE A RIGHT TO HOLD
THE LAND IN THEIR POSSESSION AND TILL SUCH A DECISION IS GIVEN IN TERMS OF THE SAID INTERIM
ORDER OF THIS #OURT THE CLAIM AS MADE BY THE MEMBERS OF THE APPELLANT !SSOCIATION IS
REQUIRED TO BE VERIED IN TERMS OF THE !CT BUT FOR ISSUANCE OF PATTA OR CERTICATE
OF TITLE ORDER IS REQUIRED TO BE OBTAINED FROM THIS #OURT IN VIEW OF THE INTERIM ORDER
AFORESAID PASSED IN -0.O OF IN 70.O OF DATED
7E HAVE ALREADY HELD THAT THE MEMBERS OF THE APPELLANT
!SSOCIATION HAVE A RIGHT
TO MAKE THEIR CLAIM UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT AFTER THE
NOTICATION UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT IS ISSUED SUBJECT TO
THE CONDITIONS THAT IF THEY SATISFY THE REASONS FOR NOT LING THE CLAIM WITHIN THE TIME
PRESCRIBED UNDER 3ECTION OF THE 4AMIL .ADU &OREST !CT
)N VIEW OF THE AFORESAID PROVISIONS OF LAW AS REFERRED TO ABOVE WE ARE OF THE VIEW THAT
THE CLAIM OF THE MEMBERS OF THE APPELLANT !SSOCIATION SHOULD BE RE CONSIDERED AND THE
IMPUGNED ORDER PASSED BY THE LEARNED SINGLE *UDGE CANNOT COME IN THEIR WAY TO DEFEAT
THEIR CLAIM 7E ACCORDINGLY SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED SINGLE
*UDGE IN 70.O OF DATED AND REMIT THE CASE TO THE RESPONDENTS
TO RE CONSIDER THE CASE OF THE MEMBERS OF THE APPELLANT !SSOCIATION IN TERMS OF THE
PROVISIONS OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT READ WITH 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS 2ULES AND AFTER DETERMINATION OF THEIR
CLAIM IF SO REQUIRED THE RESPONDENTS WILL OBTAIN PERMISSION OF THIS #OURT BEFORE ISSUANCE
OF CERTICATE OF TITLE IN FAVOUR OF ONE OR OTHER MEMBER OF THE APPELLANT !SSOCIATION IN
VIEW OF INTERIM ORDER AS NOTICED AND QUOTED ABOVE
4HE 7RIT !PPEAL IS ALLOWED WITH THE AFORESAID OBSERVATIONS AND DIRECTIONS .O COSTS
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
)N $EFENCE OF %NVIRONMENT AND
!NIMALS VS 4HE 0RINCIPAL #HIEF
#ONSERVATOR OF &ORESTS /RS ETC
70./3 /& !.$ !.$ /&
-!$2!3 ()'( #/524
).4%2)- /2$%2
#/2!- 3* -5+(/0!$(!9! !.$ - $52!)37!-9 **
3 5--!29
7RIT 0ETITION .O OF WAS FILED BY AN ELEPHANT RIGHTS ACTIVIST -R %LEPHANT
' 2AJENDRAN SEEKING DIRECTIONS TO THE RESPONDENT 3TATE GOVERNMENT TO DECLARE AND
MAINTAIN AN ELEPHANT CORRIDOR AND KEEP THE SAME FREE OF ENCROACHMENTS AND OTHER
DISTURBANCES 4OWARDS THIS END THE #OURT HAD PASSED INTERIM ORDERS PREVIOUSLY
DIRECTING REMOVAL OF ENCROACHMENTS AND SUBMISSION OF STATUS REPORTS
3UBSEQUENTLY TWO WRIT PETITIONS WERE FILED BEFORE THE #OURT ON BEHALF OF FOREST
DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS WHO ARE RESIDING
IN THE FOREST OF THE $ISTRICT OF .ILGIRIS BEING 70 .OS AND OF 4HE
PETITIONERS IN THESE WRIT PETITIONS ASSERTED THAT THEY ARE ELIGIBLE FOR RECOGNITION
AND VESTING OF RIGHTS UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! 4HESE PETITIONS WERE HEARD
TOGETHER TO ENSURE THAT NO CONFLICTING ORDERS ARE PASSED
4HE #OURT ALSO MODIFIED ITS INTERIM ORDERS WITH RESPECT TO THE FOREST DWELLERS
CLAIMING PROTECTION UNDER THE &2! DIRECTING THE AUTHORITIES CONCERNED NOT TO EVICT
SUCH FOREST DWELLERS WHOSE CLAIMS ARE PENDING AND WHO MAY HAVE SOME RIGHT UNDER
THE SAID !CT )N ADDITION THE 3TATE ,EVEL -ONITORING #OMMITTEE CONSTITUTED UNDER
THE &2! WAS DIRECTED TO LOOK INTO THE MATTER AND SUBMIT ITS REPORT "Y FURTHER ORDERS
THE #OURT DIRECTED THAT WITH REGARD TO THOSE TRIBALS AND FOREST DWELLERS WHO HAVE
BEEN IDENTIFIED AS OCCUPYING THE ELEPHANT CORRIDOR STATUS QUO SHALL BE MAINTAINED
ALLOWING THE 3TATE GOVERNMENT TO PROCEED WITH THE PROCESS OF DETERMINATION OF
RIGHTS
7HILE -R 2AJENDRAN CONTINUED TO ARGUE THAT THE FOREST DWELLERS IN OCCUPATION OF
LANDS WITHIN THE ELEPHANT CORRIDOR SHOULD BE EVICTED THE 3TATE GOVERNMENT AGREED
WITH THE FOREST DWELLERS SUBMISSION THAT THEY CANNOT BE DISPOSSESSED FROM THE
4 / \
CORRIDOR
4HE PRESENT INTERIM ORDER REITERATED SEVERAL OF THESE ORDERS PASSED PREVIOUSLY AND
FURTHER ISSUED SEVERAL DIRECTIONS WITH REGARD TO THE SOLAR FENCES ERECTED WITHIN THE
ELEPHANT CORRIDOR AND THEIR TIME
BOUND REMOVAL 7HILE OBSERVING THAT THE 3TATE
GOVERNMENT MUST FOLLOW THE NECESSARY PROCEDURE AS PROVIDED UNDER THE &2! BEFORE
COMMENCING THE PROCESS OF ACQUISITION OF LAND AND RIGHTS OF THE FOREST DWELLERS THE
#OURT STATED
WE FURTHER MAKE IT CLEAR THAT THE ABOVE ORDER TO REMOVE THE UNAUTHORISED SOLAR
FENCING WILL EQUALLY BE APPLICABLE TO THE TRIBALS AND OTHER TRADITIONAL FOREST
DWELLERS PARA
4HE MATTER WAS ADJOURNED FOR FURTHER PROCEEDINGS %VENTUALLY THE SAID CASES WERE
DISPOSED OF BY A COMMON JUDGMENT AND ORDER DT
% $ ) 4 /23 . /4%
)N TERMS OF THE DOCTRINE OF MERGER THE PRESENT INTERIM ORDER ALONG WITH ALL THE OTHER
INTERIM ORDERS PASSED IN THE PRESENT CASE HAVE MERGED WITH THE FINAL JUDGMENT
AND ORDER DT IN THIS CASE (OWEVER IT IS INTERESTING TO NOTE HOW VIGOROUSLY
THE RIGHTS OF THE FOREST DWELLERS WERE DEFENDED BY COUNSEL AT EVERY STAGE AND THE
EXTENT TO WHICH THE #OURT ENSURED THAT EVERY DIRECTION MADE BY IT WAS MODIFIED IN
ITS OPERATION TO THE RIGHT HOLDERS UNDER THE &2!
/2$%2
4HE /RDER OF THE #OURT WAS MADE 3* -UKHOPADHAYA *
!S ALL THE CASES RELATE TO THE FOREST OF THE $ISTRICT OF .ILGIRIS AND AS IN 7RIT 0ETITION
.O OF PRAYER HAS BEEN MADE TO DIRECT THE RESPONDENTS TO KEEP THE CORRIDOR OF
THE ANIMAL %LEPHANT #ORRIDOR WITHOUT ANY ENCROACHMENT AND ANY OTHER DISTURBANCES
AND TWO OTHER 7RIT 0ETITIONS IN 70.OS AND OF RELATE TO THE RIGHTS OF THE
TRIBALS AND TRADITIONAL FOREST DWELLERS WHO ARE RESIDING IN THE FOREST OF THE $ISTRICT OF
.ILGIRIS THEY WERE HEARD TOGETHER TO ENSURE THAT NO CONICT ORDERS ARE PASSED
/N IN 70.O OF THIS #OURT NOTICED THAT THE 3TATE 'OVERNMENT
HAS TAKEN SOME STEPS AND LETTER DATED WAS ADDRESSED BY THE 0RINCIPAL #HIEF
#ONSERVATOR OF &ORESTS AND #HIEF 7ILDLIFE 7ARDEN TO THE 3ECRETARY TO 'OVERNMENT
%NVIRONMENT AND &ORESTS $EPARTMENT #HENNAI GIVING SUGGESTIONS WITH REGARD TO THE
%LEPHANT #ORRIDOR 4HE 3TATE 'OVERNMENT WAS DIRECTED TO SEND A COMPLETE PROPOSAL TO
THE #ENTRAL 'OVERNMENT WITH REGARD TO THE FUNDS WHICH ARE REQUIRED FOR ACQUISITION OF
LAND FOR DEVELOPMENT OF THE %LEPHANT #ORRIDOR /N THE BASIS OF THIS PROPOSAL THE #ENTRAL
'OVERNMENT WAS DIRECTED TO COMMUNICATE ITS RESPONSE TO THE 3TATE 'OVERNMENT AND TO
LE AN AFDAVIT TO THAT EFFECT BEFORE THIS #OURT
/N IN 70.O OF THIS #OURT DIRECTED THE $ISTRICT #OLLECTOR .ILGIRIS
TO LE STATUS REPORT SHOWING THE STEPS TAKEN TO REMOVE ALL THE ENCROACHMENTS FROM THE
4HE JUDGMENT DT IS EXTRACTED ELSEWHERE IN THE PRESENT COMPENDIUM
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
2EVENUE LANDS WHICH HAVE BEEN IDENTIED FOR DEVELOPMENT OF THE %LEPHANT #ORRIDOR
PURSUANT TO THE #OURTS ORDER DATED
!T THAT STAGE 70.OS AND OF WERE PREFERRED BY THE 3CHEDULED 4RIBES AND
OTHER TRADITIONAL FOREST DWELLERS CLAIMING THAT THEY ARE RESIDING IN THE 2EVENUE LANDS
FOR MORE THAN TO YEARS AND HAD RIGHT TO OCCUPY THE LANDS UNDER THE PROVISIONS OF
THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT )N VIEW OF THE STAND TAKEN BY THEM THIS #OURT BY ORDER DATED
MODIED THE EARLIER ORDERS DATED AND PASSED IN 70.O OF
AND DIRECTED THE AUTHORITIES CONCERNED NOT TO EVICT THE 3CHEDULED 4RIBES AND OTHER
TRADITIONAL FOREST DWELLERS AND OTHERS WHOSE CLAIMS ARE PENDING AND MAY HAVE SOME
RIGHT UNDER THE PROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT 4HE 3TATE ,EVEL -ONITORING #OMMITTEE WHICH
WAS CONSTITUTED BY THE 3TATE UNDER THE PROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT VIDE '/-S.O
!DI $RAVIDAR AND 4RIBAL 7ELFARE 4$ $EPARTMENT DATED WAS DIRECTED TO LOOK
INTO THE MATTER AND SUBMIT ITS REPORT TO THE 3TATE 'OVERNMENT AND ALSO TO LE A COPY TO
THIS #OURT
/N THIS #OURT ORDERED TO MAIN STATUS QUO WITH RESPECT TO THE TRIBALS AND FOREST
DWELLERS WHO HAVE BEEN IDENTIED AS OCCUPYING THE %LEPHANT #ORRIDOR AND ALLOWED THE
3TATE 'OVERNMENT TO PROCEED WITH THE IDENTICATION OF THE TRIBALS AND FOREST DWELLERS
UNDER THE PROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT #ENTRAL !CT OF UNTIL THE MATTER IS FURTHER
HEARD
/N THE #OLLECTOR OF .ILGIRIS $ISTRICT ALONG WITH THE $ISTRICT &OREST /FCER
.ORTH /OTY APPEARED TO ASSIST THIS #OURT )T WAS INFORMED THAT THE &OREST $EPARTMENT
HAS AN IDEA WITH REGARD TO THE %LEPHANT #ORRIDOR IN THE $ISTRICT IN QUESTION 4HE
#OLLECTOR FURTHER INFORMED THAT TO ALLOW THE ELEPHANTS TO PASS THROUGH THE #ORRIDOR THE
UNAUTHORISED OCCUPANTS ARE TO BE EVICTED (OWEVER IT WAS ADMITTED THAT THOSE WHO
ARE TRIBALS AND TRADITIONAL FOREST DWELLERS AND ARE PROTECTED UNDER THE PROVISIONS OF THE
3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT THEIR RIGHTS WILL BE PROTECTED AND THEY WILL NOT BE EVICTED FROM THE #ORRIDOR )T
WAS ALSO INFORMED THAT CERTAIN PORTIONS OF THE LAND WHICH BELONG TO PRIVATE INDIVIDUAL
MAY HAVE TO BE ACQUIRED BY THE 3TATE 'OVERNMENT TO ENSURE THAT THE #ORRIDOR IS FREE
FROM ANY OUTSIDERS EXCEPT THE TRIBALS OR OTHER FOREST DWELLERS 4HE #OURT ON
ON HEARING THE PARTIES OBSERVED AS FOLLOWS
!FTER HEARING THE PARTIES PRIMA FACIE IT APPEARS THAT THE FOLLOWING PROCEDURE
MAY REQUIRED TO BE FOLLOWED
I &OREST DEPARTMENT WHICH HAS THE KNOWLEDGE OF MOVEMENT OF ELEPHANTS IN
THE CORRIDOR MAY IDENTIFY AND INFORM THE SAME
II THE 3TATE 'OVERNMENT MAY PUBLISH THE INFORMATION REGARDING THE ELEPHANT
CORRIDOR AND THE AREA IN LEADING NEWSPAPERS AND ALSO BY DRUM BEATINGTOM TOM
CALLING FOR OBJECTIONS OF LOCALS IF ANY IN THE AREA IN QUESTION
III AFTER HEARING THE LOCALS PARTICULARLY THOSE WHO MAY BE AFFECTED THEY MAY
NALISE THE ELEPHANT CORRIDOR FROM WHICH UNAUTHORISED OCCUPANTS ARE TO BE
EVICTED
IV TO ENSURE THAT SCHEDULED TRIBES AND OTHER FOREST TRADITIONAL DWELLERS ARE NOT
AFFECTED IT IS REQUIRED TO IDENTIFY THE OTHER TRADITIONAL FOREST DWELLERS IN TERMS
WITH THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
4 / \
&OREST 4RIBES 2ULES AND
V ONLY AFTER THE RECOMMENDATION AND RECORDING THEIR NAMES IN THE APPROPRIATE
REGISTER THEY MAY PROCEED WITH EVICTION BY GIVING NOTICE IN THE NEWSPAPER
BY DRUM BEATINGTOM TOM AND BY GIVING INDIVIDUAL NOTICE TO THE UNAUTHORISED
OCCUPANTS
3O FAR AS THE ACQUISITION OF THE LAND IS CONCERNED IF ANY PRIVATE LAND IS REQUIRED
TO BE ACQUIRED THEY WILL HAVE TO FOLLOW THE PROCEDURE UNDER THE ,AND !CQUISITION
!CT 0RIMA FACIE AS THE TRIBALS AND OTHER FOREST DWELLERS CANNOT BE EVICTED FROM THE
UNAUTHORISED LANDS THEIR LANDS NEED NOT REQUIRED TO BE ACQUIRED IF IT IS A FOREST
LAND ,EARNED COUNSEL FOR THE PARTIES ARE REQUESTED TO GIVE FURTHER SUGGESTION IN
THE MATTER IN THE INTEREST OF PUBLIC AND ELEPHANTS
)T APPEARS THAT THERE HAS BEEN A DISPUTE WITH REGARD TO THE %LEPHANT #ORRIDOR )T WAS
INFORMED BY THE $ISTRICT #OLLECTOR .ILGIRIS THAT HE HAD VERIED THE MATTER AND PREPARED
A MAP FOR THE %LEPHANT #ORRIDOR 4HIS WAS OPPOSED BY THE COUNSEL APPEARING ON BEHALF OF
THE 3CHEDULED 4RIBES AND TRADITIONAL FOREST DWELLERS !CCORDING TO THEM IT IS THE &OREST
$EPARTMENT WHICH IS EMPOWERED TO POINT OUT THE %LEPHANT #ORRIDOR TO THE 3TATE
/N THE 0RINCIPAL 3ECRETARY OF THE %NVIRONMENT AND &OREST $EPARTMENT THE
0RINCIPAL #HIEF #ONSERVATOR OF &OREST AND #HIEF 7ILDLIFE 7ARDEN THE 0RINCIPAL #HIEF
#ONSERVATOR AND (EAD OF THE &OREST $EPARTMENT AND THE $ISTRICT &OREST /FCER .ILGIRIS
.ORTHERN $IVISION APPEARED IN PERSON TO ASSIST THE #OURT 4HE MATTER WAS DISCUSSED AND
IT WAS AGREED UPON BY THE OFCIALS THAT A TEAM OF EXPERTS OF THE %NVIRONMENT AND &ORESTS
$EPARTMENT MAY BE CONSTITUTED WHICH MAY INCLUDE THE 0RINCIPAL #HIEF #ONSERVATOR OF
&OREST AND OTHERS 4HE SAID #OMMITTEE WILL SUGGEST THE %LEPHANT #ORRIDOR AND SUBMIT A
REPORT AFTER TAKING INTO CONSIDERATION THE DIFFERENT BOOKS PUBLISHED WITH REGARD TO THE
%LEPHANT #ORRIDOR NAMELY
A %COLOGY OF THE !SIAN %LEPHANT
B 4HE !SIAN %LEPHANT IN 3OUTHERN )NDIA
C ! BRIEF DOCUMENTATION OF %LEPHANT #ORRIDORS IN 3OUTH )NDIA
D !CQUISITION4RANSFER OF SENSITIVE AREAS FOR RESTORINGMAINTAINING THE SANCTITY OF
THE -OYAR 6ALLEY %LEPHANT #ORRIDER AND %VALUATION OF THE STATUS AND
E ,AND USE PATTERN AND (ABITAT 5TILIZATION OF %LEPHANTS IN #ORRIDORS BETWEEN
7ESTERN 'HATS AND %ASTERN 'HATS THROUGH -UDUMALAI 7ILDLIFE 3ANCTUARY AND
.ATIONAL 0ARK AND .ILGIRIS 4AMIL .ADU AND THEY WERE ASKED TO GIVE REFERENCE OF
PAGE NUMBERS OF THE BOOKS IN THE SAID REPORT
4HE CASE WAS AGAIN TAKEN UP ON WHEN THE %XPERT #OMMITTEE SUBMITTED ITS REPORT
ALONG WITH THE ELD STAFF REPORTS 4HOUGH CERTAIN MAPS HAVE BEEN ENCLOSED SHOWING THE
%LEPHANT #ORRIDOR NO DEMARCATION OF THE %LEPHANT #ORRIDOR HAS BEEN SHOWN THEREIN 4HE
3ECRETARY OF THE %NVIRONMENT AND &OREST $EPARTMENT THE 0RINCIPAL #HIEF #ONSERVATOR
OF &ORESTS AND #HIEF 7ILDLIFE 7ARDEN #HENNAI #HAIRMAN OF THE %XPERT #OMMITTEE THE
#ONSERVATOR OF &ORESTS /OTY AND THE $ISTRICT &OREST /FCER .ILGIRIS .ORTH $IVISION /OTY
WHO WERE PRESENT IN THE #OURT SUBMITTED THAT A DETAILED MAP WILL BE PRODUCED ON THE
NEXT DATE SHOWING THE BOUNDARIES OF THE %LEPHANT #ORRIDOR AS SUGGESTED BY THE %XPERT
#OMMITTEE AND IN THE SAID MAP THE DETAILS OF THE 3URVEY .UMBERS OF THE PRIVATE LANDS
WHICH MAY FALL WITHIN THE %LEPHANT #ORRIDOR WERE ALSO DIRECTED TO BE GIVEN 4HE #OURT
ACCORDINGLY ALLOWED THE %XPERT #OMMITTEE TO LE SUCH MAP SHOWING THE BOUNDARIES
OF THE %LEPHANT #ORRIDOR 4HE 3ECRETARY OF THE %NVIRONMENT AND &OREST $EPARTMENT IN
THE MEANTIME WAS DIRECTED TO PLACE A COPY OF THE REPORT BEFORE THE 3TATE 'OVERNMENT
ALONG WITH THE MAP WHICH WILL BE PREPARED AND PRODUCED ON THE NEXT DATE 4HE 3TATE
'OVERNMENT WAS ALSO DIRECTED TO STATE AS TO WHETHER THEY INTEND TO ACCEPT THE REPORT IN
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
ITS TOTALITY OR WITH MODICATION /N THE FOLLOWING INTERIM ORDER WAS PASSED
$URING THE PENDENCY OF THE 7RIT 0ETITIONS THE RESPONDENTS WILL ENSURE THAT NO
ILLEGAL CONSTRUCTION IS MADE IN THE AREA SHOWN AS %LEPHANT #ORRIDOR IN THE REPORT
OF THE %XPERT #OMMITTEE &URTHER THEY SHOULD NOT ALLOW ANY NEW CONSTRUCTION IN
THE AREA WITHOUT PRIOR INTIMATION TO THE #OURT
.O PERSON SHOULD BE ALLOWED TO PUT A FRESH SOLARELECTRICAL FENCING WITHIN THE
AREA AS PROPOSED TO BE %LEPHANT #ORRIDOR BY THE %XPERT #OMMITTEE
3O FAR AS THE EXISTING SOLARELECTRICAL FENCING IS CONCERNED THE #OURT WILL HEAR AND
PASS APPROPRIATE ORDERS ON THE NEXT DATE
/N LEARNED COUNSEL FOR THE SIXTH RESPONDENT 4HE (OSPITALITY !SSOCIATION OF
-UDUMALAI IN 70.O OF INTERVENOR IN THE SAID 7RIT 0ETITION SUBMITTED
THAT THERE ARE RESORTS LEGALLY CONSTRUCTED AFTER PERMISSION ON THE PRIVATE FOREST AREA )T
IS NOT CLEAR AS TO WHETHER THEY WILL FALL WITHIN THE %LEPHANT #ORRIDOR ON THE BASIS OF THE
REPORT OF THE %XPERT #OMMITTEE OF THE 3TATE !CCORDING TO HIM THE #ENTRAL 'OVERNMENT
HAS ALREADY ISSUED CERTAIN DIRECTIONS WITH REGARD TO %LEPHANT #ORRIDORS OF )NDIA
AND HAVE PREPARED A MAP SHOWING THE PROPOSED %LEPHANT #ORRIDOR )T WAS SUGGESTED
THAT THE SAID PROPOSAL OF THE %LEPHANT #ORRIDOR PREPARED BY THE #ENTRAL 'OVERNMENT
SHOULD BE ACCEPTED 4HIS WAS OPPOSED BY THE LEARNED COUNSEL APPEARING FOR THE 3TATE
AND ACCORDING TO HIM IT IS THE 3TATE 'OVERNMENT WHICH CAN DECIDE AS TO WHAT IS THE
%LEPHANT #ORRIDOR WITHIN THEIR TERRITORY ,EARNED COUNSEL APPEARING ON BEHALF OF THE
#ENTRAL 'OVERNMENT SUBMITTED THAT IT IS THE 3TATE 'OVERNMENT WHICH IS TO DECIDE THE
%LEPHANT #ORRIDOR 4AKING INTO CONSIDERATION THE RIVAL STAND ON THE 3TATE
'OVERNMENT WAS DIRECTED TO LE AN AFDAVIT
I GIVING THE TIME BY WHICH THEY WILL APPROVE THE MAP OF THE %LEPHANT #ORRIDOR ON
THE BASIS OF THE %XPERT #OMMITTEES REPORT
II WHAT IS THEIR STAND WITH REGARD TO THE %LEPHANT #ORRIDOR MAP PREPARED BY THE
#ENTRAL 'OVERNMENT
III THE ACTION WHICH THE 3TATE 'OVERNMENT INTENDS TO TAKE AGAINST ILLEGAL RESORT
OWNERS WHO HAVE CONSTRUCTED RESORTS IN THE FOREST LANDS OR %LEPHANT #ORRIDOR
WITHOUT PERMISSION OF THE &OREST $EPARTMENT OR OTHER COMPETENT AUTHORITIES
IV WHAT ACTION THE 3TATE 'OVERNMENT INTENDS TO TAKE WITH REGARD TO THE RESIDENTS
WHO HAVE ERECTED SOLAR FENCING ALREADY WHAT IS THE SPECICATION PRESCRIBED FOR
SOLAR FENCING IF ANY TO BE ALLOWED AND WHICH AUTHORITY CAN ALLOW SUCH ERECTION OF
SOLAR FENCING
/N LEARNED COUNSEL APPEARING ON BEHALF OF THE 3TATE PRODUCED A DECISION OF
THE 3TATE AS CONTAINED IN ,ETTER .O&2 DATED WHICH READS AS
FOLLOWS
!S PER THE DIRECTIONS OF THE (IGH #OURT DURING THE PENDENCY OF THE WRIT PETITIONS
THE 'OVERNMENT WILL ENSURE THAT NO ILLEGAL CONSTRUCTION IS MADE IN THE AREA
SHOWN AS %LEPHANT #ORRIDOR IN THE REPORT OF THE %XPERT #OMMITTEE &URTHER
'OVERNMENT SHOULD NOT ALLOW ANY NEW CONSTRUCTION IN THE AREA WITHOUT PRIOR
INTIMATION TO THE #OURT &URTHER IMMEDIATE ACTION SHOULD BE TAKEN AGAINST
ILLEGAL UNAUTHORISED HOLIDAY RESORTS UNDER RELEVANT RULESLAWS
.O PERSON SHOULD BE ALLOWED TO PUT A FRESH SOLARELECTRICAL FENCING WITHIN THE
AREA AS PROPOSED TO BE %LEPHANT #ORRIDOR BY THE %XPERT #OMMITTEE &URTHER ACTION
SHOULD BE TAKEN FOR THE REMOVAL OF EXISTING UNAUTHORISED ELECTRICALSOLAR FENCING
4 / \
)N VIEW OF THE ABOVE ) AM DIRECTED TO REQUEST YOU TO COMPLY WITH THE ABOVE
DIRECTIONS AND SEND A REPORT
!T THAT STAGE LEARNED COUNSEL FOR THE TRIBALS AND OTHER TRADITIONAL FOREST DWELLERS
SUBMITTED THAT IN THE LETTER DATED A VAGUE DIRECTION HAS BEEN GIVEN TO TAKE
STEPS TO REMOVE THE EXISTING UNAUTHORISED ELECTRICALSOLAR FENCING ACCORDING TO THE
COUNSEL FOR THE 4RIBALS AND OTHER TRADITIONAL FOREST DWELLERS THERE IS NO PRESCRIPTION
MADE BY THE 3TATE FOR OBTAINING ANY PERMISSION FOR HAVING ELECTRICALSOLAR FENCING AND
THEREFORE IT CANNOT BE STATED THAT AS TO WHICH ONE IS EXISTING UNAUTHORISED ELECTRICAL
SOLAR FENCING 4HE MATTERS WERE ADJOURNED FOR FURTHER HEARING
,EARNED COUNSEL FOR THE 3TATE SUBMITTED THAT THE PROPOSED MAP OF THE %LEPHANT
#ORRIDOR ON THE BASIS OF THE REPORT OF THE %XPERT #OMMITTEE HAS NOW BEEN PREPARED
4HE PUBLICATION WILL BE MADE RECENTLY CALLING FOR OBJECTIONS FROM THE PRIVATE LAND
OWNERS WHOSE LANDS FALL WITHIN THE PROPOSED %LEPHANT #ORRIDOR /NLY ON HEARING THEM
NALITY WILL BE GIVEN AND THEREAFTER IT WILL BE DECIDED AS TO WHETHER THE PRIVATE LANDS
WILL BE ACQUIRED TO ENABLE THE %LEPHANTS TO PASS THROUGH THE %LEPHANT #ORRIDOR WITHOUT
ANY OBSTRUCTION EXCEPT THOSE WHICH BELONGS TO 3CHEDULED 4RIBES AND OTHER TRADITIONAL
FOREST DWELLERS
,EARNED COUNSEL -R%LEPHANT 2AJENDRAN APPEARING FOR THE PETITIONER IN 70.O
OF REFERRED TO 4AMIL .ADU 0RIVATE &ORESTS !SSUMPTION OF -ANAGEMENT !CT
,6 OF AND IT WAS SUGGESTED THAT UNDER 3ECTION THEREIN IT IS OPEN FOR THE 3TATE
'OVERNMENT TO TAKE OVER THE -ANAGEMENT OF THE PRIVATE FOREST
,EARNED COUNSEL APPEARING FOR THE 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
SUBMITTED THAT THE SOLAR POWER FENCING WHICH HAS ALREADY BEEN ERECTED SHOULD NOT BE
REMOVED WITHOUT GIVING PROPER OPPORTUNITY TO THE PARTIES
)T HAS BEEN BROUGHT TO THE NOTICE OF THE #OURT THAT THE 'OVERNMENT OF )NDIA FROM
ITS -INISTRY OF %NVIRONMENT AND &ORESTS HAS ISSUED TWO DIRECTIONS WITH REGARD TO
THE %LEPHANT #ORRIDORS /NE BY ,ETTER .O
0% DATED ADDRESSED TO
THE #HIEF 7ILDLIFE 7ARDENS 0% OF ALL THE 3TATES AND 5NION 4ERRITORIES IN WHICH THE
'OVERNMENT OF )NDIA HAS DIRECTED THE INDIVIDUAL 3TATES5NION 4ERRITORIES TO IDENTIFY
THE %LEPHANT #ORRIDOR OF THEIR RESPECTIVE 3TATES AND TO NOFY THE %LEPHANT #ORRIDOR TO
PROTECT THE %LEPHANTS WITH A REQUEST TO TAKE ACTION IF NO SUCH ACTION HAS ALREADY BEEN
TAKEN 4HE SAID LETTER DATED READS AS FOLLOWS
3UB 2EGARDING %LEPHANT CORRIDORS
3IR
9OU MAY BE AWARE THAT 7ILDLIFE 4RUST OF )NDIA HAS PUBLISHED A BOOK 2IGHT OF
0ASSAGE
%LEPHANT #ORRIDORS OF )NDIA )N THE BOOK IT HAS BEEN MENTIONED THAT
ELEPHANT CORRIDORS HAVE BEEN IDENTIED WITH THE HELP OF 3TATE FOREST $EPARTMENT
AND .'/S
)T IS NECESSARY THAT ELEPHANT CORRIDORS ARE PROTECTED AND CONSERVED )T HAS BEEN
INFORMED BY #7,7 5TTARANCHAL THAT THE 3TATE IS IN THE PROCESS OF NOTIFYING
THE ELEPHANT CORRIDORS IN 5TTARANCHAL ) AM SURE SIMILAR ACTION MUST BE UNDER
CONSIDERATION IN YOUR 3TATE )T WILL ALSO BE NECESSARY THAT THE ELEPHANT CORRIDORS
ARE PROVIDED WITH SOME LEGAL PROTECTION LIKE UNDER %0 !CT -AY ) REQUEST TO TAKE
NECESSARY ACTION IF NOT ALREADY INITIATED FOR NOTICATION AND PROTECTION OF THE
IDENTIED ELEPHANT CORRIDORS IN YOUR 3TATE !N !CTION 4AKEN 2EPORT ON THE ISSUE WILL
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
BE HIGHLY APPRECIATED
9OURS FAITHFULLY
3D
!.0RASAD
)'& $)2#/2 0%
"Y THE OTHER LETTER IN .O 0% DATED ISSUED BY THE 'OVERNMENT OF )NDIA
FROM ITS -INISTRY OF %NVIRONMENT AND &ORESTS 0ROJECT %LEPHANT ADDRESSED TO THE #HIEF
7ILDLIFE 7ARDENS OF ALL 0% 3TATES A SPECIC DIRECTION HAS BEEN GIVEN TO ENSURE THAT NO
SOLAR POWER FENCING IS ERECTED IN FUTURE )T IS ALSO MENTIONED THAT WHEREVER THE DEATHS
OF ELEPHANTS DUE TO ELECTROCUTION IN SUCH PLACES HAVE TAKEN PLACE THE MANAGEMENT
NEEDS TO BE PROSECUTED FOR HUNTING AND SUCH FENCING NEEDS TO BE REMOVED AT ONCE 4HE
SAID LETTER DATED IS ALSO QUOTED HEREUNDER
35" $EATH OF ELEPHANTS BY ELECTROCUTION REG
3IR
4HE -INISTRY IS RECEIVING REPORTS OF DEATHS IN TEACOFFEE ESTATES ESPECIALLY IN !SSAM
AND +ARNATAKA DUE TO UNREGULATED VOLTAGE IN THE SOLAR POWER FENCING ERECTED BY
THEM 4HIS IS A SERIOUS ISSUE AND IN FACT SUCH AN ACT TANTAMOUNTS TO WILFUL HUNTING
AS PER 3ECTION B AND THUS IS IN VIOLATION OF 3ECTION OF THE 7ILDLIFE 0ROTECTION
!CT
9OU ARE THEREFORE REQUESTED TO MAKE IT KNOWN TO ALL THE TEA GARDENS COFFEE ESTATES
AND OTHERS LOCATED IN THE ELEPHANT AREAS TO ENSURE THAT NO SUCH FENCINGS ARE CREATED
IN FUTURE 7HEREVER DEATHS OF ELEPHANTS DUE TO ELECTROCUTION IN SUCH PLACES HAVE
TAKEN PLACE THE MANAGEMENT NEEDS TO BE PROSECUTED FOR HUNTING AND SUCH FENCING
NEEDS TO BE REMOVED AT ONCE
9OURS FAITHFULLY
3D
!.0RASAD
)NSPECTOR 'ENERAL OF &ORESTS AND $IRECTOR 0ROJECT %LEPHANT
&ROM THE AFORESAID DIRECTIONS OF THE #ENTRAL 'OVERNMENT IT WOULD BE EVIDENT THAT
I EVEN THE #ENTRAL 'OVERNMENT HAS ASKED THE 3TATE 'OVERNMENTS TO IDENTIFY AND
NOTIFY THE %LEPHANT #ORRIDOR OF THEIR RESPECTIVE 3TATES BY GIVING PROTECTION TO THE
ELEPHANTS
II THE AUTHORITIES OF ALL THE 3TATE 'OVERNMENTS HAVE BEEN DIRECTED TO ENSURE THAT
NO SOLAR POWER FENCING IS ERECTED IN FUTURE TO ENSURE THAT NO DEATH OF ANY ANIMAL
INCLUDING ELEPHANT TAKES PLACE
5NREGULATED VOLTAGE IN THE SOLAR POWER FENCING TO THE ANIMALS IN GENERAL PARTICULARLY
WITHIN THE FOREST AREA IS NOT ONLY INJURIOUS TO THE WILD ANIMALS BUT FATAL ACCIDENT MAY
CAUSE TO HUMAN BEINGS PARTICULARLY THE STAFFS AND OFCIALS OF THE &OREST $EPARTMENT
AND OTHER TRIBALS AND TRADITIONAL FOREST DWELLERS WHO ARE STAYING WITHIN THE FOREST AREA
4 / \
)N THE ABOVE BACKGROUND WE HAVE ALREADY ISSUED A DIRECTION ON DIRECTING THE
RESPONDENTS TO ENSURE THAT NO FRESH SOLARELECTRICAL FENCING IS ERECTED IN FUTURE AND THE
SAID DIRECTION IS HEREBY CONRMED
3O FAR AS THE SOLAR POWER FENCING ERECTED WITHIN THE FOREST AREA WHETHER 'OVERNMENT
&OREST OR PRIVATE FOREST WE ARE OF THE VIEW THAT UNREGULATED VOLTAGE SOLAR POWER FENCING
CANNOT BE ALLOWED TO BE PERMITTED 4HE 3TATE 'OVERNMENT IN ITS LETTER DATED
HAS ALREADY DIRECTED THE AUTHORITIES TO TAKE FURTHER ACTION FOR REMOVAL OF EXISTING
UNAUTHORISED ELECTRICALSOLAR FENCING )N THE ABSENCE OF ANY GUIDELINES ISSUED BY THE
3TATE 'OVERNMENT IN THIS REGARD WE ARE OF THE VIEW THAT THE FOLLOWING PROCEDURES
SHOULD BE FOLLOWED FOR THE PRESENT TO ND OUT AS TO WHETHER THE EXISTING SOLAR POWER
FENCING SHOULD BE REMOVED OR NOT
I ! NOTICE SHOULD BE PUBLISHED IN THE NEWSPAPER ASKING THE PERSONS RESIDING
WITHIN THE AREA TO OBTAIN POST
FACTO APPROVAL OF THE SOLAR POWER FENCING IF ALREADY
ERECTED 4HE PUBLICATION SHOULD BE MADE IN TWO LOCAL NEWSPAPERS ONE IN %NGLISH
AND ANOTHER IN VERNACULAR 4AMIL AND INTIMATION SHOULD BE GIVEN TO ALL THE LOCAL
0ANCHAYATS SO AS TO GIVE INFORMATION TO THE CONCERNED PERSONS 4HE TIME SCHEDULE
OF ABOUT ONE MONTH SHOULD BE GIVEN FOR OBTAINING SUCH POST
FACTO APPROVAL
II 7HILE ASKING FOR SUCH POST FACTO APPROVAL THE PERSONS SHOULD BE ASKED TO GIVE
THE DETAILS OF DESIGN AND SUPPLY OF THE SOLAR POWER FENCING SYSTEM ALREADY
ERECTED BY THEM 4HEY WILL SPECICALLY STATE AS TO WHAT IS THE VOLTAGE USED IN THE
SOLAR POWER FENCING AND HOW THEY REGULATE SUCH VOLTAGE
7E HAVE ALSO NOTICED THAT THE 'OVERNMENT OF 4AMIL .ADU THROUGH ITS &OREST
$EPARTMENT 4IRUNELVELI $IVISION 4IRUNELVELI EARLIER ISSUED A 3HORT 4ENDER .OTICE
IN AND THE TENDER DOCUMENTS WERE MADE AVAILABLE FOR SALE IN THE /FCE OF THE
$ISTRICT &OREST /FCER 4IRUNELVELI $IVISION 4IRUNELVELI UPTO AND THEREIN
THE TENDERS WERE CALLED FOR FOR ERECTION OF SOLAR FENCING IN THE LOWER BOUNDARIES OF
3IVAGIRI 2& OF 3IVAGIRI 2ANGE IN 3IVAGIRI 4ALUK DURING
4HAT MEANS THE 3TATE
'OVERNMENT HAS KNOWLEDGE AS TO WHAT SHOULD BE THE MINIMUM CRITERIA FOR ERECTING
THE SOLAR POWER FENCING AND TO ND OUT THE STANDARDS OF THE SOLAR POWER FENCING CRITERIA
IT IS THE CRITERIA WHICH THE 3TATE 'OVERNMENT HAS SANCTIONED FOR THEM 4HEY WILL APPLY
THE SAME CRITERIA WITH REGARD TO THE EXISTING OWNERS OF THE SOLAR POWER FENCING WHO
MAY APPLY FOR THE POST
FACTO APPROVAL
)F NO APPLICATION IS LED WITHIN THE TIME FRAME ON RECEIPT OF SUCH APPLICATION AND
TAKING INTO CONSIDERATION THE STANDARDS OF SOLAR POWER FENCING IF ANY ADVERSE DECISION
IS TAKEN THE AUTHORITIES WILL COMMUNICATE SUCH DECISION TO SUCH OWNERS !LL SUCH SOLAR
POWER FENCING SHOULD BE TREATED TO BE UNAUTHORISED SOLAR POWER FENCING WHICH SHOULD
BE REMOVED IN TERMS OF THE DECISION OF THE 'OVERNMENT IN ITS LETTER DATED
3O FAR AS THE PUBLICATION OF MAP FOR THE %LEPHANT #ORRIDOR IS CONCERNED IF THE AUTHORITIES
HAVE PREPARED OR WILL NALISE ON THE BASIS OF THE %XPERT #OMMITTEES 2EPORT IN TERMS OF
THE EARLIER ORDERS OF THIS #OURT WE PASS THE FOLLOWING ORDER
I 4HE 3TATE 'OVERNMENT WILL HAVE TO DECIDE AS TO WHICH %LEPHANT #ORRIDOR HAS
TO BE IDENTIED IE CORRIDOR IDENTIED BY THE #ENTRAL 'OVERNMENT IN THE LETTER
DATED WITH THE HELP OF THE 3TATE &OREST $EPARTMENT AND .'/S OR THE
PROPOSED %LEPHANT #ORRIDOR AS IDENTIED BY THE %XPERT #OMMITTEE IN THE PRESENT
CASES PREFERABLY WITHIN ONE MONTH
II 4HE PUBLICATION OF SUCH MAP SHOWING THE %LEPHANT #ORRIDOR SHOULD BE MADE
BY THE 3TATE THROUGH THE &OREST $EPARTMENT IN TWO LOCAL NEWSPAPERS ONE IN
%NGLISH AND ANOTHER IN VERNACULAR 4AMIL GIVING THE DETAILS OF 3URVEY .UMBERS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
OF PRIVATE LANDS WHICH ARE FALLING WITHIN THE PROPOSED %LEPHANT #ORRIDOR 4HE
PERSONS MAY BE ASKED TO SUBMIT THEIR OBJECTIONS WITHIN A TIME FRAME SAY ONE
MONTH
III 4HE INTIMATION OF SUCH PROPOSED %LEPHANT #ORRIDOR ALONG WITH A COPY OF THE REPORT
OF THE %XPERT #OMMITTEE SHOULD BE ALSO FORWARDED TO EACH LOCAL 0ANCHAYATS
WHICH FALL WITHIN THE PROPOSED %LEPHANT #ORRIDOR SO THAT THE LOCAL PERSONS CAN
HAVE THE KNOWLEDGE OF THE CORRIDOR OF THEIR OWN IF THEY SO CHOOSE
IV .O SEPARATE INDIVIDUAL HEARING IS REQUIRED TO BE GIVEN TO ANY PERSON THOUGH A
MASS HEARING MAY BE GIVEN AS GENERALLY GIVEN IN THE ,AND !CQUISITION CASES
AND ON HEARING SUCH OBJECTIONS THE PROPOSED %LEPHANT #ORRIDOR INCLUDING THE
MAP CONTAINING THE DIFFERENT 3URVEY .UMBERS SHOULD BE NALISED AND BE ALSO
PUBLISHED AT AN EARLY DATE SAY MAXIMUM WITHIN SIX MONTHS
V .O INDIVIDUAL OR ANY !SSOCIATION GENERALLY SHOULD INTERVENE IN THE CASE )F THEY
HAVE ANY OBJECTION THEY MAY RAISE BEFORE THE AUTHORITIES CONCERNED
/N SUCH NALISATION IT WILL BE OPEN FOR THE 3TATE TO DECIDE
A WHETHER THE PRIVATE LANDS WHICH ARE FALLING WITHIN THE %LEPHANT #ORRIDOR DO
NOT BELONG TO 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS WHO HAVE
A RIGHT UNDER THE PROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT AND WHETHER SUCH LANDS
SHOULD BE ACQUIRED )F THE DECISION IS TAKEN TO ACQUIRE THE LANDS THEY WILL FOLLOW
THE REGULAR PROCEDURES AS LAID DOWN UNDER THE PROVISIONS OF THE ,AND !CQUISITION
!CT
B )F THE 3TATE 'OVERNMENT IN THE MEANTIME WANTS TO TAKE OVER THE MANAGEMENT
OF THE PRIVATE FOREST IT MAY DO SO IN TERMS OF 3ECTION OF THE 4AMIL .ADU 0RIVATE
&ORESTS !SSUMPTION OF -ANAGEMENT !CT ,6 OF SO AS TO ENABLE THE
ELEPHANTS TO PASS THROUGH THE CORRIDOR WITHOUT ANY HINDRANCE TILL THE LANDS ARE
ACQUIRED
7E MAKE IT CLEAR THAT THIS #OURT HAS NOT DECIDED THE QUESTION AS TO WHO IS A 3CHEDULED
4RIBE OR A TRADITIONAL FOREST DWELLER RESIDING WITHIN THE PROPOSED %LEPHANT #ORRIDOR
)T IS FOR THE COMPETENT AUTHORITIES WHO WILL DECIDE THE FOREST RIGHTS OF SUCH 3CHEDULED
4RIBES AND TRADITIONAL FOREST DWELLERS AS CONFERRED ON THEM UNDER 3ECTION OF THE
3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT 4ILL SUCH CLAIM IS NALISED AS UNDER THE PROVISIONS OF THE 3CHEDULED 4RIBES
AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT THEY
HAVE A RIGHT TO HOLD THE LANDS IN THEIR POSSESSION THEY BE NOT EVICTED DURING THE
PROCEDURES AND DIRECTIONS AS GIVEN ABOVE BUT FOR ISSUANCE OF PATTA OR CERTICATE OF
TITLE IN THEIR FAVOUR THE 3TATE 'OVERNMENT IS REQUIRED TO OBTAIN PERMISSION FROM THIS
#OURT IN VIEW OF THE INTERIM ORDER DATED PASSED BY A $IVISION "ENCH OF THIS
#OURT IN -0.O OF IN 70.O OF WHEREIN THE VIRES OF THE 3CHEDULED
4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
ARE UNDER CHALLENGE
(OWEVER WE FURTHER MAKE IT CLEAR THAT THE ABOVE ORDER TO REMOVE THE UNAUTHORISED
SOLAR FENCING WILL EQUALLY BE APPLICABLE TO THE TRIBALS AND OTHER TRADITIONAL FOREST
DWELLERS
3O FAR AS THE UNAUTHORISED BUIDLINGS IN THE AREA IN QUESTION ARE CONCERNED THIS #OURT
BY ORDER DATED IN 70.OS OF AND OF HAS ALREADY
4 / \
ISSUED DIRECTIONS TO REMOVE THE UNAUTHORISED CONSTRUCTIONS (ENCE IN RESPECT OF ALL
THE UNAUTHORISED CONSTRUCTIONS MADE WITHIN THE $ISTRICT OF .ILGIRIS WHICH INCLUDES
THE UNAUTHORISED CONSTRUCTIONS IF ANY MADE ON THE PRIVATE LANDS PRIVATE FOREST LANDS
'OVERNMENT LANDS 'OVERNMENT &OREST LANDS THE $ISTRICT #OLLECTOR .ILGIRIS WILL ENSURE
REMOVAL OF SUCH ILLEGAL CONSTRUCTIONS IN TERMS OF THE ORDER DATED ALREADY
PASSED IN 70.OS OF AND OF
&URTHER WE ALSO MAKE IT CLEAR THAT IN THE FOREST AREAS IF THERE IS ANY UNAUTHORISED
COMMERCIAL BUILDINGS AS MAY BE FOUND BY THE &OREST $EPARTMENT INCLUDING THE
RESORTS AND IF IT IS FOUND THAT SOME OF THE BUILDINGS ARE USED FOR COMMERCIAL PURPOSES
SUCH AS RESORTS RESORT HOUSES ETC AND IF THEY HAVE BEEN GIVEN ELECTRICITY CONNECTION
AS RESIDENTIAL HOUSES THE 4AMIL .ADU %LECTRICITY "OARD WILL ENSURE DISCONNECTION OF
POWER SUPPLY TO SUCH PREMISES
7E ADJOURN THE CASE FOR A MONTH WITH A DIRECTION TO THE RESPONDENTS
AUTHORITIES OF
THE 3TATE &OREST $EPARTMENT TO SUBMIT A REPORT WITH REGARD TO THE PUBLICATION OF
THE PROPOSED %LEPHANT #ORRIDOR AND THE OTHER STEPS AS MAY BE TAKEN FOR REMOVAL OF
UNAUTHORISED SOLAR POWER FENCING BY THE NEXT DATE
0OST THE MATTERS UNDER THE CAPTION &OR /RDERS ON AT PM
,ET A COPY OF THIS ORDER BE HANDED OVER TO THE LEARNED COUNSEL APPEARING FOR THE PARTIES
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
2ANI VS 3TATE OF 4AMILNADU /RS
-!$2!3 ()'( #/524 -!$52!) "%.#(
70 -$ ./ /&
#/2!- 2 "!.5-!4() !.$ 3 .!'!-54(5 **
#)4!4)/. 3## /.,).% -!$
3 5--!29
4HE WRIT PETITION HAS BEEN FILED SEEKING REHABILITATION OF THE TRIBAL FAMILIES
WHO ARE MEMBERS OF THE +ODAIKANAL !MBEDKHAR 5NORGANISED AND #ONSTRUCTION
7ORKERS 7ELFARE 2IGHTS 3ANGAM +UMBARAYUR 5NIT WHICH INCLUDES PERMANENT
HOUSE SHELTERS AND OTHER BASIC AMENITIES SUCH AS DRINKING WATER ELECTRICITY HEALTH
CARE AND EDUCATION )N PARTICULAR THE PETITION SEEKS DIRECTIONS TO THE RESPONDENT
TO ALLOT ALTERNATIVE AGRICULTURAL LANDS IN ACCORDANCE WITH 3ECTION M OF THE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! ARGUING THAT THEIR ANCESTORS WERE ILLEGALLY EVICTED AND
DISPLACED FROM THE FOREST LAND
4HE #OURT EXAMINED THE DOCUMENTATION PRODUCED BY THE 3TATE GOVERNMENT THAT
IT HAS ALREADY INITIATED ACQUISITION PROCEEDINGS FOR THE PURPOSE OF ALLOTTING HOUSE
SITES TO THE FAMILIES WHO HAVE MADE APPLICATIONS IN THIS REGARD 4HE #OURT
INDICATED THAT IT IS SATISFIED WITH THIS ENDEAVOUR DIRECTING ONLY THAT THE PROCESS
SHOULD BE EXPEDITED
4HE #OURT OBSERVED THAT WITH REGARD TO THE REMAINING FAMILIES WHO HAVE NOT
YET MADE APPLICATIONS UNDER THE &2! THEY SHOULD DO SO 4HESE APPLICATIONS WILL BE
DULY CONSIDERED BY THE SECOND RESPONDENT $ISTRICT #OLLECTOR $INDIGUL $ISTRICT AND
IF THEY ARE FOUND TO BE ELIGIBLE HE SHALL TAKE APPROPRIATE STEPS FOR GRANT OF HOUSE
SITES 4HE #OURT FURTHER DIRECTED THAT THE OTHER AMENITIES BE PROVIDED IN TERMS OF
THE &2!
% $ )4/23 . /4%
4HE #OURT HAS NOT CONSIDERED OR PASSED ANY DIRECTIONS WITH REGARD TO THE MAIN
PRAYER OF THE PETITIONERS NAMELY THE GRANT OF AGRICULTURAL LANDS )T DOES NOT APPEAR
TO HAVE EXAMINED THE MEANING AND CONTENT OF THE FOREST RIGHT UNDER 3ECTION
4 / \
M OF &2! &URTHER THE #OURT APPEARS NOT TO HAVE NOTICED THE DETAILED THREE TIER
MECHANISM FOR RECOGNITION AND VESTING OF RIGHTS UNDER 3ECTION OF &2! CHOOSING
INSTEAD TO ISSUE A DIRECTION THAT THE $ISTRICT #OLLECTOR SHALL CONSIDER THE APPLICATIONS
OF THE PETITIONERS 4HIS IS CONTRARY TO THE STATUTE
/2$%2
/RDER OF THE #OURT WAS DELIVERED BY 2 "ANUMATHI *
0ETITIONER WHO IS THE 0RESIDENT OF +ODAIKANAL !MBEDKHAR 5NORGANISED AND #ONSTRUCTION
7ORKERS 7ELFARE 2IGHTS 3ANGAM +UMBARAYUR 5NIT HAS LED THIS 7RIT 0ETITION SEEKING
FOR 7RIT OF -ANDAMUS DIRECTING THE 2ESPONDENTS TO TAKE IMMEDIATE STEPS TO REHABILITATE
THE ENLISTED 4RIBAL FAMILIES BELONGING TO 0ALIYAN 4RIBE WITH PERMANENT SHELTERS AND
OTHER BASIC AMENITIES LIKE DRINKING WATER ELECTRICITY HEALTH CARE AND EDUCATION FACILITIES
AND FURTHER DIRECTION TO THE 2ESPONDENTS TO REHABILITATE THE FAMILIES WITH ALTERNATIVE
AGRICULTURAL LANDS IN ACCORDANCE WITH 3EC M OF THE 3CHEDULED 4RIBES AND OTHER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
7E HAVE HEARD -R 0 2ATHINAM LEARNED COUNSEL APPEARING FOR THE 0ETITIONER 7E
HAVE ALSO HEARD -R 2 "ALASUBRAMANI LEARNED !DDITIONAL 'OVERNMENT 0LEADER FOR
2ESPONDENTS RD 2ESPONDENT
3PECIAL 4AHSILDAR !DI $RAVIDAR 7ELFARE /FCE IS ALSO
PRESENT IN THE #OURT
/N INSTRUCTION THE LEARNED !DDITIONAL 'OVERNMENT 0LEADER HAS SUBMITTED THAT
PROPOSALS HAD BEEN SENT FOR ACQUIRING THE PATTA LANDS IN 3&.O
(ECTARES
BELONGING TO ONE *AYARAJ FOR ALLOTMENT OF HOUSE SITES TO PERSONS WHO HAVE ALREADY
GIVEN APPLICATIONS TO THE $ISTRICT #OLLECTOR $INDIGUL )T WAS FURTHER SUBMITTED THAT STEPS
ARE BEING TAKEN TO COMPLETE THE ACQUISITION PROCEEDINGS )N THIS REGARD THE LEARNED
!DDITIONAL 'OVERNMENT 0LEADER HAS DRAWN OUR ATTENTION TO THE LETTER ILLEGIBLE DT
ADDRESSED TO HIM WHICH READS AS UNDER
ILLEGIBLE
2ECORDING THE ABOVE COMMUNICATION DATED THE 7RIT 0ETITION IS DISPOSED OF
DIRECTING THE ST 2ESPONDENT TO EXPEDITE THE ACQUISITION PROCEEDINGS AND ON COMPLETION
OF ACQUISITION PROCEEDINGS TO ALLOT HOUSE SITES TO THE APPLICANTS WHO HAVE ALREADY
MADE APPLICATIONS TO THE $ISTRICT #OLLECTOR $INDIGUL
)N SO FAR AS THE REMAINING FAMILIES THE LEARNED !DDITIONAL 'OVERNMENT 0LEADER
SUBMITTED THAT SO FAR NO APPLICATIONS WERE RECEIVED 4HE REMAINING FAMILIES SHALL LE
THEIR APPLICATIONS BEFORE THE ND 2ESPONDENT AND THE ND 2ESPONDENT SHALL CONSIDER
THE SAME AND TAKE APPROPRIATE STEPS FOR GIVING HOUSE SITES TO THOSE FAMILIES IN THE
LIGHT OF THE SPECIAL ENACTMENT OF 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT SUBJECT TO THEIR ELIGIBILITY )N SO FAR AS THE OTHER
AMENITIES TO BE PROVIDED THE !UTHORITIES SHALL CONSIDER THE SAME IN THE LIGHT OF THE
PROVISIONS OF THE !CT AND TAKE APPROPRIATE STEPS 4HERE IS NO ORDER AS TO COSTS
4HIS PORTION OF THE JUDGMENT WHICH IS PROBABLY AN EXTRACT FROM A LETTER IN THE VERNACULAR HAS UNFORTUNATELY
BEEN SCRAMBLED WHILE BEING UPLOADED ON TO THE (IGH #OURT WEBSITE 5NFORTUNATELY EFFORTS TO ACCESS THE
JUDGMENT FROM OTHER SOURCES ALSO MET WITH THE SAME RESULT
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
)N $EFENCE OF %NVIRONMENT AND
!NIMALS VS 4HE 0RINCIPAL #HIEF
#ONSERVATOR OF &ORESTS /RS ETC
70 # ./ /& %4#
-!$2!3 ()'( #/524
#/2!- %,)0% $(!2-! 2!/ $ (!2)0!2!.4(!-!. **
#)4!4)/. -,*
3 5--!29
4HE MAIN WRIT PETITION WAS FILED AS A PUBLIC INTEREST PETITION BY AN ELEPHANT RIGHTS
ACTIVIST -R %LEPHANT ' 2AJENDRAN SEEKING DIRECTIONS FROM THE (IGH #OURT FOR THE
DECLARATION OF ELEPHANT CORRIDORS IN THE 3TATE OF 4AMIL .ADU !MONG OTHER THINGS
THE PETITION SOUGHT THE REMOVAL OF ENCROACHMENTS FROM THE LANDS FALLING WITHIN
THE PROJECTED ELEPHANT CORRIDOR INCLUDING FOREST LANDS
! LARGE NUMBER OF PERSONS WHO WERE LIKELY TO BE AFFECTED EITHER IMPLEADED
THEMSELVES AS RESPONDENT PARTIES OR FILED SUBSTANTIVE WRIT PETITIONS SEEKING
PROTECTION OF A VARIETY OF RIGHTS 4HIS INCLUDED ORGANISATIONS AND INDIVIDUALS
REPRESENTING THE RIGHTS OF FOREST DWELLERS UNDER THE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! )NTERIM
ORDERS WERE PASSED TO PROTECT THE FOREST DWELLERS FROM DISPOSSESSION DURING THE
PENDENCY OF THE PROCEEDINGS
4HE DETAILED ARGUMENTS ADDRESSED IN THE CASE ARE NOT BEING SUMMARISED )NSOFAR
AS FOREST DWELLING 34S AND /4&$S ARE CONCERNED SUBSTANTIVE WRIT PETITIONS WERE
FILED ON THEIR BEHALF SEEKING PROTECTION OF THEIR RIGHTS UNDER &2! 4HEY ARGUED
THAT THE FOREST RIGHTS RECOGNITION PROCESS IS UNDERWAY IN THE 3TATE AND THEY CANNOT
BE DISPOSSESSED
3EE FOR INSTANCE ORDER DT IN 70 .OS OF ETC EXTRACTED ELSEWHERE IN THIS COMPENDIUM
3EE IN PARTICULAR 7RIT 0ETITION .O OF - .ARASIMHAN 0RESIDENT 4AMIL .ADU 6IVASAYA 3ANGAM VS
3TATE /RS 7RIT 0ETITION .O OF -UDUMALAI 0AZHANGUDIYANAR .ALA 3ANGAM VS 3TATE /RS
4 / \
& ) . $ ).' 3 !.$ $ ) 2 % #4) /.3 /& 4(% #/524
4HE #OURT WAS OF THE VIEW THAT IN TERMS OF THE CLEAR MANDATE OF !RTICLE ! G OF
THE #ONSTITUTION TO PROTECT FORESTS WILDLIFE ANIMALS AND BIRDS AND ALSO RELYING
UPON VARIOUS EXPERT COMMITTEE REPORTS IN THIS REGARD IT IS NECESSARY AND IMPORTANT
TO ISSUE DIRECTIONS FOR THE DECLARATION OF AN ELEPHANT CORRIDOR IN THE 3TATE OF 4AMIL
.ADU TO ENSURE THE FREE MOVEMENT OF ELEPHANTS FROM ONE TERRITORY TO ANOTHER
AND PREVENT HUMAN ANIMAL CONFLICT )T ACCORDINGLY DIRECTED THE 3TATE GOVERNMENT
TO DECLARE SUCH ELEPHANT CORRIDOR WITHOUT ANY FURTHER DELAY AND DIRECTED THAT ALL
PERSONS WHO ARE WITHIN THE CORRIDOR AREA MUST GIVE VACANT POSSESSION OF THE LANDS
TO THE 3TATE GOVERNMENT WITHIN A FIXED TIMEFRAME
4HE #OURT HOWEVER MADE IT CLEAR THAT WITH REGARD TO THE FOREST DWELLERS WHOSE
RIGHTS ARE PROTECTED UNDER &2! THE 3TATE GOVERNMENT MUST STRICTLY COMPLY WITH THE
PROVISIONS OF THE !CT AND IN THE EVENT ANY FOREST DWELLER IS EVICTED THEY MUST BE
PROVIDED WITH ALTERNATE AND SUITABLE ACCOMMODATION OR MONETARY COMPENSATION
IF THEY SO WISH
% $ ) 4 /23 . /4%
)T MAY BE NOTED THAT THIS JUDGMENT WAS APPEALED AGAINST IN THE 3UPREME #OURT BY
A MULTIPLICITY OF PARTIES INCLUDING PERSONSBODIES WHICH WERE NOT PARTIES BEFORE
THE (IGH #OURT OTHER THAN FOREST DWELLERS WHOSE RIGHTS ARE PROTECTED 4HE 3UPREME
#OURT HAS THROUGH VARIOUS INTERIM ORDERS PROTECTED THE PETITIONERS BY DIRECTING AN
INTERIM STAY OF DISPOSSESSION AND DEMOLITION OF THE BUILDINGS OF THE PETITIONERS
4HE BATCH OF PETITIONS IS PENDING ADJUDICATION
* 5 $ ' -% . 4
4HE JUDGMENT OF THE #OURT WAS DELIVERED BY %LIPE $HARMA 2AO *
"Y THESE MATTERS THE LEGALITY OR OTHERWISE OF THE DECISION OF THE 'OVERNMENT OF 4AMIL
.ADU TO IDENTIFY AND NOTIFY %LEPHANT #ORRIDOR AT .ILGIRIS AND ITS CONSEQUENTIAL ACTIONS
HAVE BEEN QUESTIONED BY VARIOUS PARTIES
4HE GREATNESS OF A .ATION AND ITS MORAL PROGRESS CAN BE JUDGED BY THE WAY ITS ANIMALS
ARE TREATED SO SAID THE &ATHER OF THE .ATION -AHATMA 'ANDHI
)T IS WITH THIS SPIRIT THE 0ROJECT %LEPHANT WAS LAUNCHED IN &EBRUARY BY THE
'OVERNMENT OF )NDIA -INISTRY OF %NVIRONMENT AND &ORESTS AS A CENTRALLY SPONSORED
SCHEME TO PROVIDE NANCIAL AND TECHNICAL SUPPORT OF WILDLIFE MANAGEMENT EFFORTS BY
3TATES FOR THEIR FREE RANGING POPULATIONS OF WILD !SIAN %LEPHANTS 4HIS PROJECT WAS TO
PROVIDE NANCIAL AND TECHNICAL SUPPORT TO MAJOR ELEPHANT BEARING 3TATES IN THE COUNTRY
FOR PROTECTION OF ELEPHANTS THEIR HABITATS AND CORRIDORS 4HE PROJECT AIMS TO ENSURE LONG
TERM SURVIVAL OF VIABLE CONSERVATION RELIANT POPULATIONS OF ELEPHANTS IN THEIR NATURAL
HABITATS BY PROTECTING THE ELEPHANTS THEIR HABITATS AND MIGRATION CORRIDORS /THER GOALS
OF 0ROJECT %LEPHANT ARE SUPPORTING RESEARCH OF THE ECOLOGY AND MANAGEMENT OF ELEPHANTS
CREATING CONSERVATION AWARENESS AMONG LOCAL PEOPLE PROVIDING IMPROVED VETERINARY
CARE FOR CAPTIVE ELEPHANTS )T ALSO SEEKS TO ADDRESS THE ISSUES OF HUMAN ELEPHANT CONICT
AND WELFARE OF DOMESTICATED ELEPHANT 4HIS PROJECT ALSO AIMS TO ACHIEVE THE FOLLOWING
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
OBJECTS
%COLOGICAL RESTORATION OF EXISTING NATURAL HABITATS AND MIGRATORY ROUTES OF
ELEPHANTS
$EVELOPMENT OF SCIENTIC MANAGEMENT PLANNING FOR CONSERVATION OF ELEPHANT
HABITATS AND VIABLE ELEPHANT POPULATIONS IN )NDIA
0ROMOTION OF MEASURES FOR MITIGATION OF MAN
ELEPHANT CONICT IN CRUCIAL HABITATS
-ODERATING IMPACT OF HUMAN AND DOMESTIC STOCK ACTIVITIES IN CRUCIAL ELEPHANT
HABITATS
3TRENGTHENING OF MEASURES FOR PROTECTION OF WILD ELEPHANTS FROM POACHERS AND
UNNATURAL CAUSES OF DEATH
/N %LEPHANT MANAGEMENT RELATED ISSUES
)NCREASE PUBLIC CONSERVATION EDUCATION AND AWARENESS PROGRAMMES ABOUT
ELEPHANTS
%CO
DEVELOPMENT OF ELEPHANT HABITATS
0ROVIDE IMPROVED VETERINARY CARE FOR ELEPHANTS
5NDER THIS SCHEME WITH A VIEW TO MINIMIZE THE INCIDENTS OF MAN ANIMAL CONICT AND TO
HAVE EFFECTIVE CONTROL TO CHECK POACHING THE 0RINCIPAL #HIEF #ONSERVATOR OF &ORESTS AND
#HIEF 7ILDLIFE 7ARDEN HAS SUGGESTED THAT THE PRIVATEPATTA LANDS FORMING THE TRADITIONAL
MOVEMENT CORRIDORS OF ANIMALS PARTICULARLY ELEPHANTS BETWEEN THE -UDUMALAI
7ILDLIFE 3ANCTUARY AND .ATIONAL 0ARKS TO OTHER PARTS AND ALSO FROM %ASTERN AND 7ESTERN
'HATS MAY BE BROUGHT UNDER THE CONTROL OF THE &OREST $EPARTMENT BY ACQUIRING THE
LANDS AFTER PAYING COMPENSATION TO THE OWNERS 4HE -INISTRY OF %NVIRONMENT AND
&ORESTS 'OVERNMENT OF )NDIA BY ITS PROCEEDINGS .O 0% DATED HAS
REQUESTED THE 'OVERNMENT OF 4AMIL .ADU TO TAKE NECESSARY ACTION FOR NOTICATION AND
PROTECTION OF THE IDENTIED ELEPHANT CORRIDORS IN THE 3TATE 4HIS IS FOLLOWED BY ANOTHER
COMMUNICATION DATED
0URSUANT TO THE 'OVERNMENT OF )NDIAS COMMUNICATION ABOVE REFERRED DATED
THE 'OVERNMENT OF 4AMIL .ADU UNDER '/ -S .O %NVIRONMENT AND &ORESTS
$EPARTMENT DATED HAS APPOINTED AN %XPLORATORY #OMMITTEE WITH #OLLECTOR
OF .ILGIRIS AS THE #HAIRMAN THE MEMBERS BEING I $ISTRICT &OREST /FCER .ILGIRIS .ORTH
$IVISION II 7ILDLIFE 7ARDEN /OTY III 2EVENUE $EVELOPMENT /FCER /OTY AND IV
THE CONCERNED 4AHSILDAR )T HAS BEEN STATED BY THE OFCIAL 2ESPONDENTS THAT THE SAID
#OMMITTEE WAS PURSUING ACTION TO EXPLORE THE POSSIBILITY OF ACQUIRING THE PATTA LANDS
WITH THE WILLINGNESS OF THE FARMERS WHO CAN SPARE THEIR LANDS FOR ELEPHANT CORRIDORS
7HILE THINGS STOOD THUS 70 .OS OF HAS BEEN LED BY AN /RGANISATION
NAMED )N $EFENCE OF %NVIRONMENT AND !NIMALS REPRESENTED BY ITS -ANAGING 4RUSTEE
%LEPHANT ' 2AJENDRAN A PRACTICING ADVOCATE OF THIS #OURT AS A PRO BONA PUBLICO PRAYING
TO ISSUE A WRIT OF MANDAMUS DIRECTING THE OFCIAL 2ESPONDENTS TO KEEP THE CORRIDOR
OF THE ANIMAL WITHOUT ANY ENCROACHMENT AND ANY OTHER DISTRIBUTION FOR THE FREE
MOVEMENT OF ELEPHANTS AND OTHER ANIMALS )T HAS BEEN CONTENDED BY THIS 0ETITIONER
THAT THE ELEPHANT CORRIDOR IS BEING DISTURBED BY SOME ENCROACHERS AND BUILDERS AND
DUE TO SEVERAL FACTORS INCLUDING MUSHROOMING OF RESORTS ELEPHANT CORRIDORS WERE EITHER
CLOSED OR BECOMING NARROW 7HILE APPRECIATING THE MOVE OF THE 'OVERNMENT TO ACQUIRE
THE LANDS NEAR THE CORRIDOR THE 0ETITIONER HAS STATED THAT THE CORRIDOR TO BE KEPT WITHOUT
ANY ENCROACHMENT SINCE TO HIS KNOWLEDGE THERE ARE SEVERAL ENCROACHMENTS BY WAY OF
CONSTRUCTING BUILDINGS AND CULTIVATION PROCESS !CCORDING TO THE 0ETITIONER THE &OREST
$EPARTMENT HAS NOT TAKEN ANY STRINGENT ACTION TO EVICT THE ENCROACHERS OF ALL KINDS
4HEREFORE HE CONTENDED THAT THE ELECTRIC POWER CONNECTION TO ALL THE ENCROACHMENTS
AND RESORTS TO BE DISCONNECTED AT ONCE AND THE &OREST AND 2EVENUE $EPARTMENTS SHALL
TAKE NECESSARY STEPS TO EVICT ALL THE ENCROACHINGS FROM THE ELEPHANT CORRIDOR AND THAT ALL
THE CORRIDORS ARE TO BE KEPT AVAILABLE FOR THE FREE MOVEMENT OF THE ANIMALS SINCE THERE
4 / \
CANNOT BE ANY DISTURBANCE TO THE CORRIDORS
$URING THE PENDENCY OF THE 70 .O OF THIS #OURT BY THE ORDER DATED
HAS DIRECTED THE $ISTRICT #OLLECTOR TO LE A STATUS REPORT SHOWING THE STEPS
TAKEN TO REMOVE ALL THE ENCROACHMENTS FROM LANDS IDENTIED FOR DEVELOPMENT OF THE
ELEPHANT CORRIDOR !GGRIEVED AGAINST THIS ORDER OF THIS #OURT 70 .OS AND
OF HAVE BEEN LED BY THE 3CHEDULED 4RIBES AND OTHERS TRADITIONAL FOREST DWELLERS
)T HAS BEEN AVERRED IN THIS WRIT PETITIONS THAT THEY ARE RESIDING IN THE 2EVENUE LANDS
FOR MORE THAN TO YEARS AND HAD RIGHT TO OCCUPY THE LANDS UNDER THE PROVISIONS
OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT 4HEY HAVE ALSO CONTENDED THAT THE $ISTRICT #OLLECTOR OF .ILGIRIS ISSUED
PROCEEDINGS DATED CONSTITUTING THE $IVISIONAL ,EVEL AND 3UB $IVISIONAL ,EVEL
-ONITORING #OMMITTEES AS STIPULATED IN 2ULES AND OF THE 3CHEDULED 4RIBES AND
OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS 2ULES )T IS THEIR
CONTENTION THAT THE OFCIALS SUCH AS THE 4AHSILDAR 2$/ ALONG WITH THE POLICE ON THE
ORDERS OF THE $ISTRICT #OLLECTOR HAVE VISITED THE VILLAGE ON AND DIRECTED ALL THE
VILLAGERS TO STOP ALL CULTIVATION ACTIVITIES AND THREATENED TO DESTROY ALL THE STANDING
CROPS 4HEY HAVE ALSO THREATENED TO DISCONNECT THE ELECTRICITY TO THESE VILLAGES 4HE
OFCIALS ARE ALSO PREVENTING THE 0ETITIONERS FROM CARRYING ON THEIR REGULAR LIVELIHOOD
ACTIVITIES SUCH AS COLLECTOR OF MINOR FOREST PRODUCE AND THEY HAVE ALSO PROHIBITED
THE 0ETITIONERS FROM GRAZING CATTLE AND OTHER THE STOCK AND THESE ACTS OF THE $ISTRICT
#OLLECTOR ARE CONTRARY TO THE !CT 4HESE 0ETITIONERS FEAR THAT THEY ARE LIKELY TO BE EVICTED
AS ENCROACHERS AND BE DEPRIVED OF THEIR LIVELIHOOD )N THIS WRIT PETITION STATUS QUO WAS
ORDERED BY THE #OURT ON BY A LEARNED SINGLE *UDGE AND AFTER IT HAS BEEN BROUGHT
TO THE NOTICE OF THE SAID #OURT ABOUT THE ORDER OF REMOVAL OF ENCROACHMENTS ALREADY
PASSED BY A $IVISION "ENCH THE SAID ORDER OF STATUS QUO WAS RECALLED BY THE ORDER
DATED AND A MODIED ORDER WAS PASSED BY THE $IVISION "ENCH AFTER POSTING
THESE TWO WRIT PETITIONS ALONG WITH 70 .O OF DIRECTING THE AUTHORITIES
CONCERNED NOT TO EVICT THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL FOREST DWELLERS AND
OTHERS WHOSE CLAIMS ARE PENDING AND MAY HAVE SOME RIGHT UNDER THE PROVISIONS OF THE
3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT 4HE 3TATE ,EVEL -ONITORING #OMMITTEE WHICH WAS CONSTITUTED BY THE 3TATE
UNDER THE PROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT VIDE '/ -S .O DATED WAS ALSO
DIRECTED TO LOOK INTO THE MATTER AND SUBMIT ITS REPORT TO THE 3TATE 'OVERNMENT AND ALSO
TO LE A COPY OF THE SAME BEFORE THIS #OURT
!T THIS STAGE (OSPITALITY !SSOCIATION OF -UDUMALAI HAS COME FORWARD TO LE AN
IMPLEADMENT PETITION OBJECTING THE WRIT PETITION ON THE GROUND THAT THEIR ASSOCIATION
CONSISTS OF RESIDENTS OF THE -ASINGUDI "OKKAPURAM AREA AND THEY ARE PROVIDING
HOSPITALITY TO THE TOURISTS WHO VISIT THE AREA TO SEE WILDLIFE THAT THERE IS MISGUIDED
SENSE OF HOSTILITY TOWARDS THE PEOPLE WHO OWN AND RUN GUEST HOUSES IN THIS AREA FROM
THE AUTHORITIES AND SELF PROCLAIMED ENVIRONMENTALISTS DWELLING OUTSIDE THE AREA AND
ONE NEEDS TO UNDERSTAND THAT WILD LIFE TOURISM SUSTAINS CONSERVATION AS IT IS IN THE
INTEREST OF THE PROMOTERS OF WILD LIFE TOURISM TO CONSERVE AND SUSTAIN THE ENVIRONMENT
ECOLOGY AND WILD LIFE IN THE REGION AND THEREFORE THEY ACT AS GUARDIANS OF NATURE
4HOUGH THIS ARGUMENT ADVANCED ON THE PART OF ASSOCIATION SEEMS TO BE ATTRACTIVE IN
PRACTICE THE FACTS ARE DIFFERENT 4HERE IS VOLUMINOUS MATERIAL ON RECORD TO SHOW THAT
THE GUEST HOUSE OWNERS IN THIS AREA HAVE INDULGED IN NATURE DESTRUCTION CAUSING
OBSTRUCTION TO THE FREE PASSAGE OF THE WILD LIFE SINCE THERE IS CONTINUOUS VEHICLE
PASSAGES AND UNDER THE NAME OF ECO
HOME STAY ACCOMMODATION IN THE LOCALITY THEY
HAVE INDULGED IN ECO
DESTRUCTION
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
)T IS ALSO THEIR CONTENTION THAT THE MEMBERS OF THE 0ETITIONER ASSOCIATION ARE LIVING
THERE FOR MORE THAN TO YEARS THAT THERE IS VIRTUALLY NO MAN ANIMAL CONICT IN
THE AREA SINCE THERE IS LITTLE OR NO AGRICULTURE AND THE ELEPHANT CAN FREELY MOVE AROUND
THROUGHOUT THE AREA 4HEY WOULD FURTHER SAY THAT THEY ARE VERY KEEN AND WILL COOPERATE
TO A SCIENTIC SOLUTION FOR LIVING IN HARMONY AND CO EXIST WITH WILD LIFE AND NATURE
%LEPHANT IS THE LARGEST TERRESTRIAL MAMMAL OF )NDIA %LEPHANT BEING WIDE RANGING
ANIMAL REQUIRES LARGE AREAS )T BEING THE HERBIVORE THE REQUIREMENT OF FOOD AND WATER
FOR ELEPHANTS ARE VERY HIGH AND THEREFORE THEIR POPULATION CAN BE SUPPORTED ONLY
BY FORESTS THAT ARE UNDER OPTIMAL CONDITIONS 4HE STATUS OF ELEPHANT CAN BE THE BEST
INDICATOR OF THE STATUS OF THE FORESTS !BOUT HALF OF THE !SIAN ELEPHANT POPULATION IS IN
)NDIA 7E ARE INFORMED THAT ELEPHANTS NEED
KGS OF FOOD AND
LITRES OF
WATER DAILY AND SINCE IT HAS A VERY WEAK DIGESTIVE SYSTEM WHICH CAN ONLY DIGEST
OF THE FOOD IT EATS THE ELEPHANT NEEDS TO MOVE AROUND OTHER AREAS OF THE HABITAT OR FOOD
TO ENABLE THE GREENERY TO REVIVE BEFORE IT CAN FEED IN SAME AREA AGAIN AND THEREFORE
THE ELEPHANT NEEDS TO MOVE AROUND FOR THE PURPOSES OF BREEDING SINCE IT HAS BEEN
SCIENTICALLY PROGRAMMED BY NATURE NEVER TO INBREED WITHIN ITS OWN BIRTH FAMILY AND
HENCE IT NEEDS TO MOVE AROUND BETWEEN GENE POOLS
4HE $ISTRICT &OREST /FCER AT .ILGIRIS .ORTH $IVISION DID A POWER POINT PRESENTATION
BEFORE THIS #OURT DURING THE COURSE OF ARGUMENTS WHEREFROM IT IS SEEN THAT .ILGIRIS
%ASTERN 'HATS LANDSCAPE IS MORE SQKM IN FOREST AREA WITH GOOD CONNECTIVITY
AND NEARLY ALL THE WESTERN FORESTS ARE CONNECTED TO THE EASTERN GHATS LANDSCAPE BY THE
CRUCIAL AREA OF THE .ILGIRIS .ORTH $IVISION THAT MORE THAN ELEPHANTS ARE FOUND IN
THIS CONNECTED LANDSCAPE WITH MORE THAN TIGERS IN THE SAME SPACE %XPLAINING THE
CONNECTIVITY ASPECT IT HAS BEEN ASSERTED THAT FORESTS OF .AGERHOLE ARE CONNECTED TO THE
FORESTS OF THE "ANDIPUR IN THE %AST AND WESTERN SIDE THE FORESTS OF "RAHMAGIRI "ANDIPUR
IN TURN CONNECTS TO THE FORESTS OF -UDUMALAI WHICH CONNECTS TO .ILGIRIS .ORTH $IVISION
AND TO THE FORESTS 3OUTH AND THE %ASTERN GHATS 4HIS LANDSCAPE IS THE SINGLE LARGEST
POPULATION OF THE !SIAN %LEPHANT IN THE WORLD AND ALSO HAS THE LARGEST TIGER AREA WHICH
INDICATES THE QUALITY OF THE FOREST 4HE IMPORTANCE OF THE AREA LED TO THE DECLARATION OF
.ILGIRIS AS THE RST DESIGNATED "IOSPHERE 2ESERVE IN )NDIA IN SINCE IT IS A HOTSPOT
AMONG THE 7ESTERN GHATS )T IS ALSO SEEN THAT EVEN THOUGH THERE IS MORE THAN OF
AREA COVERED BY FORESTS ONLY A SMALL FRACTION IS AVAILABLE FOR THE 4IGERS IN THIS AREA
"UT THIS INFORMATION FURNISHED BY THE $ISTRICT &OREST /FCERS HAS ALSO BEEN OBJECTED
BY THE PETITIONERS AS BEING ONE SIDED 7E DO NOT UNDERSTAND SUCH A BLANKET NEGATIVE
STATEMENT MADE BY THE PRIVATE LAND OWNERS AS AGAINST A SCIENTIC STUDY MADE BY THE
&OREST /FCER WHO IS HAVING PERSONAL WORKING EXPERIENCE IN THE AREA AND TO WHOM NO
BIAS COULD ALSO BE ATTRIBUTED
4HE %LEPHANT HABITATIONS IN 4AMIL .ADU SEEM TO LIE PRIMARILY ALONG THE SLOPES OF THE
7ESTERN 'HATS ADJOINING THE 3TATE OF +ERALA AND +ARNATAKA AND PORTIONS OF %ASTERN
'HATS ABUTTING -YSORE 0LATEAU )T IS ALSO SEEN THAT THE LARGEST POPULATION OF ELEPHANT
IN 4AMILNADU IS FOUND IN .ILGIRIS %ASTERN 'HATS %LEPHANT 2ESERVE AT .ILGIRIS
3INCE THE -OYAR %LEPHANT #ORRIDOR PLAYS A VITAL ROLE IN MIGRATION OF ELEPHANTS FROM
%ASTERN 'HATS TO 7ESTERN 'HATS AND VICE VERSA AN EXTENT OF ACRES OF PATTA LANDS
IN -ASINAGUDI (ULLATHI AND +ADANAD VILLAGES HAS BEEN PROPOSED FOR ACQUISITION BY
THE &OREST $EPARTMENT AT A COST OF @ LAKHS ,IKEWISE ANOTHER ELEPHANT CORRIDOR
+ALLAR *AKKANARAI WHICH LIES IN THE JURISDICTION OF +OTAGIRI RANGE OF .ORTH .ILGIRIS
DIVISION IS VERY CRITICAL ONE FOR CONNECTING SILENT VALLEY #OIMBATORE.ILGIRIS .ORTH
.ILGIRIS %AST AND IN TURN CONNECTING 7ESTERN 'HATS AND %ASTERN 'HATS 3O AN EXTENT
OF ACRES OF PATTA LANDS IN *ACKANARAI VILLAGE AT THE COST OF @ LAKHS HAS ALSO
BEEN PROPOSED TO BE ACQUIRED WITH THE NANCIAL ASSISTANCE FROM THE 'OVERNMENT OF
4 / \
)NDIA 4HE &OREST $EPARTMENT IS THE REQUISITING $EPARTMENT IN THE LAND ACQUISITION
PROCEEDINGS INITIATED TO ACQUIRE PATTA LANDS FOR THE ELEPHANT CORRIDOR
/N THE THEN $ISTRICT #OLLECTOR .ILGIRIS -R !NANDRAO 0ATIL )!3 APPEARED
BEFORE THIS #OURT AND HAS SHOWN CERTAIN SLIDES IN THE LAPTOP SHOWING THE CORRIDOR OF
ELEPHANT (E HAS STATED THAT TO ALLOW THE ELEPHANTS TO PASS THROUGH THE #ORRIDOR THE
UNAUTHORISED OCCUPANTS ARE TO BE EVICTED BUT IT HAS BEEN ADMITTED BY HIM THAT THOSE
WHO ARE TRIBALS AND TRADITIONAL FOREST DWELLERS AND ARE PROTECTED UNDER THE PROVISION
OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT THEIR RIGHTS WILL BE PROTECTED AND THEY WILL NOT BE EVICTED FROM THE
CORRIDOR 7HILE ON THE PART OF THE PETITIONER -R %LEPHANT 2AJENDRAN IT HAS BEEN ARGUED
AND REQUESTED THE #OURT TO DIRECT THE EVICTION OF THE UNAUTHORISED OCCUPANTS FROM THE
ELEPHANT CORRIDOR FOR SMOOTH MOVEMENT OF ELEPHANTS -S 6AIGAI LEARNED #OUNSEL
APPEARING ON BEHALF OF THE PETITIONER IN 70 .O OF AND REPRESENTING OTHER
FOREST DWELLERS SUBMITTED THAT WITHOUT GIVING PROPER OPPORTUNITY TO ALL AFFECTED
PERSONS NEITHER AN AREA CAN BE DECLARED AS FOREST CORRIDOR NOT PERSONS COULD BE EVICTED
#ONSIDERING THE FACTS AND CIRCUMSTANCES THIS #OURT HAS ISSUED THE FOLLOWING DIRECTIONS
I &OREST $EPARTMENT WHICH HAS THE KNOWLEDGE OF MOVEMENT OF ELEPHANTS IN THE
CORRIDOR MAY IDENTIFY AND INFORM THE SAME
II THE 3TATE 'OVERNMENT MAY PUBLISH THE INFORMATION REGARDING THE ELEPHANT
CORRIDOR AND THE AREA IN LEADING NEWSPAPERS AND ALSO BY THE DRUM BEATINGTOM
TORN CALLING FOR OBJECTIONS OF LOCALS IF ANY IN THE AREA IN QUESTION
III AFTER HEARING THE LOCALS PARTICULARLY THOSE WHO MAY BE AFFECTED THEY MAY
NALISE THE ELEPHANT CORRIDOR FROM WHICH UNAUTHORISED OCCUPANTS ARE TO BE
EVICTED
IV TO ENSURE THAT SCHEDULED TRIBES AND OTHER FOREST TRADITIONAL DWELLERS ARE NOT
AFFECTED IT IS REQUIRED TO IDENTIFY THE OTHER TRADITIONAL FOREST DWELLERS IN TERMS
WITH THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 4RIBES 2ULES AND
V ONLY AFTER THE RECOMMENDATION AND RECORDING THEIR NAMES IN THE APPROPRIATE
REGISTER THEY MAY PROCEED WITH EVICTION BY GIVING NOTICE IN THE NEWSPAPER
BY THEM BEATINGTOM TORN AND BY GIVING INDIVIDUAL NOTICE TO THE UNAUTHORISED
OCCUPANTS
3O FAR AS THE ACQUISITION OF THE LAND IS CONCERNED IF ANY PRIVATE LAND IS REQUIRED
TO BE ACQUIRED THEY WILL HAVE TO FOLLOW THE PROCEDURE UNDER THE ,AND !CQUISITION
!CT 0RIMA FACIE AS THE TRIBALS AND OTHER FOREST DWELLERS CANNOT BE EVICTED FROM THE
UNAUTHORISED LANDS THEIR LANDS NEED NOT REQUIRED TO BE ACQUIRED IF IT IS A FOREST
LAND ,EARNED COUNSEL FOR THE PARTIES ARE REQUESTED TO GIVE FURTHER SUGGESTION IN
THE MATTER IN THE INTEREST OF PUBLIC AND ELEPHANTS
7HEN THE CASE PROCEEDED THE MAP PREPARED BY THE $ISTRICT #OLLECTOR WAS STIFY OBJECTED
BY THE LEARNED #OUNSEL APPEARING ON BEHALF OF THE 3CHEDULED 4RIBES AND 4RADITIONAL
&OREST $WELLERS ON THE GROUND THAT IT IS THE &OREST $EPARTMENT WHICH IS EMPOWERED
TO POINT OUT THE ELEPHANT CORRIDOR TO THE 3TATE )N THIS BACKGROUND ON THE
0RINCIPAL 3ECRETARY OF THE %NVIRONMENT AND &OREST $EPARTMENT THE 0RINCIPAL #HIEF
#ONSERVATOR OF &OREST AND #HIEF 7ILDLIFE 7ARDEN THE 0RINCIPAL #HIEF #ONSERVATOR
AND (EAD OF THE &OREST $EPARTMENT AND THE $ISTRICT &OREST /FCER .ILGIRIS .ORTHERN
$IVISION APPEARED PERSON BEFORE THE #OURT AND AFTER HEARING THEM IT WAS FELT THAT A
TEAM OF EXPERTS OF THE ENVIRONMENT AND FOREST DEPARTMENTS BE CONSTITUTED INCLUDING
THE 0RINCIPAL #HIEF #ONSERVATOR OF &ORESTS TO SUGGEST THE ELEPHANT CORRIDOR AND SUBMIT
A REPORT AFTER TAKING INTO CONSIDERATION THE DIFFERENT BOOKS PUBLISHED WITH REGARD TO
THE ELEPHANT CORRIDOR NAMELY
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
A %COLOGY OF THE !SIAN %LEPHANT
B 4HE !SIAN %LEPHANT IN 3OUTHERN )NDIA
C ! BRIEF DOCUMENTATION OF ELEPHANT CORRIDORS IN 3OUTH )NDIA
D !CQUISITION4RANSFER OF SENSITIVE AREAS FOR RESTORINGMAINTAINING THE SANCTITY OF
THE -OYAR 6ALLEY %LEPHANT #ORRIDOR AND %VALUATION OF THE STATUS AND
E ,AND USE PATTERN AND (ABITAT 5TILIZATION OF %LEPHANT IN #ORRIDORS BETWEEN
7ESTERN 'HATS AND %ASTERN 'HATS THROUGH -UDUMALAI 7ILDLIFE 3ANCTUARY AND
.ATIONAL 0ART AND .ILGIRIS 4AMIL .ADU
)N PURSUANCE OF THE DIRECTIONS OF THE #OURT AN %XPERT #OMMITTEE WAS CONSTITUTED BY
THE 'OVERNMENT WITH THE FOLLOWING MEMBERS
0RINCIPAL #HIEF #ONSERVATOR OF &ORESTS AND #HIEF 7ILDLIFE 7ARDEN #HENNAI
#HAIRMAN
#HIEF #ONSERVATOR OF &ORESTS 4AMIL .ADU !FFORESTATION 0ROJECT AND 2EGIONAL
#HIEF #ONSERVATOR OF &ORESTS FOR .ILGIRIS $ISTRICT /O 0RINCIPAL #HIEF #ONSERVATOR
OF &ORESTS #HENNAI
-EMBER
#ONSERVATOR OF &ORESTS #OIMBATORE #IRCLE #OIMBATORE
-EMBER
#ONSERVATOR OF &ORESTS AND &IELD $IRECTOR -UDUMALAI 4IGER 2ESERVE
5DHAGAMANDALAM
-EMBER
$ISTRICT &OREST /FCER .ILGIRIS .ORTH $IVISION 5DHAGAMANDALAM -EMBER
3ECRETARY
4HE TERMS OF REFERENCE OF THIS #OMMITTEE ARE
%XAMINE THE BOOKS AND STUDY REPORTS REFERRED IN 0ARA ABOVE AND ALSO OTHER
AUTHENTICATEDSPECIALIZED BOOKS AND DOCUMENTS RELATING TO ELEPHANT CORRIDOR
IDENTIFY THE ELEPHANT CORRIDOR AND PREPARE A DETAILED REPORT
4HE BOOKS REPORTS AND OTHER PARTICULARS REFERRED IN THE %XPERT #OMMITTEE 2EPORT
SHALL BE SPECICALLY REFERENCED WITH PAGE NUMBERS
%NQUIRE &OREST /FCERS LOCAL PEOPLE TRIBAL AND ALSO AVAIL OPTION FROM THE EXPERTS
ETC REGARDING THE ELEPHANT CORRIDOR IN THE .ILGIRIS AREA AND SPECIFY THE RESULTS IN
THE REPORT
!
NY OTHER POINTSSUGGESTIONS RELATING TO ELEPHANT CORRIDOR
)T IS SEEN FROM THE RECORDS THAT THE SAID %XPERT #OMMITTEE VISITED THE ELEPHANT CORRIDOR
AREA ON AND AND ENQUIRED THE ELD OFCERS TRIBAL PEOPLE AND
LOCAL PEOPLE AND OBTAINED OPINION FROM THE FOLLOWING EXPERTS SCIENTISTS AND SENIOR
FOREST OFCERS ABOUT THE ELEPHANT CORRIDOR IN THE -OYAR 6ALLEY OF .ILGIRIS
3ENIOR &OREST /FCERS
-R 3 *OHN *OSEPH )&3
&ORMER 0RINCIPAL #HIEF #ONSERVATOR OF &ORESTS AND #HAIRMAN
3OCIETY FOR 3OCIAL &ORESTRY 2ESEARCH AND $EVELOPMENT
4AMIL .ADU
-R 3 3ANKARAMURTHY )&3
&ORMER 0RINCIPAL #HIEF #ONSERVATOR OF &ORESTS
7ORLD 7IDE &UND FOR .ATURE
)NDIA
4AMIL .ADU 3TATE /FCE
.O 44+ 2OAD !LWARPET #HENNAI
4 / \
%XPERTS AND 3CIENTISTS
-R 2 3UKUMAR
0ROFESSOR AND #HAIRMAN
#ENTRE FOR %COLOGICAL 3CIENCES
)NDIAN )NSTITUTE OF 3CIENCE "ANGALORE
-R !JAY ! $ESAI
7ILD ,IFE #ONSULTANT
$R . 3IGAGANESAN
0RINCIPAL #ONSULTANT
7ILD ,IFE AND &ORESTS
.O +AVARAI 3TREET +ORANAD
-AYILADUTHURAI
.AGAPATTINAM $ISTRICT
-R " 2AMAKRISHNAN
&IELD /FCER
7ILD ,IFE 4RUST OF )NDIA
.O 3ANDAL 7OOD $EPOT 2OAD
.ORTHPET 3ATHYAMANGALAM
%RODE $ISTRICT
-R 2 !RUMUGAM
7ILD ,IFE "IOLOGIST
7ILD ,IFE 4RUST OF )NDIA
3UMANGALI .AGAR 3ULEESWARANPATTI 0OLLACHI
#OIMBATORE .'/S
.'/S
-R !# 3OUNDARRAJAN
-EMBER
4HE .ILGIRIS 7ILD ,IFE AND %NVIRONMENT !SSOCIATION
-EMBER
3TATE 7ILD ,IFE !DVISORY "OARD
-EMBER
'OVERNING #OUNCIL -UDUMALAI 4IGER 2ESERVE
!ADITYA !VALANCHI 2OAD &ERN (ILL 0OST
/OTACAMUND
-R +RUPAKAR AND 3ENANI
7ILD ,IFE &ILM -AKER
.ILGIRIS 3OUTH "IOSPHERE 2ESERVE
-YSORE
-R . -OHANRAJ
77&
)NDIA
7ESTERN 'HATS ,ANDSCAPE /FCER
3ECOND #ROSS #HINTHAMANI .AGAR
++ 0UDUR 0OST #OIMBATORE
-R 3 *AYACHANDRAN
*OINT 3ECRETARY
4HE .ILGIRIS AND %NVIRONMENT !SSOCIATION
#O $ISTRICT &OREST /FCE .ORTH -OUNT 3TUART (ILL
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
5DHAGAMANDALAM .ILGIRIS
-R 2AMESH "ELLIE
3ECRETARY .ILGIRIS 0OTATO AND 6EGETABLE 'ROWERS !SSOCIATION
'EETHA ,ODGE #OMPLEX
/OTY
4HEREAFTER THE %XPERT #OMMITTEE SUBMITTED ITS REPORT ON ALONG WITH ITS ELD
STAFF REPORTS TO THIS #OURT #ONSIDERING THIS ARGUMENTS ADVANCED THIS #OURT ALLOWED
THE %XPERT #OMMITTEE TO LE A MAP SHOWING THE BOUNDARIES OF THE %LEPHANT #ORRIDOR
AND THE 3TATE 'OVERNMENT WAS ALSO DIRECTED TO STATE AS TO WHETHER THEY INTEND TO
ACCEPT THE REPORT IN HIS TOTALITY OR WITH MODICATION
!T THAT STAGE THE LEARNED #OUNSEL FOR ONE OF THE WRIT 0ETITIONERS VIZ 4HE (OSPITALITY
!SSOCIATION OF -UDUMALAI WHO IS ALSO THE SIXTH 2ESPONDENT IN 70 .O OF
HAS ARGUED THAT THERE IS HOSTILE ATTITUDE TOWARDS THE RESORTS AND THAT THEY HAVE
CONSTRUCTED THE RESORTS AFTER OBTAINING PERMISSION ON THE PRIVATE FOREST AREA
#ONSIDERING THE STAND OF THE #ENTRAL AND 3TATE 'OVERNMENTS THAT IT IS THE 3TATE
'OVERNMENT WHICH IS TO DECIDE AS TO WHAT IS THE ELEPHANT CORRIDOR WITHIN THEIR TERRITORY
AND THE RIVAL ARGUMENTS THIS #OURT BY THE ORDER DATED DIRECTED THE 3TATE
'OVERNMENT TO LE AN AFDAVIT STATING AS TO WHAT ACTION IT INTENDS TO TAKE WITH REGARD
TO THE RESORT OWNERS RESIDENTS AND ALSO ON THE CORRIDOR MAP PREPARED BY THE #ENTRAL
'OVERNMENT !CCORDINGLY ON THE 3TATE 'OVERNMENT HAS COME FORWARD WITH
ITS DECISION AS CONTAINED IN THE LETTER .O &2 OF THE EVEN DATE THEREBY
STATING THAT THEY WILL ENSURE THAT NO ILLEGAL CONSTRUCTION IS MADE IN THE AREA SHOWN
AS ELEPHANT CORRIDOR IN THE REPORT OF THE %LEPHANT #OMMITTEE AND THAT NO PERSON WILL
BE ALLOWED TO PUT A FRESH SOLARELECTRICAL FENCING WITHIN THE PROPOSED AREA OF ELEPHANT
CORRIDOR
4HEREAFTER HEARING BOTH THE PARTIES AND TAKING INTO CONSIDERATION THE EARLIER ACTIONS OF
THE 3TATE 'OVERNMENT WITH REGARD TO THE ISSUES INVOLVED IN THE MATTER THIS #OURT BY
THE ORDER DATED HAS ORDERED AS FOLLOWS
I 4HE 3TATE 'OVERNMENT WILL HAVE TO DECIDE AS TO WHICH %LEPHANT #ORRIDOR HAS TO
BE IDENTIED IE CORRIDOR IDENTIED BY THE #ENTRAL 'OVERNMENT IN THE LETTER DATED
WITH THE HELP OF THE 3TATE &OREST $EPARTMENT AND .' /S OR THE PROPOSED
%LEPHANT #ORRIDOR AS IDENTIED BY THE %XPERT #OMMITTEE IN THE PRESENT CASES
PREFERABLY WITHIN ONE MONTH
II 4HE PUBLICATION OF SUCH MAP SHOWING THE %LEPHANT #ORRIDOR SHOULD BE MADE BY
THE 3TATE THROUGH THE &OREST $EPARTMENT IN TWO LOCAL NEWSPAPERS ONE IN %NGLISH
AND ANOTHER IN VERNACULAR 4AMIL GIVING THE DETAILS OF 3URVEY .UMBERS OF PRIVATE
LANDS WHICH ARE FALLING WITHIN THE PROPOSED %LEPHANT #ORRIDOR 4HE PERSONS MAY BE
ASKED TO SUBMIT THEIR OBJECTION WITHIN A TIME FRAME SAY ONE MONTH
III 4HE INTIMATION OF SUCH PROPOSED %LEPHANT #ORRIDOR ALONG WITH A COPY OF THE
REPORT OF THE %XPERT #OMMITTEE SHOULD BE ALSO FORWARDED TO EACH LOCAL 0ANCHAYATS
WHICH FALL WITHIN THE PROPOSED %LEPHANT #ORRIDOR SO THAT THE LOCAL PERSONS CAN HAVE
THE KNOWLEDGE OF THE CORRIDOR OF THEIR OWN IF THEY SO CHOOSE
IV .O SEPARATE INDIVIDUAL HEARING IS REQUIRED TO BE GIVEN TO ANY PERSON THOUGH
AMASS BEARING MAY BE GIVEN AS GENERALLY GIVEN IN THE LAND !CQUISITION CASES AND
ON HEARING SUCH OBJECTIONS THE PROPOSED %LEPHANT #ORRIDOR INCLUDING THE MAP
CONTAINING THE DIFFERENT 3URVEY .UMBERS SHOULD BE NALISED AND BE ALSO PUBLISHED
4 / \
AT AN EARLY DATE SAY MAXIMUM WITHIN SIX MONTHS
V .O INDIVIDUAL OR ANY !SSOCIATION GENERALLY SHOULD INTERVENE IN THE CASE )F THEY
HAVE ANY OBJECTION THEY MAY RAISE BEFORE THE AUTHORITIES CONCERNED
/N SUCH NALISATION IT WILL BE OPEN FOR THE 3TATE TO DECIDE
A WHETHER THE PRIVATE LANDS WHICH ARE FALLING WITHIN THE %LEPHANT #ORRIDOR DO NOT
BELONG TO 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS WHO HAVE A RIGHT
UNDER THE PROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT AND WHETHER SUCH LANDS SHOULD BE ACQUIRED
)F THE DECISION IS TAKEN TO ACQUIRE THE LANDS THEY WILL FOLLOW THE REGULAR PROCEDURES
AS LAID DOWN UNDER THE PROVISIONS OF THE ,AND !CQUISITION !CT
B )F THE 3TATE 'OVERNMENT IN THE MEANTIME WANTS TO TAKE OVER THE MANAGEMENT
OF THE PRIVATE FOREST IT MAY DO SO IN TERMS OF 3ECTION OF THE 4AMIL .ADU 0RIVATE
&ORESTS !SSUMPTION OF -ANAGEMENT !CT OF SO AS TO ENABLE THE ELEPHANTS
TO PASS THROUGH THE CORRIDOR WITHOUT ANY HINDRANCE TILL THE LANDS ARE ACQUIRED
)T IS TO BE MENTIONED THAT PURSUANT TO THE DIRECTIONS OF THIS #OURT DATED THE
&OREST $EPARTMENT HAS ISSUED A PUBLIC NOTICE DATED THEREBY PUBLISHING THE
PROPOSED ELEPHANT CORRIDOR AND REQUIRING THE PERSONS WHOSE PRIVATE LANDS ARE FALLING
WITHIN THE PROPOSED CORRIDOR TO SUBMIT OBJECTIONS #HALLENGING THIS ACTION OF THE
'OVERNMENT IN ISSUING THE .OTICE DATED 70 .OS OF OF
OF OF OF OF OF OF OF
AND OF HAVE BEEN LED 2EVIEW !PPLICATION .O OF HAS BEEN LED
TO REVIEW THE ORDER DATED 4HE FORMATION OF THE ABOVE SAID %XPERT #OMMITTEE
BY THIS #OURT AND THE REPORT LED BY THE %XPERT #OMMITTEE DATED HAVE BEEN
CHALLENGED IN 70 .OS OF OF OF AND OF
0URSUANT TO THE PUBLICATION OF THE PUBLIC NOTICE DATED ALONG WITH THE MAPS
OF PROPOSED CORRIDOR AND OTHER DOCUMENTS IN FOUR VILLAGES VIZ 3HOLUR -ASINGUDI
(ULLATHI AND +ADANADU WHICH ARE TO AFFECT BY THE PROPOSED CORRIDOR PUBLIC HEARINGS
WERE HELD ON AND AFTER VERIFYING ALL THE OBJECTIONS AND REJECTING THE SAME THE
'OVERNMENT HAS ISSUED '/ -S .O %NVIRONMENT AND &OREST &2 $EPARTMENT
THEREBY CONRMING THE ELEPHANT CORRIDOR MAP PUBLISHED AND FURTHER MENTIONING THAT
THE LANDS FALLING WITHIN THE BOUNDARY DESCRIPTION FORM THE ELEPHANT CORRIDOR 4HIS '/
HAS BEEN CHALLENGED IN 70 .OS OF OF OF OF
OF OF OF OF OF OF
OF AND OF 3INCE ALL THESE MATTERS ARE THUS INTER
CONNECTED WITH
EACH THEY ARE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER
4HE CONTENTION OF THE 0ETITIONERS CHALLENGING THIS PUBLIC NOTICE DATED ARE
THAT IT IS BEREFT OF DETAILS THAT THE CONSTITUTION COMPOSITION AND RECOMMENDATIONS OF
THE %XPERT #OMMITTEE IS WITHOUT JURISDICTION IN LAW THAT THE PROCEDURE PRESCRIBED IN
LAW TO INITIATE THE PROCESS FOR ACQUISITION OF LANDS WHICH ARE NOT FOREST LANDS HAS NOT
BEEN FOLLOWED THAT IMMENSE PREJUDICE HAS BEEN CAUSED BY THE IMPUGNED NOTICE TO
THE 0ETITIONERS SINCE THE OFCIAL 2ESPONDENTS HAVE NOT FOLLOWED ANY OF THE STATUTORILY
PRESCRIBED RULES ANDOR REGULATIONS BEFORE THE ISSUE OF THE IMPUGNED NOTICE
&ROM THE VOLUMINOUS MATERIAL AVAILABLE ON RECORD IT IS SEEN THAT AS AGAINST THE ABOVE
EXTRACTED ORDER DATED PASSED BY THIS #OURT APPEALS HAVE BEEN LED BEFORE THE
(ONOURABLE !PEX #OURT IN ## .OS TO OF AND A 4HREE *UDGE "ENCH OF
THE (ONOURABLE !PEX #OURT HEADED BY (IS ,ORDSHIP 4HE (ONOURABLE 4HE #HIEF *USTICE
OF )NDIA HAS DISPOSED OF THE MATTERS BY THE ORDER DATED 3INCE THIS ORDER OF
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
THE (ONOURABLE !PEX #OURT HAS ALSO BEEN ATTEMPTED TO BE INTERPRETED BY SOME OF THE
PARTIES IN THESE BATCH OF CASES TO SUIT THEIR CONVENIENCE WE EXTRACT HEREUNDER THE SAID
ORDER FOR BETTER UNDERSTANDING
0ERMISSION TO LE SPECIAL LEAVE PETITION IS GRANTED
$ELAY CONDONED
(EARD LEARNED #OUNSEL FOR THE 0ETITIONER AND LEARNED #OUNSEL FOR 2ESPONDENT .O
4HE LEARNED #OUNSEL FOR THE 0ETITIONER CONTENDS THAT IF PROPOSED %LEPHANT #ORRIDORS
ESTABLISHED THE 0ETITIONER WOULD BE SERIOUSLY EFFECTED AS HIS AGRICULTURAL LAND FALLS
IN THAT AREA
4HE 0ETITIONER WOULD BE AT LIBERTY TO APPROACH THE COMMITTEE WHICH IS LIKELY TO
NALIZE THE %LEPHANT #ORRIDORS AND ALSO WOULD BE AT LIBERTY TO APPROACH THE (IGH
#OURT AND SEEK INTERVENTION PROCEEDINGS THOUGH THE $IVISION "ENCH HAS ALREADY
INDICATED UNDER OTHER PROCEEDING THAT NO INTERVENTION IS ALLOWED
7ITH THE ABOVE DIRECTIONS THE 3PECIAL ,EAVE 0ETITION IS DISPOSED OF
/N THE PART OF THE 0ETITIONERS IT HAS BEEN ARGUED THAT UNDER 3ECTION OF THE 7ILDLIFE
0ROTECTION !CT A #OMMITTEE HAS BEEN CONSTITUTED AND WHEN LAW CONTEMPLATES A
PARTICULAR WAY OF DOING THINGS BY WAY OF CONSTITUTING A #OMMITTEE UNDER 3ECTION OF
THE 7ILD ,IFE 0ROTECTION !CT BOTH RESORTING TO CONSTITUTING A #OMMITTEE AND ENTRUSTING
THE MATTER TO THE #OMMITTEE IS IN VIOLATION OF THE PROVISIONS OF THE !CT
!T THIS JUNCTURE IT IS TO BE POINTED OUT THAT ALL THE POINTS WHICH HAVE BEEN RAISED BEFORE
THIS #OURT WERE ALSO ARGUED BEFORE THE (ONOURABLE !PEX #OURT %VEN THOUGH ARGUMENTS
HAVE BEEN ADVANCED BEFORE THE BY THIS #OURT THE SAME WAS NOT INTERFERED WITH BY THE
(ONOURABLE !PEX #OURT )NSTEAD AS COULD BE SEEN FROM THE ORDER OF THE (ONOURABLE !PEX
#OURT THE 0ETITIONERS WERE GIVEN LIBERTY TO APPROACH THE #OMMITTEE WHICH IS LIKELY TO
NALIZE THE %LEPHANT #ORRIDORS 4HEREFORE IT GOES WITHOUT SAYING THAT THE ASPECT OF
CONSTITUTION OF AN EXPERT COMMITTEE BY THIS #OURT WAS CONRMED BY THE (ONOURABLE
!PEX #OURT &URTHER THE CONSTITUTION OF THIS #OMMITTEE BY THIS #OURT WAS DONE IN THE
BEST INTEREST OF ALL THE PARTIES CONCERNED )T IS TO BE MENTIONED THAT IN 4IRUPUR $YEING
&ACTORY /WNERS !SSOCIATION VS .OYYAL 2IVER !YACUTDARS 0ROTECTION !SSOCIATION
3## -,* ALSO WHEN HIS (IGH #OURT HAS CONSTITUTED A MONITORING
COMMITTEE THE (ONOURABLE !PEX #OURT HAS HELD IT AS NOT VITIATED BY LAW SINCE TOWARDS
UPHOLDING THE MAJESTY OF LAW AND JUSTICE 4HEREFORE THE ARGUMENT ADVANCED ON THE PART
OF THE 0ETITIONERS WITH REGARD TO THE VALIDITY OF CONSTITUTION OF THE %XPERT #OMMITTEE BY
THIS #OURT CANNOT BE APPRECIATED
)N THE MEANTIME 70 .OS AND OF HAVE BEEN LED BY THE FOREST DWELLS
PRAYING FOR A DIRECTION TO THE AUTHORITIES TO IMPLEMENT THE 3CHEDULE 4RIBES AND OTHER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT AND TO COMPLETE THE
PROCESS OF RECOGNITION OF FOREST RIGHTS OF THE TRADITIONAL FOREST DWELLING COMMUNITIES
AND TRADITIONAL FOREST DWELLERS
#ONSIDERED AS THE SUPREME MOST LEVEL OF CREATION ON EARTH WE THE HUMAN BEINGS MUST
NOT FORGET THAT -OTHER %ARTH WHICH IS FULL OF LOTS OF CREATURES AND LIVING ORGANISMS IS
FOR ALL AND LIKE HUMANS ANIMALS ALSO HAVE A RIGHT TO LIVE BECAUSE THEY ARE THE SAME
AS US BUT MAY BE WITH A LOWER BRAIN CAPACITY THAN HUMANS 4HAT DOES NOT GIVE ANY
UNASSAILABLE POWER AND RIGHT FOR THE HUMANS TO ACT IN A MANNER DETRIMENTAL TO THE
INTEREST AND WELFARE OF THE SO CALLED LOWER BRAIN CAPACITY BEINGS ON EARTHTHE ANIMALS
4 / \
SINCE ANIMALS TOO HAVE RIGHTS TO LIVE THEIR LIVES FREE FROM SUFFERING AND PAIN AND
WE AS THE HUMANBEINGS MUST FEEL SOLIDARITY WITH THEM 0RESERVATION OF WILDLIFE IS
IMPORTANT FOR MAINTAINING THE ECOLOGICAL BALANCE IN THE ENVIRONMENT AND SUSTAINING
THE ECOLOGICAL CHAIN
4HE FRAMERS OF #ONSTITUTION BEING WELL AWARE OF THESE HAVE INTRODUCED !RTICLE !
G OF THE #ONSTITUTION WHICH SAYS THAT IT IS THE DUTY OF EVERY CITIZEN OF )NDIA TO PROTECT
AND IMPROVE THE NATURAL ENVIRONMENT INCLUDING THE WILDLIFE 4HE 'OVERNMENT OF
)NDIA HAS ENACTED A COMPREHENSIVE LEGISLATION 7ILD ,IFE 0ROTECTION !CT FOR THIS
CONSTITUTIONAL PURPOSE #HAPTER ))) OF THE SAID !CT PROHIBITS HUNTING OF WILD ANIMALS
EXCEPT IN CERTAIN LIMITED CIRCUMSTANCES #HAPTER )6 ENABLES THE 3TATE 'OVERNMENT
TO DECLARE ANY AREA AS A SANCTUARY OR NATIONAL PARK AND DESTRUCTION OR REMOVAL OF
ANIMALS FROM THOSE AREAS IS PROHIBITED EXCEPT UNDER VERY LIMITED CIRCUMSTANCES
#HAPTERS V AND 6 ! PROHIBIT TRADE OR COMMERCE OF WILD ANIMALS ANIMAL ARTICLES OR
TROPHIES #HAPTER 6) MAKES VIOLATION OF THE PROVISIONS OF THE !CT A CRIMINAL OFFENCE "Y
THE 7ILD ,IFE 0ROTECTION !MENDMENT !CT THE PUNISHMENT HAS BEEN INCREASED
VIDE 3ECTION AS AMENDED AND THE PROPERTY DERIVED FROM ILLEGAL HUNTING AND TRADE IS
LIABLE TO FORFEITURE VIDE #HAPTER 6) ! )N THE )NDIAN ELEPHANT WAS BROUGHT WITHIN
THE PURVIEW OF ) 3CHEDULE ! OF THE !CT
.ATURE IS A SERIES OF COMPLEX BIOTIC COMMUNITIES OF WHICH THE MAN IS AN INTERDEPENDENT
PART AND THAT IT SHOULD NOT BE GIVEN TO A PART TO TRESPASS AND DIMINISH THE WHOLE )T IS
CONSIDERED THAT THE LARGEST SINGLE FACTOR IN THE DEPLETION OF THE WEALTH OF ANIMAL LIFE IN
NATURE HAS BEEN THE CIVILISED MAN OPERATING DIRECTLY THROUGH EXCESSIVE COMMERCIAL
HUNTING OR MORE DISASTROUSLY INDIRECTLY THROUGH INVADING OR DESTROYING NATURAL
HABITATS SO OBSERVED BY THE (ONOURABLE !PEX #OURT IN 3TATE OF "IHAR VS -URAD !LI
+HAN !)2 3# 3##
4HE POLICY AND OBJECT OF THE WILD LIFE LAWS HAVE A LONG HISTORY AND ARE THE RESULT OF
AN INCREASING AWARENESS OF THE COMPELLING NEED TO RESTORE THE SERIOUS ECOLOGICAL
IMBALANCES INTRODUCED BY THE DEPREDATIONS INICTED ON NATURE BY MAN 4HE STATE TO
WHICH THE ECOLOGICAL IMBALANCES AND THE CONSEQUENT ENVIRONMENTAL DAMAGE HAVE
REACHED IS SO ALARMING THAT UNLESS IMMEDIATE DETERMINED AND EFFECTIVE STEPS WERE
TAKEN THE DAMAGE MIGHT BECOME IRREVERSIBLE 4HE PRESERVATION OF THE FAUNA AND ORA
SOME SPECIES OF WHICH ARE GETTING EXTINCT AT AN ALARMING RATE HAS BEEN A GREAT AND
URGENT NECESSITY FOR THE SURVIVAL OF HUMANITY AND THESE LAWS REECT A LAST DITCH BATTLE
FOR THE RESTORATION IN PART AT LEAST A GRAVE SITUATION EMERGING FROM A LONG HISTORY
OF CALLOUS INSENSITIVENESS TO THE ENORMITY OF THE RISKS TO MANKIND THAT GO WITH THE
DETERIORATION OF ENVIRONMENT 4HE ONLY WAY WE CAN GUARANTEE
OUR CONTINUED SURVIVAL
ON EARTH IS TO RECOGNIZE THE IMPORTANCE OF OTHER NON HUMAN LIFE FORMS AND STOP
PRETENDING WE ARE ON TOP OF SOME PYRAMID OF DOMINATION OVER OTHER BEINGS )T IS THE
TIME TO THINK BIG AND ACCEPT NO LIMITS AS WE HAVE TO WORK TOWARDS A BETTER TOMORROW
7ITH REGARD TO THE ARGUMENT ADVANCED ON THE PART OF SOME OF THE WRIT 0ETITIONERS
CHALLENGING THE POWER OF THE 3TATE 'OVERNMENT TO EXERCISE ITS EXECUTIVE POWER TO
IDENTIFY ELEPHANT CORRIDORS WHEN THE SAME IS OCCUPIED BY A 0ARLIAMENTARY LEGISLATION
AND A STATUTE OCCUPYING THE ELD VIZ .ATIONAL3TATE 7ILD ,IFE "OARDS HAVING EXTENSIVE
POWERS RATHER DUTY TO PROTECT WILD LIFE IT IS TO BE MENTIONED THAT THE SUBJECT PROTECTION
OF WILD ANIMALS AND BIRDS HAS BEEN MADE CONCURRENT BY THE #ONSTITUTION ND
!MENDMENT !CT BY MAKING %NTRY AS " WHILE THE SUBJECT &OREST HAS ALSO BEEN
INCLUDED BY THE SAME AMENDMENT AS %NTRY .O ! TO THE CONCURRENT LIST 4HIS EMPOWERS
THE #ENTRAL 'OVERNMENT TO ISSUE ADVISORIESDIRECTIONS TO THE 3TATES5 4S FROM TIME
TO
TIME TO TAKE APPROPRIATE ACTIONS FOR CONSERVATION AND PROTECTION OF WILDLIFE AND ITS
HABITATS 4HE 7ILDLIFE BEING IN THE CONCURRENT ,IST %NTRIES ! AND " OF ,IST ))) OF
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
THE #ONSTITUTION BOTH THE #ENTRAL AND 3TATE 'OVERNMENTS5 4S ARE MANDATED WITH
THE RESPONSIBILITY OF THE PROTECTION AND CONSERVATION OF THE WILDLIFE AND ITS HABITAT
4HEREFORE THE PRIMARY DUTY OF PROTECTION AND MANAGEMENT OF WILDLIFE AND ITS HABITAT
LIES WITH THE 3TATE &OREST $EPARTMENT AND THE 3TATES5 4S ARE AT LIBERTY TO TAKE STEPS FOR
CONSERVATION AND PROTECTION OF WILDLIFE AND ITS HABITAT 5NDER THE 7ILDLIFE 0ROTECTION
!CT THE 3TATE 'OVERNMENTS ARE EMPOWERED TO DECLARE PROTECTED AREAS INCLUDING
3ANCTUARIES .ATIONAL 0ARKS #ONSERVATION 2ESERVES AND #OMMUNITY 2ESERVES UNDER
#HAPTER )6 OF THE !CT 4HEREFORE WHEN THE 3TATE 'OVERNMENTS ARE EMPOWERED UNDER THE
SAID !CT TO NOTIFY ANY AREA HAVING ADEQUATE ECOLOGICAL FAUNAL ORAL GEOMORPHOLOGICAL
NATURAL OR ZOOLOGICAL SIGNICANCE FOR THE PURPOSE OF PROTECTING PROPAGATING OR
DEVELOPING WILDLIFE OR ITS ENVIRONMENT AS 0ROTECTED !REAS UNDER #HAPTER )6 OF THE !CT
THE AUTHORITY OF THE 3TATE 'OVERNMENT IN IDENTIFYING THE ELEPHANT CORRIDORS CANNOT
BE CHALLENGED 4HEREFORE THE 0ETITIONERS ARE NOT JUSTIED IN CONTENDING THAT THE 3TATE
'OVERNMENT IS BEREFT OF ITS POWERS IN IDENTIFYING THE ELEPHANT CORRIDOR
)T IS ALSO TO BE STATED THAT THE IMPUGNED '/ -S .O %NVIRONMENT AND &ORESTS
&2 $EPARTMENT DATED HAS BEEN ISSUED CONRMING THE ELEPHANT CORRIDOR
MAP PUBLISHED ON AND FURNISHING THE BOUNDARY DETAILS TO FORM THE
ELEPHANT CORRIDOR FURTHER DIRECTING THE 0RINCIPAL #HIEF #ONSERVATOR OF &ORESTS TO PUBLISH
THE NAL ELEPHANT CORRIDOR IN THE CADASTRAL MAP PREPARED BY THE %XPERT #OMMITTEE
PURSUANT TO THE DIRECTION OF THIS #OURT DATED AND "UT THE SAID '/ IS
ALSO BEING CHALLENGED BY SOME OF THE WRIT PETITIONS AS BEING ILLEGAL AND ULTRA VIRES OF
THE PROVISIONS OF THE 7ILDLIFE 0ROTECTION !CT
4HE CONTENTIONS OF THE 0ETITIONERS WHO ARE CHALLENGING THE '/ -S .OS DATED
ARE THAT THE CONSTITUTION OF THE %XPERT #OMMITTEE IN 70 .O OF
WHOSE REPORT LED TO THE ISSUANCE OF THIS IMPUGNED '/ IS ALSO IN VIOLATION OF THE
PROVISIONS OF THE !CT THAT THE PROPOSED ELEPHANT CORRIDOR AS IDENTIED BY THE #OMMITTEE
IS ERRONEOUS SPECICALLY IN RESPECT OF THE AREAS MARKED ACROSS THE UNDULATING HILLS IN
THE SOUTH OF THE VILLAGE OF "OKKAPURAM THAT THE IMPUGNED '/ DATED HAS
BEEN ISSUED BY THE 3TATE 'OVERNMENT IN VIOLATION OF THE 3CHEDULED 4RIBES AND OTHER
4RADITIONAL &OREST $WELLERS !CT
4HE %XPERT #OMMITTEE WAS CONSTITUTED BY THE ORDERS OF THIS #OURT DATED
UNDER THE CHAIRMANSHIP OF 0RINCIPAL #HIEF #ONSERVATOR OF &ORESTS AND #HIEF 7ILDLIFE
7ARDEN WHO IS THE HIGHEST EXPERT IN THE ELD
4HE MAIN ATTACK MADE ON THE PART OF THE 0ETITIONERS THE FORMATION OF SUCH AN %XPERT
#OMMITTEE BY THIS #OURT IS THAT UNDER THE 7ILD ,IFE 0ROTECTION !CTS 3TATE AND .ATIONAL
"OARDS ARE FORMED AND THEREFORE THE FORMATION OF THE %XPERT #OMMITTEE BY THE #OURT
IS NOTHING BUT IN DEROGATION OF THE SAID !CT )N THESE CIRCUMSTANCES THEY HAVE ARGUED
THAT WHEN THE LAW CONTEMPLATES CERTAIN THINGS TO BE DONE IN A PARTICULAR MANNER THE
SAME HAS TO BE DONE ONLY IN THAT MANNER AND NOT OTHERWISE
.O DOUBT 3TATE AND .ATIONAL "OARDS ARE FORMED UNDER THE 7ILD ,IFE 0ROTECTION !CT "UT
WHILE HEARING THE 0UBLIC )NTEREST ,ITIGATION 70 .O OF WHEN THIS #OURT
HAS THOUGHT IT T AND PROPER TO FRAME A BODY OF EXPERTS TO GO INTO THE MATTER AND THE
SAID COMMITTEE FORMATION WAS NOT INTERFERED WITH BY THE (ONOURABLE !PEX #OURT IN
THE PROCEEDINGS INITIATED BY SOME OF THE 0ETITIONERS IN ## .OS
OF AND
FURTHER NO MOTIVES COULD BE IMPARTED TO THE SAID EXPERT COMMITTEE WHICH HAS GONE
A LONG WAY TO ASSESS THE ENTIRE GAMUT WE ARE UNABLE TO APPRECIATE THE ARGUMENTS
ADVANCED ON BEHALF OF THE 0ETITIONERS IN THIS REGARD
)T IS ALSO TO BE MENTIONED THAT THE ARE IN QUESTION HAS ALREADY BEEN NOTIED IN UNDER
4 / \
THE 4AMIL .ADU 0RESERVATION OF 0RIVATE &ORESTS !CT AND THEREFORE THE 'OVERNMENT
CAN VERY WELL TAKE POSSESSION OF THE SAID LANDS 4HE ARGUMENTS ADVANCED ON THE PART
OF PRIVATE LAND OWNERS THAT THE SAID NOTICATION DATED IS A BLANKET ONE AND
IS ILLEGAL CANNOT BE APPRECIATED IN VIEW OF THE ADMITTED FACT THAT NO ORDERS OF SUCH
NATURE HAVE BEEN PASSED IN 70 .OS AND OF LED BEFORE THIS #OURT
CHALLENGING THE .OTICATION DATED ISSUED UNDER 3ECTION II OF THE 4AMIL
.ADU 0RESERVATION OF 0RIVATE &OREST !CT AND PUBLISHED IN THE $ISTRICT 'AZETTE ON
BY THE $ISTRICT &OREST /FCER .ILGIRIS
4HE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS !CT HAS BEEN ENACTED
TO RECOGNISE AND VEST THE FOREST RIGHTS AND OCCUPATION IN FOREST LAND IN FOREST DWELLING
3CHEDULED 4RIBES 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 4HE LEARNED
#OUNSEL APPEARING FOR THE FOREST DWELLERS HAVE ARGUED THAT BECAUSE OF THE ACTION OF THE
'OVERNMENT TO IDENTIFY THE ELEPHANT CORRIDOR THE RIGHTS OF THE FOREST DWELLERS ENSURED
UNDER THE SAID !CT ARE INFRINGED
)T HAS BEEN ASSERTED BEFORE US ON BEHALF OF THE 3TATE 'OVERNMENT THAT THE PROPOSED
NOTICATION OF ELEPHANT CORRIDOR IS ONLY A MANAGEMENT ACTIVITY TO TAKE CARE OF THE
WELFARE OF THE ELEPHANT AND OTHER WILDLIFE AND THE NOTICATION OF THE ELEPHANT CORRIDOR
HAS NOTHING TO DO WITH THE POSSESSION LEGAL OWNERSHIP AND RIGHTS OF THE CONCERNED
)T IS ALSO THE STAND OF THE 3TATE 'OVERNMENT THAT THE LEGAL STATUS OF THE LAND IS NOT THE
CRITERIA FOR NOTIFYING THE %LEPHANT CORRIDOR AND THE LANDS WHICH ARE IN THE PATHWAY OF
MOVEMENT OF ELEPHANTS AND OTHER WILDLIFE INCLUDING PATTA LANDS AND ESTATES WHICH
ARE ALREADY NOTIED AS PRIVATE FOREST UNDER THE 4AMIL .ADU 0RESERVATION OF 0RIVATE
&OREST !CT IRRESPECTIVE OF THE LEGAL STATUS ARE PROPOSED TO BE NOTIED AS %LEPHANT
CORRIDOR )T HAS BEEN ASSURED ON BEHALF OF THE 3TATE 'OVERNMENT BEFORE US THAT THE
INTEREST OF THE EXISTING COMMUNITY AND INTEREST WOULD NOT BE AFFECTED
.O DOUBT UNDER THE SCHEME OF THINGS IT IS THE RESPONSIBILITY OF THE 3TATE 'OVERNMENT
TO IMPLEMENT THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS !CT )N VIEW
OF THE ABOVE AND IN VIEW OF THE ASSERTIONS MADE BEFORE US BY THE 3TATE 'OVERNMENT WE
DIRECT THE 3TATE 'OVERNMENT TO STICK ON THE ASSERTIONS MADE BEFORE US WHILE DEALING
WITH SUCH COMMUNITIES
)T HAS ALSO BEEN ARGUED ON BEHALF OF THE PRIVATE LAND OWNERS THAT NEVER THERE WAS
ANY MOVEMENT OF ELEPHANTS IN 3OUTH OF "OKKAPURAM AS THE VILLAGE OF "OKKAPURAM IS
ABUTTING THE STEP SLOPES OF THE .ILGIRIS AND THEREFORE THE INCLUSION OF THIS AREA ALSO IN
THE ELEPHANT CORRIDOR IS ILLEGAL /N A PERUSAL OF VOLUMINOUS MATERIALS PLACED ON RECORD
IT IS CLEAR THAT ON AN EARLIER OCCASION TWO ELEPHANTS WERE CAUGHT IN (ASSAN +ARNATAKA
RADIO COLLARED AND RELEASED IN "ANDIPUR WHICH FOUND THEIR WAY TO THE 3IGUR 0LATEAU
AND USED ALL AREAS INCLUDING THE 3OUGH OF THE VILLAGE OF "OKKAPURAM AND THAT A &RENCH
LADY WAS ATTACKED AND KILLED IN "OKKAPURAM 4HEREFORE ON A FACTUAL ANALYSIS OF THE
MATERIALS PLACED ON RECORD WE ARE UNABLE TO APPRECIATE THIS STAND TAKEN ON THE PART OF
THE PRIVATE LAND OWNERS AND HENCE THIS ARGUMENT ADVANCED ON THEIR PART IS REJECTED
! FANCY ARGUMENT HAS BEEN ADVANCED ON THE PART OF THE PRIVATE LAND OWNERS THAT WITH
A VIEW TO CREATE AN ARTICIAL CORRIDOR THEIR LANDS ARE SOUGHT TO BE ACQUIRED WHICH
IS ILLEGAL 4HERE IS NO DISPOSE THAT THE ELEPHANT REQUIRES LARGE SPACE FOR MOVEMENT
WITHOUT ANY OBSTRUCTION AND IT IS THE BURDEN OF THE 'OVERNMENT TO SEE THAT THERE IS NO
MAN ANIMAL CONICT IN THE AREA SO AS TO PROTECT THE INTEREST OF THE PROTECTED ANIMAL
AND ALSO THE HUMAN HABITATION 7HEN IT HAS BEEN ESTABLISHED THAT THE ELEPHANTS
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
NEEDED SPACE WITHOUT ANY MAN MADE OBSTRUCTIONS AND THAT THE AREA IS FAMOUS FOR
ITS ELEPHANT POPULATION BUT REQUIRING ATTENTION FROM THE 'OVERNMENT WHICH IS EVEN
OBLIGED UNDER !RTICLE
! G OF THE #ONSTITUTION THE STEPS INITIATED ON THE PART OF THE
'OVERNMENT TO PRESERVE THE AREA AS ELEPHANT CORRIDOR CANNOT BE BRANDED AS A STEP TO
ESTABLISHED ARTICIAL CORRIDOR )N FACT AS HAS BEEN RIGHTLY ARGUED ON THE PART OF SOME OF
THE PRIVATE LAND OWNERS THEMSELVES THERE CANNOT BE ANY SUCH ARTICIAL CORRIDORS SINCE
THE ANIMALS CANNOT ADJUST TO THE SAME 4HE ENTIRE MATERIAL ON RECORD WOULD CLINCHINGLY
ESTABLISH THAT THE 'OVERNMENT HAS TAKEN ALL NECESSARY STEPS TO PROTECT THE INTEREST OF
NOT ONLY THE ANIMALS BUT ALSO THE HUMAN HABITATION IN THE LOCALITY AND ONLY TAKING INTO
CONSIDERATION THE NEED TO PROTECT THE ANIMAL AND TO PROVIDE THE REQUIRED PASSAGE FOR
THEM THE AREA WHEREIN THE ANIMALS ARE ALREADY MOVING IS ONLY SOUGHT TO BE DECLARED
AS THE ELEPHANT CORRIDOR AND NO NEW AREA HAS BEEN CREATED OR FORMED FOR THE ANIMALS
SO AS TO SAY THAT AN ARTICIAL CORRIDOR IS BEING CREATED BY THE 'OVERNMENT 4HEREFORE
THIS ARGUMENT ADVANCED ON THE PART OF THE PRIVATE LAND OWNERS CANNOT BE ACCEPTED
)T IS THE COMMON KNOWLEDGE OF EVERYONE THAT THE GREATEST THREAT THAT IS BEING FACED BY
MANY SPECIES IS THE WIDESPREAD DESTRUCTION OF HABITAT AND HUNTING (ABITAT DESTRUCTION
CAN FORCE THE WILDLIFE EXTINCTION "Y PROTECTING HABITAT ENTIRE COMMUNITIES OF ANIMALS
CAN BE PROTECTED TOGETHER AND WHEN COMMUNITIES ARE KEPT INTACT LESS CONSERVATION
INTERVENTION IS REQUIRED TO ENSURE SPECIES SURVIVAL 4HE SPECIES IS TARGETED BY POACHERS
WHO HUNT THE ELEPHANTS FOR THEIR VALUABLE IVORY TUSKS 4HEREFORE PARKS RESERVES AND
OTHER PROTECTED LANDS ARE TOO OFTEN CONSIDERED AS THE ONLY HABITATS LEFT UNTOUCHED
BY HABITAT DESTRUCTION "Y IDENTIFYING AND NURTURING SUCH ELEPHANT CORRIDORS DEADLY
CONFRONTATIONS BETWEEN THE ELEPHANTS AND THE HUMAN BEING COULD BE AVOIDED BESIDES
PROTECTING THE WELFARE OF THE ANIMALS AND TO AVOID THREAT TO THE WILDLIFE IN THE AREA BY
AVOIDING POACHING MOST PARTICULARLY COMMERCIAL POACHING
&ROM THE MATERIALS PLACED ON RECORD IT IS SEEN THAT NUMBER OF (OLIDAY RESORTS HAVE
SPRUNG UP IN THE AREA WITHOUT PROPER APPROVAL AND IN TOTAL VIOLATION OF THE PROVISIONS
OF THE 4AMIL .ADU 0RESERVATION OF 0RIVATE &OREST !CT 4HESE (OLIDAY 2ESORTS
ARE CARRYING ON COMMERCIAL ACTIVITIES IN VIOLATION OF THE 4AMIL .ADU 0RESERVATION OF
0RIVATE &OREST !CT 4AMIL .ADU &OREST !CT &OREST #ONSERVATION !CT
7ILDLIFE 0ROTECTION !CT ETC )T IS ALSO SEEN THAT BECAUSE OF THE LOCATION OF THESE
(OLIDAY 2ESORTS LARGE NUMBER OF TOURISTS ALONG WITH VEHICLES ARE MOVING FREQUENTLY
IN THE RESORT AREAS WHICH LED TO MAN
ANIMAL CONICT IN THE AREA )T HAS EVEN BEEN
BROUGHT TO OUR KNOWLEDGE BY THE LEARNED !DVOCATE 'ENERAL ARGUING ON BEHALF OF
THE 3TATE 'OVERNMENT THAT THESE RESORTS HAVE ORIGINALLY OBTAINED PERMISSION FOR
CONSTRUCTION OF DWELLING HOUSES AND THEREFORE CONSTRUCTED RESORTS WITHOUT OBTAINING
PERMISSION FROM THE CONCERNED AUTHORITIES WHICH IS ILLEGAL 4HEREFORE IT IS CLEAR THAT
WHEN THE VERY INCEPTION OF THE RESORTS IS BY ILLEGAL MEANS THEY CANNOT BE PERMITTED
TO TAKE SHELTER UNDER THE GROUND THAT THEY CANNOT BE DENIED THE RIGHT TO PRACTICE ANY
PROFESSION ENSURED UNDER !RTICLE G OF THE #ONSTITUTION
4HE CONCLUSIONS OF OUR ABOVE DISCUSSIONS ARE
A 4HE SUBJECT FORESTS AND PROTECTION OF WILD ANIMALS AND BIRDS ARE IN THE ,IST
))) CONCURRENT LIST OF THE #ONSTITUTION AND IT IS ALSO THE FUNDAMENTAL DUTY OF
EVERY CITIZEN OF )NDIA UNDER !RTICLE
! G OF THE #ONSTITUTION TO PROTECT AND
IMPROVE THE NATURAL ENVIRONMENT INCLUDING FORESTS LAKES RIVERS AND WILD LIFE
AND TO HAVE COMPASSION FOR LIVING CREATURES 4HE 'OVERNMENT OF )NDIA HAS MADE
IT CLEAR BEFORE US BY WAY OF AN AFDAVIT THAT AT LEAST THE CORRIDORS IDENTIED IN
THE BOOK 2)'(4 /& 0!33!'%
%,%0(!.4 #/22)$/23 /& ).$)! PUBLISHED BY
7ILDLIFE 4RUST OF )NDIA WHICH WAS TAKEN INTO ACCOUNT WHILE DRAWING THE PRESENT
PROPOSED ELEPHANT CORRIDOR NEEDS TO BE NOTIED BUT IT DID NOT RESTRICT THE 3TATE
'OVERNMENT TO NOTIFY THE ACTUAL ELEPHANT CORRIDORS 4HE 3TATE 'OVERNMENT IS
4 / \
FULLY EMPOWERED TO NOTIFY THE ELEPHANT CORRIDOR AS A MANAGEMENT STRATEGY AND
IS ALSO AUTHORIZED BY THE 0ROJECT %LEPHANT OF #ENTRAL 'OVERNMENT SINCE THERE IS
NO IMPEDIMENT IN 7ILD ,IFE 0ROTECT IN DECLARING THE ELEPHANT CORRIDOR BY
THE 3TATE 'OVERNMENT 4HEREFORE THE ACTION INITIATED BY THE 3TATE 'OVERNMENT
TO IDENTIFY THE ELEPHANT CORRIDOR CANNOT BE FOUND FAULT WITH SINCE IT HAS ONLY
ACTED TOWARDS IMPLEMENTING ITS OBLIGATION CREATED UNDER !RTICLE L ! G OF THE
#ONSTITUTION
B 4HIS #OURT WHILE EXERCISING ITS EXTRAORDINARY JURISDICTION UNDER !RTICLE OF
THE #ONSTITUTION AFTER HEARING THE PARTIES AND TAKING INTO CONSIDERATION VARIOUS
FACTORS HAS ORDERED FORMATION OF AN %XPERT #OMMITTEE BY THE ORDER DATED
TO GO INTO VARIOUS ASPECTS OF THE CASE AND THE SAID #OMMITTEE HAS
ALSO SUBMITTED ITS REPORT 7HEN THE SAID ORDER OF THIS #OURT DATED WAS
CHALLENGED BEFORE THE (ONOURABLE !PEX #OURT IN ## .OS
OF THE
SAME WAS NOT INTERFERED WITH BY THE (ONOURABLE !PEX #OURT "UT ON THE OTHER
HAND THE 0ETITIONER WAS GIVEN A LIBERTY TO APPROACH THE #OMMITTEE &URTHER
NO ILL MOTIVES COULD BE ATTRIBUTED TO THE SAID #OMMITTEE WHICH HAS TRAVELLED
EXTENSIVELY AND ARRIVED AT ITS LOGICAL CONCLUSIONS AFTER THE WELL ESTABLISHED
PROCESS OF DELIBERATIONS AND CONSULTATIONS AND AFTER TAKING INTO CONSIDERATION
THE VARIOUS LITERATURE AVAILABLE ON THE SUBJECT 4HEREFORE THE CHALLENGE MADE
TO THE FORMATION OF THE #OMMITTEE AND THE REPORT LED BY THE SAID #OMMITTEE
CANNOT BE FOUND FAULT WITH AS THOUGH THE FORMATION OF THE #OMMITTEE BY THIS
#OURT IS NOTHING BUT INTRUDING INTO THE POWERS OF THE 3TATE AND .ATIONAL "OARDS
FORMED UNDER THE 7ILD ,IFE 0ROTECTION !CT
C &URTHER MORE THOUGH 3ECTION C OF THE 7ILD ,IFE 0ROTECTION !CT STATES ABOUT
THE FUNCTIONS OF THE .ATIONAL "OARD AND 3ECTION STATES ABOUT THE DUTIES OF
THE 3TATE "OARD THE NOTICATION OF THE ELEPHANT CORRIDOR DID NOT INTERVENE OR
VIOLATE THE FUNCTIONS AND DUTIES OF THESE "OARDS AND IN FACT BY THIS ACT THE 3TATE
'OVERNMENT HAS FULLLED ITS OBLIGATIONS CREATED UNDER !RTICLE ! G OF THE
#ONSTITUTION IN WHICH WE ARE UNABLE TO ND ANY ILLEGALITY
D '/ -S .O DATED HAS BEEN ISSUED BY THE 3TATE 'OVERNMENT AFTER
A DETAILED STUDY OF THE COMMITTEES REPORT AND AFTER DULY CONSIDERING THE VARIOUS
OBJECTIONS RAISED BY THE PARTIES BEFORE THE #OMMITTEE AND UNDER THE SCHEME OF
THIS '/ THE 3TATE 'OVERNMENT HAS BETTER PROTECTED THE INTERESTS OF THE TRIBAL
AND TRADITIONAL DWELLERS
E !LL THE MEMBERS OF THE #OMMITTEE WERE FORESTRY AND WILDLIFE PROFESSIONS AND
WE ARE INFORMED THAT THEY HAD CARRIERS IN FORESTRY MANAGEMENT FOR TO
YEARS BESIDES HAVING PERSONAL EXPERIENCE OF MANAGING THESE AREAS AT ONE POINT
OF TIME OR OTHER AND HAD THOROUGH PROFESSIONAL KNOWLEDGE AND EXPERTISE ON THE
MOVEMENT OF THE ELEPHANTS IN THIS AREA 4HE DATA RELATING TO THE MOVEMENT OF
ELEPHANT OVER A CONSIDERABLE PERIOD WHICH WERE ALREADY AVAILABLE IN THE FORM OF
LITERATURE AND NOTICATIONS RESEARCH STUDY REPORTS BY VARIOUS RESEARCH SCHOLARS
SCIENTISTS AND AGENCIES WERE ALL COLLECTED EXAMINED AND DISCUSSED IN DETAIL BY
THE #OMMITTEE AND HENCE IT CANNOT BE SAID THAT IN SUCH A SHORT SPAN OF TIME NO
MATERIAL COULD HAVE BEEN COLLECTED BY THE #OMMITTEE
F 3TATE IS THE 'UARDIAN OF THE INTERESTS OF NOT ONLY THE HUMAN BEINGS BUT ALSO THE
WILDLIFE UNDER THE SACRED DOCUMENTTHE #ONSTITUTION OF )NDIA 5NDER THE SCHEME
OF THINGS PROPOSED IN '/ -S .O DATED THE CONSIDERED OPINION OF
THIS #OURT THE 'OVERNMENT HAS CONSCIOUSLY APPLIED ITS MIND TO THE INTERESTS OF
VARIOUS PARTIES AND HAS COME OUT WITH A MORE PRACTICABLE AND WORKABLE SOLUTIONS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
/N A COMPLETE ANALYSIS OF THE ENTIRE MATERIALS PLACED ON RECORD AND UPON HEARING
THE PARTIES AT LENGTH WE ARE UNABLE TO ND ANY ILLEGALITY OR IRREGULARITY IN THE
ACTION OF THE 3TATE 'OVERNMENT IN NOTIFYING THE ELEPHANT CORRIDOR
G /N A PERUSAL OF VOLUMINOUS MATERIALS PLACED ON RECORD IT IS CLEAR THAT ON AN
EARLIER OCCASION TWO ELEPHANTS WERE CAUGHT IN (ASSAN +ARNATAKA RADIO COLLARED
AND RELEASED IN "ANDIPUR WHICH FOUND THEIR WAY TO THE 3IGUR 0LATEAU AND USED
ALL AREAS INCLUDING THE 3OUTH OF THE VILLAGE OF "OKKAPURAM AND THAT A &RENCH
LADY WAS ATTACKED AND KILLED IN "OKKAPURAM 4HEREFORE ON A FACTUAL ANALYSIS
OF THE MATERIALS PLACED ON RECORD WE ARE UNABLE TO APPRECIATE THE STAND TAKEN
ON THE PART OF THE PRIVATE LAND OWNERS THAT NEVER THERE WAS ANY MOVEMENT OF
ELEPHANTS IN 3OUTH OF "OKKAPURAM AS THE VILLAGE OF "OKKAPURAM IS ABUTTING THE
STEEP LOPES OF THE .ILGIRIS AND THEREFORE THE INCLUSION OF THIS AREA ALSO IN THE
ELEPHANT CORRIDOR IS ILLEGAL 4HEREFORE THIS ARGUMENT ADVANCED ON THE PART OF THE
PRIVATE LAND OWNERS IS REJECTED
H 4HE ARGUMENT ADVANCED ON THE PART OF SOME OF THE PRIVATE LAND OWNERS THAT
THE ELEPHANTS ARE NOT COMING INTO THEIR AREAS ALSO CANNOT BE ACCEPTED IN VIEW
OF THE ESTABLISHED FACT THAT THE MOVEMENT OF THE ELEPHANTS IN THE AREA WAS
RESTRICTED BECAUSE OF THE DEVELOPMENTAL ACTIVITIES OF THE ILLEGALLY RAISED RESORTS
AND SOME OF THE GREEDY PRIVATE LAND OWNERS )T IS ALSO ON RECORD THAT EACH
PRIVATE HOLDING ARE BOUNDED BY SOLAR ELECTRIC FENCING WHICH WAS SUBSEQUENTLY
RESTRICTED BECAUSE OF THE INTERVENTION OF THIS #OURT BY WAY OF INTERIM ORDERS IN
THESE MATTERS VIRTUALLY CUTTING ACROSS THE ELEPHANT CORRIDOR AND THUS THE PEOPLE
ARE DEVELOPING THIS AREA FOR PLEASURE OF INDIVIDUALS AT THE COST OF ELEPHANT AND
WILDLIFE AND WE ARE CONDENT THAT THE PROPOSED ELEPHANT CORRIDOR WOULD BETTER
PROTECT THE ELEPHANTS FURTHER AVOIDING MAN ANIMAL CONICTS
&OR ALL THE ABOVE REASONS AND DISCUSSIONS 70 .OS OF OF
AND OF ARE DISPOSED OF !LL OTHER WRIT PETITIONS AND REVIEW APPLICATIONS
ARE DISMISSED )MPLEADMENT PETITIONS LED BY SOME OF THE PARTIES TO IMPLEAD THEM
AS PARTY 2ESPONDENTS TO THESE WRIT PETITIONS ARE ALLOWED SINCE THEY ARE ALSO HEARD
IN THESE MATTERS BEING THE INTERESTED PARTIES AND WHOSE RIGHTS ARE ALSO INVOLVED IN
THESE MATTERS &OR THE SAME REASONS 2EV !32 OF IS CLOSED /THER CONNECTED
MISCELLANEOUS PETITIONS ARE CLOSED
4HE RESORT OWNERS AND OTHER PRIVATE LAND OWNERS ARE DIRECTED TO VACATE AND HAND
OVER VACANT POSSESSION OF THE LANDS FALLING WITHIN THE NOTIED ELEPHANT CORRIDOR TO
THE $ISTRICT #OLLECTOR .ILGIRIS WITHIN THREE MONTHS FROM TODAY )N THE MEANWHILE
THE 'OVERNMENT OF 4AMIL .ADU IS PERMITTED TO GO ON WITH THE IMPLEMENTATION OF THE
PROJECT AS HAS BEEN NOTIED IN '/ -S .O DATED IN THE BEST INTEREST OF
THE WILDLIFE PARTICULARLY ELEPHANTS SO AS TO NOTIFY AND IMPROVE THE ELEPHANT CORRIDOR
7ITH REGARD TO THE FOREST DWELLERS WHOSE INTERESTS ARE PROTECTED UNDER THE PROVISIONS
OF 3CHEDULE 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT THE 3TATE 'OVERNMENT IS DIRECTED TO STRICTLY ADHERE TO AND COMPLY WITH THE
PROVISIONS OF THIS !CT WHILE DEALING WITH THE FOREST DWELLERS WHO FALL WITHIN THE AMBIT
OF THIS !CT AND IN ANY FOREST DWELLER IS EVICTED FROM AND OUT OF THE IDENTIED ELEPHANT
CORRIDOR THEY BE PROVIDED WITH THE BEST ALTERNATE AND SUITABLE ACCOMMODATION &OR
THE FOREST DWELLERS WHO DENY SUCH ALTERNATE AND SUITABLE ACCOMMODATION MAY BE
PROVIDED WITH THE COMPENSATION AS PER THE PROCEDURE CONTEMPLATED UNDER LAW 7HILE
DEALING WITH THE FOREST DWELLERS THE 3TATE 'OVERNMENT IS DIRECTED TO STRICTLY ADHERE
TO THE VARIOUS ORDERS PASSED BY THIS #OURT IN THESE MANNERS THE TERMS OF '/ -S .O
DATED AND THE ASSERTIONS MADE BY THEM BEFORE THIS #OURT AS HAS BEEN
NARRATED BY US IN THE PRECEDING PARAGRAPHS
4 / \
2AMAR VS 5NION OF )NDIA /RS ETC
70 -$ ./3 /& %4#
()'( #/524 /& -!$2!3 -!$52!) "%.#(
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3 5 - -!29
4HE PETITIONERS FILED A BATCH OF WRIT PETITIONS SEEKING DIRECTIONS TO THE FOREST
OFFICIALSRESPONDENTS TO STOP THEIR EVICTION FROM THE FOREST LANDS AND FOR GRANT
OF PATTAS UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT &2! 4HE PETITIONERS ALLEGED THAT THEY
HAVE BEEN IN OCCUPATION FOR GENERATIONS IN THE FOREST LAND IN THE 3URANAGAR &OREST
AREA WHICH LIES ON THE BORDER OF THE 3TATES OF 4AMIL .ADU AND +ERALA
4HE PETITIONERS ARGUED THAT SINCE THE FOREST OFFICIALS HAVE MADE SEVERAL
ATTEMPTS TO EVICT THEM AND THEY IN TURN HAVE APPROACHED THE #OURTS FOR PROTECTION
THROUGH WRIT PETITIONS IN )N ONE SUCH EARLIER WRIT PETITION AN ORDER WAS
PASSED IN DIRECTING THE GOVERNMENT AND FOREST OFFICIALS TO CONDUCT JOINT
INSPECTION AS PER THE 4AMIL .ADU &OREST !CT AND ALSO PASS ORDERS ON THE VARIOUS
REPRESENTATIONS OF THE PETITIONERS
4HE PETITIONERS ARGUED THAT DESPITE THE AFORESAID ORDER DATED PASSED
BY THE (IGH #OURT NO JOINT INSPECTION WAS CONDUCTED FOR WHICH THEY MADE FURTHER
REPRESENTATION ON $URING THE PENDENCY OF SUCH REPRESENTATION THE &2!
WAS ENACTED WHICH PROVIDES THEM CERTAIN FOREST RIGHTS
4HE $ISTRICT &OREST /FFICERRESPONDENT SUBMITTED THAT THE PETITIONERS ARE
ENCROACHERS IN A RESERVED FOREST SINCE AND WERE EVICTED AS PER LAW IN
4HUS THEY DO NOT FALL WITHIN THE DEFINITION OF OTHER TRADITIONAL FOREST DWELLERS AS
DEFINED IN THE &2! AND ARE INELIGIBLE
4HE #OURT HELD THAT THE RELIEF SOUGHT BY THE PETITIONERS CANNOT BE GRANTED AS THEY
HAVE FAILED TO SHOW RELEVANT MATERIAL EVIDENCE THAT THEY WERE IN POSSESSION OF THE
LAND AT THE TIME THE &2! CAME INTO FORCE OR FOR THE PERIOD OF THREE GENERATIONS OR
YEARS PRIOR TO AS REQUIRED BY THE !CT
!LTHOUGH THE #OURT ACKNOWLEDGED THAT IN A WRIT PETITION UNDER !RT IT IS NOT
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
EXPECTED TO GO INTO QUESTIONS OF FACT IT WAS OF THE VIEW THAT TO DIRECT THE 'RAM
3ABHA THE 3$,# THE $,# TO EXAMINE THE PETITIONERS CLAIMS WILL ONLY BE WASTE OF
TIME OF THE AUTHORITIES AS THE SAME WOULD NOT SERVE ANY PURPOSE PARA
4HE #OURT ACCORDINGLY RELIED UPON THE $ISTRICT &OREST /FFICERS ORDER DATED
WHICH SHOWED LARGE ENCROACHMENT OF THE FOREST LAND AND EVICTION DRIVE
DONE BY THE FOREST OFFICERS "ASED ON THIS THE #OURT CONCLUDED THAT THE PETITIONERS
HAVE FAILED TO PROVE THAT THEY HAVE BEEN IN OCCUPATION OF THE FOREST LAND FOR AT LEAST
SEVENTY FIVE YEARS AS IS NECESSARY UNDER THE DEFINITION OF OTHER TRADITIONAL FOREST
DWELLERS
4HE WRIT PETITIONS WERE ACCORDINGLY DISMISSED
% $ )4/23 . /4%
!LTHOUGH FEW AND FAR BETWEEN THERE ARE EXAMPLES OF JUDGMENTS SUCH AS THIS ONE
WHERE THE (IGH #OURT HAS GONE BEYOND THE SCOPE OF ITS JURISDICTION UNDER !RTICLE
EVEN WHILE ACKNOWLEDGING THIS AS IN THE PRESENT CASE AND TAKEN DECISIONS ON
QUESTIONS OF FACTS
3UCH AN APPROACH IS A MATTER OF GRAVE CONCERN SINCE IT COMPLETELY OVERRIDES
THE DETAILED THREE
TIER MECHANISM FOR DETERMINATION OF JUST SUCH QUESTIONS OF
FACT PROVIDED UNDER &2! ! MORE RIGOROUS EXAMINATION OF &2! AND THE &2 2ULES
WOULD HAVE REVEALED TO THE #OURT THAT PREVIOUS PROCEEDINGS FOR REMOVAL OF
ENCROACHMENTS FAR FROM BEING A REASON FOR INELIGIBILITY ARE ONE OF THE EVIDENCES
UNDER 2ULE WHICH A CLAIMANT MAY PROVIDE IN SUPPORT OF HISHER APPLICATION FOR
RECOGNITION OF FOREST RIGHTS
#/--/. /2$ % 2
4HERE ARE FOREST LANDS AT 7EST 6ALI 'UDALUR 3URANGANAR +UMULI AND OTHER AREAS IN
#UMBUM 6ALLEY 5THAMAPALAYAM 4ALUK 4HENI $ISTRICT 4HESE AREAS ARE LOCATED IN 4AMIL
.ADU +ERALA BORDER 4HE PETITIONERS CLAIMED THAT FOR GENERATIONS THEY HAVE BEEN IN
OCCUPATION OF THE LANDS IN 3URANGANAR FOREST !DMITTEDLY THE LANDS WHICH ARE STATED TO
BE IN THEIR OCCUPATIONS ARE ALL 2ESERVED &OREST LANDS !CCORDING THE PETITIONERS THESE
LANDS ARE NOT 2ESERVED &OREST LANDS BUT THEY LIE IN THE FRINGES OF THE FOREST BETWEEN
THE 3TATE OF +ERALA AND 4AMIL .ADU BORDER ,IKE THE PETITIONERS ACCORDING TO THEM
THERE WERE AROUND FAMILIES LIVING IN THE SAID 3URANGANAR &OREST !MRAVATHIPURAM
!ASARIPALLAM $URING THE YEAR ACCORDING TO THE PETITIONERS AN ATTEMPT WAS MADE
BY THE FOREST OFCIALS TO DISPOSSESS THEM /N THE COMPLAINT OF A FOREST OFCIAL A CRIMINAL
CASE WAS REGISTERED IN #RIME .O OF AGAINST SUCH FOREST DWELLERS WHICH
RESULTED IN A NAL REPORT 4HE SAID CASE WAS TRIED BY THE LEARNED !DDITIONAL $ISTRICT AND
3ESSIONS *UDGE &AST 4RACK #OURT 0ERIYAKULAM IN 3#.O OF AND THEY WERE ALL
ACQUITTED BY THE JUDGMENT DATED 4HEIR CULTIVATIONS AND THE SUPERSTRUCTURE
PUT UP BY THEM WERE ALL ALLEGEDLY DESTROYED BY THE FOREST OFCIALS
7HILE SO THE PETITIONERS LED A WRIT PETITION IN 70.O OF BEFORE THE 0RINCIPAL
"ENCH OF THIS #OURT &URTHER SIMILARLY PLACED PERSONS LED SIMILAR WRIT PETITIONS IN
70.OS OF OF OF AND OF 4HE PRAYER IN ALL THOSE
WRIT PETITIONS WAS FOR A -ANDAMUS TO FORBEAR THE RESPONDENTS FOREST OFCIALS FROM
4 / \
EVICTING THEM FROM THE FOREST LANDS AND ALSO FOR A DIRECTION TO THE 'OVERNMENT TO GRANT
PATTA FOR THE HOLDINGS OF THE PETITIONERS THEREIN )NITIALLY WHILE ADMITTING THOSE WRIT
PETITIONS THE 0RINCIPAL "ENCH GRANTED INTERIM INJUNCTION TO RESTRAIN THE FOREST OFCIALS
FROM EVICTING THE PETITIONERS THEREIN !S AGAINST THE SAID INTERIM ORDER THE WRIT APPEALS
IN 7!.OS TO OF WERE ALSO LED BY THE FOREST OFCIALS 7HEN THE SAID APPEALS
WERE PENDING THE WRIT PETITIONS WERE DISPOSED OF BY THE 0RINCIPAL "ENCH BY ORDER DATED
DIRECTING THE 'OVERNMENT AND FOREST OFCIALS TO CONDUCT JOINT INSPECTION
AS PER 3ECTION OF THE 4AMIL .ADU &OREST !CT AND TO PASS ORDERS ON THE REPRESENTATIONS
MADE BY THE PETITIONERS AND OTHERS IN THE LIGHT OF '/-S.O DATED
WITHIN A PERIOD OF THREE MONTHS THEREFROM 4HOSE WRIT APPEALS WERE THEREFORE CLOSED
!CCORDING TO THE PETITIONERS NO SUCH JOINT INSPECTION WAS CONDUCTED AS DIRECTED BY THIS
#OURT INSTEAD AGAIN FURTHER ATTEMPTS WERE MADE TO EVICT THEM 4HE PETITIONERS HAVE
ALSO SENT A FURTHER REPRESENTATION ON
7HILE SO THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT HEREINAFTER REFERRED TO AS THE !CT CAME INTO BEING ON
!CCORDING TO THE PETITIONERS THEY ARE ENTITLED FOR CERTAIN RIGHTS AS DEALT
WITH IN 3ECTION OF THE !CT INCLUDING THE RIGHT TO HOLD AND LIVE IN THE FOREST LANDS 4HE
GRIEVANCE OF THE PETITIONERS NOW IS THAT WITHOUT CONSIDERING THEIR RIGHTS CONFERRED
UNDER 3ECTION OF THE !CT AN ATTEMPT IS MADE AGAIN TO EVICT THEM FROM THEIR RESPECTIVE
HOLDINGS 7ITH THIS GRIEVANCE THE PETITIONERS ARE BEFORE THIS #OURT SEEKING A DIRECTION
TO FORBEAR THE RESPONDENTS FROM IN ANY MANNER INTERFERING WITH THEIR ALLEGED PEACEFUL
POSSESSION AND ENJOYMENT OF THE LANDS
! DETAILED COMMON COUNTER AFDAVIT HAS BEEN LED IN ALL THESE WRIT PETITIONS BY
THE $ISTRICT &OREST /FCER 4HE CRUX OF THE COUNTER IS THAT THE PETITIONERS ARE NOT THE
OTHER TRADITIONAL FOREST DWELLER !S DENED UNDER THE !CT AND THEREFORE THEY ARE NOT
ENTITLED FOR THE BENETS OF THE !CT !CCORDING TO THE COUNTER THE PETITIONERS WERE ONLY
ENCROACHERS OF RESERVE FOREST LANDS FROM THE YEAR 4HEY WERE ALL EVICTED BY FOLLOWING
THE PROCEDURE ESTABLISHED BY LAW IN THE YEAR !FTER THE LANDS IN QUESTION ARE
FULLY UNDER THE CONTROL OF THE FOREST DEPARTMENT AND THE FOREST DEPARTMENT HAS ALSO
RAISED BAMBOO CLUSTERS ON THOSE LANDS 4HUS ACCORDING TO THE COUNTER THE PETITIONERS
ARE NOT AT ALL IN POSSESSION OF THE LANDS IN QUESTION )T IS ALSO STATED IN THE COUNTER THAT THE
PETITIONERS ARE RESIDING IN 'UDALUR AND THEY ARE HAVING PATTA LANDS 4HEY ARE RESIDING
IN THEIR RESPECTIVE OWN HOUSES 4HEY HAVE ALSO BEEN GIVEN FAMILY CARDS BY THE 2EVENUE
$EPARTMENT 4HUS ACCORDING TO THE RESPONDENTS THE PETITIONERS ARE NOT TRADITIONAL
FOREST DWELLERS AT ALL AND THEREFORE THEY ARE NOT ENTITLED FOR ANY PROTECTION UNDER THE
!CT !T ANY RATE SINCE THE PETITIONERS ARE NOT IN POSSESSION OF THE PROPERTY THE RELIEF
SOUGHT FOR IN THESE WRIT PETITIONS CANNOT BE GRANTED IT IS CONTENDED
) HAVE HEARD THE LEARNED COUNSEL APPEARING ON EITHER SIDE AND PERUSED THE MATERIALS
AVAILABLE ON RECORDS CAREFULLY
4HE PRAYER IN THESE WRIT PETITIONS IS AS SIMPLE AS IT COULD BE )T IS ONLY FOR A -ANDAMUS
TO FORBEAR THE RESPONDENTS FROM INTERFERING WITH THE ALLEGED POSSESSION AND ENJOYMENT
OF RESPECTIVE LANDS OF THE PETITIONERS "UT IN THE COUNTER IT HAS BEEN VERY CLEARLY STATED
THAT EVEN IN THE YEAR THEY WERE ALL EVICTED FROM ENCROACHMENTS AND THUS THEY ARE
NOT IN POSSESSION AND ENJOYMENT OF THE LANDS IN QUESTION 4HOUGH IT IS CLAIMED BY THE
PETITIONERS THAT SO CALLED EVICTION WAS NOT AT ALL MADE AND THEY ARE CONTINUED TO BE IN
POSSESSION OF THE PROPERTY EVEN NOW THERE IS NO MATERIAL EVEN TO MAKE PRIMA FACIE CASE
IN SUPPORT OF THE PETITIONERS !T ANY RATE IT IS A DISPUTED QUESTION OF FACT WHICH CANNOT
BE GONE INTO IN THE WRIT PETITIONS 4HEREFORE THE PRAYER SOUGHT FOR IN THESE WRIT PETITIONS
CANNOT BE CONCEDED TO
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
.OW TURNING TO THE PROVISIONS OF THE !CT THE !CT WHICH CAME INTO BEING ON
WAS ENACTED WITH THE OBJECT TO RECOGNIZE AND VEST THE FOREST RIGHTS AND OCCUPATION
IN FOREST LANDS IN FOREST DWELLING 3CHEDULED 4RIBES 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 FRAME WORK FOR RECORDING THE FOREST RIGHTS SO
VESTED AND THE NATURE OF EVIDENCE REQUIRED FOR SUCH RECOGNITION AND VESTING IN RESPECT
OF FOREST LANDS
!S SEEN FROM THE OBJECT OF THE !CT THIS IS AN !CT TO PROTECT THE RIGHTS OF THE TWO
CLASSES OF PEOPLE VIZ FOREST DWELLING 3CHEDULED 4RIBES AND 4RADITIONAL FOREST
DWELLERS 4HE TERM FOREST DWELLING 3CHEDULED 4RIBES IS DENED IN 3ECTION C OF
THE !CT WHICH STATES THAT A FOREST DWELLING 3CHEDULED 4RIBE MEANS THE MEMBERS OR
COMMUNITY OF THE 3CHEDULED 4RIBES WHO PRIMARILY RESIDE IN AND WHO DEPEND ON THE
FORESTS OR FOREST LANDS FOR BONA DE LIVELIHOOD NEEDS AND INCLUDES THE 3CHEDULED 4RIBE
PASTORALIST COMMUNITIES 3IMILARLY THE TERM OTHER TRADITIONAL FOREST DWELLER MEANS
ANY MEMBER OR COMMUNITY WHO HAS FOR AT LEAST THREE GENERATIONS PRIOR TO THE TH
DAY OF $ECEMBER PRIMARILY RESIDED IN AND WHO DEPEND ON THE FOREST OR FORESTS
LAND FOR BONA DE LIVELIHOOD NEEDS )T IS ALSO DENED THAT FOR THE PURPOSE OF THE CLAUSE
GENERATION MEANS A PERIOD COMPRISING OF TWENTY VE YEARS
3ECTION OF THE !CT ENUMERATES FOREST RIGHTS OF FOREST DWELLING 3CHEDULED 4RIBES AND
OTHER TRADITIONAL FOREST DWELLERS /NE SUCH RIGHT IS THE 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 3CHEDULED 4RIBES OR OTHER
TRADITIONAL FOREST DWELLERS VIDE 3ECTION A OF THE !CT 3ECTION OF THE !CT DEALS WITH
RECOGNITION OF AND VESTING OF FOREST RIGHTS IN FOREST DWELLING 3CHEDULED 4RIBES AND
OTHER TRADITIONAL FOREST DWELLERS
3ECTION OF THE !CT DEALS WITH THE AUTHORITIES TO VEST FOREST RIGHTS IN FOREST DWELLING
3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS AND PROCEDURE THEREOF !CCORDING
TO THIS PROVISION THERE SHALL BE A 'RAMA 3ABHA WHO 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 3CHEDULED 4RIBES AND OTHER
TRADITIONAL FOREST DWELLERS WITHIN THE LOCAL LIMITS OF ITS JURISDICTION UNDER THIS !CT BY
RECEIVING CLAIMS )F ANY PERSON IS AGGRIEVED BY THE DECISION OF THE 'RAMA 3ABHA UNDER
3UB SECTION OF 3ECTION OF THE !CT HE MAY MAKE A PETITION TO THE 3UB $IVISIONAL ,EVEL
#OMMITTEE 5NDER 3UB
3ECTION OF 3ECTION OF THE !CT IF ANY PERSON IS AGGRIEVED
BY THE DECISION OF THE 3UB $IVISIONAL ,EVEL #OMMITTEE HE MAY PREFER A PETITION TO THE
$ISTRICT ,EVEL #OMMITTEE WITHIN DAYS FROM THE DATE OF DECISION OF THE 3UB $IVISIONAL
,EVEL #OMMITTEE VIDE 3UB 3ECTION OF 3ECTION OF THE !CT 4HUS THE RIGHTS OF THE
FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS ARE PROTECTED BY
THE PROVISIONS ENUMERATED HEREINBEFORE
.OW IN THE CASES ON HAND THE PETITIONERS DO NOT CLAIM THAT THEY ARE FOREST DWELLING
3CHEDULED 4RIBES BUT THEY CLAIM THAT THEY ARE OTHER TRADITIONAL FOREST DWELLERS AS
DENED IN 3ECTION O OF THE !CT !S WE HAVE READ THE SAID PROVISION TO SATISFY THE
REQUIREMENTS OF THE SAID PROVISION ONE SHOULD PROVE THAT HE AND HIS ANCESTORS HAVE
BEEN IN OCCUPATION OF THE FOREST LAND FOR AT LEAST YEARS 4HE QUESTION IN THE INSTANT
CASES IS AS TO WHETHER THE PETITIONERS WERE IN OCCUPATION OF THE RESPECTIVE LANDS FOR
THREE GENERATIONS IE FOR YEARS )N THIS REGARD THE $ISTRICT &OREST /FCER WHO IS
PRESENT BEFORE THIS #OURT HAS PRODUCED '/-S.O &ORESTS &ISHERIES $EPARTMENT
DATED
! READING OF THE ABOVE SAID 'OVERNMENT /RDER WOULD GO TO SHOW THAT THE 'OVERNMENT
4 / \
WAS INFORMED THAT THERE WERE LARGE NUMBER OF AGRICULTURAL FAMILIES INCLUDING TRIBALS
AND HILL TRIBES WHO HAVE ENCROACHED UPON THE FOREST LANDS IN THE 7EST 6ALI 'UDALUR
3URANGANAR +UMULI AND OTHER AREAS IN #UMBUM 6ALLEY OF 5THAMAPALAYAM 4ALUK IN
ERSTWHILE -ADURAI $ISTRICT 4HERE WERE LOT OF REPRESENTATIONS TO THE 'OVERNMENT TO
EVICT THESE ENCROACHERS 4HE 'OVERNMENT CALLED FOR REPORT INCLUDING THE DATA FROM THE
FOREST AUTHORITIES IN RESPECT OF THE LENGTH OF THE PERIOD OF SUCH ENCROACHMENTS AND SOIL
CONSERVATION MEASURES UNDERTAKEN BY THE &OREST $EPARTMENT IN THAT AREAS TOGETHER
WITH A SKETCH INDICATING BOUNDARIES OF THE RESERVE FOREST LANDS 4HE #HIEF #ONSERVATOR
OF &ORESTS HAD SUBMITTED SUCH A REPORT AFTER HOLDING A DETAILED INSPECTION AND ENQUIRY
!CCORDING TO THE SAID REPORT IT WAS REPORTED TO THE 'OVERNMENT THAT THE PETITIONERS
HEREIN WERE ALL ENCROACHERS ONLY FROM THE YEAR AND THERE WERE NOT FOREST DWELLERS
)T WAS ALSO REPORTED THAT EVEN +UMRI CULTIVATION LEASES GIVEN IN THESE AREAS WERE NOT
SUCCESSFUL INASMUCH AS +UMRIDARS WENT IN FOR CULTIVATION OF CROPS AND NOT FOR PLANTING
TREES )T WAS ALSO REPORTED THAT THEY DESTROYED THE TREE PLANTATIONS RAISED BY THE &OREST
$EPARTMENT 4HE +UMRIDARS REFUSED TO VACATE THE LANDS EVEN AFTER THE EXPIRY OF THE
LEASE PERIOD !LL THE EFFORTS MADE BY THE &OREST $EPARTMENT TO EVICT THEM COULD NOT
SUCCEED 4HE TOTAL EXTENT OF ENCROACHMENT WAS HECTARES /VER AN AREA OF
HECTARES THE ENCROACHMENTS WERE GRADUALLY REMOVED AND THE POSSESSION WAS RESTORED
TO THE &OREST $EPARTMENT !S ON THE DATE THERE WERE ENCROACHMENTS ONLY IN THE REST OF
THE AREAS MEASURING HECTARES /UT OF HECTARES AN EXTENT OF HECTARES
HAD BEEN ENCROACHED UPON BY THE PEOPLE FROM THIS 3TATE WHILE REMAINING EXTENT OF
HECTARES HAD BEEN ENCROACHED BY THE PEOPLE FROM ACROSS THE BORDER (AVING CONSIDERED
THE SAID REPORT AND AFTER CONSIDERING ALL THE OTHER RELIABLE FACTORS THE 'OVERNMENT
ISSUED '/-S.O &OREST AND &ISHERIES $EPARTMENT DATED DIRECTING THE
FOREST OFCERS TO EVICT ALL THESE ENCROACHMENTS 4HE SAID '/ HAS BEEN LED BEFORE THIS
#OURT BY WAY OF TYPED SET OF PAPERS
)T IS STATED BY THE $ISTRICT &OREST /FCER THAT BASED ON THE ABOVE 'OVERNMENT /RDER
AND THE DIRECTIONS ISSUED THEREUNDER THE PETITIONERS WERE ALL REMOVED FROM THE
ENCROACHMENT IN ITSELF )T IS STATED BY HIM THAT THE PETITIONERS WERE IN OCCUPATION
AS ENCROACHERS ONLY FOR A SHORT PERIOD IE FROM TO AND THEY WERE NOT AT ALL IN
OCCUPATION OF THE FOREST LANDS FOR MORE THAN THREE GENERATIONS AS IT IS CLAIMED BY THEM
4HEREFORE ACCORDING TO THE $ISTRICT &OREST /FCER THE PETITIONERS ARE NOT THE TRADITIONAL
FOREST DWELLERS
4HE LEARNED COUNSEL FOR THE PETITIONERS IS NOT IN A POSITION TO SHOW ANY MATERIAL IN
ORDER TO SUBSTANTIATE HIS CONTENTION THAT THE PETITIONERS ARE OTHER TRADITIONAL FOREST
DWELLERS AS DENED IN SUB 3ECTION O OF 3ECTION OF THE !CT !BOVE ALL AS ON THE DATE
OF COMING INTO FORCE OF THE !CT THE PETITIONERS WERE NOT IN OCCUPATION OF THESE LANDS
&ROM THE ABOVE NARRATION OF THE FACTS IT COULD BE SEEN THAT ABSOLUTELY THERE IS NO
MATERIAL EVEN TO INFER THAT THE PETITIONERS SATISFY THE DENITION OF OTHER TRADITIONAL
FOREST DWELLERS AS DENED IN 3UB SECTION O OF 3ECTION OF THE !CT 4HEREFORE ) HAVE TO
NECESSARILY HOLD THAT THE PETITIONERS WHO WERE ONLY ENCROACHERS ARE NOT ENTITLED FOR
ANY BENET UNDER THE !CT !BOVE ALL THE PETITIONERS DO NOT RELY ON FOREST LANDS FOR THEIR
LIVELIHOOD .O MATERIAL HAS BEEN PLACED TO PROVE THE SAME
/F COURSE IT IS TRUE THAT THE AUTHORITY COMPETENT TO DECIDE AS TO WHETHER THE PETITIONERS
ARE TRADITIONAL FOREST DWELLERS OR NOT IS THE 'RAMA 3ABHA 3UB
$IVISIONAL ,EVEL
#OMMITTEE AND ULTIMATELY $ISTRICT ,EVEL #OMMITTEE BUT ) AM NOT INCLINED TO DIRECT
THESE AUTHORITIES TO EXAMINE AS TO WHETHER THE PETITIONERS ARE OTHER TRADITIONAL FOREST
DWELLERS AS DENED IN 3ECTION O OF THE !CT IN VIEW OF THE FACT THAT IT IS A CLOSED
CHAPTER BECAUSE EVEN IN THE 'OVERNMENT HAD ISSUED AN ORDER AFTER THOROUGH
ENQUIRY THAT THE PETITIONERS WERE ALL ENCROACHERS FROM THE YEAR )N SUCH VIEW OF THE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
MATTER GIVING LIBERTY TO THE PETITIONERS TO APPROACH THE 'RAMA 3ABHA OR THE #OMMITTEE
CONSTITUTED UNDER THE !CT WILL ONLY BE A WASTE OF TIME OF THE AUTHORITIES AS THE SAME
WOULD NOT SERVE ANY PURPOSE
)N SUCH VIEW OF THE MATTER ) DO NOT ND ANY MERIT IN ANY OF THESE WRIT PETITIONS 4HESE
WRIT PETITIONS HAVE TO NECESSARILY FAIL
)N THE RESULT ALL THESE WRIT PETITIONS ARE DISMISSED .O COSTS
-R !3 -ARIMUTHU $ISTRICT &OREST /FCER 4HENI $ISTRICT WHO IS PRESENT IN #OURT
HAS IN A DISPASSIONATE MANNER EXPLAINED THE FACTS INVOLVED IN THESE MATTERS IN OPEN
#OURT )T IS APPRECIATED
4 / \
! 0ONNUDURAI VS 'OVERNMENT OF
4AMIL .ADU /RS
70 ./ /&
()'( #/524 /& -!$2!3
#/2!- 3!.*!9 +)3(!. +!5, #* !.$ 053(0! 3!4(9!.!2!9!.! *
3 5 - -!29
4HIS WRIT PETITION WAS FILED AS FAR BACK AS SEEKING ENFORCEMENT OF THE RIGHTS
OF THE PETITIONER UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT &2! !LTHOUGH THE JUDGMENT DOES NOT
EXPLICATE THE FACTS OF THE CASE FROM THE REFERENCE TO 70 .OS OF
OF AND OF AND TO WRIT PETITION 70 .O OF IT IS CLEAR
THE PETITIONER SOUGHT TO RELY UPON THE BENEFICIAL OBSERVATIONS IN THESE ORDERS TO
BUTTRESS HIS ARGUMENTS
4HE #OURT HOWEVER DISPOSED OF THE PETITION BY STATING THAT THE OBSERVATIONS MADE
IN 70 .OS AND OF ARE SUFFICIENT AND IN ANY CASE THE ENFORCEMENT OF
THE &2! HAS BEEN STAYED
% $ ) 4 /23 . /4%
4HIS ORDER OF A DIVISION BENCH HEADED BY THE #HIEF *USTICE IS CAUSE FOR GREAT
CONCERN SINCE IT CONTAINS MULTIPLE ERRORS WHICH HAVE BEEN COMPOUNDED TO DENY
THE PETITIONER A STATUTORY REMEDY
&OR ONE THING THE INTERIM ORDER DATED IN 70 OF DOES NOT STAY
THE ENFORCEMENT OF &2! ON THE CONTRARY THE #OURT ISSUED DIRECTIONS THAT PROCEDURE
)N $EFENCE OF %NVIRONMENT &ORESTS VS 4HE 0RINCIPAL #HIEF #ONSERVATOR OF &OREST /RS *UDGMENT
DATED 4HIS RELATES TO THE %LEPHANT #ORRIDOR #ASE 4HIS JUDGMENT IS EXTRACTED ELSEWHERE IN THIS
COMPENDIUM
6 3AMBASIVAM VS 3TATE OF 4AMIL .ADU /RS /RDER DATED 4HIS RELATES TO THE CHALLENGE TO THE
CONSTITUTIONAL VALIDITY OF &2! 4HIS ORDER HAS BEEN EXTRACTED ELSEWHERE IN THIS COMPENDIUM
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
FOR VERIFICATION OF CLAIMS SHALL CONTINUE BUT BEFORE GRANTING CERTIFICATE OF TITLE TO
THE CLAIMANT ORDERS OF THE #OURT SHOULD BE OBTAINED 3ECONDLY SUCH ORDER WAS NOT
PASSED BY THE 3UPREME #OURT AS HAS BEEN WRONGLY STATED MULTIPLE TIMES BUT BY THE
-ADRAS (IGH #OURT ITSELF
)T MAY BE POINTED OUT THAT 70 OF AFTER BEING TRANSFERRED TO THE 3UPREME
#OURT IS PENDING AS 4# # OF WHICH INFORMATION IS AVAILABLE READILY IN THE
PUBLIC DOMAIN
/2$ % 2
THE /RDER OF THE #OURT WAS MADE BY 3ANJAY +ISHAN +AUL #*
)N PURSUANCE TO OUR LAST ORDER THE 2EGISTRY HAS STATED THAT 70.OS AND OF
WERE DISPOSED OF ALONG WITH 70.O OF BY A COMMON ORDER DATED
BY A $IVISION "ENCH OF THIS #OURT GRANTING THE RELIEF OF ENFORCEMENT OF THE 3CHEDULED
4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
AND 2ULES FRAMED THEREIN 7E HAD ALSO NOTICED THAT 70 .O OF STANDS
TRANSFERRED TO THE (ONOURABLE 3UPREME #OURT IN TERMS OF THE ORDER PASSED IN 40 #IVIL
.OS TO OF DATED AND WE HAD BEEN INFORMED THAT AS PER INTERIM
ORDERS ENFORCEMENT OF THE !CT HAD BEEN STAYED
,EARNED COUNSEL FOR THE PETITIONER HAS NOT BEEN ABLE TO TRACE OUT THE POSITION OF THE
MATTER BEFORE THE (ONOURABLE 3UPREME #OURT
.ONE FROM THE RESPONDENTS SIDE IS ABLE TO ASSIST US )T IS TRITE TO SAY THAT IF THERE IS
STAY OF THE ENFORCEMENT OF THE !CT BY THE (ONOURABLE 3UPREME #OURT THERE CANNOT BE
SIMULTANEOUS IMPLEMENTATION OF THE !CT IN PURSUANCE TO THE DIRECTIONS OF THIS #OURT
)N OUR VIEW NO PURPOSE WOULD BE SERVED BY KEEPING THIS MATTER PENDING AS THE $IVISION
BENCH HAS ALREADY OPINED QUA ENFORCEMENT OF THE SAME !CT AND 2ULES IN 70.OS
AND OF COVERING THE SUBJECT MATTER OF THE PRESENT PETITION AND IF THE MATTER
IS PENDING BEFORE THE (ONOURABLE 3UPREME #OURT AND STAYED THAT IMPLEMENTATION IN
TURN WOULD HAVE TO AWAIT THE NAL VERDICT OF THE (ONOURABLE 3UPREME #OURT
4HE WRIT PETITION ACCORDINGLY STANDS DISPOSED OF .O COSTS
4 / \
-URUGESAN VS 4HE $ISTRICT #OLLECTOR
4UTICORIN !NR
70 -$ ./ /&
-!$2!3 ()'( #/524 -!$52!) "%.#(
#/2!- 2 35"")!( *
3 5 - -!29
4HE PETITIONER STATES THAT HE IS IN POSSESSION OF ACRES CENTS OF AGRICULTURAL LAND
IN !RASUR 6ILLAGE $ISTRICT 4UTICORIN WHICH BELONGS TO HIM ALONG WITH HIS MOTHER
AND BROTHER AS JOINT OWNERS 4HE LAND BELONGED TO HIS FOREFATHERS AND HAS DEMISED
UPON THEM THROUGH SUCCESSION AND WILL )T APPEARS THAT SOMETIME IN THE 3TATE
FOREST OFFICIALS STARTED INTERFERING IN THE POSSESSION OF THE PETITIONER UPON WHICH
HE FILED A CIVIL SUIT FOR PERMANENT INJUNCTION BEFORE THE $ISTRICT -UNSIF #OURT
7HILE HE LOST THIS CASE HE SUCCEEDED IN FIRST APPEAL (OWEVER THE REVENUE OFFICIAL
APPROACHED THE $ISTRICT #OURT IN A SECOND APPEAL WHICH IS PENDING
$URING THE PENDENCY OF THE APPEAL THE RESPONDENT 3TATE CLAIMED THAT THE LAND IN
THE PETITIONERS POSSESSION HAS BEEN DECLARED AS A 2ESERVE &OREST UNDER THE 4AMIL
.ADU &OREST !CT
5PON RECEIVING THIS INFORMATION THE PETITIONER SUBMITTED A CLAIM FOR RECOGNITION
OF HIS FOREST RIGHT AS AN OTHER TRADITIONAL FOREST DWELLER WITHIN THE MEANING
OF 3ECTION O OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT &2! 4HIS REPRESENTATION IS STILL PENDING
DISPOSAL AND THEREFORE THE PETITIONER APPROACHED THE (IGH #OURT BY WAY OF THE
PRESENT WRIT PETITION
$ISPOSING THE WRIT PETITION THE #OURT PASSED AN ORDER DIRECTING THE RESPONDENT
AUTHORITIES TO CONSIDER THE REPRESENTATION UNDER &2! FILED BY THE PETITIONER AND
TAKE A DECISION WITHIN EIGHT WEEKS AFTER AFFORDING THE PETITIONER AN OPPORTUNITY
TO BE HEARD
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
% $ )4/23 #/--% . 4
4HIS IS AN INTERESTING SITUATION WHERE DURING THE PENDENCY OF CIVIL SUIT PROCEEDINGS
THE (IGH #OURT HAS USED ITS POWERS UNDER !RTICLE OF THE #ONSTITUTION TO MOULD
THE RELIEF IN SUCH A WAY THAT THE PETITIONER IS ABLE TO BENEFIT FROM THE PROCEDURE
UNDER &2! BEFORE THE CIVIL SUIT PROCEEDINGS REACH A CONCLUSION )T IS A DIFFERENT
MATTER THAT THE DIRECTION TO DISPOSE OF THE CLAIM UNDER THE &2! IS ISSUED TO THE
$ISTRICT #OLLECTOR 4UTICORIN WHO IS NOT AN AUTHORITY UNDER THE &2! RATHER THAN TO
THE 'RAM 3ABHA
/2$ % 2
4HE WRIT PETITION HAS BEEN LED PRAYING THIS #OURT FOR ISSUANCE OF A 7RIT OF -ANDAMUS
DIRECTING THE RESPONDENTS HEREIN TO CONSIDER THE PETITIONERS REPRESENTATION DATED
AND PASS NECESSARY ORDERS WITH REGARD TO THE PETITIONERS RIGHT IN 3URVEY
.O TO AN EXTENT OF ACRES #ENTS !RASUR 6ILLAGE 3ATHANKULAM 4ALUK 4UTICORIN
$ISTRICT AS PER THE PROVISIONS OF 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT AND 2ULES WITHIN A STIPULATED TIME XED
BY THIS #OURT
4HE CASE OF THE PETITIONER IS THAT THE LAND IN 3Y.O TO AN EXTENT OF ACRES CENTS
!RASUR 6ILLAGE 3ANTHANKULAM 4ALUK 4UTICORIN $ISTRICT BELONGS TO THE PETITIONER HIS
MOTHER 2AJAKILIAMMAL AND HIS BROTHER 'ANESAN 4HEY ARE THE JOINT CO
OWNERS OF THE
SAID AGRICULTURAL LAND /RIGINALLY THE SAID LAND BELONGS TO HIS FOREFATHERS BY NAME
3UDALAIMADA .ADAR 6ALLIAMMAI .ADACHI -ANICKAMUTHU !MMAL AND +ATHIRVEL .ADAR
!FTER THE DEMISE OF THE SAID 3UDALAIMADA .ADAR PETITIONERS GRANDFATHER 4HANGAIAH
.ADAR WHO IS THE LEGAL HEIR OF THE ABOVE SAID 3UDALAIMADA .ADAR INHERITED ACRES
CENTS AND HE PURCHASED THE REMAINING ACRES IN THE ABOVE SAID LAND FROM 6ALLIAMMAI
.ADACHI -ANICKAMUTHU .ADAR AND +ATHIRVEL .ADAR THROUGH REGISTERED SALE DEEDS
DATED AND (ENCE THE PETITIONERS GRANDFATHER 4HANGAIAH .ADAR
WAS THE ABSOLUTE OWNER OF THE ABOVE SAID LAND BY WAY OF INHERITANCE AND PURCHASE
)N SUCH CIRCUMSTANCES PETITIONERS GRANDFATHER EXECUTED A 7ILL DATED IN
FAVOUR OF THE PETITIONERS MOTHER 2AJAKILIAMMAL PETITIONERS BROTHER 'ANESAN AND ALSO
IN FAVOUR OF THE PETITIONER !FTER HIS DEMISE IN THE YEAR THE SAID 7ILL CAME INTO
EFFECT .OW THE PETITIONER AND HIS BROTHER ARE ENJOYING THE LANDS IN 3Y.O BY
DOING AGRICULTURAL OPERATIONS 7HILE SO THE $ISTRICT !DMINISTRATION STARTED TO INTERFERE
WITH THE POSSESSION OF 3Y.O (ENCE A SUIT WAS LED BY THE PETITIONER AS AGAINST
THE $ISTRICT !DMINISTRATION IN /3.O OF BEFORE THE $ISTRICT -UNSIF #OURT
3ATHANKULAM FOR THE RELIEF OF PERMANENT INJUNCTION 4HE SAID SUIT WAS DISMISSED ON
!S AGAINST THE SAME THE PETITIONER PREFERRED AN APPEAL AND THE SAID APPEAL
WAS ALLOWED ON IN FAVOUR OF THE PETITIONER !S AGAINST THE SAID DECREE THE
4AHSILDAR 3ATHANKULAM ALSO PREFERRED A SECOND APPEAL IN 3!-$ .O OF
BEFORE THIS #OURT AND THE SAME IS PENDING WITHOUT ANY INTERIM ORDER
7HILE THE ABOVE SAID CIVIL DISPUTE IS PENDING THE SECOND RESPONDENT CLAIMED THAT THE
ABOVE SAID 3Y.O TO AN EXTENT OF ACRES CENTS !RASUR 6ILLAGE 3ATHANKULAM
4ALUK 4UTICORIN $ISTRICT ALONG WITH OTHER SURVEY NUMBERS WERE DECLARED AS 3TATE
2ESERVE &OREST IN THE YEAR AS PER THE 4AMIL .ADU &OREST !CT (ENCE THE
PETITIONER MADE A REPRESENTATION TO THE RESPONDENTS ON STATING THAT AS PER THE
DENITION CLAUSE 3ECTION O /THER 4RADITIONAL &OREST $WELLERS MEANS ANY MEMBER
OF COMMUNITY WHO HAS FOR AT LEAST THREE GENERATIONS PRIOR TO TH DAY OF $ECEMBER
PRIMARILY RESIDED IN AND WHO DEPEND ON THE FOREST OR FORESTS LANDS FOR BONADE
4 / \
LIVELIHOOD NEEDS !S PER THE PROVISIONS THE PETITIONER IS ENTITLED TO GET THE BENET FROM
THE AGRICULTURAL ACTIVITIES CARRIED OUT IN THE ABOVE SAID LAND FOR THEIR LIVELIHOOD "UT THE
REPRESENTATION GIVE BY THE PETITIONER IS PENDING CONSIDERATION TILL DATE (ENCE HE HAS
COME FORWARD WITH THE PRESENT WRIT PETITION
(EARD THE SUBMISSIONS MADE ON EITHER SIDE AND CAREFULLY PERUSED THE MATERIALS AVAILABLE
ON RECORD
#ONSIDERING THE SUBMISSIONS MADE ON EITHER SIDE THIS #OURT IS CONSTRAINED TO PASS THE
FOLLOWING ORDER
7ITHOUT GOING INTO THE MERITS OF THE AVERMENTS MADE IN THE WRIT PETITION THIS #OURT
DIRECTS THE RESPONDENTS TO CONSIDER THE REPRESENTATION LED BY THE PETITIONER ON
AND PASS APPROPRIATE ORDERS WITHIN A PERIOD OF EIGHT WEEKS FROM THE DATE
OF RECEIPT OF A COPY OF THIS ORDER AFTER AFFORDING AN OPPORTUNITY OF PERSONAL HEARING
4HE RST RESPONDENT IS FURTHER DIRECTED TO DISPOSE OF THE MAIN REVISION WITHIN A
PERIOD OF THREE WEEKS THEREAFTER
4HE WRIT PETITION IS DISPOSED OF WITH THE ABOVE DIRECTIONS .O COSTS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
/2)33! ()'( #/524
4!",% /& *5$'-%.43 !.$ /2$%23
$IGEE -URMU !NR VS 5NION OF )NDIA
70 # .O OF \
2
ETIRED &OREST /FCERS !SSOCIATION VS 5NION OF )NDIA /RS
70 # .O OF \
.ISHAKAR +HATUA /RS VS 5NION OF )NDIA /RS
70 # .O OF \
+
AMA +UNJA VS 5NION OF )NDIA /RS
70 # .O OF \
+
ESHAB "EHERA /RS VS 3TATE OF /DISHA /RS
#,4 \ 3## /N,INE /RI \
+
HANDADHAR (ORTI
!GRICULTURAL &OREST 0RODUCERS $EVELOPMENT #O
OPERATIVE
,TD /RS VS 3TATE OF /DISHA /RS
70# 0), .O OF \
4 / \
$IGEE -URMU !NR VS 5NION OF
)NDIA
70# ./ /&
()'( #/524 /& /2)33!
#/2!- "3 #(!5(!. #* !.$ ". -!(!0!42! *
3 5 - -!29
4HIS PUBLIC INTEREST LITIGATION ONE OF THE FIRST TO BE FILED UNDER THE 3CHEDULED 4RIBES
AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2! SOUGHT DIRECTIONS TO THE RESPONDENT 3TATE GOVERNMENT TO EXTEND THE BENEFITS
UNDER THE &2! TO ALL ELIGIBLE PEOPLE 4HE PETITIONERS SUBMITTED THAT IN SPITE OF
THE FACT THAT THE PRESENT PETITIONERS WHO REPRESENT THE COMMUNITY HAVE MADE
REPRESENTATIONS THAT THE PROVISIONS OF THE SAID !CT ARE NOT BEING ENFORCED BY THE
STATUTORY AUTHORITIES SAME HAVE NOT BEEN CONSIDERED AND DISPOSED OF SO FAR
4HE #OURT DIRECTED THAT THE AUTHORITIES UNDER &2! ARE TO CONSIDER THE APPLICATIONS
IN CASE THEY MEET THE REQUIREMENTS OF PROCEDURAL LAW REQUIRED EITHER UNDER THE &2!
OR &2 2ULES OR NOTIFICATION $IRECTING THAT THE ORDERS WERE TO BE PASSED WITHIN THREE
MONTHS IN EACH INDIVIDUAL CASE THE #OURT FURTHER DIRECTED THAT E VERY APPLICATION
SHALL BE DISPOSED BY A SPEAKING ORDER GIVING REASONS THEREIN AND THE ORDER SO PASSED
SHALL BE COMMUNICATED TO THE APPLICANT IMMEDIATELY AFTER PASSING OF THE ORDER
% $ ) 4 /23 . /4%
4HIS ORDER DIRECTING PROPER IMPLEMENTATION OF THE &2! FOLLOWING PROCEDURE AS
LAID DOWN IN THE !CT AND &2 2ULES IS ONE OF THE FIRST RECORDED ORDERS PASSED BY
A CONSTITUTIONAL #OURT LESS THAN SEVEN MONTHS AFTER THE STATUTE CAME INTO FORCE
2ECOGNISING THE IMPORTANCE OF PROCESSUAL RIGHTS IN A STATUTE WHICH SHIFTS THE
BALANCE OF POWER THIS DECISION PRESAGES THE PROBLEMS WHICH HAVE BESET THE
IMPLEMENTATION OF THE &2! SINCE AND THE NUMEROUS ASPECTS OF PROCEDURAL RIGHTS
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
WHICH HAVE BEEN VIOLATED IN VARYING DEGREES
/2$ % 2
4HIS WRIT PETITION HAS BEEN LED IN THE SHAPE OF A 0UBLIC )NTEREST ,ITIGATION SEEKING A
DIRECTION TO THE OPPOSITE PARTIES TO EXTEND THE BENET OF THE PROVISIONS OF THE 3CHEDULED
4RIBE AND OTHER &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT HEREINAFTER
CALLED THE !CT
,EARNED COUNSEL FOR THE PETITIONERS HAS SUBMITTED THAT IN SPITE OF THE FACT THAT THE
PRESENT PETITIONERS WHO REPRESENT THE COMMUNITY HAVE MADE REPRESENTATIONS THAT THE
PROVISIONS OF THE SAID !CT ARE NOT BEING ENFORCED BY THE STATUTORY AUTHORITIES SAME HAVE
NOT BEEN CONSIDERED AND DISPOSED OF SO FAR
!FTER GOING THROUGH THE PROVISIONS OF THE !CT AND THE MODALITIES PROVIDED UNDER THE
NOTICATION DATED ISSUED BY THE 'OVERNMENT OF )NDIA -INISTRY OF 4RIBAL !FFAIRS
AND AFTER HEARING THE LEARNED 3TANDING #OUNSEL FOR THE OPPOSITE PARTIES WE DISPOSE OF
THIS PETITION REQUESTING THE AUTHORITIES UNDER THE SAID !CT TO CONSIDER THE APPLICATIONS
IN CASE THEY MEET THE REQUIREMENTS OF PROCEDURAL LAW AND BY ANNEXING THE DOCUMENTS
REQUIRED EITHER UNDER THE !CT OR THE 2ULES OR THE .OTICATION !PPROPRIATE ORDER SHALL BE
PASSED WITHIN A PERIOD OF THREE MONTHS IN EACH INDIVIDUAL CASE )T IS FURTHER MADE CLEAR
THAT EVERY APPLICATION SHALL BE DISPOSED OF BY A SPEAKING ORDER GIVING REASONS THEREIN
AND THE ORDER SO PASSED SHALL BE COMMUNICATED TO THE APPLICANT IMMEDIATELY AFTER
PASSING OF THE ORDER
-ISC #ASE .O OF IS ALSO DISPOSED OF
5RGENT CERTIED COPY OF THE ORDER BE GRANTED ON PROPER APPLICATION
4 / \
2ETIRED &OREST /FCERS !SSOCIATION VS
5NION OF )NDIA /RS
70 # ./ /&
()'( #/524 /& /2)33!
).4%2)- /2$%2
#/2!- )- 15$$53) !#4).' #* !.$ 3!.*5 0!.$! *
3 5 - -!29
4HIS WRIT PETITION WAS FILED BY THE 2ETIRED &OREST /FFICERS !SSOCIATION OF /RISSA IN
THE NATURE OF A PUBLIC INTEREST LITIGATION SEEKING A DECLARATION THAT THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2! PARTICULARLY #HAPTERS )) ))) AND )6 ARE ULTRA VIRES THE #ONSTITUTION OF
)NDIA )N ADDITION THE PETITIONERS SOUGHT A STAY ON THE OPERATION OF THE &2! WHICH
HAD BEEN GRANTED VIDE INTERIM ORDER DATED
4HE PETITIONERS ARGUED THAT HAVING REGARD TO THE .ATIONAL &OREST 0OLICY WHICH
CONTEMPLATES MAINTENANCE OF FORESTRY TO THE EXTENT OF ONE
THIRD OF THE TOTAL LAND
AREA IN THE COUNTRY THE PROVISIONS OF THE &2! AND THE CONFERMENT OR RECOGNITION
OF THE CERTIFICATES FOR THOSE ALLEGED TO BE IN POSSESSION OF FORESTS DEFEATS THE POLICY
)T WAS FURTHER ARGUED THAT THE PROVISIONS OF THE &2! RUN COUNTER TO VARIOUS OTHER
ENACTMENTS SUCH AS THE 7ILD ,IFE 0ROTECTION !CT AND THE &OREST #ONSERVATION
!CT
4HE RESPONDENTS INCLUDING 5NION -INISTRY OF 4RIBAL !FFAIRS 3TATE GOVERNMENT
AND IMPLEADED TRIBALS AND FOREST DWELLERS ARGUED THAT THE &2! IS A BENEFICIAL
LEGISLATION AND THE APPREHENSION THAT IT WILL LEAD TO WIDESPREAD FELLING OF TREES IS
BASELESS !CCORDINGLY THEY URGED THE #OURT TO VACATE THE INTERIM ORDER DT
WHEREBY THE OPERATION OF THE &2! HAD BEEN RESTRICTED
& ) . $ ).' 3 /& 4( % #/52 4
4HE #OURT HELD THAT FOOL
PROOF SAFEGUARDS HAVE BEEN MADE IN THE &2! TO CHECK ANY
KIND OF ILLEGAL VESTING )F ANY DEVIATION IS NOTICED THE PETITIONER CAN VERY WELL
RAISE AN OBJECTION 3INCE A PETITION FOR TRANSFER OF THE INSTANT WRIT PETITION WAS
PENDING BEFORE THE 3UPREME #OURT THE #OURT REFRAINED FROM GOING INTO THE MERITS
OF THE CASE (OWEVER SINCE ACCORDING TO THE AFFIDAVIT FILED BY THE 3TATE GOVERNMENT
THROUGH THE 3CHEDULED #ASTE AND 3CHEDULED 4RIBE $EVELOPMENT $EPARTMENT
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
CASES HAD BECOME READY FOR ISSUE OF CERTIFICATE OF TITLE THERE IS NO NECESSITY THAT
THE PREVIOUS INTERIM ORDER DIRECTING THAT THE PATTAS WOULD NOT BE GRANTED WITHOUT
PERMISSION OF THE #OURT SHOULD NOT BE VACATED !LL APPLICATIONS WERE ACCORDINGLY
DISPOSED OF WITH A DETAILED ORDER
% $ )4/23 . /4%
4HIS WRIT PETITION HAS SINCE BEEN TRANSFERRED TO THE 3UPREME #OURT AND IS PENDING
ADJUDICATION 4HIS INTERIM ORDER HOWEVER CONTINUES TO STAND AND ACCORDINGLY THE
IMPLEMENTATION OF THE &2! IN THE 3TATE OF /DISHA AFTER THE INITIAL HICCUP HAS BEEN
RAPID
/2$ % 2
(EARD ,EARNED COUNSEL FOR THE PARTIES
)N ORDER TO RECOGNIZE AND VEST THE FOREST RIGHTS AND OCCUPATION IN FOREST LAND IN FOREST
DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS WHO HAVE BEEN RESIDING
IN SUCH FORESTS FOR GENERATIONS BUT WHOSE RIGHTS COULD NOT BE RECORDED AND 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 THE 'OVERNMENT OF
)NDIA ENACTED THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT 4HE SAID !CT CONFERRED ON THE MEMBERS OR COMMUNITY OF
THE 3CHEDULED 4RIBE WHO PRIMARILY RESIDE IN AND WHO DEPEND ON THE FORESTS OR FOREST
LANDS FOR BONA DE LIVELIHOOD NEEDS AND INCLUDE THE PASTORALIST COMMUNITIES CERTAIN
FOREST RIGHTS AS MENTIONED IN 3ECTION THEREOF 4HE FOREST RIGHTS GRANTED BY THE SAID
!CT INTER ALIA INCLUDED 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 3CHEDULED TRIBE OR OTHER TRADITIONAL FOREST DWELLERS
RIGHT OF OWNERSHIP ACCESS TO COLLECT USE AND DISPOSE OF MINOR FOREST PRODUCE WHICH
HAS BEEN TRADITIONALLY COLLECTED WITHIN OR OUTSIDE VILLAGE BOUNDARIES RIGHTS INCLUDING
COMMUNITY TENURES OF HABITAT AND HABITATION FOR PRIMITIVE TRIBAL GROUPS AND PRE
AGRICULTURAL COMMUNITIES RIGHTS FOR CONVERSION OF PATTAS OR LEASES OR GRANTS ISSUED
BY ANY LOCAL AUTHORITY OR ANY STATE 'OVERNMENT ON FOREST LANDS TO TITLES RIGHTS OF
SETTLEMENT AND CONVERSION OF ALL FOREST VILLAGES OLD HABITATION UNSURVEYED VILLAGES AND
OTHER VILLAGES IN FORESTS WHETHER RECORDED NOTIED OR NOT INTO REVENUE VILLAGES RIGHT TO
PROTECT REGENERATE OR CONSERVE OR MANAGE ANY COMMUNITY FOREST RESOURCE WHICH THEY
HAVE BEEN TRADITIONALLY PROTECTING AND CONSERVING FOR SUSTAINABLE USE RIGHT TO ACCESS TO
BIODIVERSITY AND COMMUNITY RIGHT TO INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE
RELATED TO BIODIVERSITY AND CULTURAL DIVERSITY DIVERSITY ANY OTHER TRADITIONAL RIGHT
CUSTOMARILY ENJOYED BY THE FOREST DWELLING 3CHEDULED TRIBES OR OTHER TRADITIONAL FOREST
DWELLERS AS THE CASE MAY BE WHICH ARE NOT MENTIONED IN CLAUSES A TO K OF #HAPTER
)) BUT EXCLUDING THE TRADITIONAL RIGHT OF HUNTING OR TRAPPING OR EXTRACTING A PART OF THE
BODY OF ANY SPECIES OF WILD ANIMAL #HAPTER ))) OF THE !CT CONTAINS PROVISIONS RELATING TO
RECOGNITION RESTORATION AND VESTING OF FOREST RIGHTS IN FOREST DWELLING 3CHEDULED 4RIBES
AND OTHER TRADITIONAL FOREST DWELLERS 3ECTION OF #HAPTER )LL DEALS WITH THE DUTIES OF
HOLDERS OF FOREST RIGHTS )T EMPOWERS THE 'RAM 3ABHA AND VILLAGE LEVEL INSTITUTIONS IN
6IDE ORDER DT IN 40 # .OS
OF 3UPREME #OURT OF )NDIA
4 / \
AREAS WHERE THERE ARE HOLDERS OF ANY FOREST RIGHT UNDER THE !CT TO A PROTECT THE WILD LIFE
FOREST AND BIODIVERSITY B ENSURE THAT ADJOINING CATCHMENTS AREA WATER SOURCES AND
OTHER ECOLOGICAL SENSITIVE AREAS ARE ADEQUATELY PROTECTED C ENSURE THAT THE HABITAT OF
FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS IS PRESERVED FROM
ANY FORM OF DESTRUCTIVE PRACTICES AFFECTING THEIR CULTURAL AND NATURAL HERITAGE AND ALSO
D ENSURE THAT THE DECISIONS TAKEN IN THE 'RAM 3ABHA TO REGULATE ACCESS TO COMMUNITY
FOREST RESOURCES AND STOP ANY ACTIVITY WHICH ADVERSELY AFFECTS THE WILD ANIMALS FOREST
AND THE BIODIVERSITY ARE COMPLIED WITH #HAPTER )6 PROVIDES FOR THE AUTHORITIES TO VEST
FOREST RIGHTS IN FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
AND THE PROCEDURE FOR SUCH VESTING )T HAS PROVIDED A THREE TIER SYSTEM 4HE 'RAM 3ABHA
HAS BEEN CONFERRED WITH 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 3CHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS WITHIN THE LOCAL
LIMITS OF ITS JURISDICTION BY RECEIVING CLAIMS AND AFTER UNDERTAKING SUCH EXERCISE PASS
A RESOLUTION AND FORWARD A COPY OF THE SAME TO THE 3UB $IVISIONAL ,EVEL #OMMITTEE
0ERSON AGGRIEVED BY THE RESOLUTION OF THE 'RAM 3ABHA MAY PREFER A PETITION TO THE 3UB
$IVISIONAL ,EVEL #OMMITTEE AND THEREAFTER TO THE $ISTRICT ,EVEL #OMMITTEE IF AGGRIEVED
BY THE RESOLUTION OF THE 3UB $IVISIONAL ,EVEL #OMMITTEE #HAPTER 6 DEALS WITH THE
OFFENCES AND PENALTIES AND #HAPTER 6) CONTAINS MISCELLANEOUS PROVISIONS
4HE PRESENT WRIT PETITION WAS LED BY THE 3OCIETY OF 2ETIRED /FCERS /RISSA IN THE SHAPE
OF PUBLIC INTEREST LITIGATION PRAYING TO DECLARE THE AFORESAID !CT IE THE 3CHEDULED 4RIBE
AND OTHER 4RIBAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHT !CT !CT OF
MORE PARTICULARLY #HAPTERS )) ))) AND )6 THEREOF AS ULTRA VIRES THE #ONSTITUTION OF )NDIA
4HE GROUND URGED IN THE WRIT PETITION IS THAT HAVING REGARD TO THE .ATIONAL &OREST 0OLICY
WHICH CONTEMPLATES MAINTENANCE OF FORESTRY TO THE EXTENT OF RD OF THE TOTAL LAND
ARE IN THE COUNTRY THE PROVISIONS OF THE !CT AND THE CONFERMENT OR RECOGNITION OF THE
CERTICATES FOR THOSE ALLEGED TO BE IN POSSESSION OF FOREST DEFEATS THE VERY POLICY &URTHER
THE PROVISIONS ALSO RUN COUNTER TO VARIOUS OTHER ENACTMENTS LIKE 7ILD ,IFE 0ROTECTION
!CT &OREST #ONSERVATION !CT
/N WHILE DIRECTING FOR SERVICE OF EXTRA COPIES OF THE WRIT PETITION ON THE
!SSISTANT 3OLICITOR 'ENERAL AND THE LEARNED !DDITIONAL 'OVERNMENT !DVOCATE THIS
#OURT DISMISSED THE STAY APPLICATION AS IT WAS NOT INCLINED TO PASS ANY INTERIM ORDER
!GAIN THE MATTER WAS LISTED ON WHEN THE #OURT DIRECTED FOR ISSUE OF NOTICE
TO THE !DVOCATE 'ENERAL AS WELL AS THE LEARNED 3OLICITOR 'ENERAL AND ADJOURNED THE
MATTER TO THE WEEK COMMENCING ST OF 3EPTEMBER FOR NAL DISPOSAL REQUIRING THE
OPPOSITE PARTIES TO LE COUNTER WITHIN THREE WEEKS 4HE APPLICATIONS LED BY ONE +UI
3AMAJ 3EBA 3AMITI AND SOME TRIBAL FOREST DWELLERS TO BE IMPLEADED AS PARTIES TO THE
WRIT PETITION WERE ALLOWED AND THEY WERE IMPLEADED AS OPPOSITE PARTIES TO /N THAT
DAY -ISC #ASE .O OF PRAYING TO DIRECT THE OPPOSITE PARTIES NOT TO UNDERTAKE
ANY FELLING OF TREES AND NOT TO ALIENATE ANY FOREST LAND BY ISSUING PATTA OR BY ANY OTHER
MANNER PURSUANT TO THE PROVISION OF THE !CT FROM OUT OF THE SANCTUARIES .ATIONAL 0ARKS
AND "IOSPHERES 2ESERVE AREA ON THE GROUND THAT UNLESS THE SAME IS STAYED THE WRIT
PETITION WILL BECOME INFRUCTUOUS AND IRREPARABLE LOSS AND INJURY WOULD BE CAUSED TO
THE PUBLIC AT LARGE WAS LED ON BEHALF OF THE PETITION IN #OURT 4HE SAID APPLICATION WAS
TAKEN UP THAT DAY AND THIS #OURT AFTER HEARING PASSED FOLLOWING ORDER
LN THE MEANTIME THE OPPOSITE PARTIES ARE DIRECTED NOT UNDERTAKE ANY FELLING OF
TREES AND NOT TO ALIENATE ANY LAND BY ISSUING PATTA OR BY ANY OTHER MANNER PURSUANT
TO THE PROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT !CT OF PARTICULARLY FROM OUT OF THE
SANCTUARIES .ATIONAL 0ARKS AND "IOSPHERES 2ESERVE !REAS UNTIL FURTHER ORDERS
/N THE MATTER AGAIN CAME UP WHEN THIS #OURT CLARIED THAT ABOVE ORDER
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
DOES NOT INCLUDE THE PROCESS OF IDENTITY AND RECOGNITION OF THE PERSONS ETC WHICH
ARE NOT COVERED IN THE INTERIM ORDER !CCORDINGLY THE #OURT DIRECTED THAT THE PROCESS
REGARDING IDENTITY AND RECOGNITION MAY GO ON BUT THE NAL DECISION SHALL NOT BE TAKEN
WITHOUT LEAVE OF THIS #OURT 4HEREAFTER THE MATTER UNDERWENT ADJOURNMENTS EITHER FOR
THE PURPOSE OF LING COUNTER OR ON THE REQUEST OF THE LEARNED COUNSEL AND ULTIMATELY
CAME TO BE LISTED ON L WHEN IT WAS ORDERED THAT SINCE COUNTER AND REJOINDER
HAVE BEEN EXCHANGED THE MATTER SHOULD BE LISTED IN THE RST WEEK OF -AY FOR NAL
DISPOSAL )N THE MEANTIME 4RANSFER 0ETITION #IVIL .OS
OF WERE LED BY
THE 5NION OF )NDIA BEFORE THE (ONBLE 3UPREME #OURT FOR TRANSFER OF THIS WRIT PETITION TO
THE 3UPREME #OURT TO DECIDE ON MERIT WITH 40 C .O
OF ALREADY PENDING
BEFORE THE 3UPREME #OURT )N VIEW OF THE AFORESAID THIS #OURT ON DIRECTED THIS
WRIT PETITION TO BE LISTED IN THE WEEK COMMENCING 4HE PRESENT MISC CASE WAS
LED ON WITH A PRAYER TO VACATE THE INTERIM ORDER PASSED ON IN -ISC
#ASE .O OF AS THE SAID ORDER TENDS TO CAUSE UNNECESSARY ? DELAY AFFECTING THE
INTEREST OF A LARGE NUMBER OF MARGINALIZED FOREST DWELLERS LIKE THE PETITIONER WHO ARE
WAITING TO GET THE BENET UNDER THE !CT WITH HIGH EXPECTATION )T IS THE FURTHER CASE OF
THE PETITIONER THAT AS PER THE STATEMENT RELEASED BY THE -INISTRY OF 4RIBAL !FFAIRS MANY
OF THE 3TATES LIKE !NDHRA 0RADESH #HHATTISGARH -ADHYA 0RADESH AND 7EST "ENGAL HAVE
ALREADY ISSUED TITLES TO THE FOREST COMMUNITIES WHEREAS THE 'OVERNMENT OF /RISSA HAS
EXPRESSED ITS INABILITY TO EXTEND SIMILAR BENETS BECAUSE OF THE STAY ORDER ALTHOUGH THE
$ISTRICT ,EVEL #OMMITTEES HAVE APPROVED NUMBER OF CLAIMS )T IS CONTENDED BY
THE APPLICANT THAT THE APPREHENSION OF THE WRIT PETITIONER THAT THE IMPLEMENTATION OF
THE !CT WOULD LEAD TO FELLING OF TREES OR DESTRUCTION OF FORESTS IS BASELESS AND IMAGINARY
)N SUPPORT OF SUCH CONTENTION THE APPLICANT HAS TAKEN AID OF THE LETTER DATED
OF 34 3# $EVELOPMENT $EPARTMENT OF 'OVT OF /RISSA IN WHICH WHILE ANSWERING THE
FREQUENTLY ASKED QUESTION $OES THE !CT NOT HAVE THE DANGER OF DESTROYING OUR FORESTS
AND ENVIRONMENT THE 3TATE ANSWERED AS UNDER
$ENITELY NOT 7E NEED TO SEE THAT EVEN IN THE EARLIER FRAMEWORK OF &OREST
CONSERVATION !CT THERE WERE PROVISIONS AND PROCEDURES FOR REGULARIZING OLD
HABITATIONS 4HE EARLIER FRAMEWORK DID NOT HAVE EXPRESS SCOPE FOR PARTICIPATION OF
THE PEOPLE 4HE PRESENT !CT MANDATES THAT 'RAM 3ABHA IE 0ALLI 3ABHA IN /RISSA
CONTEXT IS THE AUTHORITY TO INITIATE AND DECIDE THE CLAIMS 4HE CUT
OFF DATE WAS
EARLIER XED AS )T IS NOW L FOR MEMBERS OF THE 3CHEDULED 4RIBES
AND LLL FOR OTHER TRADITIONAL FOREST DWELLERS 4HE !CT ONLY RECOGNIZES EXISTING
OCCUPATIONS IT DOES NOT ENVISAGE FRESH DESTRUCTION OF FOREST )T SEEKS BASICALLY TO
RECOGNIZE DE JURE THE ALREADY EXISTING DC FACTO POSITION ON THE GROUND 4HEREFORE
THERE ! IS NO DANGER REALLY TO THE FORESTS $EFORESTATION IS MOSTLY DUE TO COMMERCIAL
INTERESTS AND NOT DUE TO BONA DE LIVELIHOOD REQUIREMENTS OF THE POOR PEOPLE 7E
MUST SEE THAT BY HAVING THE ORDINARY PEOPLE LIVING LEGITIMATELY IN THE FOREST AREAS
ON OUR SIDE THE FOREST MACHINERY CAN DO A BETTER ENFORCEMENT WORK 4HEY CAN GET
BETTER INTELLIGENCE ABOUT THE MOVEMENT AND ACTIVITIES OF THE TIMBER MAA 4HEREFORE
SINCERE IMPLEMENTATION OF THE !CT WILL PROTECT THE FORESTS AND OUR ENVIRONMENT
4HE APPLICANT OF -ISC #ASE .O OF HAS ALSO BROUGHT TO THE NOTICE OF THIS #OURT
THE FACT THAT THE VALIDITY OF THE IMPUGNED !CT HAS BEEN CHALLENGED BEFORE THE (ONBLE
3UPREME #OURT IN 70 # .O OF "OMBAY .ATURAL (ISTORY STY OTHERS V 5NION
OF )NDIA AND OTHERS AND IN 70 # .O OF AND ALTHOUGH STAY OF IMPLEMENTATION
OF THE IMPUGNED !CT HAS BEEN SOUGHT IN THE AFORESAID WRIT PETITIONS THE (ONBLE APEX
#OURT HAS NOT PASSED ANY INTERIM ORDER SO FAR "Y WAY OF AN ADDITIONAL AFDAVIT THE
APPLICANT HAS SOUGHT TO BRING CERTAIN FACTS TO THE NOTICE OF THE #OURT WHICH HAS BEARING
ON THE PRAYER OF THE APPLICANT %NCLOSING SOME NEWSPAPER CLIPPINGS TO THE ADDITIONAL
AFDAVIT THE APPLICANT HAS BROUGHT TO THE NOTICE OF THE #OURT THAT THE RECENT UNREST
IN THE AREAS OF .ARAYANPATNA AND "ANDHUGAON IN +ORAPUT HAS BEEN ATTRIBUTED TO THE
CALLOUSNESS OF THE 'OVT TOWARDS SETTLEMENT OF THE RIGHTS OF THE FOREST DWELLERS 3UCH
4 / \
UNREST ACCORDING TO THE NEWSPAPER REPORTS OCCURRED DUE TO THE TARDY PROGRESS IN
GIVING LAND RIGHTS TO FOREST DWELLERS MOSTLY TRIBALS UNDER &OREST 2IGHTS !CT IS FUELLING
DISTURBANCE IN TRIBAL DOMINATED DISTRICTS WHICH ARE SUBSEQUENTLY TURNING INTO FERTILE
GROUND FOR LEFT WING EXTREMISTS 4HE APPLICANT HAS FURTHER STATED THAT THE -INISTRY OF
4RIBAL !FFAIRS 'OVERNMENT OF )NDIA IN ITS NOTICATION DATED L HAS LAID OUT A
DETAIL PROCEDURE FOR SEEKING PRIOR APPROVAL FOR DIVERSION OF FOREST LAND UNDER SUB SECTION
OF 3ECTION OF THE !CT THEREBY IMPOSING REASONABLE RESTRICTIONS BEFORE DIVERSION OF
&OREST LAND 4HEREFORE THE APPREHENSION OF THE PETITIONER THAT THE IMPLEMENTATION OF
THE PROVISIONS OF THE !CT WILL RESULT IN FELLING OF TREES AND DESTRUCTION OF LARGE FOREST HAS
NO LEG TO STAND ON 4HE APPLICANT HAS ALSO BROUGHT TO OUR NOTICE THAT THE VALIDITY OF THE
IMPUGNED !CT WAS CHALLENGED BEFORE THE !NDHRA 0RADESH (IGH #OURT IN 70 .O
OF *6 3HARMA AND OTHERS V 'OVERNMENT OF )NDIA AND OTHERS IN WHICH AN INTERIM
ORDER HAD BEEN PASSED ON DIRECTING THAT IF CLAIMS ARE MADE FOR COMMUNITY
RIGHTS OR RIGHTS TO FOREST LAND AND APPLICATIONS ARE SUBMITTED AS PER 3ECTIONS AND
OF THE !CT READ WITH 2ULES AND OF THE 2ULES THEN THE PROCESS OF VERICATION OF THE
CLAIM AFTER INTIMATION TO THE CONCERNED CLAIMANT SHALL GO ON BUT BEFORE THE CERTICATE
OF TITLE IS ACTUALLY ISSUED ORDERS SHALL BE OBTAINED FROM THAT #OURT 4HE !0 (IGH #OURT
FURTHER DIRECTED THAT DURING THE PENDENCY OF THE LITIGATION 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 VERICATION PROCEDURE IS
COMPLETED 4HE AFORESAID ORDER WAS MODIED BY ORDER DATED THE #OURT INTER
ALIA PERMITTED THE AUTHORITIES TO ISSUE CERTICATE OF TITLE TO THE ELIGIBLE FOREST DWELLING
3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS UNDER THE !CT WITH THE CONDITION
THAT THE SAME WILL BE SUBJECT TO THE RESULT IN MAIN WRIT PROCEEDINGS CHALLENGING THE
LEGISLATION
7HILE MODIFYINGVACATING THE INTERIM ORDER THE (IGH #OURT TOOK NOTE OF THE FOLLOWING
%VEN THE PROVISIONS OF THE ACT DO SPECICALLY PROVIDE FOR SUCH EXERCISE WITH THE
ASSISTANCE AND PARTICIPATION BY ALL THE AUTHORITIES LIKE 2EVENUE &OREST ETC (OWEVER
EVEN THROUGH ENTIRE SUCH EXERCISE WAS DONE AT SEVERAL DISTRICT PLACES THERE APPEARS
TO BE NO ATTEMPT ON THE PART OF THE WRIT PETITIONER TO PUT THEIR CLAIMS OBJECTIONS
OF WHATSOEVER NATURE IN THE ENTIRE PROCESS BE THAT AS IT MAY SINCE THE PETITIONERS
THEMSELVES ARE NOT CLAIMING ANY SUCH RIGHTS OR CERTICATES OF TITLE UNDER THE
PROVISIONS OR MUCH LESS DENIAL THEREOF WE ARE OF THE VIEW THAT IN THE ENTIRE PROCESS
AS STATED ON OATH BY THE AUTHORITIES THERE IS NO REASON AT THIS STAGE TO DOUBT THE
SAME &URTHER IT IS FOUND THERE HAVE BEEN SEVERAL CLAIMS RUNNING INTO THOUSANDS AT
DIFFERENT PARTS OF DISTRICTS AND 0ARTICULARS OF THOSE CLAIMS HAVE BEEN VERIED AND
PROCESSED THROUGH AND ULTIMATELY RESTRICTED TO THOSE WHO ARE FOUND TO BE ELIGIBLE
7E ALSO TAKE NOTE OF THE FACT THAT ENTIRE EXERCISE AS PER THE PROVISIONS OF THE ACT IS
A BASIS IE A THREE TIER SYSTEM PRIMARILY AT 'RAMA 3ABHA SECONDLY AT 3UB
DIVISIONAL
,EVEL #OMMITTEE AND ULTIMATELY AT $ISTRICT ,EVEL #OMMITTEE CONSISTING OF VARIOUS
AUTHORITIES AND IT IS ALWAYS OPEN FOR THE WRIT PETITIONERS TO SEEK FOR INFORMATION
AND PARTICULARS IF ANY INELIGIBLE PERSON OR INDIVIDUAL IS SOUGHT TO BE GIVEN ANY SUCH
CERTICATE IT CAN RAISE ALL OBJECTIONS WHICH WE ARE SURE THE CONCERNED AUTHORITIES
BEFORE WHOM SUCH OBJECTIONS ARE LED BE IT 'RAMA 3ABHA 3UB
$IVISIONAL ,EVEL
#OMMITTEE OR $ISTRICT ,EVEL #OMMITTEE WOULD CERTAINLY ENQUIRE INTO AND WOULD
PASS APPROPRIATE ORDERS IN ACCORDING WITH LAW
(OWEVER HAVING REGARD TO THE VERY LAUDABLE OBJECT TO PROTECT THE POSSESSION OF
SUCH INDIVIDUALS WHICH LAW TRIES TO TAKE CARE OF ANY DENIAL THEREOF WOULD ONLY
PREJUDICE THEM THEREFORE WE ARE OF THE OPINION THAT THERE IS NO BASIS AS SUCH FOR
ANY PETITIONER TO ASSAIL THAT THE ENTIRE EXERCISE IS FARCE ONE OR CERTICATE OF IDENTITY
BY THE AUTHORITIES ARE FALSE OR IN ANY WAY TAINTED UNLESS AND UNTIL SUCH THING HAS
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
BEEN SPECICALLY POINTED OUT
4HE #OURT FURTHER OBSERVED
&URTHER WE REITERATE THAT IN VIEW OF THE SAFEGUARDS PROVISIONS AND ALSO INTERIM
ORDERS GRANTED EARLIER PROTECTING THOSE WHO ARE IN POSSESSION IT IS NEEDLESS TO MAKE
ANY FURTHER APPREHENSION FOR CAUSING ANY INCONVENIENCE OR LOSS AS SUCH
)T MAY BE MENTIONED HERE THAT THE 34 3# $EVELOPMENT $EPARTMENT OF THE
'OVERNMENT OF /RISSA HAS LED A PETITION NUMBERED AS -ISC #ASE .O OF
STATING THAT THE $ISTRICT ,EVEL #OMMITTEES HAVE NALIZED AND IDENTIED NUMBER
OF 0ERSONS TO BE AWARDED FOR ISSUE OF TITLE AND THE 3TATE 'OVERNMENT MAY BE PERMITTED
TO ISSUE THE CERTICATE OF TITLE
!FTER HEARING LEARNED COUNSEL FOR THE PARTIES WE ARE OF PRIMA FACIE OPINION THAT FOOL
PROOF SAFEGUARDS HAVE BEEN MADE IN THE !CT TO CHECK ANY KIND OF ILLEGAL VESTING 4HE
PROCEDURE PRESCRIBED FOR VESTING INVOLVES CONSIDERATION OF THE CLAIM AT VARIOUS LEVELS
AS MENTIONED IN 3ECTION #HAPTER )6 4HERE IS PROVISION TO CONSTITUTE 3UB
DIVISIONAL
,EVEL $ISTRICT ,EVEL AND 3TATE ,EVEL -ONITORING #OMMITTEE 6ARIOUS PENALTIES HAVE
BEEN PRESCRIBED FOR CONTRAVENTION OF THE PROVISIONS OF THE !CT )F ANY DEVIATION IS
NOTICED THE PETITIONER CAN VERY WELL RAISE OBJECTION "E THAT AS IT MAY IT HAS BEEN
BROUGHT TO OUR NOTICE THAT MATTERS CHALLENGING THE VALIDITY OF THE !CT IS PENDING BEFORE
THE (ONBLE APEX #OURT *UDICIAL DISCIPLINE REQUIRES THAT THE (IGH #OURT SHOULD NOT
ENTERTAIN A WRIT PETITION IN RESPECT OF THE SUBJECT MATTER THAT IS PENDING BEFORE THE
3UPREME #OURT !PPLICATION FOR TRANSFER OF THE INSTANT WRIT PETITION IS PENDING BEFORE
THE (ONBLE 3UPREME #OURT WHICH STOOD POSTED TO 4HEREFORE WE REFRAIN
FROM GOING INTO THE MERITS OF THE WRIT PETITION AT THIS STAGE "UT SINCE ACCORDING TO
THE PETITION LED BY THE 3# 34 $EVELOPMENT $EPARTMENT NUMBER OF CASES
HAVE BECOME READY FOR ISSUE OF CERTICATE OF TITLE THERE IS NO NECESSITY THAT THE INTERIM
ORDER SHOULD REMAIN IN OPERATION 7E THEREFORE FOLLOWING THE ORDER PASSED BY THE
!NDHRA 0RADESH (IGH #OURT VACATE THE INTERIM ORDER DATED AND PERMIT THE
AUTHORITIES TO ISSUE CERTICATE OF TITLE TO THE ELIGIBLE FOREST DWELLING SCHEDULED TRIBES
AND OTHER TRADITIONAL FOREST DWELLERS UNDER THE !CT WHICH SHALL BE SUBJECT TO THE RESULT
OF THE MAIN WRIT PETITION
!LL THE AFORESAID THREE MISC CASES ARE ACCORDINGLY DISPOSED OF
)SSUE URGENT CERTIED COPY
#OPY OF THE ORDER BE HANDED OVER TO -R #! 2AO LEARNED COUNSEL APPEARING FOR THE &OREST
$EPARTMENT OF THE 3TATE 'OVERNMENT
4 / \
.ISHAKAR +HATUA /RS VS 5NION OF
)NDIA /RS
-)3# #!3% ./ ). 70# ./ /&
()'( #/524 /& /2)33! #544!#+ "%.#(
).4%2)- /2$%2
#/2!- 6 '/0!,! '/7$! #* !.$ ". -!(!0!42! *
3 5 - -!29
4HIS WRIT PETITION CHALLENGED THE FOREST CLEARANCE GRANTED TO THE 0OHANG 3TEEL 0LANT
0/3#/ PROJECT BY THE -INISTRY OF %NVIRONMENT AND &ORESTS -O%& THROUGH A SERIES
OF ORDERS CULMINATING IN AN ORDER DATED 4HE PETITIONERS WHO ARE OTHER
TRADITIONAL FOREST DWELLERS /4&$S HAVE BEEN RESIDING IN AND CULTIVATING LANDS
IN THE PROJECT AREA PART OF WHICH IS ON FOREST LAND FOR GENERATIONS 4HEY ARGUED
THAT THEY ARE RIGHT
HOLDERS UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
4HE PRESENT ORDER WAS PASSED IN AN APPLICATION FOR INTERIM DIRECTIONS FILED BY THE
SAME PETITIONERS WHO WERE APPREHENSIVE AS EFFORTS WERE UNDERWAY TO DISPOSSESS
THEM OF THE LANDS IN QUESTION 4HE PETITIONERS SOUGHT DIRECTIONS TO THE 3TATE
GOVERNMENT AND THE PROJECT PROPONENT NOT TO PROCEED WITH ANY STEPS PURSUANT TO
THE IMPUGNED FOREST CLEARANCE AND FOR MAINTENANCE OF STATUS QUO UNTIL THE DISPOSAL
OF THE WRIT PETITION
3 5 - -! 2 9 /& 4( % !2 ' 5- % .43
4HE PETITIONERS ARGUED THAT UNDER THE &2! FOREST DWELLERS CANNOT BE REMOVED
FROM THE FOREST LANDS UNDER THEIR POSSESSION UNTIL THE PROCESS OF RECOGNITION OF
RIGHTS UNDER THE !CT IS COMPLETE 4HE 3TATE GOVERNMENT CONTRARY TO THE LAW HAD
BEEN ACTIVELY OBSTRUCTING THE IMPLEMENTATION OF THE &2! IN THE PROJECT AREA AND
THE FOREST CLEARANCE WAS GRANTED BASED UPON FALSE STATEMENTS MADE BY THE 3TATE
GOVERNMENT THAT THERE ARE NO FOREST DWELLERS IN THE AREA 4HEY ALSO PLACED MATERIALS
ON RECORD TO DEMONSTRATE THE APPREHENSION THAT EVICTIONS ARE IMMINENT AND THE
NEED FOR INTERIM PROTECTION TILL THE DISPUTE IS ADJUDICATED
4HE 3TATE GOVERNMENT AND THE PROJECT PROPONENT OPPOSED THE GRANT OF INTERIM
PROTECTION TO THE PETITIONERS ON A VARIETY OF GROUNDS INCLUDING THEIR FAILURE TO
DEMONSTRATE THEIR LOCUS STANDI AND THE FACT THAT THE SAME PETITIONERS HAD ALSO FILED A
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
WRIT PETITION CLAIMING RIGHTS UNDER THE ,AND !CQUISITION !CT WHICH ACCORDING
TO THEM WAS CONTRADICTORY 4HEY REITERATED THEIR SUBMISSION MADE BEFORE THE -O%&
THAT THE PROJECT AREA IS NOT A 3CHEDULED !REA THAT THERE ARE ONLY A HANDFUL OF TRIBALS
IN THE AREA AND THAT THERE ARE NO /4&$S EITHER BECAUSE NO INDIVIDUAL CLAIMS WERE
NEVER SUBMITTED OR THE CLAIM FOR COMMUNITY FOREST RESOURCE RIGHTS IS DEFECTIVE
&).$ ) .' 3 /& #/52 4
4HE #OURT EXAMINED A NUMBER OF JUDGMENTS OF THE 3UPREME #OURT WHERE IT HAS
BEEN STATED THAT THE WRIT COURTS SHOULD NOT INTERFERE IN MATTERS OF ECONOMIC POLICY
OF THE STATE )T FURTHER STATED THAT THE PROPOSED 0/3#/ STEEL PLANT WILL PROVIDE
EMPLOYMENT TO PEOPLE AND WILL RESULT IN HUGE GENERATION OF REVENUE WHICH
IS IN THE PUBLIC INTEREST /N THE OTHER HAND THE RIGHTS IF ANY OF PERSONS UNDER THE
&2! ARE MINIMAL AND HAVE NOT BEEN DETERMINED AND CONFERRED UNDER THE !CT AND
2ULES
7HILE REACHING A FINDING OF FACT THAT THE PROCESS OF DETERMINATION OF RIGHTS
UNDER 3ECTION OF &2! HAS NOT TAKEN PLACE THE #OURT ARRIVED AT THE CONCLUSION
THAT THE GRANT OF FOREST CLEARANCE IS IN EXERCISE OF STATUTORY POWERS BY THE #ENTRAL
GOVERNMENT )T WAS OF THE VIEW THAT THE RIGHTS OF THE FEW /4&$S IF FOUND TO BE
EXISTING IN THE FINAL DISPOSAL OF THE CASE CAN BE ADDRESSED BY MOULDING THE RELIEF
AND GRANTING MONETARY COMPENSATION 4HE BALANCE OF CONVENIENCE THEREFORE WAS
FOUND TO BE IN FAVOUR OF ALLOWING THE PROJECT TO PROCEED
4HE INTERIM APPLICATION WAS ACCORDINGLY DISMISSED )T MAY BE NOTED THAT THE MAIN
WRIT PETITION CONTINUES TO REMAIN PENDING BEFORE THE (IGH #OURT
% $ )4/23 . /4%
!LTHOUGH THIS DECISION CONTAINS NUMEROUS ERRORS IN LAW PRIMARILY ON INTERPRETATION
OF THE &2! IT MAY BE NOTED THAT THESE OBSERVATIONS WOULD NOT OPERATE AS BINDING
PRECEDENT HAVING BEEN MADE IN THE SPECIFIC FACTS OF THE CASE AND ALSO BEING IN THE
NATURE OF AN INTERIM ORDER 4HIS IS ALSO DEMONSTRATED BY THE SUBSEQUENT JUDGMENTS
PASSED BY THE SAME (IGH #OURT 4HEREFORE THESE ISSUES REMAIN OPEN TILL FINALLY
DECIDED BY THE COURT
)T IS IMPORTANT TO STATE THAT NO APPEAL AGAINST THIS ORDER WAS FILED BEFORE THE 3UPREME
#OURT )T MUST ALSO BE POINTED OUT THAT IN THE PARALLEL WRIT PETITION CHALLENGING THE
VALIDITY OF THE PROCEEDINGS UNDER THE ,AND !CQUISITION !CT THE (IGH #OURT
FOUND IN FAVOUR OF THE PETITIONERS
/2$ % 2
*UDGMENT IS DELIVERED IN OPEN COURT REJECTING THE -ISC #ASE .O OF PRAYING FOR
STAY OF THE FOREST CLEARANCE GRANTED VIDE SEPARATE SHEET
.ISHAKAR +HATUA /RS VS3TATE OF /RISSA /RS 70 # .O OF (IGH #OURT OF /DISHA
.ISHAKAR +HATUA /RS VS 3TATE OF /RISSA /RS ) ),2
#54
DECIDED ON
4 / \
,EARNED COUNSEL FOR THE OPPOSITE PARTIES ARE DIRECTED TO LE COUNTER AFDAVIT IN THE
MAIN PETITION AFTER SERVING A COPY OF THE SAME UPON THE LEARNED COUNSEL APPEARING FOR
THE PETITIONERS ,EARNED 'OVERNMENT !DVOCATE IS ALSO DIRECTED TO PRODUCE THE RELEVANT
RECORD WITHIN TWO WEEKS FROM TODAY
,IST THIS MATTER FOR HEARING AFTER TWO WEEKS
3D
-R 6 'OPALA 'OWDA #*
3D
". -AHAPATRA *
THE /RDER OF THE #OURT WAS PRONOUNCED BY 6 'OPALA 'OWDA #*
4HE PETITIONERS WHO ARE CLAIMING TO BE THE DIRECTLY AFFECTED PERSONS BY THE GRANT OF
CLEARANCE FOR FOREST LAND DIVERSION FOR THE 0/3#/ 0ROJECT HAVE LED THE AFORESAID WRIT
PETITION CHALLENGING THE &OREST #LEARANCE GRANTED VIDE ORDERS DATED TH 3EPTEMBER
TH $ECEMBER ST *ANUARY AND ND -AY BY THE -INISTRY OF %NVIRONMENT
AND &OREST HEREINAFTER CALLED -O%& IN FAVOUR OF 0OHANG 3TEEL #ORPORATION )NDIA 0RIVATE
,TD HEREINAFTER CALLED 0/3#/ FOR ITS PROJECT 4HE MAIN GRIEVANCE OF THE PETITIONERS IS THAT
THE AFORESAID CLEARANCE IS GRANTED IN UTTER VIOLATION OF #ONSTITUTIONAL RIGHTS GUARANTEED
ON THE PETITIONERS AND IN VIOLATION OF 3ECTION OF THE &OREST #ONSERVATION !CT
HEREINAFTER CALLED THE !CT OF 3ECTIONS AND OF THE 3CHEDULED 4RIBES AND OTHER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT HEREINAFTER CALLED THE
&OREST 2IGHTS !CT AND 2ULES AND ALSO IN VIOLATION OF THE VARIOUS GOVERNMENT ORDERS
AND CIRCULARS
4HIS -ISC #ASE HAS BEEN LED SEEKING THE FOLLOWING INTERIM PRAYERS
I !DMIT AND ALLOW THIS -ISC APPLICATION AND
II DIRECT ORDER THAT NO PURSUANT AND CONSEQUENTIAL ACTIONS STEPS SHALL BE TAKEN
PURSUANT TO THE IMPUGNED ORDER AS AT !NNEXURE
READ WITH !NNEXURE
AND
TO THE WRIT APPLICATION PENDING DISPOSAL OF THE WRIT APPLICATION
III DIRECT ORDER THAT FURTHER OPERATION OF THE ORDERS .OTICATIONS AS AT !NNEXURE
READ WITH !NNEXURES
AND SHALL REMAIN HALTED PURSUANT TO AN ORDER OF STAY
AGAINST THE SAID ORDERS NOTICATIONS PENDING DISPOSAL OF THE WRIT PETITION AND
IV DIRECT ORDER THAT STATUS QUO AS ON DATE SHALL BE MAINTAINED REGARDING POSSESSION
RIGHT TITLE INTEREST NATURE CHARACTER AND USE OF THE LANDS COVERED BY THE ORDER
NOTICATIONS AS AT !NNEXURE
READ WITH !NNEXURES
AND TO THE WRIT PETITION
PENDING DISPOSAL OF THE WRIT PETITION
&OR BETTER CONSIDERATION OF THE INTERIM PRAYER MADE IN THIS -ISC #ASE IT IS NECESSARY TO
NARRATE THE BRIEF FACTS GIVING RISE TO THE WRIT PETITION
4HE 'OVERNMENT OF /RISSA SIGNED A -EMORANDUM OF 5NDERSTANDING -O5 WITH THE
0/3#/ A REGISTERED COMPANY IN 3OUTH +OREA 4HE -O5 INTER ALIA CONTEMPLATED AN
INTEGRATED STEEL PROJECT WITH A CAPACITY OF MILLION TONES PER ANNUM TO BE CONTRUCTED
IN FOUR MODULES OF MILLION TONES PER ANNUM EACH AND FURTHER PROVIDED FOR THE
CONSTRUCTION OF LINKED MINING TRANSPORT AND WATER PROJECTS INCLUDING A PRIVATE PORT AND
CAPTIVE IRON ORE MINES MANGANESE ORE MINES AND COAL MINES AND FOR NUMEROUS OTHER
COMPONENTS RELATED TO THESE PROJECTS 4HE SAID STEEL PLANT OF MILLION TONES PER ANNUM
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
ALONG WITH PRIVATE PORT IS PROPOSED TO BE ESTABLISHED IN HECTARES OF LAND IN
THREE PANCHAYATS NAMELY $HINKIA .UAGAON AND 'ADAKUJANGA IN %RASAMA 4EHSIL
OF *AGATSINGHPUR DISTRICT WHICH INCLUDES HECTARES OF FOREST LAND COMPRISING
*ATADHAR 2ESERVE &OREST OF HECTARES $HINKRA .UAGAON 0ROTECTED &OREST OF
HECTARES .OLIASAHI 0ROTECTED &OREST OF HECTARES AND A 2EVENUE &OREST OF
HECTARES OF FOREST AROUND OF TOTAL LAND COMES UNDER FOREST CATEGORY AND THERE ARE
ABOUT FAMILIES INCLUDING THE PRESENT PETITIONERS WHO WILL BE AFFECTED AND LOSE THEIR
LIVELIHOOD /N TH *UNE THE 'OVERNMENT OF /RISSA RECOMMENDED AN APPLICATION
TO OPPOSITE PARTY .O FOR FOREST CLEARANCE UNDER 3ECTION OF THE !CT OF FOR DIVERSION
OF THE SAID HECTARES OF FOREST LAND FOR PURPOSES OF THE 0/3#/ PROJECT 0URSUANT
TO THAT ON TH !UGUST THE &OREST !DVISORY #OMMITTEE MADE A RECOMMENDATION
THAT THE 0/3#/ PROJECT BE GRANTED IN PRINCIPLE FOREST CLEARANCE FOR DIVERSION OF FOREST
LAND AS SOUGHT FOR )N ACCORDANCE WITH THE DIRECTIONS OF THE (ONBLE 3UPREME #OURT THE
AFORESAID RECOMMENDATION OF THE #OMMITTEE WAS EXAMINED BY THE #ENTRAL %MPOWERED
#OMMITTEE #%# AND VIDE ITS REPORT DATED TH .OVEMBER THE #ENTRAL %MPOWERED
#OMMITTEE MADE THE RECOMMENDATION TO THE (ONBLE 3UPREME #OURT AS FOLLOWS
4HE PRESENT PROPOSAL IS DIVERSION OF HECTARES OF FOREST LAND AND WILL
REQUIRE FELLING OF ABOUT LAKHS TREES 4HE PRESENT PROPOSAL CONVERS FOREST LAND
REQUIRED FOR THE INTEGRATED STEEL PLANT AND CAPTIVE MINOR PORT 4HE PROPOSAL
FOR REQUIREMENT OF FOREST LAND FOR OTHER LINKAGES SUCH AS MINES RAILWAYS ROAD
CORRIDOR ETC ARE YET TO BE NALISED
4HE #%# IS OF THE VIEW THAT INSTEAD OF PIECEMEAL DIVERSION OF FOREST LAND FOR THE
PROJECT IT WOULD BE APPROPRIATE THAT THE TOTAL FOREST LAND REQUIRED FOR THE PROJECT
INCLUDING FOR MINING IS ASSESSED AND A DECISION FOR DIVERSION OF FOREST LAND IS
TAKEN FOR THE ENTIRE FOREST LAND AFTER CONSIDERING THE ECOLOGICAL IMPORTANCE OF THE
AREA NUMBER OF TREES REQUIRED TO BE FELLED ADEQUACY AND EFFECTIVENESS OF THE 2
2 PLAN FOR THE PROJECT AFFECTED PERSONS AND BENETS ACCRUING TO THE 3TATE 4HE
DIVERSION OF FOREST LAND FOR THE PLANT WITHOUT TAKING A DECISION FOR THE LINKED USES
PARTICULARLY THE MINING PROJECT MAY NOT BE IN ORDER
3INCE THE NUMBER OF TREES INVOLVED IS ABOUT LAKHS IT WOULD BE IN ORDER THAT
AN INDEPENDENT EXPERT COMMITTEE INCLUDING REPRESENTATIVES OF THE .'/S SHOULD
UNDERTAKE A SITE VISIT IN ORDER TO ASSESS THE IMPACT OF THE CUTTING OF SUCH A LARGE
NUMBER OF TREES AND SUGGEST MITIGATIVE MEASURES FOR THE AREA SPECIALLY SINCE
THERE IS A LARGE DEPENDENCE OF LOCAL POPULATION ON THESE FORESTS 3UBJECT TO THE
COMPLIANCE OF THE ABOVE OBSERVATIONS THE PROPOSED DIVERSION OF FOREST LAND MAY
BE PERMITTED
)T IS STATED THAT IN THIS REGARD PETITIONERS AND OTHER VILLAGERS OF THAT AREA ARE CARRYING ON
PEACEFUL PROTESTS IN THE AREA AND HAVE MADE SEVERAL REPRESENTATIONS TO THE 3TATE AS WELL
AS #ENTRAL 'OVERNMENT EXPRESSING THEIR DISSATISFACTION WITH THE MANNER IN WHICH THE
PROJECT IS BEING PROMOTED BY THE OPPOSITE PARTIES BUT IN VAIN &OR THIS PURPOSE VARIOUS
0ALLI 3ABHA MEETINGS WERE ALSO HELD AT $HINKIA .UAGAON 'OBINDAPUR AND 0OLANGA
VILLAGES AND &OREST 2IGHTS #OMMITTEES WERE APPOINTED )T IS SUBMITTED THAT TILL !UGUST
NO STEPS HAD BEEN TAKEN IN THE AREA TO IMPLEMENT THE &OREST 2IGHTS !CT APART FROM
THE 0ALLI 3ABHA MEETINGS HELD ON -ARCH )N SPITE OF THIS OPPOSITE PARTY .O ON
TH 3EPTEMBER ACCORDED IMPUGNED FOREST CLEARANCE FOR DIVERSION OF THE FOREST
LAND IN FAVOUR OF 0/3#/ PROJECT HOWEVER NO STEPS WERE TAKEN BY THE OPPOSITE PARTY
3TATE 'OVERNMENT TO IMPLEMENT THE PROVISIONS OF THE &OREST 2IGHTS !CT IN THE AREA
/N TH *ULY OPPOSITE PARTY .O ISSUED FURTHER CIRCULAR TO ALL 3TATE 'OVERNMENT
DIRECTING AS FOLLOWS
TO FORMULATE UNCONDITIONAL PROPOSALS UNDER THE &OREST #ONSERVATION !CT THE
4 / \
3TATE 54 GOVERNMENTS ARE WHEREVER THE PROCESS OF SETTLEMENT OR 2IGHTS UNDER THE
&2! HAS BEEN COMPLETED OR CURRENTLY UNDER PROCESS REQUIRED TO ENCLOSE EVIDENCES
FOR HAVING INITIATED AND COMPLETED THE ABOVE PROCESS ESPECIALLY AMONG OTHER
SECTIONS 3ECTIONS I E AND
4HE DIRECTION FURTHER STATES THAT THE EVIDENCES IN QUESTION MUST INTER ALIA INCLUDE
A ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT THE COMPLETE PROCESS FOR
IDENTICATION AND SETTLEMENT OF RIGHTS UNDER THE &2! HAS BEEN CARRIED OUT FOR
THE ENTIRE FOREST AREA PROPOSED FOR DIVERSION WITH A RECORD OF ALL CONSULTATIONS
AND MEETINGS HELD
B ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT PROPOSALS FOR SUCH DIVERSION
WITH FULL DETAILS OF THE PROJECT AND ITS IMPLICATIONS IN VERNACULAR LOCAL LANGUAGES
HAVE BEEN PLACED BEFORE EACH CONCERNED 'RAM 3ABHA OF FOREST DWELLERS WHO ARE
ELIGIBLE UNDER THE &2!
C ! LETTER FROM EACH OF THE CONCERNED 'RAM 3ABHAS INDICATING THAT ALL FORMALITIES
PROCESSES UNDER THE &2! HAVE BEEN CARRIED OUT AND THAT THEY HAVE GIVEN THEIR
CONSENT TO THE PROPOSED DIVERSION AND THE COMPENSATORY AND AMELIORATIVE
MEASURES IF ANY HAVING UNDERSTOOD THE PURPOSES AND DETAILS OF PROPOSED
DIVERSION
D ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT DISCUSSIONS AND DECISIONS ON
SUCH PROPOSALS HAD TAKEN PLACE ONLY WHEN THERE WAS A QUORUM OF MINIMUM
OF MEMBERS OF THE 'RAM 3ABHA PRESENT
E /BTAINING THE WRITTEN CONSENT OR REJECTION OF THE 'RAM 3ABHA TO THE PROPOSAL
0URSUANT TO THE AFORESAID #IRCULAR OPPOSITE PARTY .O ON TH /CTOBER FURTHER
ISSUED A CIRCULAR TO ALL THE #OLLECTORS IN THE 3TATE OF /RISSA REQUESTING THEM TO ISSUE
CERTICATES AS PER ITS REQUIREMENTS WHENEVER ANY 5SER !GENCY APPLIES FOR DIVERSION OF
LAND FOR PROJECTS /N TH $ECEMBER OPPOSITE PARTY .O GRANTED THE NAL FOREST
CLEARANCE FOR THE DIVERSION OF FOREST LAND FOR THE 0/3#/ PROJECT (OWEVER ON A PLAIN
READING OF THE DOCUMENT RELEASED IN THE PUBLIC DOMAIN SUBSEQUENTLY IT IS APPARENT
ON THE FACE OF THE RECORD THAT AT THIS POINT OF TIME THERE WAS NO MATERIAL ON RECORD
DEMONSTRATING THE COMPLETED IMPLEMENTATION OF THE &OREST 2IGHTS !CT IN RESPECT OF
THE BENECIARIES IN THIS AREA AND IN PARTICULAR THERE WERE NO CERTICATES PLACED BEFORE
THE OPPOSITE PARTY .O BY THE 3TATE 'OVERNMENT IN COMPLIANCE WITH THE STATUTE AND
VARIOUS CIRCULARS AS MENTIONED ABOVE .O EVIDENCE WHATSOEVER WAS ON RECORD BEFORE
THE OPPOSITE PARTY .O TO THE EFFECT THAT THE RIGHTS OF THE FOREST DWELLERS OF THE AREA IN
QUESTION INCLUDING THE PRESENT PETITIONERS HAD BEEN RECOGNIZED BY THE 3UB $IVISIONAL
,EVEL #OMMITTEE AS PER LAW AT THE TIME OF GRANT OF IMPUGNED FOREST CLEARANCE
4HE PRESENT PETITIONERS BELONG TO FAMILY THAT HAVE RESIDED IN THE VILLAGES 'OBINDAPUR
$HINKIA AND .UAGAO IN THE DISTRICT OF *AGATSINGHPUR AND ARE ENGAGED IN CULTIVATION
FOR THEIR LIVELIHOOD FOR SEVERAL GENERATIONS 4HE PEOPLE OF THESE VILLAGES ARE CULTIVATING
LAND WITHIN THE FORESTS AND HAVE BEEN DEPENDENT ON DIFFERENT FOREST PRODUCES FROM
THESE FORESTS FOR MORE THAN A CENTURY )N THIS REGARD PETITIONERS HAVE ANNEXED A MAP
OF THE YEAR
ILLUSTRATING THE FACT THAT THE VILLAGES OF THE AREA BORDERING DENSE
MISCELLANEOUS JUNGLE WITH CULTIVATED PLOTS AND BETEL VINE SHEDS )T IS STATED THAT THE
PETITIONERS ARE /STHER 4RADITIONAL &OREST $WELLERS /4&$ AS DENE UNDER 3ECTION
O OF THE &OREST 2IGHTS !CT WHICH IS ASCERTAINED AND FOUND BY THE %NQUIRY #OMMITTEE
APPOINTED BY THE -O%& TO VERIFY THE IMPLEMENTATION OF &OREST 2IGHTS !CT AND OTHER
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
ISSUES IN THE 0/3#/ PROJECT ARE 0EOPLE OF THAT AREA ARE ALSO USED TO COLLECT VARIOUS
ILLEGIBLE PRODUCES LIKE BERRIES FRUITS TUBERS GREEN LEAF ETC WILD VEGETABLE OR UARINA
LEAVES FUEL WOOD ETC FOR THEIR LIVELIHOOD )T IS ALSO STATED THAT PRESENT PETITIONERS
BELONG TO A COMMUNITY CALLED 6ANA 3URAKSHA 3AMITI THAT HAS VOLUNTARILY PROTECTED
THE TREES FORESTS AND PLANTATIONS 4HE PETITIONERS HAVE ALSO LED CLAIM UNDER 3ECTION
A OF THE &OREST 2IGHTS !CT BEFORE THE &OREST 2IGHTS #OMMITTEE OF $HINKIA AND
'OVINDPUR VILLAGE ON TH !PRIL
)T IS THE CASE OF THE PETITIONERS THAT PURSUANT TO THE IMPUGNED PURPORTED &OREST
#LEARANCE TO THE 0/3#/ PROJECT THE PETITIONERS ARE REALIABLY INFORMED THAT THE
OPPOSITE PARTY
3TATE 'OVERNMENT THROUGH DISTRICT !DMINISTRATION IS PREPARING TO
EVICT THE FOREST DWELLERS FROM THE FOREST LAND WHICH FORMS THE SUBJECT MATTER OF THE
FOREST CLEARANCE AND ANNOUNCEMENTS TO THIS EFFECT HAVE ALSO BEEN MADE IN SEVERAL
LEADING NEWSPAPERS IN THE 3TATE WHICH WOULD BE IN THE TEETH OF THE FUNDAMENTAL
CONSTITUTIONAL AND STATUTORY RIGHTS OF THE PETITIONERS AND OTHER BENECIARIES OF THE
&OREST 2IGHTS !CT OF THE AREA IN QUESTION )T IS SUBMITTED THAT OPPOSITE PARTY .O WAS
FULLY AWARE OF THIS GLARING LACUNAE IN THE GRANT OF IMPUGNED FOREST CLEARANCE WHICH IS
APPARENT FROM THE CONDITION .O OF THE FOREST CLEARANCE ITSELF WHICH SPEAKS THAT THE
RIGHTS OF THE TRIBAL PEOPLE WILL BE SETTLED AS PER THE PROVISIONS OF THE &OREST 2IGHTS !CT
BEFORE IMPLEMENTATION OF THE PROJECT
)T IS SUBMITTED THAT THE 3TATE 'OVERNMENT VIDE ITS LETTER DATED TH -ARCH
FORWARDED THE INFORMATION TO THE OPPOSITE PARTY .O THAT THERE ARE NO TRIBAL PEOPLE
EITHER CULTIVATING OR RESIDING IN THE FOREST LAND AND THERE ARE NO OTHER TRADITIONAL FOREST
DWELLERS IN THE FOREST LAND COVERING THE 0/3#/ PROJECT AREA WHO ARE CULTIVATING AND IN
POSSESSION OF THE LAND SINCE THREE GENERATIONS IE LAST YEARS 4HE SAID INFORMATION IS
SHEER FALSEHOOD )T IS FURTHER STATED THAT THE 3TATE 'OVERNMENT COMPLETELY IGNORED THE
MEETINGS OF THE 0ALLI 3ABHAS WHICH HAD BEEN CALLED AS PER ITS OWN ORDER AND INSTEAD
A PATENTLY FALSE CERTICATE WAS SUBMITTED BEFORE THE OPPOSITE PARTY .O IN COMPLETE
VIOLATION OF THE EXISTING LAW AND THE RIGHTS OF THE PETITIONERS AND OTHER VILLAGERS )T IS
ALSO STATED THAT MEANWHILE OPPOSITE PARTY .O ALONG WITH -INISTRY OF 4RIBAL !FFAIRS
'OVERNMENT OF )NDIA CONSTITUTED A *OINT #OMMITTEE ON THE &OREST 2IGHTS !CT HEADED
BY 3HRI . # 3AXENA CALLED AS 3AXENA #OMMITTEE 3OME MEMBERS OF THE #OMMITTEE ON
TH *ULY VISITED THE PROPOSED 0/3#/ PROJECT AREA TO ASCERTAIN THE STATUS OF THE
IMPLEMENTATION OF THE FOREST 2IGHT !CT AND ALSO CONDUCTED PUBLIC CONSULTATION AND HELD
DISCUSSIONS WITH SENIOR OFCIAL OF THE 3TATE 'OVERNMENT AND THE #OMMITTEE SUBMITTED
ITS REPORT ON TH !UGUST INDICATING VARIOUS LACUNAE OF THE 3TATE 'OVERNMENT IN
THE 0/3#/ PROJECT VIOLATING THE RIGHTS OF THE PEOPLE AND WITHOUT FOLLOWING DUE PROCESS
OF LAW AND RECOMMENDED THE OPPOSITE PARTY .O TO DIRECT THE 3TATE 'OVERNMENT TO
STOP ANY LAND TAKEN OVER FOR THE PROJECT AND FURTHER TO WITHDRAW THE FOREST CLEARANCE
GRANTED TO THE 0/3#/ PROJECT
)T IS SUBMITTED BY THE LEARNED 3R #OUNSEL -R *AYANT $AS FOR THE PETITIONERS THAT THE ACTION
OF THE OPPOSITE PARTIES IS PURELY BY FORCE AND IS IN SHEER VIOLATION OF THE CONSTITUTIONAL
AND STATUTORY RIGHTS GUARANTEED ON THE PETITIONERS AS WELL AS VILLAGERS OF THAT AREA AND
ARE ALSO IN VIOLATION OF THE MANDATORY PROCEDURES PRESCRIBED ESTABLISHED BY LAW
4HE IMPUGNED ORDERS NOTICATION SOUGHT TO BE IMPLEMENTED AND ACTION TO BE TAKEN
THEREON ARE MANIFESTLY AND EX
FACIE AB INITIO VOID AND NON
EST IN THE EYE OF LAW AND
IT IS SUBMITTED THAT FOUNDATION FOR GRANT OF FOREST CLEARANCE BEING FATALLY VITIATED ALL
PURSUANT AND CONSEQUENTIAL ACTIONS ARE ALSO NON
EST IN THE EYE OF LAW )T IS SUBMITTED
THAT IN THE MANNER THE OPPOSITE PARTIES ARE TAKING ACTION PURSUANT TO THE VOID FOREST
CLEARANCES WHICH IS DETERMINED AND PREJUDICIAL TO THE PETITIONERS AND THE VILLAGERS OF
THE AREA WHO ARE THE BENECIARIES OF THE &OREST 2IGHTS !CT 2ULES IF IT IS NOT STOPPED
BY GRANTING THE INTERIM RELIEF AS PRAYED FOR IN THIS -ISC #ASE PENDING CONSIDERATION OF
4 / \
THE WRIT PETITION THE WRIT APPLICATION SHALL BE RENDERED INFRUCTUOUS AND CONSTITUTIONAL
AND STATUTORY RIGHTS OF THE PEOPLE AT LARGE WILL BE AFFECTED AND GREAT INJUSTICE WOULD BE
CAUSED TO THEM 4HEREFORE IT IS PRAYED THAT THE -ISC #ASE IS REQUIRED TO ALLOWED
/NE COUNTER AFDAVIT HAS BEEN LED ON BEHALF OF THE OPPOSITE PARTY .O ANNEXING SOME
RELEVANT DOCUMENTS OPPOSING THE AVERMENTS AND PRAYER MADE BY THE PETITIONERS IN THE
WRIT PETITION AND -ISC #ASE )T IS STATED THAT AFTER DUE CONSIDERATION OF THE REPORT OF THE
#%# THE 3UPREME #OURT IN ITS ORDER DATED TH !UGUST IN 70 # .O OF
DIRECTED THAT THE -O%& MAY TAKE AN APPROPRIATE DECISION IN THIS REGARD AND SUBJECT TO
THE DECISION OF THE -O%& THE PROJECT IS CLEARED !FTER CAREFUL EXAMINATION OF THE MATTER
THE -O%& ACCORDED THE APPROVAL FOR DIVERSION OF THE SAID FOREST LAND WITH A STIPULATION
THAT NO FOREST LAND SHALL BE HANDED OVER TO THE 5SER !GENCY BEFORE SETTLEMENT OF RIGHTS
UNDER THE &OREST 2IGHT !CT 4HE 3TATE 'OVERNMENT VIDE LETTER DATED TH -ARCH
PROVISIONS OF &OREST 2IGHTS !CT 7HEN THE -O%& RECEIVED COMPLAINTS ON VIOLATIONS
OF THE PROVISIONS OF THE !CT -O%& VIDE ITS ORDER DATED TH *ULY CONSTITUTED A
#OMMITTEE CONSISTING OF FOUR MEMBERS CALLED -EENA 'UPTA #OMMITTEE "EFORE
FORMING OF -EENA 'UPTA COMMITTEE A #OMMITTEE CALLED 3AXENA #OMMITTEE HAD
BEEN CONSTITUTED UNDER THE -INISTRY OF 4RIBAL !FFAIRS AND THE -O%& TO STUDY AND ASSSESS
THE IMPACTS OF THE &2! WITH REGARD TO THE SUSTAINABLE MANAGEMENT 4HE #OMMITTEE
SUBMITTED ITS REPORT !FTER DUE EXAMINATION OF THE REPORTS OF THE SAID #OMMITTEE
THE &OREST !DVISORY #OMMITTEE &!# IN ITS MEETING CONVENED ON TH /CTOBER
RECOMMENDED TEMPORARY WITHDRAWAL OF THE NAL STAGE APPROVAL UNDER THE !CT OF
FOR DIVERSION OF HECTARES OF LAND FOR THE PROJECT AND RECOMMENDED THE 3TATE
'OVERNMENT FOR FULLMENT OF CERTAIN TERMS AND CONDITIONS )T IS STATED THAT THE -O%& AT
THAT TIME HAD NO OPTION BUT TO ASK THE 'OVERNMENT OF /RISSA TO FURNISH THE PARTICULARS
REGARDING THE CLAIM OF THE VILLAGERS OF THE FOREST LAND IN QUESTION WHO HAS THE PRIMARY
RESPONSIBILITY FOR ENSURING AND GUARANTEEING COMPLIANCE WITH THE &OREST 2IGHTS !CT
TO THE BENECIARIES TO GIVE A CATEGORICAL ASSURANCE THAT AT LEAST ONE OF THE SAID THREE
CONDITIONS TO BE FULLLED BY A PERSON BEFORE HIS CLAIM AS /4&$ UNDER THE &OREST 2IGHTS
!CT ARE RECOGNIZED 4HE 'OVERNMENT OF /RISSA VIDE THEIR LETTER DATED INTER ALIA
INFORMED THE -O%& AS FOLLOWS
!FTER NECESSARY EXAMINATION OF THE MATTER THE #OMMISSIONER CUM 3ECRETARY TO
'OVERNMENT 34 3# $EVELOPMENT $EPARTMENT IN HIS LETTER .O DATED
BASED ON THE REPORT OF #OLLECTOR *AGATSINGHPUR HAS CONRMED THAT NO ONE SATISES
THE CONDITIONS LAID DOWN UNDER 3ECTION O OF THE &OREST 2IGHTS !CT TO BE TREATED
AS /4&$ IN THE FOREST LAND INVOLVED IN THE 0/3#/ PROJECT AREA WHO HAS FOR AT LEAST
THREE GENERATIONS PRIOR TO TH DAY OF $ECEMBER PRIMARILY RESIDED IN AND WHO
DEPEND ON THE FOREST LAND FOR BONADE LIVELIHOOD NEEDS
&URTHER THE -O%& AFTER GOING THROUGH VARIOUS PROVISIONS OF THE /RISSA 'RAMA 0ANCHAYAT
!CT HEREINAFTER CALLED /'0 !CT &OREST 2IGHTS !CT AND &OREST 2IGHTS 2ULES AND
THE INFORMATION PROVIDED BY THE 3TATE 'OVERNMENT CAME TO THE CONCLUSION THAT THERE
HAS BEEN NO LEGALLY VALID RESOLUTION OF THE 'RAMA 3ABHA CLAIMING RECOGNITION OF FOREST
RIGHTS BY THE VILLAGERS OF THE FOREST LAND AREA IN QUESTION AS REQUIRED UNDER 3ECTION
OF THE &OREST 2IGHTS !CT 4HE COMPETENT AUTHORITY IN THE #ENTRAL 'OVERNMENT AFTER
EXAMINATION OF ALL POSSIBLE OPTIONS CAME TO THE CONCLUSION THAT FAITH AND TRUST IN WHAT
THE 3TATE 'OVERNMENT SAYS IS AN ESSENTIAL PILLAR OF COOPERATIVE FEDERALISM (AVING
OBSERVED SO THE COMPETENT !UTHORITY IN THE #ENTRAL 'OVERNMENT IN THE -O%& AFTER FULL
APPLICATION OF MIND TO THE FACTS AND RECORD BEFORE IT HAS DECIDED TO REPOSE TRUST IN WHAT
THE STATE GOVERNMENT HAS SO CATEGORICALLY ASSERTED AND PASSED A SELF
SPEAKING ORDER ON
ND -AY TO ACCORD NAL APPROVAL TO THE 3TATE 'OVERNMENT FOR DIVERSION OF
HECTARES OF FOREST LAND IN FAVOUR OF 0/3#/ )T IS SUBMITTED THAT THE CONTENTION OF THE
PETITIONERS THAT THE ORDER HAS BEEN PASSED IN HASTE AND PERFUNCTORY MANNER AND REVEALS
TOTAL NON
APPLICATION OF MIND LACK OF DUE DILIGENCE NON
CONSIDERATION OF RELEVANT AND
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
GERMANE MATERIALS IS TOTALLY BASELESS AND MALICIOUS AND THE ALLEGATIONS ARE BASELESS
WITHOUT ANY FACTUAL MATRIX )T IS STATED THAT THE IMPUGNED ORDERS HAVE BEEN PASSED BY
THE -O%& WITH DUE DILIGENCE AND AFTER PROPER AND THOROUGH VERICATION OF THE MATERIAL
BEFORE IT AND ARE IN FULL CONFORMITY WITH THE RELEVANT LAWS 4HEREFORE IT IS PRAYED THAT
THE WRIT PETITION AS WELL AS THE -ISC #ASE IS LIABLE TO BE DISMISSED
4HE 3TATE 'OVERNMENT HAS ALSO LED ONE PRELIMINARY COUNTER AFDAVIT TO THE -ISC #ASE
VEHEMENTLY OPPOSING THE PRAYER AS SOUGHT FOR BY THE PETITIONERS )T IS SUBMITTED THAT
THE WRIT PETITION AS WELL AS THE -ISC #ASE IS NOT AT ALL MAINTAINABLE EITHER IN FACT OR IN
LAW FOR THE REASON THAT PETITIONERS HAVE NO LOCUS STANDI TO LE THIS WRIT PETITION EITHER
PERSONALLY OR IN THE REPRESENTATIVE CAPACITY AS THE PETITIONERS HAVE NOT DISCLOSED ANY
FACT LEADING TO PROVE THE RIGHTS IF ANY )T IS STATED THAT THE SELF
SAME PETITIONERS HAVE
LED ANOTHER WRIT PETITION BEING 70 # .O OF WHEREIN THEY HAVE CLAIMED
THAT THEY ARE OWNERS AND PERSONS INTERESTED IN ACQUISITION OF THEIR RESPECTIVE PIECE OF
LAND AND HAVE FURTHER AVERRED THAT THEY DEPEND ON THEIR LAND FOR THEIR LIVELIHOOD AND
SHALL BE DEPRIVED OF THE SAME BY THE IMPUGNED ACQUISITION WHERE AS IN THE PRESENT WRIT
PETITION THEY HAVE ALSO CLAIMED THAT THE INDIVIDUALS AND MEMBERS OF THE COMMUNITY
OF VILLAGE 'OBINDPUR ARE EXERCISING THEIR RIGHTS UNDER THE &OREST 2IGHTS !CT WHICH ARE
MUTUALLY CONTRADICTORY AND SELF
DESTRUCTIVE &URTHER IT IS SPECICALLY DENIED THAT THE
PETITIONERS HAVE ANY CULTIVATED LAND WITHIN THE FOREST AROUND 'OBINDPUR OR THAT THEY
ARE DEPENDENT ON FOREST PRODUCE FOR MORE THAN A CENTURY 4HE CLAIM OF THE PETITIONERS
THAT THEY ARE /4&$ IS ALSO NOT TENABLE EITHER IN FACT OR IN LAW IN AS MUCH AS THEY DO
NOT FALL EITHER UNDER THE DENITION OF THE 3CHEDULED 4RIBE OR /4&$ UNDER THE &OREST
2IGHTS !CT 4HERE IS NO MATERIAL PARTICULARS DISCLOSED EITHER IN THE WRIT PETITION OR IN THE
-ISC #ASE TO SHOW THAT THE PETITIONERS OR THEIR ANCESTORS WERE LIVING INSIDE THE FOREST
AND OR THEY HAVE BEEN DEPENDING UPON ANY FOREST PRODUCE FOR BONADE LIVELIHOOD FOR
LAST YEARS AS REQUIRED UNDER THE PROVISIONS OF THE &OREST 2IGHTS !CT !T NO POINT OF
TIME PETITIONERS WERE IN CULTIVATING POSSESSION OF ANY FOREST LAND AS CLAIMED BY THEM
AND THERE IS NO IOTA OF EVIDENCE THAT THEY ARE IN POSSESSION OF ANY SUCH LAND AND OR
THEY ARE RESIDING INSIDE THE &OREST &URTHER NO 0ALLI 3ABHA MEETING IN ACCORDANCE WITH
THE 'RAM 0ANCHAYAT !CT HAS BEEN HELD IN RESPECT OF .UAGAON $HINKIA AND 'OBINDPUR
VILLAGES AS STATED BY THE PETITIONERS TO EXAMINE THEIR CLAIM UNDER THE PROVISIONS OF THE
&OREST 2IGHTS !CT 2ULES IN RESPECT OF THE FOREST LAND IN QUESTION
)T IS SUBMITTED THAT AS PER THE ORDERS OF THE (ONBLE SUPREME #OURT THE 'OVERNMENT
OF )NDIA -O%& VIDE THEIR LETTER DATED ACCORDED IN PRINCIPLE 3TAGE
) APPROVAL
FOR DIVERSION OF HECTARES OF FOREST LAND FOR THE 0/3#/ PROJECT SUBJECT TO
COMPLIANCE OF CERTAIN CONDITIONS 4HE 3TATE 'OVERNMENT SUBMITTED ITS COMPLIANCE
OF ALL THE STIPULATIONS 4HEREAFTER THE -O%& GRANTED NAL APPROVAL FOR THE PROJECT
UNDER 3ECTION
OF THE !CT OF WITH NUMBERS OF STIPULATIONS !FTER SCRUTINY OF
ALL PROCEEDINGS AND DOCUMENTS THE 'OVERNMENT OF )NDIA HAVE GRANTED NAL 3TAGE
))
APPROVAL VIDE THEIR LETTER DATED FOR DIVERSION OF HECTARES OF FOREST LAND
FOR THE AFORESAID PROJECT )T IS CLEAR THAT 0/3#/ PROJECT AREA IS LOCATED IN THE COASTAL
DISTRICT OF *AGATSINGHPUR WHICH IS NOT A PART OF THE &IFTH 3CHEDULE !REA )N FACT THE
PROJECT SITE IS FAR AWAY FROM THE NEAREST 6TH 3CHEDULE AREA -ORE SPECICALLY THERE IS
NO TRIBAL POPULATION LIVING IN THE 0/3#/ PROJECT AREA &URTHER THE 3TATE 'OVERNMENT
STANDS COMMITTED TO PROPER IMPLEMENTATION OF THE PROVISION OF THE &OREST 2IGHTS !CT
)T IS FURTHER SUBMITTED THAT AFTER DUE CONSIDERATION OF THE PROPOSAL BY THE (IGH
,EVEL #LEARANCE !UTHORITY UNDER THE #HAIRMANSHIP OF THE #HIEF -INISTER OF THE 3TATE
CONSTITUTED AS PER THE /RISSA )NDUSTRIES &ACILITATION !CT THE 3TATE 'OVERNMENT
RECOMMENDED THE PROPOSAL FOR DIVERSION OF THE FOREST LAND IN QUESTION FOR APPROVAL
TO THE #ENTRAL 'OVERNMENT 4HE &OREST !DVISORY #OMMITTEE MADE RECOMMENDATION
FOR GRANT OF FOREST CLEARANCE 4HEREAFTER ON THE DIRECTION OF THE (ONBLE 3UPREME
4 / \
#OURT THE RECOMMENDATION OF THE &OREST !DVISORY #OMMITTEE WAS SENT TO THE #%# FOR
EXAMINATION 4HE #%# AFTER THOROUGH EXAMINATION RECOMMENDED FOR GRANT OF APPROVAL
AND BASING ON THE RECOMMENDATION OF THE #%# THE (ONBLE 3UPREME #OURT VIDE ORDER
DATED CLEARED THE PROJECT )T IS FURTHER SUBMITTED THAT VARIOUS 0ALLI 3ABHA WERE
CONDUCTED ON AND IN THE VILLAGES COVERING THE 0/3#/ PROJECT AREA
AND NO CLAIM FOR SETTLEMENT OF RIGHTS FROM THE TRIBALS AND TRADITIONAL DWELLERS WERE
RECEIVED )N VIEW OF THE ABOVE BACKGROUND OF ORDERS OF (ONBLE 3UPREME #OURT AND NAL
FOREST CLEARANCE ACCORDED BY 'OVT OF )NDIA -O%& DATED UNDER PROVISIONS OF
THE &OREST #ONSERVATION !CT AFTER PROLONGED DELIBERATIONS AND SCRUTINY UNDER
&OREST 2IGHTS !CT THE AVERMENTS MADE BY THE PETITIONERS IN THE WRIT PETITION IN SUPPORT
OF THEIR AND OTHER VILLAGERS CLAIM HAS NO BASIS 4HE WRIT PETITION AS WELL AS -ISC #ASE
IS DEVOID OF ANY MERIT RATHER THE PETITIONERS INTENDED TO BLOCK THE DEVELOPMENTAL
PROSPECTS OF THE PEOPLE OF THE DISTRICT AND THE 3TATE AS A WHOLE 4HE PETITIONERS ARE NOT
ENTITLED TO ANY INTERIM RELIEF WHICH WILL CAUSE IRREPARABLE LOSS AND INJURY TO THE INTEREST
OF THE 3TATE 4HEREFORE IT IS PRAYED THAT THE -ISC #ASE IS LIABLE TO BE DISMISSED
/N THE OTHER HAND ONE OBJECTION PETITION TO THE -ISC #ASE HAS ALSO BEEN LED BY
OPPOSITE PARTY .O VEHEMENTLY OPPOSING THE AVERMENTS MADE IN THE WRIT PETITION AND
PRAYER MADE THE -ISC #ASE )T IS SUBMITTED THAT -ISC #ASE IS LIABLE TO BE DISMISSED ON
THE GROUND OF DELAY AND LATCHES AS THE PETITIONERS HAVE NEVER RAISED ANY OBJECTION PRIOR
TO THE GRANT OF &INAL 3TAGE
)) &OREST #LEARANCE UNDER 3ECTION
OF THE !CT OF BY
THE -O%& VIDE ORDER DATED &URTHER THE #ENTRAL 'OVERNMENT VIDE ORDER DATED
HAS ALREADY ACCORDED &INAL APPROVAL IN ACCORDANCE WITH THE PROVISIONS OF THE
!CT OF 4HE ASSERTION THAT THE PRESENT PETITIONERS HAVE LED CLAIM UNDER 3ECTION
A OF THE &OREST 2IGHTS !CT BEFORE &OREST 2IGHTS #OMMITTEE OF $HINKIA AND 'OVINDPUR
ON AND THE SAME IS AWAITING FURTHER ACTION BY THE 0ALLI 3ABHA IS DISPUTED AND
DENIED AS COMPLETELY VAGUE 2EITERATING THE AVERMENTS MADE AND STANDS TAKEN BY THE
3TATE 'OVERNMENT AND THE #ENTRAL 'OVERNMENT IN THEIR COUNTER AFDAITS LEARNED 3R
#OUNSEL -R 3ANJEET -OHANTY ON BEHALF OF OPPOSITE PARTY .O ALSO SUBMITTED THAT NO
RELIEF CAN BE GRANTED TO THE PETITIONERS OTHER BENECIARIES BY THIS #OURT IN THE -ISC
#ASE AND THE SAME IS LIABLE TO BE REJECTED
-R *AYANT $AS LEARNED 3R #OUNSEL ON BEHALF OF THE PETITIONERS SUBMITTED THAT PETITIONERS
IN THE TWO WRIT PETITIONS ARE NO DOUBT SAME BUT IN THIS WRIT PETITION THEY CLAIM RIGHTS
AS /4&$ WHEREAS FOUR OF THEM CLAIM RIGHTS ON LAND UNDER ACQUISITION /NE OF THE OTHER
TWO PETITIONERS IS A SHERMAN AND ANOTHER IS OTHERWISE DEPENDENT ON FOREST PRODUCES
&OUR WRIT PETITIONERS WHO ASSERT RIGHTS ON LAND UNDER ACQUISITION ARE INHERITORS OF PART
OF ANCESTRAL RIGHTS OF MORE THAN YEARS ON LAND WHICH WAS ORIGINALLY OWNED BY THEIR
ANCESTORS 4HE BONADE DEPENDENCE OF LIVELIHOOD ON FOREST PRODUCE SH WATER SOURCE
GRAZING GROUNDS ETC IS NOT AS PER THE &OREST 2IGHTS !CT TO BE EXCLUSIVE !S MARGINAL
FARMERS THEY ALSO DEPEND FOR THEIR BONADE LIVELIHOOD ON THE FOREST PRODUCE SH
WATER ETC THAT ARE INSIDE THE FOREST TO WHICH THEY HAVE TRADITIONAL ACCESS TO SHING
RIGHTS AND DEPENDENCE WHOLLY ON FOREST &URTHER THE VERY GRANT OF ACCESS AND SHING
RIGHTS WHICH IS CLEAR FROM CONDITION .O8)) IN !NNEXURE ( OF THE COUNTER AFDAVIT OF
THE 3TATE 'OVERNMENT 4HEREFORE IT IS SUBMITTED THAT ALL THE PETITIONERS ARE /4&$S !N
/4&$ NEED NOT NECESSARILY RESIDE INSIDE THE FOREST IN ANCESTRAL RESIDENCE OF YEARS AND
CURRENT DEPENDENCY ON FOREST QUALIES THEM AS /4&$S AS STATED BY THE OPPOSITE PARTY
.O IN ITS COUNTER THE CORRESPONDENCE MADE WITH THE 3TATE 'OVERNMENT
)N SUPPORT OF THE AFORESAID CONTENTIONS LEARNED 3R #OUNSEL -R $AS PLACED RELIANCE
UPON THE DECISIONS OF THE 3UPREME #OURT IN THE CASES OF #HITANYA +UMAR /RS VS
3TATE OF +ARNATAKA 3## 'URUVAYOOR $EVASWORM -ANAGING #OMMITTEE VS
#+ 2AJAN 3## !SHOK ,ANKA VS 2ISHI $IXIT 3## )NDIAN BANK
VS 'ODHARA .AGRIK 3## AND A RECENT JUDGMENT OF THE 3UPREME #OURT IN
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
THE CASE OF $ELHI *AL "OARD VS NATIONAL #AMPAIGN FOR $IGNITY 2IGHTS OF 3WERAGE AND
!LLIED 7ORKERS /RS )N #! .O OF DATED AND SUBMITTED THAT THE
PETITIONERS HAVE GOT LOCUS STANDI TO LE THIS WRIT PETITION ON BEHALF OF THE VILLAGERS ALSO
FOR THE REASON THAT THE RIGHTS OF THE VILLAGERS CONCERNED IN RESPECT OF THE FOREST LAND
WHO ARE SEMI LITERATE OR ILLITERATE AND ARE UNAWARE OF THEIR RIGHTS UNDER INTRICATE LAWS
COULD BE AGITATED BY ANY PERSON AND THEREFORE THIS WRIT PETITION IS MAINTAINABLE IN LAW
)N SUPPORT OF THE CONTENTION WITH REGARD TO RIGHTS OF /4&$ -R $AS LEARNED 3R #OUNSEL
SUBMITTED THAT CONDITIONALITY TO QUALIFY AS /4&$S CANNOT BE XED AS THE FORESTS ARE
YEARS OLD 4HE PETITIONERS HAVE PRODUCED THE RELEVANT DOCUMENTS AND IT IS SUBMITTED
THAT FORESTS EXIST FROM AT LEAST AS PER THE REPORT OF 3TERLING (OTAS 3URVEY
3ETTLEMENT 2EPORT QUOTES REPORT OF $ERRY THE $&/ 0URI OF AUTHENTICATING THE
EXISTENCE OF THESE FORESTS 4HE FORESTS HAVE UNDERGONE DENUDATION AND HAVE BEEN
REDUCED TO ACRES IE HECTARES AS ON TODAY AND WERE DECLARED PROTECTED FOREST
IN )N TERMS OF 3ECTION OF THE )NDIAN &OREST !CT WHAT IS PRE EXISTING FOREST
CAN ONLY BE PROTECTED 4HEREFORE THE .OTICATION OF DECLARING THE ABOVE FOREST
AS PROTECTED FOREST EXPRESSLY STATES WITHOUT PREJUDICE TO THE PRE EXISTING RIGHTS OF
PERSONS OF THE VILLAGERS LIVING IN THE VICINITY OF THE FOREST )T IS STATED THAT THE 6OTERS
,IST RECOGNIZES FAMILIES OF 34S WHO HAVE BEEN LIVING IN AND AROUND THE FOREST
AREAS WHICH IS ONE OF THE POINTS PRESCRIBED UNDER 2ULE OF THE &OREST 2IGHTS 2ULES AS
EVIDENCE FOR DETERMINATION OF FOREST RIGHTS /4&$S ARE NOT NECESSARILY THOSE WHO LIVE
INSIDE THE FOREST BUT ROUND THE FORESTS OR IN THE VILLAGES IN THE VICINITY OF THE VILLAGES
ADJOINING THE FOREST AREAS WHICH IS AFRMED BY THE -INISTRY OF 4RIBAL !FFAIRS VIDE ORDER
DATED WHICH IS BINDING ON ALL AUTHORITIES AS PER 3ECTIONS AND OF THE &OREST
2IGHTS !CT 4HEREFORE ANY INFERENCE BY 3TATE 'OVERNMENT ACCEPTED BY THE OPPOSITE
PARTY .O THERE IS NO /4&$S IS BASELESS AND CONTRARY TO THE CATEGORICAL NDINGS OF THE
3AXENA #OMMITTEE APPOINTED JOINTLY BY THE -O%& AND 4RIBAL !FFAIRS IN THIS REGARD )T IS
ALSO AFRMED BY THE -EENA 'UPTA #OMMITTEE APPOINTED BY THE -O%&
)T IS FURTHER SUBMITTED THAT NO &OREST 2IGHTS #OMMITTEE HAS BEEN CONSTITUTED IN TWO
AREAS "HAYANPAL AND .OLIA 3AHI THEREBY THE STATUTORY OBLIGATION IMPOSED ON THE
3TATE 'OVERNMENT UNDER 3ECTION READ WITH 2ULES HAVE NOT BEEN DISCHARGED BY
THE 3TATE 'OVERNMENT )F THE ASSERTION OF THE #OLLECTOR TO THE EFFECT THAT 'RAMA 3ABHA
MEETINGS WERE NOT HELD IN THE AREA IN QUESTION IN ACCORDANCE WITH LAW WILL BE TAKEN
AS VALID THEN THERE IS NO MATERIAL FOUNDATION TO ARRIVE AT THE CONCLUSION THAT THERE ARE
NO /4&$S AS THE 'RAMA 3ABHA RESOLUTIONS ALONE COULD PROVIDE THE FOUNDATION FOR ANY
CONCLUSION IN THIS REGARD IN VIEW OF THE MANDATORY PROVISIONS OF 3ECTION OF THE
&OREST 2IGHTS !CT &URTHER IF THE #OLLECTOR FELT THAT THE 'RAMA 3ABHA MEETINGS WERE NOT
VALIDLY HELD THE COMPULSIONS OF THE PROVISIONS OF THE &OREST 2IGHTS !CT CAST A DUTY ON
THEM TO CAUSE SUCH MEETING TO BE HELD IN CONFORMITY WITH LAW AND PASS THE REQUISITE
RESOLUTIONS AS THE SAME ARE MANDATORILY REQUIRED UNDER THE &OREST 2IGHTS !CT AND THE
2ULES READ WITH INSTRUCTIONS OF THE -INISTRY OF 4RIBAL !FFAIRS ISSUED UNDER 3ECTIONS
AND OF THE !CT
0LACING RELIANCE UPON THE JUDGMENT OF THE 3UPREME #OURT IN 3OLIDAIRE )NDIA ,TD VS &AIR
GROWTH &INANCIAL 3ERVICES ,TD /RS 3## IT IS SUBMITTED BY THE LEARNED 3R
#OUNCIL ON BEHALF OF THE PETITIONERS THAT 3ECTION OF THE &OREST 2IGHTS !CT OVER RIDES ALL
EXISTING LAWS 4HE REQUISITE MEETINGS AND CONSTITUTION OF &OREST 2IGHTS #OMMITTEE AS
PROVIDED UNDER 3ECTION READ WITH 2ULE AND CONSIDERING THE SAME BY 'RAMA 3ABHAS
AND PASSING THE RESOLUTION ABOUT THE CLAIMS OF THE BENECIARIES IS A CONDITION PRECEDENT
TO ENABLE THE 'OVERNMENT TO PROCEED FURTHER IN THE MATTER
4HE ABOVE SAID STATUTORY AND MANDATORY PROCEDURE HAS NOT BEEN FOLLOWED 4HE BALD
CERTICATION BY THE 3TATE 'OVERNMENT WITHOUT ANY VALID MATERIAL PARTICULARS AS PER
4 / \
THE MANDATES OF THE &OREST 2IGHTS !CT 2ULES IS AB INITIO VOID )T IS SUBMITTED THAT THE
EXCLUSIVE RELIANCE BY THE -O%& 'OVERNMENT OF )NDIA ON SUCH CERTICATION ALSO RENDERS
THE ORDER AB INITIO VOID AND NON EST IN THE EYE OF LAW )N THIS REGARD HE HAS PLACED
RELIANCE IN THE CASE OF 4ATA #ELLULAR VS 5NION OF )NDIA 3## TO SHOW THE
DECISION OF THE OPPOSITE PARTY .O IS AN IRRATIONALITY AND PERVERSE WHICH IS A GROUND
FOR THIS #OURT TO ENLARGE ITS JUDICIAL REVIEW POWER TO QUASH THE IMPUGNED ORDERS
!S COULD BE SEEN FROM THE ORDER OF THE -O%& THE THREE CONDITIONS INCORPORATED THEREIN
ARE CONTRARY TO THE STIPULATIONS OF &OREST 2IGHTS !CT AND THE BINDING DIRECTIONS OF THE
-INISTRY OF 4RIBAL !FFAIRS UNDER 3ECTIONS AND OF THE &OREST 2IGHTS !CT 4HE STIPULATION
THAT AN /4&$ MUST HAVE BEEN LIVING FOR YEARS INSIDE THE FOREST IS CONTRARY TO THE
PROVISIONS OF THE &2! AS WELL AS THE BINDING DIRECTIONS OF -INISTRY TO 4RIBAL !FFAIRS
4HEREFORE THE ORDERS OF -O%& ARE BASED ON WRONG INTERPRETATION OF THE PROVISIONS OF
THE &OREST 2IGHTS !CT 2ULES AND CIRCULAR INSTRUCTIONS ISSUED BY THE -INISTRY OF 4RIBAL
!FFAIRS AND IT HAS DRAWN ERRONEOUS CONCLUSIONS ON THE BASIS OF CERTICATES SAID TO HAVE
BEEN FURNISHED BY THE $ISTRICT #OLLECTOR TO THE 3TATE 'OVERNMENT THAT ARE AB
INITIO VOID
AND NON
EST IN LAW
-R *AYANT $AS LEARNED 3R #OUNSEL PLACING RELIANCE UPON THE RECENT JUDGMENT OF
THE 3UPREME #OURT IN THE CASE OF *AGPAL 3INGH VS 3TATE OF 0UNJAB #! .O
DATED SUBMITTED THAT GRAZING GROUNDS AND OTHER COMMON LANDS CANNOT BE
ALIENATED &URTHER PLACING RELIANCE UPON THE JUDGMENT OF THE 3UPREME #OURT IN THE CASE
OF 3OLIDAIRE )NDIA ,TD SUPRA IT IS SUBMITTED THAT NON
OBSTANTE CLAUSE IN THE &ORREST
2IGHTS !CT AND NON OBSTANTE CLAUSES IN TWO DIFFERENT SPECIAL !CTS OF THE 0ARLIAMENT
HAVE DIFFERENT IMPLICATIONS )N THE FORMER IT MAY OPERATE IN ITS RESPECTIVE ELD AND IN
THE LATTER CASE THE LATER ENACTMENT OVER RIDES THE EARLIER ONE 4HEREFORE THE -O%& IS
NOT COMPETENT TO TAKE A NAL DECISION IN RESPECT OF THE FOREST LAND IN RESPECT OF WHICH
RIGHTS ARE CONFERRED ON 34S/4&$S AND THEREFORE THE PRIOR CONCURRENCE OF THE -INISTRY
OF 4RIBAL !FFAIRS AS REQUIRED UNDER 3ECTIONS AND OF THE &2! IS REQUIRED AS THE SAID
PROVISIONS ARE APPLICABLE TO THE FACT SITUATION UNDER THE &OREST 2IGHTS !CT 4HIS HAS
MANIFESTLY NOT BEEN DONE BY THE -O%& AT THE TIME OF PASSING THE IMPUGNED ORDER
GRANTING NAL CLEARANCE IN FAVOUR OF 0/3#/ UNDER 3ECTION B OF THE &# !CT 4HE
IMPUGNED ORDERS ARE THEREFORE AB INTO VOID VITIATED AND ALSO NON
EST IN THE EYE OF LAW
)N SUPPORT OF THIS CONTENTION HE HAS ALSO PLACED RELIANCE UPON THAT THE 'OVERNMENT
OF )NDIA !LLOCATION OF "USINESS 2ULES AND 'OVERNMENT OF )NDIA 4RANSACTION OF
"USINESS 2ULES )T IS FURTHER CONTENDED THAT THE SUBJECT MATTER WAS REQUIRED TO
BE DEALT WITH BY THE 5NION OF )NDIA AND HENCE THE CABINET APPROVAL WAS REQUIRED FOR
GRANTING NAL CLEARANCE
)T IS FURTHER SUBMITTED THAT THE ALLEGATIONS REGARDING THE -INISTER -O%& ACTING UNDER
EXTRANEOUS PRESSURES ARE NOT DENIED IN THE COUNTER AFDAVIT OF THE OPPOSITE PARTY .O
THEREFORE IT IS CLEAR THAT THE ALLEGATION IS ADMITTED IS ALSO RELEVANT CONSIDERATION FOR
THIS #OURT FOR GRANT OF INTERIM ORDER AS PRAYED BY THE PETITIONER
,EARNED 3R #OUNSEL PLACED RELIANCE UPON THE JUDGMENT OF THE 3UPREME #OURT IN THE
CASE OF .ANDINI 3UNDAR VS 3TATE OF #HHATISGARH /RS DECIDED ON IN 70
#IVIL .O OF PARTICULARLY TO PARAGRAPHS
AND WHEREIN THE 3UPREME #OURT CAME TO THE CONCLUSION CATEGORICAL NDINGS OF
THE MALADES IN ENFORCEMENT OF THE CONCERNED LAWS LEADING TO BLATANT VIOLATION OF
RIGHTS UNDER THE #ONSTITUTION OF )NDIA ARE RECORDED 4HE NDINGS IN THE SAID CASE ARE
ALSO BASED ON REPORTS OF THE 0LANNING #OMMISSION OF )NDIA AND OTHER AUTHORITATIVE
PUBLICATIONS )T IS SUBMITTED THAT IN THE PRESENT FACT AND CIRCUMSTANCES OF THE CASE
IN VIEW OF TWO #OMMITTEE REPORTS REFERRED TO SUPRA AND THE PLEADINGS OF THE 3TATE
'OVERNMENT THE BALANCE OF THE CONVENIENCE LEANS IN FAVOUR OF THE PETITIONERS AND
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
IRREPARABLE LOSS AND INJURY WOULD BE CAUSED BY CUTTING LAKHS OF TREES ALTERING THE
POSSESSION NATURE CHARACTER OF THE LAND BY IMPLEMENTING THE IMPUGNED ORDERS BY
THE 0/3#/ WITH ACTIVE CO OPERATION AND SUPPORT OF THE 3TATE -ACHINERY 4HEREFORE
THE ACTION OF THE OPPOSITE PARTIES COUPLED WITH AGRANT VIOLATION AND DENIAL OF VESTED
RIGHTS FAILURE OF PUBLIC TRUST NECESSITATES INTERFERENCE BY THIS #OURT AT THE INTERIM
STAGE IN EXERCISE OF ITS DISCRETIONARY AND EXTRAORDINARY JURISDICTION AS THE VARIOUS LEGAL
GROUNDS AND CONTENTIONS URGED ARE REQUIRED TO BE CONSIDERED AND ANSWERED BY THIS
#OURT IN EXERCISE OF ITS *UDICIAL 2EVIEW POWER WITH REFERENCE TO THE DOCUMENTS AND
PLEADINGS OF THE PARTIES
,EARNED 3R #OUNSEL FOR THE PETITIONERS FURTHER SUBMITTED THAT THE RELIANCE PLACED BY
THE LEARNED 3R #OUNSEL ON BEHALF OF 0/3#/ AS WELL AS 5NION OF )NDIA IN THE CASES OF
3TATE OF "IHAR /RS VS "IHAR 2AJYA -3%3++ -AHASANGH /RS !)2 3#
3ARWAN 3INGH !NR VS 3HRI +ASTURI ,AL !)2 3# 3ANWARMAL +EJRIWAL VS 6ISWA
#OOPERATIVE (OUSING 3OCIETY ,TD /RS 3# AND .ATURE ,OVERS -OVEMENT VS
3TATE OF +ERALA /RS 3## WITH REGARD TO THE NON OBSTANTE CLAUSE CONTAINED
IN 3ECTION OF THE &2! !CT WHICH MEANS IN ADDITION TO THE POWER CONFERRED UPON
THE 5NION OF )NDIA UNDER 3ECTION OF THE &# !CT ARE TOTALLY INAPPLICABLE TO THE FACTS
SITUATION OF THE PRESENT CASE )N THIS VIEW OF THE MATTER IT IS REQUESTED THAT THE INTERIM
PRAYER AS PRAYED FOR IN THE -ISC #ASE IS REQUIRED TO BE GRANTED
/N THE OTHER HAND -R !SHOK -OHANTY ,EARNED !DVOCATE 'ENERAL VERY STRONGLY
REBUTTED THE CONTENTIONS URGED BY THE LEARNED 3R !DVOCATE -R *AYANT $AS ON BEHALF
OF THE PETITIONERS AND IT IS SUBMITTED BY HIM THAT THE WRIT PETITIONERS HAVE ALSO LED
ANOTHER WRIT PETITION CHALLENGING THE ACQUISITION OF THE FOREST LAND WITHOUT HAVING ANY
LOCUS STANDI THEREFORE THESE PETITIONS ARE NOT AT ALL MAINTAINABLE IN LAW 0ETITIONERS ARE
NEITHER 3CHEDULED 4RIBE NOR THE /4&$S IN TERMS OF 3ECTION O OF THE &OREST 2IGHTS !CT
AND NEITHER THEY HAVE ANY RIGHTS UNDER 3ECTION OF THE &2! !CT 4HEREFORE THE LEGAL
CONTENTIONS URGED ON BEHALF OF THE PETITIONERS ARE WITHOUT FACTUAL ASPECTS AND WITHOUT
ANY SUPPORTIVE DOCUMENTS &URTHER THE RELIANCE PLACED BY THE LEARNED 3R #OUNSEL FOR
THE PETITIONERS ON THE REPORTS OF THE 3AXENA #OMMITTEE AND -EENA 'UPTA #OMMITTEE
CANNOT BE ACCEPTED FOR THE REASON THAT THEY HAVE NO STATUTORY FORCE /N THE OTHER HAND
THE &OREST !DVISORY #OMMITTEE WHICH IS A STATUTORY BODY CONSTITUTED UNDER 3ECTION
OF THE &# !CT RECOMMENDED TO THE 5NION OF )NDIA FOR DIVERSION OF FOREST LAND IN FAVOUR
OF THE 0/3#/ AND BASING ON THE SAID RECOMMENDATION THE -O%& PASSED THE IMPUGNED
ORDERS IN FAVOUR OF THE 0/3#/ AFTER CONSIDERING THE REPORT OF THE 3TATE 'OVERNMENT
WITH REGARD TO RIGHTS OF 34/4&$ PERSONS UNDER THE PROVISIONS OF THE &2! !CT AND
2ULES THEREFORE IT CANNOT BE TERMED AS EITHER ERRONEOUS OR NON
EST IN THE EYE OF LAW AS
URGED BY THE LEARNED 3R !DVOCATE ON BEHALF OF THE PETITIONERS &URTHER PETITIONERS HAVE
LED THE OTHER WRIT PETITIONS QUESTIONING THE LAND ACQUISITION PROCEEDINGS CLAIMING
THE OWNERSHIP OF THE LAND ACQUIRED AND AT THE SAME TIME THEY ARE ALSO CLAIMING THAT
THEY ARE /4&$S UPON THE FOREST LAND IN RESPECT OF WHICH DIVERSION APPROVAL HAS BEEN
GRANTED BY -O%& !PART FROM THAT PETITIONERS ARE CLAIMING THAT THEY ARE NOMADIC AND
PROSTHETIC 4HEY ARE CULTIVATING CASHEW AND DEPENDING UPON THE PRAWN CULTIVATION
ON THE WATER BODIES AND DIFFERENT FOREST PRODUCES WHICH ARE NOT AT ALL TRUE AND CORRECT
AS THEIR CLAIM IS WITHOUT ANY BASIS )T IS FURTHER CONTENDED THAT NO CLAIM IS MADE BY
ANYBODY BY GIVING NECESSARY PARTICULARS AS MENTIONED IN THE &OREST 2IGHTS 2ULES
IN THE PRESCRIBED FORMS AND !NNEXURE
) UNDER 2ULE OF THE 2ULES 4HE RESOLUTIONS
STATED TO HAVE BEEN PASSED BY THE 'RAMA 3ABHA UPON WHICH RELIANCE IS PLACED BY
THE PETITIONERS ARE ALSO NOT VALID FOR THE REASON THAT THOSE ARE NOT AS PER THE 'RAM
0ANCHAYAT !CT (ENCE THE IMPUGNED NOTICATION WAS ISSUED ON THE BASIS OF THE REPORT
OF THE $ISTRICT #OLLECTOR STATING THAT THE RESOLUTIONS OF THE 'RAM 0ANCHAYAT ARE NOT
VALID AS THE SAME WERE CONVENED BY THE 3ARPANCH BUT NOT THE %XECUTIVE OFCER WHO IS
AUTHORIZED IN LAW 4HEREFORE THE RELIANCE PLACED UPON BY THE -O%& ON THE RECORDS AND
4 / \
NDINGS RECORDED BY THE 3TATE 'OVERNMENT IS LEGAL AND VALID AND SAME DOES NOT CALL FOR
INTERFERENCE IN THIS WRIT PETITION &URTHER IT IS CONTENDED BY HIM THAT PRIMA FACIE THE
OTHER INDIVIDUAL RIGHTS OR INTERESTS ON BEHALF OF THE PERSONS WHO HAVE NO ACCESS TO THE
#OURT CLAIMING THAT THEY ARE MARGINAL SECTIONS OF THE SOCIETY IS WITHOUT ANY SUBSTANCE
AND NOT SUSTAINABLE IN THE EYE OF LAW )T IS URGED THAT THE PETITIONERS HAVE NEITHER MADE
OUT A PRIMA FACIE CASE NOR BALANCE OF CONVENIENCE IS IN THEIR FAVOUR
-R 3$ $AS LEARNED !SST 3OLICITOR 'ENERAL SOUGHT TO JUSTIFY THE IMPUGNED ORDERS
PLACING RELIANCE UPON THE 3TATE 'OVERNMENTS CERTICATION STATING THAT THE RIGHT
CLAIMED BY THE PETITIONERS INDIVIDUALLY AS 34 AND /0&$ IS NOT SUPPORTED BY THE 3TATE
'OVERNMENTS REPORT 4HE REPORT DISCLOSES THAT THEY ARE NOT RESIDING IN THE FOREST
AREA AND FURTHER THEY HAVE NOT DISCLOSED ANYTHING IN SUPPORT OF THEIR LAND WHICH IS
LEASED OUT TO 0/3#/ 4HE IMPUGNED ORDERS NEED NOT BE INTERFERED WITH BY THIS #OURT
AT THIS STAGE FOR THE REASON THAT THE #%# AND THE (ONBLE 3UPREME #OURT OF )NDIA AFTER
EXAMINATION OF THE PROPOSAL DIRECTED THAT THE -O%& MAY TAKE AN APPROPRIATE DECISION
IN THIS REGARD AND CLEAR THE PROJECT !FTER CAREFUL EXAMINATION OF THE MATTER THE -O%&
VIDE IT LETTER DATED TH 3EPTEMBER ACCORDED 3TAGE
) APPROVAL AND THEREAFTER ON
RECEIPT OF A REPORT FROM THE 3TATE 'OVERNMENT ON COMPLIANCE THE CONDITIONS STIPULATED
IN THE 3TAGE
) APPROVAL THE -O%& FURTHER VIDE ITS LETTER DATED TH 3EPTEMBER
ACCORDED NAL 3TAGE
)) APPROVAL FOR DIVERSION OF THE FOREST LAND (E HAS FURTHER PLACED
RELIANCE UPON 3ECTION OF THE &OREST 2IGHTS !CT AND SUBMITTED THAT NOTWITHSTANDING
THE ABOVE SAID PROVISION 3ECTION MUST BE READ ALONG WITH 3ECTION INTERPRETING
THE CORRECT MEANING IN ADDITION TO WHAT IS PROVIDED UNDER 3ECTIONS OF &# !CT 4HE
SAID PROVISIONS MUST BE HARMONIOUSLY INTERPRETED ADDING EACH IN TERMS OF THE BOTH !CT
WHICH IS PURPOSIVE INTERPRETATION ACCORDING TO )NTERPRETATION OF 3TATUTE OF '0 3INGH
TH %DITION )N SUPPORT OF THE SAID CONTENTION HE HAS PLACED RELIANCE UPON THE DECISION
OF THE 3UPREME #OURT IN THE CASE OF 3TATE OF "IHAR /RS VS "IHAR 2AJYA -3%3++
-AHASANGH /RS !)2 3# 4HEREFORE HE SUBMITTED THAT THE ORDERS DO NOT
CALL FOR ANY INTERFERENCE AND THE QUESTION OF STAYING THE SAME AS PRAYED FOR IN THE -ISC
#ASE DOES NOT ARISE AT ALL
-R 3ANJIT -OHANTY LEARNED 3R #OUNSEL FOR THE OPPOSITE PARTY .O REITERATING THE
SUBMISSIONS MADE BY THE LEARNED !DVOCATE 'ENERAL AND LEARNED !SST 3OLICITOR 'ENERAL
PLACED RELIANCE UPON THE JUDGMENT OF THE 3UPREME #OURT IN THE CASES OF .ATURE ,OVERS
-OVEMENT VS 3TATE OF +ERALA /RS 3## 4. 'ODAVARMAN 4HIRUMUKPAD
VS UNION OF )NDIA !)2 3# AND SUBMITTED THAT FOR THE USE OF FOREST LAND FOR NON
FOREST PURPOSE PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT 5S OF THE &# ACT IS REQUIRED
)T IS FURTHER SUBMITTED THAT AS PER 2ULE OF THE &2 2ULES &OREST 2IGHTS #OMMITTEES
HAVE TO BE FORMED &OR ALL OTHER PURPOSES INCLUDING 'OVERNMENT FACILITIES REQUIRING
MORE THAN ONE HECTARES OF &OREST ,AND FOREST CLEARANCE UNDER 3ECTION OF THE &# !CT
IS A MANDATORY CONDITION FOR OBTAINING DIVERSION OF &OREST LAND AS WELL AS CONDITIONS
IMPOSED BY THE (ONBLE !PEX #OURT SUCH AS .06 AND #OMPENSATORY !FFORESTATION
WHICH HAS BEEN DONE IN THE INSTANT CASE &URTHER &# !CT AND &OREST 2IGHTS !CT
WERE SPECIAL STATUTES )T IS SETTLED LAW THAT THE LATER SPECIAL ACT WILL PREVAIL OVER
THE EARLIER SPECIAL !CT &OREST 2IGHTS !CT BEING THE LATER ACT WILL PREVAIL OVER
&# !CT )T IS STATED THAT 'UIDELINE DATED WOULD SHOW THAT THE RIGOR OF
&OREST !DVISORY #OMMITTEE #%# .06 #OMPENSATORY !FFORESTATION UNDER &# !CT
WOULD NOT BE APPLICABLE TO THE PROJECTS ONLY TO THE EXTENT EXPLAINED IN 3ECTION OF
THE &2 !CT SUCH AS I LESS THAN ONE HECTARE LAND II FOR THE FACILITIES MANAGED BY THE
'OVERNMENT III FELLING OF TREES NOT EXCEEDING PER HECTARES IV 2ECOMMENDED BY
THE 'RAM 3ABHA )N TERMS OF 2ULE OF &2 2ULES THE 'RAMA 3ABHA WILL CALL FOR CLAIMS AND
AUTHORIZE THE &OREST 2IGHT #OMMITTEE TO ACCEPT THE CLAIMS AND THE CLAIMS HAVE TO BE
MADE WITHIN A PERIOD OF MONTHS FROM THE DATE OF SUCH CALLING OF CLAIM IN &ORM ! OR
&ORM " AS PROVIDED IN !NNEXURE OTHER 2ULE OF THE 2ULES WITH AT LEAST TWO OF THE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
EVIDENCES MENTIONED IN 2ULE OF &2 2ULES 2ULE OF THE &2 2ULES STIPULATES THAT THE
QUORUM OF THE 'RAMA 3ABHA MEETING SHALL NOT BE LESS THAN TWO THIRD OF ALL MEMBERS OF
SUCH 'RAMA 3ABHA 3ECTION PROVIDES THAT ANY PERSON AGGRIEVED BY THE RESOLUTION
OF THE 'RAMA 3ABHA MAY PREFER A PETITION TO THE 3UB $IVISIONAL ,EVEL #OMMITTEE AND
UNDER 3ECTION OF THE &2 !CT IT IS MADE CLEAR THAT THE ENCROACHERS ARE LIABLE TO BE
EVICTED
-R -OHANTY LEARNED 3R #OUNSEL FOR THE OPPOSITE PARTY .O FURTHER SUBMITTED THAT
AFTER CAREFUL CONSIDERATION OF ALL THE ASPECTS THE -O%& IN ITS ORDER DATED ARRIVED
AT THE CONCLUSION THAT THERE HAS BEEN NO LEGALLY VALID RESOLUTION OF THE 'RAM 3ABHA
CLAIMING RECOGNITION OF FOREST RIGHTS AS REQUIRED 5S OF &2 !CT &URTHER THERE HAS
BEEN NO VALID CLAIM FOR RECOGNITION OF FOREST RIGHTS IN $HINKIA 'OVINDPUR AS REQUIRED
UNDER THE &2 !CT )T IS RELEVANT TO MENTION THAT -O%& GRANTED THE NAL APPROVAL
UNDER 3ECTION OF THE &# !CT VIDE ITS LETTER DATED HOWEVER ON ON
RECEIPT OF CERTAIN COMPLAINTS -O%& DIRECTED THE 3TATE 'OVERNMENT TO STOP WORK /N
THE &OREST !DVISORY #OMMITTEE RECOMMENDED FOR WITHDRAWAL OF THE NAL
APPROVAL TEMPORARILY IN VIEW OF THE #OMMITTEES REPORT 4HEREAFTER ON THE
-O%& AFTER CONSIDERING THE REPORTS OF THE TWO #OMMITTEES NAMELY 3AXENA #OMMITTEE
AND -EENA 'UPTA #OMMITTEE PASSED ORDER DIRECTING THAT NAL APPROVAL FOR DIVERSION
WOULD BE GRANTED AS SOON AS THE ASSURANCE FROM THE 3TATE 'OVERNMENT IS RECEIVED 5PON
RECEIPT OF THE SAID ORDER DATED THE 3TATE 'OVERNMENT ON SUBMITTED ITS
REPLY WHICH WAS RECEIVED BY THE #ENTRAL 'OVERNMENT ON #ENTRAL 'OVERNMENT
AGAIN REFERRED THE MATTER TO 3TATE 'OVERNMENT IN VIEW OF THE REPRESENTATION OF 0/3#/
0RATIRODH 3ANGRAM 3AMITI ALONG WITH TWO ALLEGED 0ALLI 3ABHA RESOLUTIONS OF VILLAGE
$HINKIA AND 'OBINDPUR HELD ON AND 4HEREFORE THE 'OVERNMENT OF
/RISSA SUBMITTED REPORT DATED BASING UPON THE ENQUIRY REPORT DATED
OF THE 3UB
#OLLECTOR LETTER DATED OF THE #OLLECTOR AND LETTER DATED OF 3#
34 $EPARTMENT #ONSIDERING THE SAID REPLY DATED OF THE 3TATE 'OVERNMENT
THE -O%& PASSED ORDER DATED GRANTING &OREST #LEARANCE TO 0/3#/ FOR DIVERSION
OF HECTARES OF FOREST LAND 4HEREFORE IT IS SUBMITTED THAT THE IMPUGNED ORDER
DATED IS VALID AND JUSTIED
)T IS FURTHER SUBMITTED THAT NO INDIVIDUAL CLAIM OF THE 3CHEDULED 4RIBE PERSONS HAS BEEN
LED BY THE PETITIONERS HOWEVER A CLAIM THAT HAS BEEN MADE AS #OMMUNITY &OREST
2IGHT IS NOT IN ACCORDANCE WITH STATUTORY REQUIREMENT AND WITHOUT THE SIGNATURES OF
THE CLAIMANTS 4HEREFORE THE #OLLECTOR IN ITS REPORT DATED HAS RIGHTLY STATED
THAT NO CLAIMS HAVE BEEN RECEIVED FROM EITHER 34 OR /4&$ PERSONS &URTHER IT IS CLEARLY
STATED IN THE LETTER DATED OF THE 3TATE 'OVERNMENT THAT THE TWO 0ALLI 3ABHAS
DATED AND WERE HELD FRAUDULENTLY 4HE SAID RESOLUTIONS ARE INVALID
FOR THE REASON THAT THE SAME HAVE BEEN PASSED UNDER 3ECTION OF THE &2 !CT AND
NOT UNDER 3ECTION OF THE &2 !CT )T IS ALSO STATED THAT THE 3AXENA #OMMITTEE IN ITS
REPORT DATED HAS NOT CONSIDERED THE #ONSTITUTION OF &OREST RIGHT #OMMITTEES
ON AND LING OF CLAIM FOR #OMMUNITY &OREST ON THEREFORE THE
REPORT OF THE #OMMITTEE CANNOT BE TAKEN INTO CONSIDERATION 4HAT 0/3#/ HAS ALREADY
DEPOSITED 2S CRORES TOWARDS .06 AS DIRECTED AND THE 3TATE 'OVERNMENT IS ALSO
PAYING COMPENSATION EVEN TO THE ILLEGAL ENCROACHERS OF THE FOREST LANDS UNDER THE
2EHABILITATION AND 2ESETTLEMENT PACKAGE EVEN THOUGH THEY ARE NOT ENTITLED IN LAW FOR
THE SAME )N VIEW OF THE ABOVE MENTIONED FACTS IT CANNOT BE SAID THAT THE ORDER DATED
OF THE -O%& IS ILLEGAL IRRATIONAL AND SUFFERS FROM PROCEDURAL IMPROPRIETY RATHER
PETITIONERS HAVING FAILED TO ESTABLISH THAT THEY HAVE LED ANY CLAIM EITHER INDIVIDUALLY
OF FOR COMMUNITY HAVE ALTERED THEIR STAND TO THAT OF ESPOUSING THE CAUSE OF THE VILLAGERS
WHO ARE ENCROACHERS IN THE GARB OF A PUBLIC INTEREST LITIGATION THEREFORE IT IS PRAYED
THAT NO INTERIM RELIEF WHATSOEVER CAN BE GRANTED AS PRAYED FOR BY THE PETITIONERS IN
THESE PROCEEDINGS AND THE WRIT PETITION AS WELL AS -ISC #ASE IS LIABLE TO BE DISMISSED
4 / \
WITH COSTS AS THE SAME ARE DEVOID OF MERIT
4HE VARIOUS CONTENTIONS RAISED BY THE PARTIES RELATE TO THE MERIT OF THE CASE AND CAN
ONLY BE ADDRESSED AT THE TIME OF NAL HEARING OF THE WRIT PETITION !T PRESENT WE ARE
ONLY CONCERNED WITH THE QUESTION WHETHER THE PETITIONERS HAVE MADE OUT A CASE FOR
MAINTAINING THIS WRIT PETITION AND GRANT OF INTERIM ORDER
!S REGARDS MAINTAINABILITY OF THE WRIT PETITION LEARNED 3ENIOR #OUNSEL -R *AYANT $AS
HAS RIGHTLY PLACED RELIANCE UPON THE DECISIONS OF THE 3UPREME #OURT IN THE CASE OF 30
'UPTA VS 5NION OF )NDIA REPORTED IN !)2 3# 0EOPLES 5NION FOR $EMOCRATIC
2IGHTS /RS VS 5NION OF )NDIA /RS REPORTED IN 3## #HAITANYA +UMAR
/RS VS 3TATE OF +ARNATAKA /RS REPORTED IN 3## 'URUVAYOOR $EVASWORM
-ANAGING #OMMITTEE !NR VS #+ 2AJAN /RS REPORTED IN 3## !SHOK
,ANKA !NR VS 2ISHI $IXIT /RS REPORTED IN 3## AND )NDIAN "ANK VS
'ODHARA .AGRIK #O OPERATIVE #REDIT 3OCIETY ,TD !NR REPORTED IN 3##
7E MAY STATE THAT IN VIEW OF THE LEGAL PROPOSITIONS LAID DOWN BY THE 3UPREME #OURT
ELABORATING THE CONCEPT OF LOCUS STANDI HOLDING THAT THE 0UBLIC )NTEREST ,ITIGATION ON
BEHALF OF MARGINALIZED SECTION AND DISADVANTAGEOUS PEOPLE OF THE SOCIETY WHO ARE
NOT IN A POSITION TO APPROACH THE #OURT SEEKING REDRESSAL OF THEIR INFRINGEMENT OF
FUNDAMENTAL RIGHTS OR HUMAN RIGHTS THE WRIT PETITION LED ON BEHALF OF SUCH PEOPLE AS
0UBLIC )NTEREST ,ITIGATION OR SOCIAL INTEREST LITIGATION IS MAINTAINABLE 4HEREFORE PRIMA
FACIE WE ARE OF THE VIEW THAT THE WRIT PETITION LED BY THE PETITIONERS ON THEIR BEHALF
AND ON BEHALF OF DEPRIVED DISADVANTAGEOUS PERSONS WHO BELONG TO 34 AND /4&$S
WHO ARE CLAIMING THEIR RIGHTS UNDER THE &OREST 2IGHTS !CT IS MAINTAINABLE
)T IS THE CASE OF THE 3TATE THAT WITH A VIEW TO UTILIZING ITS NATURAL RESOURCES AND RAPIDLY
INDUSTRIALIZING THE 3TATE SO AS TO BRING PROSPERITY AND WELL BEING TO ITS PEOPLE THE 3TATE
HAS BEEN MAKING DETERMINED EFFORTS TO ESTABLISH NEW INDUSTRIES IN DIFFERENT LOCATIONS
4HIS HAS BEEN THE INDUSTRIAL POLICY OF THE 3TATE !S A STEP FOR FULLMENT OF SUCH POLICY
THE 3TATE 'OVERNMENT SIGNED A -EMORANDUM OF 5NDERSTANDING WITH 0/3#/ TO
ESTABLISH AN )NTEGRATED 3TEEL 0LANT AND #APTIVE -INOR 0ORT IN *AGATSINGHPUR DISTRICT
4HIS IS ALSO SAID TO BE IN FURTHERANCE OF THE .ATIONAL 3TEEL 0OLICY WHICH IS OF IMMENSE
IMPORTANCE TO THE .ATIONAL ECONOMY AND STATE ECONOMY 4HE .ATIONAL #OUNCIL OF
!PPLIED %CONOMIC 2ESEARCH IS SAID TO HAVE CONDUCTED A SURVEY AND PREPARED A REPORT
ON SOCIAL COST BENET ANALYSIS OF THE 0/3#/ STEEL PROJECT 3OME OF THE SALIENT FEATURES OF
THE REPORT ARE THAT THE 0/3#/ INTENDS TO SET UP A 3PECIAL %CONOMIC :ONE 3%: IN /RISSA
TO MANUFACTURE SUPERIOR STEEL AND EXPORT MILLION TONS OF ITS PRODUCTION WHICH
WOULD HELP IN ACHIEVING THE TARGET FOR EXPORTS SET BY .30 ANNUALLY MILLION
TONNES BY )TS IRON PROJECT WOULD CREATE AN ADDITIONAL EMPLOYMENT OF
PERSON YEAR ANNUALLY FOR THE NEXT YEARS )F THE PROJECT IS SET UP IN AN 3%: AREA IT WILL
CONTRIBUTE CUMULATIVE TAX REVENUE INDIRECT TAXES ON DOMESTIC SALES AND CAPITAL GOODS
CORPORATE TAX ETC OF 2S CRORES IN NOMINAL TERMS TO THE 'OVERNMENT OF /RISSA
AND THE 'OVERNMENT OF )NDIA OVER THE USEFUL LIFE OF THIRTY VE OPERATING YEARS AS OR PER
THE REPORT OF THE %CONOMIC ,AW 0RACTICE &IRM $AS AND ASSOCIATES PREPARED FOR .#%!2
4HE 'OVERNMENT OF /RISSA CUMULATIVE SHARE WOULD BE 2S CRORE ON ACCOUNT OF
6!4 INOW ON DOMESTIC SALES AND THE SHARE ACCRUING TO THE STATE GOVERNMENT FROM
THE 'OVERNMENT OF )NDIA ON THE TAX REVENUE COLLECTED FROM THE PROJECT 0RIMA FACIE
THEREFORE THE PROJECT WOULD HELP IN IMPROVING THE ECONOMY OF THE 3TATE AS WELL AS THE
#OUNTRY AND WOULD THEREFORE BE IN PUBLIC INTEREST
)T WOULD BE PROTABLE TO KNOW WHAT THE APEX #OURT SAID WITH REGARD TO JUDICIAL
INTERFERENCE WITH POLICY MATTERS
)N .ARMADA "ACHAO !NDOLAN VS 5NION OF )NDIA !)2 3# THERE WAS A
CHALLENGE TO THE VALIDITY OF THE ESTABLISHMENT OF A LARGE DAM )T WAS HELD BY THE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
MAJORITY AS FOLLOWS
)T IS NOW WELL SETTLED THAT THE #OURTS IN THE EXERCISE OF THEIR JURISDICTION
WILL NOT TRANSGRESS INTO THE ELD OF POLICY DECISION 7HETHER TO HAVE AN
INFRASTRUCTURAL PROJECT OR NOT AND WHAT IS THE TYPE OF PROJECT TO BE UNDERTAKEN
AND HOW IT HAS TO BE EXECUTED ARE PART OF POLICY MAKING PROCESS AND THE
COURTS ARE ILL
EQUIPPED TO ADJUDICATE ON A POLICY DECISION SO UNDERTAKEN
4HE COURT NO DOUBT HAS A DUTY TO SEE THAT IN THE UNDERTAKING OF A DECISION
NO LAW IS VIOLATED AND PEOPLES FUNDAMENTAL RIGHTS ARE NOT TRANSGRESSED
UPON EXCEPT TO THE EXTENT PERMISSIBLE UNDER THE #ONSTITUTION
)N THE SAID CASE THE MAJORITY DECISION OUTLINED WHAT SHOULD BE THE ROLE OF THE #OURT
IN RESPECT OF PUBLIC PROJECTS AND POLICIES WHICH ARE INITIATED BY THE 'OVERNMENT VIS
g
VIS RIGHTS OF THE PEOPLE AS UNDER
7HILE PROTECTING THE RIGHTS OF THE PEOPLE FROM BEING VIOLATED IN ANY
MANNER UTMOST CARE HAS TO BE TAKEN THAT THE #OURT DOES NOT TRANSGRESS
ITS JURISDICTION 4HERE IS IN OUR CONSTITUTIONAL FRAMEWORK A FAIRLY CLEAR
DEMARCATION OF POWERS 4HE COURT HAS COME DOWN HEAVILY WHENEVER THE
EXECUTIVE HAS OUGHT TO IMPINGE UPON THE COURTS JURISDICTION
!T THE SAME TIME IN EXERCISE OF ITS ENORMOUS POWER THE COURT SHOULD NOT BE
CALLED UPON TO OR UNDERTAKE GOVERNMENTAL DUTIES OR FUNCTIONS 4HE COURTS
CANNOT RUN THE 'OVERNMENT NOR CAN THE ADMINISTRATION INDULGE IN ABUSE OF
OR NON
USE OF POWER AND GET AWAY WITH IT 4HE ESSENCE OF JUDICIAL REVIEW
IS A CONSTITUTIONAL FUNDAMENTAL 4HE ROLE OF THE HIGHER JUDICIARY UNDER THE
#ONSTITUTION CAST ON IT A GREAT OBLIGATION AS THE SENTINEL TO DEFEND THE VALUES
OF THE #ONSTITUTION AND THE RIGHTS OF )NDIAN 4HE #OURTS MUST THEREFORE ACT
WITHIN THEIR JUDICIALLY PERMISSIBLE LIMITATIONS TO UPHOLD THE RULE OF LAW AND
HARNESS THEIR POWER IN PUBLIC INTEREST )T IS PRECISELY FOR THIS REASONS THAT IT
HAS BEEN CONSISTENTLY HELD BY THIS #OURT THAT IN MATTERS OF POLICY THE COURT
WILL NOT INTERFERE 7HEN THERE IS A VALID LAW REQUIRING THE 'OVERNMENT TO
ACT IN A PARTICULAR MANNER THE COURT OUGHT NOT TO WITHOUT STRIKING DOWN THE
LAW GIVE ANY DIRECTION WHICH IS NOT IN ACCORDANCE WITH LAW )N OTHER WORDS
THE COURT ITSELF IS NOT ABOVE THE LAW
)N RESPECT OF PUBLIC PROJECTS AND POLICIES WHICH ARE INITIATED BY THE
'OVERNMENT THE COURTS SHOULD NOT BECOME AN APPROVAL AUTHORITY .ORMALLY
SUCH DECISIONS ARE TAKEN BY THE 'OVERNMENT AFTER DUE CARE AND CONSIDERATION
)N A DEMOCRACY WELFARE OF THE PEOPLE OF LARGE AND NOT MERELY OF A SMALL
SECTION OF THE SOCIETY HAS TO BE THE CONCERN OF A RESPONSIBLE 'OVERNMENT )F A
CONSIDERED POLICY DECISION HAS BEEN TAKEN WHICH IS NOT IN CONICT WITH ANY
LAW OR IS NOT MALA DE IT WILL NOT BE IN PUBLIC INTEREST TO REQUIRE THE COURT TO
GO INTO AND INVESTIGATE THOSE AREAS WHICH ARE THE FUNCTION OF THE EXECUTIVE
&OR ANY PROJECT WHICH IS APPROVED AFTER DUE DELIBERATION THE COURT SHOULD
REFRAIN FROM BEING ASKED TO REVIEW THE DECISION JUST BECAUSE A PETITIONER IN
LING A 0), ALLEGES THAT SUCH A DECISION SHOULD NOT HAVE BEEN TAKEN BECAUSE
AN OPPOSITE VIEW AGAINST THE UNDERTAKING OF THE PROJECT WHICH VIEW MAY
HAVE BEEN CONSIDERED BY THE 'OVERNMENT IS POSSIBLE 7HEN TWO ORS MORE
OPTIONS OR VIEWS ARE POSSIBLE AND AFTER CONSIDERING THEM THE 'OVERNMENT
TAKES A POLICY DECISION IT IS THEN NOT THE FUNCTION OF THE COURT TO GO INTO THE
MATTER AFRESH AND IN A WAY SIT IN APPEAL OVER SUCH A POLICY DECISION
)N THE CASE OF $ELHI 3CIENCE &ORUM AND /RS VS 5NION OF )NDIA AND ANOTHER 3##
THE !PEX #OURT HELD AS FOLLOWS
7HAT HAS BEEN SAID IN RESPECT OF LEGISLATIONS IS APPLICABLE EVEN IN RESPECT OF
4 / \
POLICIES WHICH HAVE BEEN ADOPTED BY THE 0ARLIAMENT 4HEY CANNOT BE TESTED
IN #OURT OF ,AW 4HE COURTS CANNOT EXPRESS THEIR OPINION AS TO WHETHER AT A
PARTICULAR JUNCTURE OR UNDER A PARTICULAR SITUATION PREVAILING IN THE COUNTRY ANY
SUCH NATIONAL POLICY SHOULD HAVE BEEN ADOPTED OR NOT 4HERE MAY BE VIEWS AND
VIEWS OPINIONS AND OPINIONS WHICH MAY BE SHARED AND BELIEVED BY CITIZENS
OF THE COUNTRY INCLUDING THE REPRESENTATIVES OF THE PEOPLE IN 0ARLIAMENT "UT
THAT HAS TO BE SORTED OUT IN THE 0ARLIAMENT WHICH HAS TO APPROVE SUCH POLICIES
0RIVATIZATION IS A FUNDAMENTAL CONCEPT UNDERLYING THE QUESTIONS ABOUT THE POWER
TO MAKE ECONOMIC DECISIONS 7HAT SHOULD BE THE ROLE OF THE 3TATE IN THE ECONOMIC
DEVELOPMENT OF THE NATION (OW THE RESOURCES OF THE COUNTRY SHALL BE USED
(OW THE GOALS XED SHALL BE ATTAINED 7HAT ARE TO BE THE SAFEGUARDS TO PREVENT
THE ABUSE OF THE ECONOMIC POWER 7HAT IS THE MECHANISM OF ACCOUNTABILITY TO
ENSURE THAT THE DECISION REGARDING PRIVATIZATION IS IN PUBLIC INTEREST !LL THESE
QUESTIONS HAVE TO BE ANSWERED BY A VIGILANT 0ARLIAMENT #OURTS HAVE THEIR
LIMITATIONS BECAUSE THESE ISSUES REST WITH THE POLICY MAKERS FOR THE NATION .O
DIRECTION CAN BE GIVEN OR IS EXPECTED FROM THE COURTS UNLESS WHILE IMPLEMENTING
SUCH POLICIES THERE IS VIOLATION OR INFRINGEMENT OF ANY OF THE #ONSTITUTIONAL OR
STATUTORY PROVISION 4HE NEW 4ELECOM 0OLICY WAS PLACED BEFORE 0ARLIAMENT AND
IT SHALL BE DEEMED THAT 0ARLIAMENT HAS APPROVED THE SAME 4HIS #OURT CANNOT
REVIEW AND EXAMINE AS TO WHETHER SAID POLICY SHOULD HAVE BEEN ADOPTED /F
COURSE WHETHER THERE IS ANY LEGAL OR #ONSTITUTIONAL BAR IN ADOPTING SUCH POLICY
CAN CERTAINLY BE EXAMINED BY THE COURT
! POLICY DECISION OF THE 'OVERNMENT WHEREBY VALIDITY OF CONTRACT ENTERED INTO BY
-UNICIPAL #OUNCIL WITH THE PRIVATE DEVELOPER FOR CONSTRUCTION OF A COMMERCIAL COMPLEX
WAS IMPUGNED CAME UP FOR CONSIDERATION BEFORE THE !PEX #OURT IN '" -AHAJAN VS
*ALGAON -UNICIPAL #OUNCIL !)2 3# IN WHICH THE LAND OBSERVED AS FOLLOWS
4HE CRITICISM OF THE PROJECT BEING UNCONVENTIONAL DOES NOT ADD TO OR ADVANCE THE
LEGAL CONTENTION ANY FURTHER 4HE QUESTION IS NOT WHETHER IT IS UN
CONVENTIONAL BY
THE STANDARD OF THE EXTANT PRACTICES BUT WHETHER THERE WAS SOMETHING IN THE LAW
RENDERING IT IMPERMISSIBLE 4HERE IS NO DOUBT A DEGREE OF PUBLIC ACCOUNTABILITY IN ALL
GOVERNMENTAL ENTERPRISES "UT THE PRESENT QUESTION IS ONE OF THE EXTENT AND SCOPE
OF JUDICIAL REVIEW OVER SUCH MATTERS 7ITH THE EXPANSION OF THE 3TATES PRESENCE
IN THE ELD OF TRADE AND COMMERCE AND OF THE RANGE OF ECONOMIC AND COMMERCIAL
ENTERPRISES OF 'OVERNMENT AND ITS INSTRUMENTALITIES THERE IS AN INCREASING
DIMENSION TO GOVERNMENTAL CONCERN FOR STIMULATING EFCIENCY KEEPING COSTS DOWN
IM
PROVED MANAGEMENT METHODS PREVENTION OF TIME AND COST OVER
RUNS IN PROJECTS
BALANCING OF COSTS AGAINST TIMESCALES QUALITY
CONTROL COST
BENET RATIOS ETC )N
SEARCH OF THESE VALUES IT MIGHT BECOME NECESSARY TO ADOPT APPROPRIATE TECHNIQUES
OF MANAGEMENT OF PROJECTS WITH CONCOMITANT ECONOMIC EXPEDIENCIES 4HESE ARE
ESSENTIALLY MATTERS OF ECONOMIC POLICY WHICH LACK ADJUDICATIVE DISPOSITION UNLESS
THEY VIOLATE CONSTITUTIONAL OR LEGAL LIMITS ON POWER OR HAVE DEMONSTRABLE PEJORATIVE
ENVIRONMENTAL IMPLICATIONS OR AMOUNT TO CLEAR ABUSE OF POWER 4HIS AGAIN IS THE
JUDICIAL RECOGNITION OF ADMINISTRATORS RIGHT TO TRIAL AND ERROR AS LONG AS BOTH TRIAL
AND ERROR ARE BONA DE AND WITHIN THE LIMITS OF AUTHORITY
&URTHER IN THE CASE OF "!,#/ %MPLOYEES 5NION 2EGD VS 5NION OF )NDIA /RS REPORTED
IN !)2 3# THE 3UPREME #OURT HELD AS UNDER
*UDICIAL INTERFERENCE BY WAY OF 0), IS AVAILABLE IF THERE IS INJURY TO PUBLIC
BECAUSE OF DERELICTION OF CONSTITUTIONAL OR STATUTORY OBLIGATIONS ON THE PART
OF THE 'OVERNMENT (ERE IT IS NOT SO AND IN THE SPHERE OF ECONOMIC POLICY OR
REFORM THE #OURT IS NOT THE APPROPRIATE FORUM %VERY MATTER OF PUBLIC INTEREST
OR CURIOSITY CANNOT BE THE SUBJECT MATTER OF 0), #OURTS ARE NOT INTENDED TO AND
NOR SHOULD THEY CONDUCT THE ADMINISTRATION OF THE COUNTRY #OURTS WILL INTERFERE
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
ONLY IF THERE IS A CLEAR VIOLATION OF CONSTITUTIONAL OR STATUTORY PROVISIONS OR NON
COMPLIANCE BY THE 3TATE WITH ITS #ONSTITUTIONAL OR STATUTORY DUTIES .ONE OF
THESE CONTINGENCIES ARISE IN THIS PRESENT CASE
)N THE CASE OF A POLICY DECISION ON ECONOMIC MATTERS THE #OURTS SHOULD BE VERY
CIRCUMSPECT IN CONDUCTING ANY ENQUIRY OR INVESTIGATION AND MUST BE MOST
RELUCTANT TO IMPUGN THE JUDGEMENT OF THE EXPERTS WHO MAY HAVE ARRIVED AT A
CONCLUSION UNLESS THE #OURT IS SATISED THAT THERE IS ILLEGALITY IN THE DECISION
ITSELF
,ASTLY NO EX PARTE RELIEF BY WAY OF INJUNCTION OR STAY ESPECIALLY WITH RESPECT TO
PUBLIC PROJECTS AND SCHEMES OR ECONOMIC POLICIES OR SCHEMES SHOULD BE GRANTED
)T IS ONLY WHEN THE COURT IS SATISED FOR GOOD AND VALID REASONS THAT THERE WILL BE
IRREPARABLE AND IRRETRIEVABLE DAMAGE CAN AN INJUNCTION BE ISSUED AFTER HEARING
ALL THE PARTIES %VEN THEN THE 0ETITIONER SHOULD BE PUT ON APPROPRIATE TERMS SUCH
AS PROVIDING AN INDEMNITY OR AN ADEQUATE UNDERTAKING TO MAKE GOOD THE LOSS OR
DAMAGE IN THE EVENT THE 0), LED IS DISMISSED
7ITH REGARD TO THE REPORT OF THE 3TATE 'OVERNMENT SUBMITTED TO THE -O%& NO DOUBT IT
HAS NOT PRECEDED BY 0ALLI SABHA CONSTITUTION WHICH CAN BE SAID TO BE NOT ONLY IRREGULARITY
BUT ALSO ILLEGALITY (AVING REGARD TO THE INDUSTRIAL POLICY OF THE 3TATE 'OVERNMENT TO
GENERATE EMPLOYMENT FOR THE UNEMPLOYED YOUTH THE FOREST LAND IN QUESTION HAS BEEN
AGREED TO BE TRANSFERRED THROUGH )$#/ BY THE 3TATE 'OVERNMENT BY ENTERING INTO A
MEMORANDUM OF UNDERSTANDING WITH 0/3#/ TO ESTABLISH )NTEGRATED 3TEEL 0LANT WHICH
ACCORDING TO .#%! REPORT WILL PROVIDE EMPLOYMENT TO PEOPLE AND THERE WILL BE
HUGE GENERATION OF REVENUE THROUGH EXCISE CUSTOMS DUTY 6!4 AND INCOME TAX WHICH
WILL AUGMENT THE )NCOME AND REVENUE OF BOTH THE #ENTRAL 'OVERNMENT AND THE 3TATE
'OVERNMENT 4HE SAME WOULD SERVE THE PUBLIC INTEREST AS RECOMMENDED BY .#%! "ODY
4HE /4&$ RIGHTS OF THE PERSONS UNDER THE !CT CLAIMED THROUGH PUBLIC SPIRITED
PERSONS IS VERY MINIMAL AND SUCH RIGHTS HAVE NOT BEEN DETERMINED AND CONFERRED AS
PROVIDED UNDER THE SAID !CT AND THE 2ULES %VEN IN RESPECT OF THE LAND AGAINST WHICH
/4&$ RIGHT IS CLAIMED THE 3TATE 'OVERNMENT HAS GOT EVERY POWER TO ACQUIRE SUCH
LAND OF SUCH PERSON BY AWARDING COMPENSATION FOR THE PUBLIC PURPOSE IS THE LEGAL
SUBMISSION MADE BY THE LEARNED !DVOCATE 'ENERAL !LTHOUGH IN THE INSTANT CASE THERE
HAS BEEN NO DETERMINATION OF THE RIGHTS PROVIDED UNDER THE PROVISION OF SECTION
CONSTITUTING VARIOUS COMMITTEES AND INVITING APPLICATIONS AND EXAMINING THE SAME
WITH REFERENCE TO THE PARTICULARS THAT WOULD BE GIVEN IN THE PRESCRIBED FORM EVEN THEN
THE 3TATE 'OVERNMENT WITHOUT EXAMINING THE CORRECTNESS OF THEIR RIGHTS HAVE GRANTED
THE COMPENSATION 4AKING INTO CONSIDERATION THE HUGE PROJECT WHICH IS PLANNED TO
BE ESTABLISHED TO ACHIEVE THE INDUSTRIAL POLICY OF THE 3TATE 'OVERNMENT THE #ENTRAL
'OVERNMENT IN THE -INISTRY OF %NVIRONMENT AND &OREST HAS EXERCISED ITS STATUTORY
POWER UNDER THE PROVISIONS OF 3ECTION OF THE &# !CT ON THE BASIS OF THE RELEVANT REPORT
SENT BY THE 3TATE 'OVERNMENT AND OTHER REPORTS KEEPING IN VIEW THE PROJECT CLEARANCE
BY THE APEX #OURT ON CERTAIN CONDITIONS SUGGESTED BY THE #%# AND GRANTED APPROVAL
FOR DIVERSION OF THE FOREST LAND FOR THE BETTER PURPOSE OF GENERATING EMPLOYMENT AND
AUGMENTING THE REVENUE OF THE 3TATE AS WELL AS THE #ENTRAL 'OVERNMENT WHICH CAN BE
CONSTRUED AS PUBLIC INTEREST 2IGHTS OF FEW INDIVIDUALS WHO ARE CLAIMING /4&$ RIGHTS
AND ALSO PRIVATE RIGHTS IN RESPECT OF OTHER LAND WHICH ARE INDICATED IN THE WRIT PETITION
CAN WELL BE SAFEGUARDED BY FURTHER EXAMINING THE CASE ON MERIT AND MOULDING THE
RELIEF OF ADEQUACY AND INADEQUACY OF COMPENSATION AND OTHER BETTER 2EHABILITATION
3CHEMES SUCH AS EITHER GRANTING GOVERNMENT LANDS FOR THE OCCUPATION IN OTHER PLACE
OR COMPENSATING THEM BY ADEQUATE MONETARY BENETS IN LIEU OF THEIR CLAIM OF /4&$
RIGHTS AT THE TIME OF NAL DISPOSAL OF THE WRIT PETITIONS ON MERITS BY MOULDING THE
RELIEF IN FAVOUR OF PERSONS WHO HAVE GOT /4&$ RIGHTS UNDER THE PROVISION OF THE !CT
4 / \
AND 2ULES IN EXERCISE OF THIS #OURTS DISCRETIONARY POWER "Y MAKING THIS OBSERVATION
WE ARE NOT APPROVING THE CLEARANCE GIVEN BY THE -INISTRY BUT THIS IS ONE OF THE REASONS
ASSIGNED BY US FOR NOT INTERFERING WITH THE FURTHER PROGRESS OF THE PROJECT AT THIS STAGE
BY GRANTING INTERIM ORDER 4HAT WOULD NOT BE IN THE PUBLIC INTEREST 4HE BALANCE OF
CONVENIENCE CERTAINLY IS IN FAVOUR OF THE OPPOSITE PARTIES AND 0/3#/ IN VIEW OF THE
SWORN STATEMENT MADE BY RESPONSIBLE OFCER OF THE 3TATE 'OVERNMENT THAT NECESSARY
STEPS ARE BEING TAKEN FOR THE PURPOSE OF ESTABLISHING THE 3TEEL 0ROJECT BY ENGAGING LARGE
NUMBER OF EMPLOYEES FOR CONSTRUCTION OF BUILDINGS AND MAKING OTHER INFRASTRUCTURAL
DEVELOPMENTS )F AT THIS IT IS STALLED ON THE BASIS THAT STATUTORY PROVISIONS ARE NOT
COMPLIED WITH BY THE 3TATE 'OVERNMENT IN NOT DETERMINING THE RIGHTS OF /4&$ PERSONS
BY ACCEPTING THE CASE PLEADED ON BEHALF OF PERSONS CLAIMING THEIR RIGHTS THAT THEY
HAVE MADE OUT A PRIMA FACIE CASE GREAT HARDSHIP WILL BE CAUSED TO THE /4&$ CAN BE
COMPENSATED IN TERMS OF MONEY AND SUCH OTHER SUITABLE 2EHABILITATION 3CHEMES 4HAT
BY ITSELF IS THE REASON FOR US TO HOLD THAT THERE IS NO BALANCE OF CONVENIENCE IN FAVOUR OF
THE PERSONS WHO ARE CLAIMING /4&$ RIGHTS AND MORE HARDSHIP WOULD BE CAUSED TO THE
OPPOSITE PARTIES THAN THE PERSONS WHO WILL BE CLAIMING /4&$ RIGHTS UPON THE FOREST
LAND WHICH IS LEASED IN FAVOUR OF 0/3#/ )T IS NO DOUBT TRUE THAT THE PROJECT WHICH
HAS BEEN CONCEIVED TO BE ESTABLISHED WILL SUB
SERVE THE PUBLIC INTEREST 4HESE ARE THE
REASON WHICH WEIGH VERY MUCH IN OUR MIND TO DECLINE TO GRANT INTERIM ORDER IN FAVOUR
OF THE PERSONS WHO ARE CLAIMING /4&$ RIGHT THROUGH THE PETITIONERS
4HE CASE OF THE PETITIONERS IS THAT THEY HAVE LED CLAIMS UNDER SECTION A OF THE
&OREST 2IGHT !CT ON TH !PRIL AND THE SAME ARE AWAITING FURTHER ACTION BY
0ALLI 3ABHA )T APPEARS THAT STAGE ) FOREST APPROVAL FOR DIVERSION OF HECTARE OF
FOREST LAND FOR 0/3#/ PROJECT IN PRINCIPLE WAS GRANTED ON TH 3EPTEMBER 4HE
3TATE 'OVERNMENT SUBMITTED POINT WISE COMPLIANCE OF ALL THE STIPULATIONS OF THE IN
PRINCIPLE APPROVAL ORDER OF THE 'OVERNMENT OF )NDIA BY LETTER DATED &INAL
APPROVAL OF THE PROJECT UNDER SECTION OF THE &# !CT WAS GRANTED BY THE 'OVERNMENT
OF )NDIA VIDE LETTER DATED /F COURSE THERE WAS STOP WORK ORDER DATED
BUT AFTER SCRUTINY OF THE REPORT OF THE #OMMITTEE APPOINTED BY THE 'OVERNMENT OF
)NDIA AND THE VIEWS OF THE 3TATE 'OVERNMENT ON THE PURPORTED 0ALLISABHA RESOLUTIONS
DATED OF $HINKIA 6ILLAGE AND DATED OF 'OVINDPUR VILLAGE THAT THE
SAME WERE FRAUDULENT AND THE AFORESAID 0ALLI3ABHA MEETINGS WERE CONVENED IN GROSS
VIOLENCE OF THE RELEVANT PROVISIONS OF THE /RISSA 'RAM 0ANCHAYAT !CT AND &OREST
2IGHTS !CT THE 'OVERNMENT OF )NDIA HAS GRANTED NAL APPROVAL VIDE THEIR LETTER
DATED )F AT ALL THE PETITIONERS INDIVIDUAL AND COMMUNITY RIGHTS WERE AT STAKE
THEY SHOULD NOT HAVE WAITED TILL TH !PRIL TO LODGE THEIR CLAIMS $ETERMINATION
OF THEIR RIGHTS INVOLVES CONSIDERATION OF DIFFERENT ASPECTS WITH REFERENCE TO THE &OREST
2IGHTS !CT AND PENDING DETERMINATION SO SUCH RIGHTS IT WOULD NOT BE PRUDENT TO STAY
OPERATION OF THE CLEARANCE GIVEN BY THE 'OVERNMENT OF )NDIA AFTER APPLICATION OF MIND
AND CONSIDERATION OF VARIOUS ASPECTS REQUIRED TO BE CONSIDERED FOR SUCH GRANT
4HE CONTENTION URGED WITH REFERENCE TO THE CLARICATION ISSUED BY THE UNDER 3ECRETARY
TO THE 'OVERNMENT OF )NDIA -INISTRY OF 4RIBAL !FFAIRS ON *UNE !NNEXURE
WITH REGARD TO THE WORD PRIMARILY USED IN 3ECTION O TO CLAIM /4&$ RIGHTS WHEN
THERE IS NO AMBIGUITY IN THE DENITION CLAUSE OF /4&$ READ WITH THE FOREST RIGHTS IN
SECTION IS REQUIRED TO BE CONSIDERED AT THE TIME OF HEARING ON MERITS
4HE #OMMITTEE CONSTITUTED TO INVESTIGATION INTO THE PROPOSAL SUBMITTED BY 0/3#/
)NDIA 0VT ,IMITED IN ITS REPORT DATED /CTOBER FOUND THAT AS PER THE #ENSUS OF
AND THE VOTER LIST THERE ARE ADULT 34 PERSONS RESIDING IN 0OLANGA 6ILLAGE AND
THE 7ARD -EMBER IS A FEMALE 34 IF THIS BE BELIEVED THEN NOBODY PREVENTED SUCH 34
PERSON TO QUESTION THE CLEARANCE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
&OR THE AFORESAID REASON WE ARE OF THE VIEW THAT THE PETITIONERS HAVE NOT MADE OUT A
PRIMA FACIE CASE FOR GRANT OF INTERIM RELIEF %VEN ASSUMING THAT THE PETITIONERS HAVE MADE
OUT A PRIMA FACIE CASE THE BALANCE OF CONVENIENCE IS NOT IN THEIR FAVOUR AS STATED ABOVE
4HEREFORE WE ARE NOT INCLINED TO GRANT ANY INTERIM RELIED AS PRAYED FOR BY THE PETITIONERS
4HE MISC CASE IS ACCORDINGLY REJECTED
4 / \
+AMA +UNJA VS 5NION OF )NDIA /RS
70 # ./ /&
/2)33! ()'( #/524 #544!#+
#/2!- !+ '/%, #* !.$ $2 !+ 2!4( *
3 5 - -!29
4HE PETITIONER IS AN ELECTED 3ARPANCH (E HAS FILED THIS WRIT PETITION CHALLENGING
THE TENDER CALL NOTICE DATED ISSUED BY THE 3TATE GOVERNMENT CALLING FOR
THE SALE OF KENDU TENDU LEAVES BY WAY OF TENDER BY THE /RISSA &OREST $EPARTMENT
#ORPORATION /&$# 4HE PETITIONER ARGUES THAT THIS TENDER CALL IS IN VIOLATION OF
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2! 3ECTION OF THE /RISSA 'RAM 0ANCHAYAT !CT AND
ALSO THE /RISSA GOVERNMENTS OWN ORDER DT WHEREBY TENDU LEAVES WERE DE
REGULATED THEREBY LEAVING THE PEOPLE OF -ALKANGIRI DISTRICT FREE TO SELL THE LEAVES
TO ANYBODY
4HE RESPONDENT 3TATE GOVERNMENT ARGUED THAT TENDER CALL NOTICE WILL NOT IN ANY
MANNER OBSTRUCT THE FUNCTIONING OF THE 'RAM 3ABHA 4HE /&$# WAS SET UP BY THE
3TATE GOVERNMENT AS ITS AGENT IN ORDER TO PROTECT THE PLUCKERS AGAINST NON
PURCHASE
OF LEAVES AS WELL AS EXPLOITATION BY BUYERS WHO TRY TO PURCHASE AT LOW PRICES
4HE (IGH #OURT DECIDED AGAINST THE PETITIONER FINDING THAT THERE IS NO GROUND FOR
INTERFERENCE WITH THE IMPUGNED TENDER CALL NOTICE )T OBSERVED THAT NEITHER THE
RIGHTS OF TRIBALS NOR OF THE PANCHAYATS ARE IN ANY WAY AFFECTED BY THE TENDER CALL
NOTICE
% $ ) 4 /23 . /4%
! SPECIAL LEAVE PETITION WAS FILED IN THE 3UPREME #OURT AGAINST THIS JUDGMENT
(OWEVER BY THE TIME THE MATTER CAME UP FOR HEARING THE PERIOD FOR WHICH THE
TENDER HAD BEEN FLOATED HAD ALREADY EXPIRED 0ERMITTING THE PETITIONER TO WITHDRAW
THE PETITION THE 3UPREME #OURT PASSED THE FOLLOWING ORDER
)N VIEW OF THE AFORESAID WITHOUT EXPRESSING ANY OPINION WE GRANT LIBERTY TO THE
PETITIONER TO CHALLENGE THE SUBSEQUENT TENDER IF SO ADVISED IN A WRIT PETITION
ON THE CONSTITUTIONAL BACKDROP CATEGORICALLY AVERRING THE BASIS ON WHICH IT
/RDER DT IN 3,0# +AMA +UNJA VS 5NION OF )NDIA /RS 3UPREME #OURT OF )NDIA
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
INTENDS TO ESTABLISH THAT THE RIGHTS IN RESPECT OF THE MINOR FOREST PRODUCE WHICH
WOULD ALSO INCLUDE +ENDU LEAVES HAVE VESTED WITH THE 'RAM 3ABHA !PART FROM
GRANTING SUCH LIBERTY WE HAVE NOT EXPRESSED ANY OPINION WHATSOEVER ON ANY OF
THE ASPECTS
7ITH THE AFORESAID LIBERTY THE SPECIAL LEAVE PETITION IS PERMITTED TO BE
WITHDRAWN
)N SHORT RATHER THAN GOING INTO THE CORRECTNESS OR OTHERWISE OF THE DECISION OF THE
/DISHA (IGH #OURT THE 3UPREME #OURT DECIDED TO LEAVE THE QUESTIONS OF LAW OPEN
AND ALSO ALLOWED THE PETITIONER OR ANY OTHER PARTY TO CHALLENGE SUBSEQUENT TENDER
CALL NOTICES IF ANY &OR THIS REASON THE JUDGMENT OF THE /DISHA (IGH #OURT MAY NOT
HAVE PRECEDENT VALUE
/2$ % 2
4HIS PETITION SEEKS QUASHING OF TENDER CALL NOTICE ANNEXURE FOR SALE OF +ENDU 4ENDU
LEAVES
#ASE OF THE PETITIONER IS THAT HE IS AN ELECTED 3ARPANCH AND THE IMPUGNED TENDER CALL
NOTICE WILL AFFECT THE RIGHTS OF THE 0ANCHAYATS UNDER 3ECTION OF THE /RISSA 'RAM
0ANCHAYAT !CT AND ALSO PROVISIONS OF THE &OREST 2IGHTS !CT 4HOUGH THE /RISSA
'OVERNMENT VIDE ORDER DATED DEREGULATED +ENDU LEAVES OPERATION AND LEFT THE
PEOPLE OF -ALKANGIRI DISTRICT FREE TO SELL THE +ENDU LEAVES TO ANYBODY THE IMPUGNED
TENDER CALL NOTICE DATED ANNEXURE
HAS BEEN ISSUED TO SELL THE LEAVES BY WAY
OF TENDER
/N THE FOLLOWING ORDER WAS PASSED
)SSUE RAISED IN THIS PETITION IS WHETHER OPPOSITE PARTY NO CAN DISPOSE OF +ENDU
,EAVES OF #ROP CONTRARY TO THE DECISION OF THE 3TATE 'OVERNMENT !NNEXURE
,EARNED COUNSEL FOR OPPOSITE PARTY NO SEEKS TIME TO TAKE INSTRUCTION
,IST AGAIN ON
)N THE MEANTIME THE AWARD OF WORK MAY NOT BE NALIZED
#OUNTER AFDAVITS HAVE BEEN LED BY THE /RISSA &OREST $EVELOPMENT #ORPORATION ,TD AS
WELL AS BY THE 3TATE 4HE STAND TAKEN ON BEHALF OF THE 3TATE IS THAT THE TENDER CALL NOTICE
DOES NOT IN ANY MANNER OBSTRUCT THE FUNCTIONING OF THE 'RAMA 3ABHA 4HE TENDER CALL
NOTICE COVERS THE LEAVES PURCHASED AT THE COLLECTION CENTRES OF THE &OREST $EPARTMENT
IN ACCORDANCE WITH THE NOTICATION OF THE 'OVERNMENT 4HE RELEVANT AVERMENTS ARE
FOLLOWING
4HAT IN REPLY TO THE AVERMENTS AT PARAGRAPH OF THE WRIT PETITION IT IS HUMBLY
SUBMITTED THAT THE SALE NOTICE FOR ADVANCE SALE OF 0HAL +ENDU ,EAF IN DEREGULATED
AREAS OF .OWRANGPUR +, $IVISION AND PART OF *EYPORE $IVISION IS MEANT FOR THE
+ENDU ,EAF WHERE THE PLUCKERS WANT TO SELL KENDU LEAF TO +, ORGANIZATION IN
DIFFERENT COLLECTION CENTRES0HADIS OF THEIR OWN VOLITION 4HE INTENTION IS NOT
TO INTERFERE WITH THE RIGHTS AND JURISDICTION OF 'RAM 3ABHA RATHER TO AVOID
EXPLOITATION OF PLUCKERS AGAINST NON
PURCHASE OF LEAVES AS WELL AS PAYMENT OF
LESS PRICE THAN NOTIED RATES BY UNSCRUPULOUS TRADERS
4 / \
4HAT IN REPLY TO THE AVERMENTS AT PARAGRAPH OF THE WRIT PETITION IT IS HUMBLY
SUBMITTED THAT THE 4ENDER #ALL .OTICE OF /&$# ,TD NEITHER TAKES AWAY ANY POWER
NOR CURTAILS THE POWERS OF 'RAM 0ANCHAYAT 4HERE IS NO INTENTION TO INTERFERE IN
THE ROLE OF 'RAM 0ANCHAYATS SO FAR AS COLLECTION OF +ENDU LEAVES IN DEREGULATED
AREAS IS CONCERNED 4HE PRIMARY COLLECTORS OF THE DEREGULATED AREAS ARE GIVEN
FREEDOM TO SELL THEIR +ENDU LEAVES TO ANY ORGANIZATION OF THEIR OWN CHOICE
4HAT IN REPLY TO THE AVERMENTS AT PARAGRAPHS
AD OF THE WRIT PETITION IT
IS HUMBLY SUBMITTED THAT THE 4ENDER #ALL .OTICE WITH NECESSARY TERMS AND
CONDITIONS IS MEANT TO SAFEGUARD THE INTEREST OF THE PRIMARY COLLECTORS SO THAT
THEY ARE NOT EXPLOITED BY THE UNSCRUPULOUS TRADERS
4HAT IN REPLY TO THE AVERMENTS AT PARAGRAPH OF THE WRIT PETITION IT IS HUMBLY
SUBMITTED THAT LAST YEAR DURING THE CROP YEAR OF THE PRODUCTION OF
+ENDU LEAVES IN THE DEREGULATED $IVISION OF .OWRANGPUR +, $IVISION WAS SOLD
BY THE PLUCKERS TO THE +, ORGANIZATION AS THERE WERE NO PRIVATE BUYERS /&$#
,TD FACED DIFCULTIES IN DISPOSAL OF SUCH +ENDU ,EAVES AS ADVANCE SALE WAS
CANCELLED 4O PREVENT SUCH DIFCULTIES THE /&$# ,TD HAS MADE 4ENDER #ALL .OTICE
FOR ADVANCE SALE OF THE +ENDU ,EAVES THAT WILL BE SOLD TO THE +, ORGANIZATION
VOLUNTARILY BY THE +, PLUCKERS
)N THE COUNTER AFDAVIT OF THE #ORPORATION THE STAND TAKEN IS THAT THE 3TATE 'OVERNMENT
APPOINTED THE #ORPORATION AS ITS AGENT TO SELL THE +ENDU LEAVES ALREADY COLLECTED
2ELEVANT AVERMENTS ARE PARAS AND
4HAT UNDER THE ORDER DTD ANNEXURE 3TATE 'OVT HAS GIVEN LIBERTY TO THE
PEOPLE OF THE -ALKANGIRI DISTRICT TO SALE THE +ENDU LEAVES TO ANYBODY OF THEIR CHOICE
"UT IN ORDER TO PROTECT THE INTEREST OF THE PEOPLE OF THE AREA WHO COLLECT THE +ENDU
LEAVES FROM THE FOREST IT HAS BEEN STATED THAT SUCH PEOPLE CAN ALSO SELL THE +ENDU
LEAVES TO THE +ENDU LEAVES ORGANIZATION IN DIFFERENT 0HADIES COLLECTION CENTRES
OPENED BY THE 0RINCIPAL #HIEF #ONSERVATOR OF &ORESTS +ENDU ,EAVES /DISHA
/THERWISE THE TRADERS OF THE AREA WOULD EXPLOIT THEM .ONE OF THE 0ANCHAYATS IN
THE DE
REGULATED AREA HAVE ANY PROPOSAL FOR NOR HAVE THE FUNDS FOR PURCHASING THE
+ENDU LEAVES FROM THE 0EOPLE OF THE RESPECTIVE 0ANCHAYAT AREAS
4HUS THE ORDER OF 'OVT DTD IS IN NO WAY CONTRAVENED BY ISSUING THE NOTICE
FOR ADVANCE SALE OF +ENDU LEAVES THAT WOULD BE SOLD BY THE PEOPLE OF THE AREA TO THE
+, /RGANISATION OF THE 3TATE 'OVT AT THEIR OWN VOLITION
4HAT THE 3TATE 'OVT HAS APPOINTED /DISHA &OREST $EVELOPMENT #ORPORATION AS ITS
AGENT TO SELL THE +ENDU LEAVES SO COLLECTED FOR WHICH #ORPORATION GETS A COMMISSION
ON THE SALE PRICE 4HE #ORPORATION ALSO PROVIDES THE ENTIRE WORKING EXPENDITURES
IN ADVANCE BY OBTAINING LOAN FROM #OMMERCIAL "ANKS TO THE +, WING OF &OREST
$EPARTMENT FOR PURCHASING +ENDU LEAVES BEFORE EACH SEASON WHICH STARTS FROM &EB
-ARCH EVERY YEAR ! COPY OF THE ORDER DTD APPOINTING THE /DISHA &OREST
$EVELOPMENT #ORPORATION ,TD AS THE SELLING AGENT IS LED HEREWITH AS !NNEXURE
!
)N VIEW OF THE STAND TAKEN BY THE OPPOSITE PARTIES IT IS CLEAR THAT THE TRIBAL RIGHTS OR
PANCHAYAT RIGHTS ARE IN NO MANNER AFFECTED BY THE TENDER CALL NOTICE WHICH IS IN RESPECT
OF +ENDU LEAVES ALREADY PURCHASED OR WHICH MAY BE PURCHASED BY THE 3TATE 'OVERNMENT
.O GROUND IS THUS MADE OUT TO INTERFERE WITH THE IMPUGNED TENDER CALL NOTICE
4HE PETITION IS DISMISSED
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
+ESHAB "EHERA /RS VS 3TATE OF
/DISHA /RS
70 # ./ /&
()'( #/524 /& /2)33! #544!#+ "%.#(
#/2!- !-)4!6! 2/9 #* !.$ $2 "2 3!2!.') *
#)4!4)/. 3## /.,).% /2) #,4
3 5--!29
4HIS WRIT PETITION WAS FILED BY THE PETITIONERS AGAINST THE ALLEGED ENCROACHMENT
AND ALLOTMENT OF LAND UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! TO INELIGIBLE PERSONS INSIDE
#HAKAGUJIA 2ESERVE &OREST AND SEEKING DIRECTIONS FROM THE #OURT THAT NECESSARY
ACTION BE TAKEN BY THE CONCERNED AUTHORITIES
4HE PETITIONERS ARGUED THAT THE FOREST HAS BEEN ENCROACHED BY THE MAFIA BY TAKING
ADVANTAGE OF THE &2! !S A RESULT SIXTY FIVE PERSONS HAVE BEEN ILLEGALLY SETTLED IN
FOREST LANDS WITHOUT PROPER VERIFICATION BY THE CONCERNED OFFICIALS AND IN VIOLATION
OF THE &2! SINCE THEY HAD NOT BEEN IN OCCUPATION OF THE LAND FOR THREE GENERATIONS
PRIOR TO
4HE RESPONDENT 3TATE GOVERNMENT ARGUED THAT SIXTY FIVE FAMILIES HAVE BEEN
CONFERRED RIGHTS UNDER THE &2! AFTER FOLLOWING DUE PROCESS OF LAW 4HE 3TATE
GOVERNMENT ALSO SUBMITTED THAT ACTION HAS BEEN TAKEN BY REGISTERING NINETY SIX
FOREST CASES BETWEEN
AND
ON RECOMMENDATION BY THE &OREST 2IGHTS
#OMMITTEE TO STOP ENCROACHMENT ON FOREST LAND )T WAS ALSO ASSERTED THAT STATUTORY
REQUIREMENTS HAVE BEEN FULFILLED BEFORE GRANTING FOREST RIGHTS
4HE #OURT EXAMINED THE DEFINITION OF FOREST DWELLING 3CHEDULED 4RIBE AND OTHER
TRADITIONAL FOREST DWELLER PROVIDED IN THE &2! OBSERVING THAT FOR RECOGNISING ANY
COMMUNITY OR PERSON AS AN OTHER TRADITIONAL FOREST DWELLER THE PERSON OR THE
COMMUNITY HAS TO BE RESIDENT OF OR DEPENDANT ON FORESTS OR FOREST LANDS FOR BONA
FIDE LIVELIHOOD NEEDS FOR A PERIOD OF THREE GENERATIONS PRIOR TO
(OWEVER FOR A PERSON OR COMMUNITY TO BE INCLUDED WITHIN THE SCOPE OF FOREST
DWELLING 3CHEDULED 4RIBE TENURE OF SUCH DURATION IS NOT A CONDITION PRECEDENT
AND IT WOULD BE ENOUGH IF HEIT IS A MEMBER BELONGING TO THE 3CHEDULED 4RIBE
4 / \
PRIMARILY RESIDING IN OR DEPENDANT ON FOREST OR FOREST LAND PRIOR TO 4HE
SIXTY FIVE FAMILIES WHOSE RIGHTS ARE BEING CHALLENGED BY THE PETITIONERS FALL UNDER
THIS CATEGORY AND THEREFORE THE THREE GENERATIONS REQUIREMENT IS NOT RELEVANT FOR
THEM
#ONSIDERING THE REPORT OF THE !#& AND THE ACTION TAKEN BY THE CONCERNED AUTHORITIES
TO PROTECT THE FOREST FROM ENCROACHMENT THE #OURT HELD THAT THE 3TATE GOVERNMENT
IS DULY ENSURING THE PREVENTION AND REMOVAL OF ENCROACHMENTS ON FOREST LANDS
$ISMISSING THE PETITION THE #OURT REITERATED THE NEED TO MAINTAIN CONSTANT VIGIL IN
ORDER TO SUSTAIN AND PROTECT THE FOREST FROM SUBSEQUENT ENCROACHMENTS
% $ ) 4 /23 . /4%
4HE APPROACH OF THE (IGH #OURT IN THIS CASE IS EXEMPLARY IN THAT IT HAS REPOSED FAITH
IN THE MECHANISM UNDER THE &2! AND IN THE 3TATE MACHINERY TO PROVIDE NECESSARY
CHECKS AND BALANCES AGAINST ABUSE OF THE BENEFICIAL PROVISIONS OF &2!
* 5 $ ' -% . 4
THE *UDGMENT OF THE #OURT WAS DELIVERED BY !MITAVA 2OY #*
4HE PRESENT PROCEEDING LED AS PUBLIC INTEREST LITIGATION SEEKS TO INVOKE THE WRIT
THE JURISDICTION OF THIS #OURT TO DIRECT AN ENQUIRY INTO THE ALLEGED ENCROACHMENT AND
ALLOTMENT OF LAND INSIDE #HAKAGUJIA RESERVE FOREST HEREINAFTER REFERRED TO AS &OREST
AND TO RECLAIM THE SAID AREA
7E HAVE HEARD -R 3ATPATHY LEARNED COUNSEL FOR THE PETITIONER AND -R -OHAPATRA
LEARNED 'OVERNMENT !DVOCATE FOR THE OPPOSITE PARTY
"ARE FACTS INDISPENSABLE FOR THE PRESENT ADJUDICATION ARE THAT THE PETITIONERS CLAIM
THEMSELVES TO BE THE PERMANENT RESIDENTS OF DIFFERENT PLACES IN THE DISTRICT OF "OLANGIR
4HEY HAVE STATED THAT THE &OREST WHICH IS LOCATED IN THE SAID DISTRICT COMPRISES OF
HECTARES AND COMES UNDER *AMKHUNTA "EAT WITHIN THE TERRITORIAL JURISDICTION OF FOUR 'RAM
0ANCHAYATS *AMKHUNTA 'ANDHAVLA +HASMAHAL AND -AHALI 4HERE IS A PERENNIAL STREAM
NAMED +UNDANALA WHICH CATERS TO THE NEEDS OF THE VILLAGERS WITHIN THE JURISDICTION OF
THESE FOUR 'RAM 0ANCHAYATS 4HE PETITIONERS HAVE ALLEGED THAT DURING THE YEAR
SOME PERSONS TRIED TO ENCROACH UPON THE &OREST WHEREUPON THE VILLAGERS OF *AMKHUNTA
AND *AMAPADA IN A MEETING HELD ON CONSTITUTED A 3AMITI NAMELY "ANA
3URAKHYA 3AMITI FOR PROTECTING THE SAME !CCORDING TO THEM 3AMITI WAS ALLOTTED SOME
FUNDS BY THE &OREST $EPARTMENT DURING YEAR
FOR BLOCK PLANTATION 4HE 3AMITI
THEREAFTER IN ASSOCIATION WITH VILLAGERS OF *AMAKHUNTA AND +HASBALA 'RAM 0ANCHAYAT
IN ITS MEETING HELD ON RESOLVED TO MOVE THE APPROPRIATE AUTHORITY TO TAKE STEPS
AGAINST THE PERSONS WHO WERE TRYING TO ENCROACH UPON THE &OREST )N THIS REGARD (ONBLE
#HIEF -INISTER OF THE 3TATE WAS ALSO MOVED FOR NECESSARY ACTION 4HE PETITIONERS HAVE
IMPUTED THAT THE &OREST HAS BEEN ENCROACHED BY -AAS AND THAT THOSE GROUPS HAVE
MANAGED TO ALLOT DIFFERENT AREAS IN FAVOUR OF VARIOUS PERSONS TAKING ADVANTAGE OF THE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT HEREINAFTER REFERRED TO AS THE !CT WHICH PROVIDES FOR SETTLEMENT OF &OREST
LAND TO PERSONS WHO ARE IN POSSESSION THEREOF PRIOR TO FOR THREE GENERATIONS
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4HE PETITIONERS HAVE STATED THAT SUCH PERSONS OF VILLAGE "ARKANI *AMAPADA HAVE BEEN
ILLEGALLY FAVOURED WITH SUCH SETTLEMENT !CCORDING TO THEM THOSE FAMILIES WERE NOT IN
OCCUPATION OF FOREST LAND PRIOR TO AND THEY ARE ALSO NOT LANDLESS PERSONS AND
IN FACT POSSESS LAND IN MOUZA "ARKANI AS WELL AS *AMAPADA !CCORDING TO THE PETITIONERS
SETTLEMENT HAS BEEN AWARDED TO THOSE FAMILIES WITHOUT PROPER VERICATION WITH THE
-AAS 4HAT THEY HAVE ALSO RESORTED TO FORCIBLE OCCUPATION OF VAST AREA IN THE &OREST
HAS BEEN MENTIONED 4HE PETITIONERS HAVE ASSERTED THAT IN SPITE OF REPEATED ENDEAVOURS
MADE BY THEM NO MEANINGFUL AND EFFECTIVE ACTION HAS BEEN TAKEN BY THE CONCERNED
AUTHORITIES TO THE GREAT DETRIMENT OF &OREST AND ITS USE 4HEY HAVE THUS COME TO THIS
#OURT FOR INTERVENTION
4HE OPPOSITE PARTY NO AND IN THEIR COUNTER AFRMED BY THE $IVISIONAL &OREST /FCER
"OLANGIR &OREST $IVISION "OLANGIR IN ESSENCE HAVE PLEADED THAT FAMILIES REFERRED TO
IN THE WRIT PETITION HAVE BEEN CONFERRED THE RIGHTS UNDER THE !CT AS THEY HAVE BEEN
IN POSSESSION OF &OREST LAND PRIOR TO AND AS PER THE RECOMMENDATION OF THE
&OREST 2IGHTS #OMMITTEE AND DUE CONSIDERATION OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE
4ITILAGARH AND JURISDICTIONAL $ISTRICT ,EVEL #OMMITTEE 6IS
g
VIS THE ALLEGATION OF ILLEGAL
ENCROACHMENT AND ILLICIT FELLING OF TREES IN THE &OREST THE OPPOSITE PARTY HAVE STATED
THAT &OREST #ASES HAVE BEEN REGISTERED IN "ANGOMUNDA 2ANGE FROM
TILL
AND THAT FURTHER ENCROACHMENT IN SUCH AREA HAVE SINCE BEEN STOPPED $ETAILING THE
PROCESS CULMINATING IN THE CONFERMENT OF RIGHTS UNDER THE !CT THE OPPOSITE PARTY HAVE
ASSERTED THAT ON THE RECOMMENDATION OF THE 'RAM 3ABHA AND &OREST 2IGHTS #OMMITTEE
"ARKANI AND *AMPADA 3$,# 4ITILAGARH HAD SCRUTINIZED AND VERIED THE APPLICATIONS
OF THE PERSONS CONCERNED AND THEREAFTER HAD SUBMITTED THE SAME TO THE $ISTRICT ,EVEL
#OMMITTEE WHICH ON EXHAUSTIVE CONSIDERATION OF THE FACTS HAD ISSUED NECESSARY ORDERS
TO THAT EFFECT 4HE OPPOSITE PARTY HAVE ASSERTED THAT ALL STATUTORY REQUIREMENTS HAVE BEEN
SCRUPULOUSLY FULLLED BEFORE GRANT OF FOREST RIGHTS 4HEY HAVE ALSO REFERRED TO THE NUMBERS
OF FOREST CASES REGISTERED AGAINST THE ENCROACHERS 4HEY HAVE STATED IN PARTICULAR THAT ON
RECEIPT OF THE COMPLAINT FROM THE VILLAGERS THE !SST #ONSERVATOR OF &ORESTS "OLANGIR
$IVISION HAD CONDUCTED A SURVEY AND SUBMITTED A REPORT ON !CCORDING TO THE
OPPOSITE PARTY ALL NECESSARY STEPS TO PROTECT THE FOREST FROM ENCROACHMENT HAVE BEEN
TAKEN AND THAT THE ALLEGATION TO THE CONTRARY WAS UNFOUNDED
)N THEIR REJOINDER THE PETITIONERS HAVE REITERATED THAT PERSONSFAMILIES SETTLED
WITH THE FOREST LAND ARE INELIGIBLE AS THEY WERE NEVER IN POSSESSION OF THE LAND IN THEIR
OCCUPATION FOR THREE GENERATION PRIOR TO 4HEY HAVE ALLEGED AS WELL THAT THESE
PERSONS AFTER OBTAINING THE SETTLEMENT HAD ENCROACHED UPON VAST AREA OF FOREST LAND
AND HAD DESTROYED FOREST PRODUCE BY FELLING VALUABLE TREES 4HEY HAVE ALLEGED THAT THE
REPORT SUBMITTED BY !SST #ONSERVATOR OF &OREST "OLANGIR IS A MISLEADING ONE AND THAT
THE PURPORTED ENQUIRY HAD BEEN MADE WITHOUT ISSUING ANY PUBLIC NOTICE OR INTIMATION
TO THEM 4HEY HAVE PLEADED THAT IF A FRESH ENQUIRY IS MADE BY THE #OLLECTOR "OLANGIR OR
ANY OTHER INDEPENDENT AUTHORITY THE CORRECT STATE OF AFFAIRS WOULD COME OUT 4HEY HAVE
STATED AS WELL THAT THOUGH THE PARTICULARS OF SOME CASES OF ENCROACHMENT INSTITUTED
DURING THE YEAR
HAVE BEEN MENTIONED NAL RESULT THEREOF HAS NOT BEEN
DISCLOSED
-R 3ATPATHY LEARNED COUNSEL FOR THE PETITIONERS HAS EMPHATICALLY ARGUED THAT THE
SETTLEMENT OF FOREST LAND IN FAVOUR OF PERSONSFAMILIES IS PATENTLY IN VIOLATION OF
THE !CT AS THEY HAVE NOT BEEN IN OCCUPATION OF THE LAND FOR THREE GENERATIONS PRIOR TO
AND THAT THE AUTHORITIES CONCERNED HAVE FAILED TO DISCHARGE THEIR PUBLIC DUTIES
TO PROTECT FOREST IN SPITE OF REPEATED REQUESTS AND APPEALS MADE BY THE PETITIONERS
,EARNED COUNSEL FOR THE OPPOSITE PARTY REFERRING IN PARTICULAR TO THE REPORT OF THE !SST
#ONSERVATOR OF &OREST "OLANGIR &OREST $IVISION "OLANGIR HAS SUBMITTED THAT THE
4 / \
ALLEGATIONS LEVELLED ARE BASELESS AND THAT THE INSTANT PROCEEDING HAS BEEN INSTITUTED NOT
TO ESPOUSE ANY PUBLIC CAUSE BUT TO PROTECT INDIVIDUAL INTEREST ,EARNED COUNSEL FOR THE
OPPOSITE PARTY HAS REFUTED THE ALLEGATION OF INACTION ON THE PART OF THE $EPARTMENTAL
!UTHORITIES
7E HAVE CAREFULLY CONSIDERED THE PLEADED FACTS AND DOCUMENTS ON RECORD 7E HAVE
PERUSED CLOSELY THE REPORT DATED LAID BY THE !SST #ONSERVATOR OF &OREST
"OLANGIR &OREST $IVISION "OLANGIR !NNEXURE # TO THE COUNTER OF OPPOSITE PARTY
4HE !CT DENES FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLER
UNDER 3ECTION C AND O RESPECTIVELY WHICH BEING OF FORMIDABLE SIGNICANCE ARE
EXTRACTED BELOW
C FOREST DWELLING 3CHEDULED 4RIBES MEANS THE MEMBERS OR COMMUNITY OF THE
3CHEDULED 4RIBES WHO PRIMARILY RESIDE IN AND WHO DEPEND ON THE FORESTS OR
FORESTS OR FOREST LANDS FOR BONA DE LIVELIHOOD NEEDS AND INCLUDES THE 3CHEDULED
4RIBE PASTORALIST COMMUNITIES
O OTHER TRADITIONAL FOREST DWELLER MEANS ANY MEMBER OR COMMUNITY WHO HAS
FOR AT LEAST THREE GENERATIONS PRIOR TO THE TH DAY OF $ECEMBER PRIMARILY
RESIDED IN AND WHO DEPEND ON THE FOREST OR FORESTS LAND FOR BONA DE LIVELIHOOD
NEEDS
5NDER THE !CT PROVISIONS FOR VESTING OF FOREST RIGHTS IN &OREST DWELLING 3CHEDULED 4RIBES
AND OTHER TRADITIONAL FOREST DWELLER AND PROCEDURE HAS BEEN MADE .OTICEABLY FOR ANY
MEMBER OR COMMUNITY TO BE WITHIN THE AMBIT OF OTHER TRADITIONAL FOREST DWELLERS HE
IT HAS TO BE RESIDENT OF OR DEPENDANT ON FORESTS OR FOREST LANDS FOR BONA DE LIVELIHOOD
FOR A PERIOD OF THREE GENERATION PRIOR TO FOR A MEMBER OF COMMUNITY TO BE
INCLUDED WITHIN THE SCOPE OF FOREST DWELLING 3CHEDULED 4RIBES TENURE OF SUCH DURATION
IS NOT A CONDITION PRECEDENT AND IT WOULD BE ENOUGH IF HEIT IS A MEMBER OF OR BELONG TO
3CHEDULED 4RIBES PRIMARILY RESIDING IN OR DEPENDANT ON FOREST OR FORESTS LAND FOR BONA
DE LIVELIHOOD NEEDS
! PLAIN PERUSAL OF THE REPORT OF THE !SST #ONSERVATOR OF &ORESTS "OLANGIR &OREST $IVISION
REVEALS THAT PERSONSFAMILIES WHO HAVE BEEN SETTLED WITH FOREST LAND BELONGS TO
3CHEDULED 4RIBE AND ARE TOTALLY DEPENDENT ON THE FOREST TO MAINTAIN THEIR DAY TO DAY
LIVELIHOOD THE ENQUIRY CONDUCTED BY THE !SST #ONSERVATOR OF &ORESTS ON HAS
BEEN MADE IN PRESENCE OF 2ANGE /FCER 4 "ANGOMUNDA 2ANGE &ORESTER 3INDHEKELA
&OREST 'UARD 3INDHEKELA "EAT )N
CHARGE OF *AMKHUNTA "EAT AND THE VILLAGERS HAS BEEN
MENTIONED THEREIN 4HE PLEA THAT THIS ENQUIRY WAS CONDUCTED WITHOUT PUBLIC NOTICE OR
INTIMATION TO THE PETITIONERS THUS DOES NOT WEIGH WITH US TO DISMISS THE VERACITY OF
THE NDINGS RECORDED IN THE REPORT 4HE STEPS THAT WERE TAKEN PRIOR TO CONFERMENT OF
RIGHT UNDER THE !CT TO PERSONSFAMILIES AS SET OUT IN THE REPORT INTER ALIA INDICATE THE
APPROVAL OF THE 'RAM 3ABHA *AMPADA WITH ALL ITS RELEVANT AUTHORITIES PRESENT IN THE
SAID MEETING 4HE NDINGS WITH REGARD TO THIS EXERCISE ARE WHOLLY CONSISTENT WITH THE
AVERMENTS MADE WITH REGARD THERETO IN THE COUNTER OF THE OPPOSITE PARTY 4HE ENQUIRY
REPORT DISCLOSES AS WELL THE DETAILS OF ENCROACHMENT IN COURSE OF THE ELD VERICATION
AND REGISTRATION OF CASES AGAINST ENCROACHERS DURING THE RELEVANT PERIOD 4HE %NQUIRY
/FCER DID MENTION AS WELL THAT THE FOREST STAFF ARE REGULARLY PATROLLING AROUND THE
FOREST AREA AND THAT IN THE MEANWHILE THEY HAVE TAKEN STEPS TO SEIZE THE RE WOOD
AND THAT IN ALL CASES HAVE BEEN REGISTERED IN 3INDGHEKELA 3ECTION WITH REGARD TO
VARIOUS OFFENCES 4HE ENQUIRY REPORT FURTHER DISCLOSES THAT THE PERENNIAL STREAM IS NOT
OBSTRUCTED AND THAT THE WATER CARRIED BY IT STILL CATERS TO THE NEEDS OF THE VILLAGERS OF
"ARKANI *AMKHUNTA *AMPADA AND +ALKUT )T HAS BEEN RECORDED IN CATEGORICAL TERMS THAT
EXCEPT THE RESERVED FOREST LAND NO OTHER ENCROACHMENT HAS BEEN FOUND INSIDE THE FOREST
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
4HE &OREST $EPARTMENT HAS ALSO TAKEN STEPS TO STOP ENCROACHMENT AND SMUGGLING OF
TIMBER AND RE WOOD AND THAT NO STONE QUARRY OPERATION HAS BEEN NOTICED
/N A CONJOINT CONSIDERATION OF THE PLEADED FACTS AND THE DISCLOSURES MADE IN THE ENQUIRY
REPORT IN PARTICULAR WE ARE NOT PERSUADED TO SUSTAIN THE ALLEGATION OF INACTION ON THE
PART OF THE DEPARTMENTAL AUTHORITIES IN THE MATTER OF PROTECTION OF THE &OREST AND STEPS
REQUIRED IN LAW AGAINST THE ENCROACHERS THEREON )N VIEW OF THE NDINGS RECORDED IN
THE REPORT THAT PERSONSFAMILIES ARE MEMBERS OF 3CHEDULED 4RIBE IN OCCUPATION OF
FOREST LAND WE ARE OF THE CONSIDERED OPINION THAT REQUIREMENT OF POSSESSION OF LAND
IN OCCUPATION FOR THREE GENERATIONS PRIOR TO IS NOT A CONDITION PRECEDENT
PRESCRIBED BY THE !CT FOR THEM TO BE CONFERRED WITH FORESTS RIGHTS THEREUNDER 4HERE IS NO
REASON FOR THIS #OURT TO DOUBT THE CORRECTNESS OF THE PLEADED AVERMENTS AND THE NDING
IN THE ENQUIRY REPORT THAT EXERCISE AS REQUIRED UNDER THE !CT HAD BEEN UNDERTAKEN FOR
AWARDING FOREST RIGHTS TO THE PERSONSFAMILIES UNDER THE !CT 7ITH REGARD TO THE
ALLEGATION OF ENCROACHMENT WE ND THAT NUMBER OF CASES HAS BEEN REGISTERED AGAINST
THE VIOLATORS AND THE STATEMENT THAT THE FOREST PERSONNEL ARE REGULARLY PATROLLING THE
FOREST AREA AND THAT NO FURTHER ENCROACHMENT HAS BEEN NOTICED CANNOT ALSO BE DISCARDED
)N THE ABOVE VIEW OF THE MATTER WE ARE NOT INCLINED TO ISSUE ANY ORDER FOR FRESH ENQUIRY
AS PRAYED FOR BY THE PETITIONERS 4HE PETITION IS THUS CLOSED
7E HOWEVER PART WITH THE OBSERVATION THAT THE DEPARTMENTAL AUTHORITIES WOULD
MAINTAIN CONSTANT VIGIL IN ORDER TO SUSTAIN AND PROTECT THE &OREST AS REQUIRED IN LAW
AND ALSO TAKE NECESSARY FOLLOW UP STEPS TO CONCLUDE THE PENDING PROCEEDINGS QUA
ENCROACHERS WITH DUE EXPEDITION SO MUCH SO THAT THIS #OURT DOES NOT ENCOUNTER ANY
SIMILAR COMPLAINT IN FUTURE
4 / \
+HANDADHAR (ORTI !GRICULTURAL AND
&OREST 0RODUCERS $EVELOPMENT
#O OPERATIVE ,TD !NR VS 3TATE OF
/DISHA /RS
70 # 0), ./ /&
()'( #/524 /& /2)33! #544!#+ "%.#(
#/2!- !-)4!6! 2/9 #* !.$ $2 !+ 2!4( *
3 5 - -!29
4HE PETITIONERS WHO ARE A COOPERATIVE SOCIETY OF PRODUCERS OF HORTICULTURAL AND
AGRICULTURAL PRODUCTS AND ITS 0RESIDENT APPROACHED THE (IGH #OURT SEEKING
IMPLEMENTATION OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT &2! AND &2 2ULES CITING THAT THERE HAS BEEN
NO EFFECTIVE RESPONSE FROM THE GOVERNMENT ON THEIR NUMEROUS REPRESENTATIONS
4HE 3TATE GOVERNMENT THROUGH THE 3# 34 $EVELOPMENT $EPARTMENT REFUTED THE
ALLEGATION STATING THAT THE PETITIONERS SHOULD HAVE APPROACHED THE #OMMITTEE
UNDER THE &2! WITH THEIR CLAIMS AS PROVIDED UNDER THE LAW
4HE #OURT DISPOSED OF THE PETITION IN VIEW OF THE FACT THAT THE PETITIONERS DID NOT
CONTEST THE STATEMENT OF THE 3TATE GOVERNMENT
% $ ) 4 /23 . /4%
0RIOR TO THE ENACTMENT OF THE &2! THE SALE AND PURCHASE OF MINOR FOREST PRODUCE WAS
GOVERNED BY THE /RISSA 'RAM 0ANCHAYATS -INOR &OREST 0RODUCE !DMINISTRATION
2ULES #LEARLY THERE IS SOME UNCERTAINTY AMONG THE BENEFICIARIES OF THE
PREVIOUS LEGAL DISPENSATION REGARDING THE CHANGE IN THE RIGHTS REGIME AFTER &2!
CAME INTO FORCE
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
/2$ % 2
(EARD LEARNED COUNSEL FOR THE PETITIONERS AND LEARNED COUNSEL FOR THE 3TATE
OPPOSITE
PARTY
4HE PETITIONER NO HAS PRESENTED ITSELF TO BE A #OOPERATIVE 3OCIETY REGISTERED UNDER
THE /RISSA SELF
HELP #OOPERATIVES !CT AND IN ESSENCE HAS LED THIS PETITION FOR
IMPLEMENTATION OF THE PROVISIONS OF THE 3CHEDULED 4RIBE AND OTHER 4RADITIONAL &OREST
DWELLERS RECOGNITION OF &OREST 2IGHTS !CT AND RULES FRAMED THEREUNDER
4HEY ARE BEFORE THIS #OURT WITH THE GRIEVANCE THAT IN SPITE OF SEVERAL REPRESENTATIONS TO
THE 3TATE
OPPOSITE PARTY TO IMPLEMENT THE PROVISIONS OF THE !CT IN LETTER AND SPIRIT THERE
HAS BEEN NO EFFECTIVE RESPONSE
4HE OPPOSITE PARTIES AND IE THE #OMMISSIONER
CUM
3ECRETARY TO 'OVERNMENT 3#
34 $EVELOPMENT $EPARTMENT AND THE #OLLECTOR 3UNDARGARH IN THEIR JOINT COUNTER
HAVE REFUTED THE ALLEGATION MADE AND HAVE CATEGORICALLY STATED THAT THE #OMMITTEE AS
CONTEMPLATED UNDER THE !CT HAS BEEN FORMED IN RESPECT OF THE VILLAGE 4ALBAHALI AND THAT
THE MEMBERS OF THE PETITIONERS SOCIETY VIS
A
VIS THEIR CLAIMS AS SOUGHT TO BE HIGHLIGHTED
IN THE INSTANT PETITION OUGHT TO HAVE APPROACHED THE #OMMITTEE 'RAMSABHA FOR
NECESSARY REDRESS 4HERE IS NO REJOINDER AS ON DATE CONTROVERTING THE CORRECTNESS OF THE
ABOVE STATEMENT
)N THE ABOVE VIEW OF THE MATTER THE PETITION IS CLOSED )N VIEW OF THE RECORDED STAND OF
THE OPPOSITE PARTY .OS AND WE ARE OF THE OPINION THAT THE RELIEF SOUGHT FOR HAS BEEN
MET
4 / \
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
3)++)- ()'( #/524
4!",% /& *5$'-%.43 !.$ /2$%23
3HRI +ARMA "HUTIA VS 3TATE OF 3IKKIM /RS
3## /N,INE 3IKK \
#
HEWANG 0INTSO "HUTIA VS 3TATE OF 3IKKIM /RS
3## /N,INE 3IKK \
4 / \
3HRI +ARMA "HUTIA VS 3TATE OF 3IKKIM
/RS
70 # ./ /&
()'( #/524 /& 3)++)-
#/2!- 0$ $).!+!2!. #* !.$ 30 7!.'$) *
#)4!4)/. 3## /.,).% 3)++
3 5 - -!29
4HE WRIT PETITION CHALLENGED THE EVICTION NOTICE ISSUED TO THE PETITIONER ON THE
GROUND THAT HIS HOUSE WAS IN A 2ESERVE &OREST )T SOUGHT DIRECTIONS TO THE RESPONDENT
3TATE GOVERNMENT TO RECOGNIZE HIS RIGHTS UNDER THE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! TREATING
HIM ON PAR WITH OTHERS WHOSE FOREST RIGHTS WERE DULY RECOGNIZED IN THE SAME AREA
!CCORDING TO THE PETITIONER THE RESPONDENT HAVING PERMITTED THE REQUEST OF
SIMILARLY PLACED PERSONS OUGHT TO HAVE CONSIDERED HIS REQUEST ALSO 4HE REFUSAL
TO CONSIDER THE REQUEST OF THE PETITIONER AND THE DIRECTION ISSUED TO HIM TO STOP
THE UNAUTHORISED CONSTRUCTION OF THE BUILDING HAS BEEN QUESTIONED IN THE WRIT
PETITION AS DISCRIMINATORY ARBITRARY IN BAD FAITH AND VIOLATIVE OF !RTICLE OF THE
#ONSTITUTION OF )NDIA AS WELL AS CONTRARY TO THE PROVISIONS OF &2!
4HE RESPONDENT 3TATE GOVERNMENT ARGUED THAT THE LAND IN QUESTION FALLS WITHIN THE
2ESERVE &OREST RANGE AND THEREFORE THE PETITIONER HAS NO RIGHT TO PUT UP A BUILDING
ON SUCH FOREST LAND &URTHER THE GOVERNMENT AUTHORITIES ARE EMPOWERED TO INITIATE
ACTION UNDER THE PROVISIONS OF THE 3IKKIM &ORESTS 7ATER #OURSE AND 2OAD 2ESERVE
0RESERVATION AND 0ROTECTION !CT
4HE #OURT EXAMINED IN SOME DETAIL THE PROVISIONS AS WELL AS THE OBJECTIVES OF THE
&2! AND OF THE 2ULES FRAMED THEREUNDER 4HE PETITIONERS REPRESENTATIONS MADE AS
EARLY AS IN CLAIMING HIS LEGITIMATE RIGHTS WHICH ARE NOW STATUTORILY RECOGNIZED
UNDER THE &2! OUGHT TO HAVE BEEN CONSIDERED BY THE COMPETENT AUTHORITIES IN THE
MANNER PROVIDED UNDER THE &2! "UT WITHOUT FOLLOWING SUCH DUE PROCESS OF LAW THE
2ANGE /FFICER HAS DIRECTED THE PETITIONER TO REMOVE THE UNAUTHORISED CONSTRUCTION
WHICH IS CONTRARY TO LAW
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4HE #OURT OBSERVED
7HEN THE !CT PRESCRIBES SUCH A FOREST RIGHTS OF FOREST DWELLING 3CHEDULED 4RIBES
AND OTHER TRADITIONAL FOREST DWELLERS THE AUTHORITIES CONSTITUTED UNDER THE !CT
AND 2ULES FRAMED THEREUNDER ARE EXPECTED TO CONSIDER THE RIGHTS OF THE 3CHEDULED
4RIBES AND FOREST DWELLERS FOLLOWING THE PROCEDURE AND IN THE MANNER KNOWN TO
LAW &AILURE TO FOLLOW SUCH PROCEDURE NOT ONLY VIOLATES THE PRINCIPLES OF NATURAL
JUSTICE BUT ALSO IS CONTRARY TO THE PROVISIONS OF THE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS 2ULES PARA
!CCORDINGLY THE #OURT PASSED AN ORDER PERMITTING THE PETITIONER TO MAKE A
REPRESENTATION TO THE COMPETENT AUTHORITY UNDER THE &2! AND &2 2ULES WITHIN
TWO WEEKS AND FURTHER DIRECTED THE RESPONDENT TO CONSIDER SUCH REPRESENTATION
AND TAKE A DECISION ON IT IN TERMS OF THE &2! AND &2 2ULES WITHIN TWELVE WEEKS
THEREAFTER
4HE RESPONDENTS WERE ALSO DIRECTED TO MAINTAIN STATUS QUO TILL FINAL ORDERS ARE
PASSED BY THE COMPETENT AUTHORITY
% $ )4/23 . /4%
4HIS IS AN IMPORTANT JUDGMENT WHERE THE CONSTRUCTION OF TWO APPARENTLY
CONTRADICTORY LAWS WITHIN A PARTICULAR FACT SITUATION IS DEMONSTRATED BY THE 3IKKIM
(IGH #OURT 4HE #OURT RECOGNISES THE FACT THAT WHEREAS UNDER THE PREVIOUS LEGAL
REGIME THE OCCUPATION OF LAND AND CONSTRUCTION OF A BUILDING INSIDE A 2ESERVE &OREST
WAS ILLEGAL AND LIABLE FOR EVICTION UNDER THE 3IKKIM &ORESTS 7ATER #OURSE AND 2OAD
2ESERVE 0RESERVATION AND 0ROTECTION !CT WITH THE ENACTMENT OF THE &2! AND
&2 2ULES THERE IS NOT ONLY A SUBSTANTIVE CHANGE IN THE RIGHT OF THE PETITIONER BUT
ALSO A CHANGE IN THE MECHANISM BY WHICH SUCH RIGHT SHALL BE DETERMINED &IXING
OF TIME FRAMES FOR A DECISION ON THE APPLICATION ALSO ENSURES THAT THE OBJECTIVE OF
TENURIAL INSECURITY DOES NOT REMAIN A CHIMERA
* 5$ '-% . 4
THE *UDGMENT OF THE #OURT WAS DELIVERED BY $INAKARAN #*
4HE PETITIONER IS A BONA DE HOLDER OF #ERTICATE OF )DENTICATION DATED
ISSUED BY THE COMPETENT AUTHORITY THAT THE PETITIONER BELONGS TO THE 3CHEDULED 4RIBE
#OMMUNITY (E SEEKS THE BENET OF 3ECTION OF 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT OF OF COURSE BASED ON
LONG HIS POSSESSION AND ENJOYMENT OF FOREST LAND OF AN EXTENT OF X AND X
BOUNDED IN THE %AST BY .ORTH 3IKKIM (IGHWAY IN THE 7EST VE STORIED 2## BUILDING
OF ONE 3HRI 3ONAM 0INTSO "HUTIA %X !SSISTANT #ONSERVATOR OF &OREST FOUR STORIED 2##
BUILDING OF ONE 3HRI 4ASHI "HUTIA FOUR STORIED 2## BUILDING OF ONE 3MT *EMIMA 0RADHAN
AND HER FATHER ,ATE $ . 0RADHAN IN THE .ORTH ONE GODOWN OF ONE 3HRI $ " 0RADHAN
ALIAS $AMBER 3ARDAR AND IN THE 3OUTH STAIRWAY OF 3HRI 3ONAM 0INTSO "HUTIA SITUATED AT
"URTUK %AST 3IKKIM 4HE STRUCTURE ACCORDING TO THE PETITIONER WAS CONSTRUCTED BY HIS
GRANDFATHER IN THE YEAR 4HE PETITIONER CLAIMS THAT HE MADE REPEATED REPRESENTATIONS
TO THE RESPONDENTS ON
AND
AND
SEEKING THE BENET OF 3ECTION OF THE SAID !CT BUT HE WAS MADE TO RUN FROM
4 / \
PILLAR TO POST FORGETTING ALLOTMENT OF THE HOUSE SITE UNDER THE PROVISIONS OF THE SAID
!CT AND NALLY HIS REQUEST WAS TURNED DOWN BY THE 2ANGE /FCER 'ANGTOK 2ANGE BY
PROCEEDINGS DATED WHICH IS BEING IMPUGNED THE WRIT PETITION /F COURSE THE
PETITIONER MADE FURTHER REPRESENTATIONS DATED AND BRINGING TO
THE NOTICE OF THE RESPONDENTS THAT SIMILARLY PLACED PERSONS WERE ALLOTTED WITH FOREST
HOUSE SITES BY THE COMPETENT AUTHORITY AS INFORMED TO THE PETITIONER BY PROCEEDINGS
DATED WHICH READS HEREUNDER
'/6%2.-%.4 /& 3)++)-
&/2%34 %.6 7),$,)&% -!.!'%-%.4 $%0!24-%.4
$%/2!,) '!.'4/+
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TH .OVEMBER
4O
$IVISIONAL &OREST /FCER
4ERRITORIAL %AST
03 2OAD 'ANGTOK
3UB &URNISHING OF )NFORMATION UNDER 2IGHT TO )NFORMATION !CT
3IR
%NCLOSED HEREWITH IS AN ORIGINAL APPLICATION DATED TH .OVEMBER WITH 2EVENUE
2ECEIPT .O.
DATED AMOUNTING TO 2S SUBMITTED BY 3HRI +ARMA
"HUTIA RESIDENT OF 5PPER "URTUK 'ANGTOK 3IKKIM SEEKING INFORMATION UNDER 2IGHT TO
)NFORMATION !CT
4HE APPLICATION HAS BEEN ACCEPTED UNDER )$ .O 24)(1'O3&%7-$ DATED TH
.OVEMBER AND IS BEING FORWARDED IN ORDER TO FURNISH THE REQUIRED INFORMATION AT
THE EARLIEST DIRECTLY TO THE APPLICANT WITH A COPY TO THE UNDERSIGNED PLEASE
4HANKING YOU
9OURS FAITHFULLY
3D
-RS - 0RADHAN
*OINT $IRECTOR 03TATISTICS 30)/(1
#OPY FOR INFORMATION TO
##& 4
#& 4
3HRI +ARMA "HUTIA 3TENOGRAPHER
(OME $EPARTMENT 'OVT OF 3IKKIM 'ANGTOK
, ) 34 / & 3)4% ! ,,/ 4-%. 4 5.$% 2 % !34 $)6)3)/. 4
3 ./ . ! -% ,/#!4 )/. !,,/4 -% .4
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0RAVA 2AI -ARTAM DO
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$RIVER &OREST
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"HUTIA &OREST DO DO
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3ITARAM "HUJEL ND MILE *. 2OAD
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-RS ,ADEN 4SH "HUTIA X 2ALLING #OPY ENCLOSED
'AIRA
,T -RS 'ITA 'URUNG X 2ALLING !LLOTTED COPY
'AIRA NOT PROVIDED
-RS 0HUPU $OMA X 2ALLING !LLOTTED COPY
4 / \
NOT PROVIDED
3HRI $AZOM ,ACHENPA "URTUK !LLOTTED COPY
NOT PROVIDED
3HRI 2INGZING 'YATSO "URTUK !LLOTTED COPY
NOT PROVIDED
-S +ATHERINE 3ANGAY X "URTUK !LLOTTED COPY
NOT PROVIDED
,T $0 2AI "URTUK !LLOTTED COPY
NOT PROVIDED
,T -" 4AMANG #O "URTUK !LLOTTED COPY
+AILASH 4AMANG NOT PROVIDED
,T -" 4AMANG #O "URTUK !LLOTTED COPY
4HAMA 4AMANG NOT PROVIDED
,T -" 4AMANG #O "URTUK !LLOTTED COPY
"IR "DR 4AMANG NOT PROVIDED
,T -" 4AMANG #O "URTUK !LLOTTED COPY
3ANJU 4AMANG NOT PROVIDED
,T .+ 2AI #O "IKAR 2AI "URTUK !LLOTTED COPY
NOT PROVIDED
-RS "INA 'URUNG "URTUK !LLOTTED COPY
NOT PROVIDED
,T +HIM .ARAYAN 0RADHAN "URTUK !LLOTTED COPY
#O -ADAN 0RADHAN NOT PROVIDED
3HRI -OHANLALL 2AI "URTUK !LLOTTED COPY
NOT PROVIDED
3HRI 4EK "DR #HETTRI "URTUK !LLOTTED COPY
NOT PROVIDED
-RS 4SHERING /NGMU X 3WASTIK !LLOTTED COPY
"HUTIA NOT PROVIDED
3HRI +ARMA "HUTIA 3WASTIK 5N AUTHORISED
,T $- 0RADHAN 3WASTIK !LLOTTED COPY
NOT PROVIDED
,T $- 0RADHAN X 3WASTIK 5N AUTHORISED
3HRI +" 3UNAWAR X RD -ILE 5N AUTHORISED
3HRI -ILLAN 'AJMER X RD -ILE !LLOTTED COPY
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
NOT PROVIDED
3HRI 3YAM ,ALL 2AI X RD -ILE !LLOTTED COPY
NOT PROVIDED
3D
2ANGE /FCER
'ANGTOK 4ERRITORIAL 2ANGE
&OREST $EPARTMENT
4HE PETITIONER THEREFORE COMPLAINTS THAT HIS LEGITIMATE RIGHT UNDER THE 3CHEDULED 4RIBES
AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT IS NOT
FAVOURABLY CONSIDERED BY THE RESPONDENTS AND SEEKS A WRIT OF MANDAMUS TO DIRECT THE
RESPONDENTS
I TO DETERMINE AS TO WHETHER THE LAND IN QUESTION FALLS UNDER THE &OREST LAND UNDER THE
2ESPONDENT .O OR UNDER THE PROFORMA RESPONDENT .O 5$ ($ FOR THE PURPOSE
OF ALLOTMENT
II TO TREAT THE 0ETITIONER AT PAR AND EQUALLY WITH OTHER ALLOTTEES WITH REGARD TO THE
ALLOTMENT OF THE HOUSING SITE IN POSSESSION OF THE PETITIONER SINCE
III TO GRANT TITLE OF THE LAND IN POSSESSION OF THE PETITIONER UNDER 3ECTION OF THE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT
IV TO VEST UPON THE 0ETITIONER THE RIGHT OVER THE LAND IN QUESTION BY REGULARIZATION
GRANT OR CONTRACT AND
V TO RESCIND THE STOP ORDER DATED AND ALLOW THE 0ETITIONER TO RESUME FURTHER
CONSTRUCTION
(ENCE THE ABOVE 7RIT 0ETITION
!CCORDING TO THE -R + 4 "HUTIA LEARNED SENIOR COUNSEL APPEARING FOR THE PETITIONER
THE RESPONDENT HAVING CONSIDERED THE REQUEST OF SIMILARLY PLACED PERSONS OUGHT
TO HAVE CONSIDERED THE REQUEST OF THE PETITIONER ALSO AND THE REFUSAL TO CONSIDER THE
REQUEST OF THE PETITIONER AND THE DIRECTION DATED
ISSUED TO THE PETITIONER TO
STOP THE UNAUTHORISED CONSTRUCTION OF THE BUILDING IMPUGNED IN THE WRIT PETITION IS
DISCRIMINATORY ARBITRARY MALA DE AND VIOLATIVE OF !RTICLE OF THE #ONSTITUTION OF
)NDIA AS WELL AS CONTRARY TO THE PROVISIONS OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
0ER CONTRA -R +ARMA 4HINLAY LEARNED 'OVERNMENT !DVOCATE CONTENDS THAT THE
IMPUGNED LAND FALLS WITHIN THE RESERVED FOREST RANGE AND THEREFORE THE PETITIONER HAS
NO RIGHT TO PUT UP ANY MULTI
STORIED BUILDING IN THE FOREST LAND FOR WHICH THE PROVISIONS
OF THE SAID 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT ARE NOT APPLICABLE AND THAT THE PETITIONER IS NOT A PERSON
FALLING WITHIN THE DENITION OF FOREST DWELLING 3CHEDULED 4RIBE 4HE PETITIONER DOES
NOT SATISFY THE STATUTORY REQUIREMENTS CONTEMPLATED UNDER THE 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS 2ULES THAT HE HAS
BONADE LIVELIHOOD NEEDS AS DENED UNDER 2ULE B OF THE SAID 2ULES 4HE LEARNED
'OVERNMENT !DVOCATE FURTHER CONTENDS THAT THE 'OVERNMENT AUTHORITIES ARE RIGHTLY
EMPOWERED TO INITIATE THE ACTION UNDER THE PROVISIONS OF THE 3IKKIM &ORESTS 7ATER
4 / \
#OURSE AND 2OAD 2ESERVE 0RESERVATION AND 0ROTECTION !CT WHEN THE PETITIONER
PROPOSED TO VIOLATE THE PROVISIONS OF THE SAME (OWEVER THE LEARNED 'OVERNMENT
!DVOCATE IS NOT IN A POSITION TO EXPLAIN UNDER WHAT CIRCUMSTANCES THE SIMILARLY PLACED
PERSONS WERE GRANTED DWELLING RIGHT UNDER THE PROVISIONS OF THE 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
7E HAVE GIVEN OUR CAREFUL CONSIDERATION TO THE SUBMISSIONS OF BOTH SIDES
4HE IMPUGNED PROCEEDINGS DATED
READS AS HEREUNDER
/&&)#% /& 4(% 2!.'% /&&)#%2
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&/2%34 #/,/.9 "!,5+!.)
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$ATED
./4)#%
4O
3HRI +ARMA "HUTIA
5PPER "URTUK
%AST 3IKKIM
3UBJECT %NCROACHMENT OF FOREST LAND AT "URTUK
)T HAS BEEN OBSERVED THAT YOU HAVE ERECTED SIX NUMBERS OF 2#PILLARS FOR CONSTRUCTION
OF HOUSE WITHIN FOREST LAND AT "URTUK 9OUR APPLICATION DATED TH OF $ECEMBER
SUBMITTED BY YOU CANNOT BE ENTERTAINED IN THE MEAN TIME
(ENCE YOU ARE HEREBY DIRECTED TO STOP THE UNAUTHORISED CONSTRUCTION OF THE SAID
BUILDING WITHIN 2OAD 2ESERVE AND &OREST ,AND IMMEDIATELY FAILING WHICH A CASE
WILL BE REGISTERED AGAINST YOU AS PER 3IKKIM &OREST 7ATER #OURSES 2OAD 2ESERVE
0RESERVATION 0ROTECTION !CT
3D
* 3 ,%0#(!
&OREST 2ANGE /FCER
'ANGTOK 4 2ANGE
4HE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OR &OREST
2IGHTS !CT ;HEREINAFTER REFERRED TO AS THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST
2IGHTS !CT = WAS ENACTED BY THE 0ARLIAMENT TO RECOGNISE AND VEST THE FOREST RIGHTS
AND OCCUPATION IN FOREST LAND IN FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL
FOREST DWELLERS WHO HAVE BEEN RESIDING IN SUCH FORESTS FOR GENERATIONS BUT WHOSE RIGHTS
COULD NOT BE RECORDED AND TO PROVIDE FOR A FRAMEWORK FOR RECORDING THE FOREST RIGHTS SO
VESTED TAKING NOTE OF THE FOLLOWING FACTORS
I THE RECOGNIZED RIGHTS OF THE FOREST DWELLING 3CHEDULED 4RIBES 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 3CHEDULED 4RIBES AND OTHER TRADITIONAL
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
FOREST DWELLERS
II THE FOREST RIGHTS ON ANCESTRAL LANDS AND THEIR HABITAT WERE NOT ADEQUATELY
RECOGNIZED IN THE CONSOLIDATION OF 3TATE FORESTS DURING THE COLONIAL PERIOD AS WELL
AS IN INDEPENDENT )NDIA RESULTING IN HISTORICAL INJUSTICE TO THE FOREST DWELLING
3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS WHO ARE INTEGRAL TO THE
VERY SURVIVAL AND SUSTAINABILITY OF THE FOREST ECOSYSTEM AND
III IT HAS BECOME NECESSARY TO ADDRESS THE LONG STANDING INSECURITY OF TENURIAL AND
ACCESS RIGHTS OF FOREST DWELLING 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST
DWELLERS INCLUDING THOSE WHO WERE FORCED TO RELOCATE THEIR DWELLING DUE TO 3TATE
DEVELOPMENT INTERVENTIONS
)T IS UNDER SUCH CIRCUMSTANCES THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT
WAS ENACTED
3ECTION OF THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT RECOGNISES
THE FOLLOWING RIGHTS OF THE 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
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 3CHEDULED 4RIBE OR OTHER TRADITIONAL FOREST
DWELLERS
B COMMUNITY RIGHTS SUCH AS NISTAR BY WHATEVER NAME CALLED INCLUDING THOSE
USED IN ERSTWHILE 0RINCELY 3TATES :AMINDARI 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 SH 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 3TATE WHERE
CLAIMS ARE DISPUTED
G RIGHTS FOR CONVERSION OF 0ATTAS OR LEASES OR GRANTS ISSUED BY ANY LOCAL AUTHORITY
OR ANY 3TATE 'OVERNMENT ON FOREST LANDS TO TITLES
H RIGHTS OF SETTLEMENT AND CONVERSION OF ALL FOREST VILLAGES OLD HABITATION
UNSURVEYED VILLAGES AND OTHER VILLAGES IN FOREST WHETHER RECORDED NOTIED OR
NOT INTO REVENUE VILLAGES
I RIGHT TO PROTECT REGENERATE OR CONSERVE OR MANAGE ANY COMMUNITY FOREST
RESOURCE WHICH THEY HAVE BEEN TRADITIONALLY PROTECTION AND CONSERVING FOR
SUSTAINABLE USE
J RIGHTS WHICH ARE RECOGNISED UNDER ANY 3TATE LAW OR LAWS OF ANY !UTONOMOUS
$ISTRICT #OUNCIL OR !UTONOMOUS 2EGIONAL #OUNCIL OR WHICH ARE ACCEPTED AS RIGHTS
OF TRIBALS UNDER ANY TRADITIONAL OR CUSTOMARY LAW OF THE CONCERNED TRIBES OF ANY
3TATE
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 3CHEDULED
4RIBES OR OTHER TRADITIONAL FOREST DWELLERS AS THE CASE MAY BE WHICH ARE NOT
MENTIONED IN CLAUSES A TO K BUT EXCLUDING THE TRADITIONAL RIGHT OF HUNTING OR
TRAPPING OR EXTRACTION A PART OF THE BODY OF ANY SPECIES OF WILD ANIMAL
M RIGHT TO IN SITU REHABILITATION INCLUDING ALTERNATIVE LAND IN CASES WHERE THE
3CHEDULED 4RIBES 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 TH DAY OF $ECEMBER
3ECTION OF THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT DEALS WITH THE
4 / \
RECOGNITION RESTORATION AND VESTING OF FOREST RIGHTS IN THE FOREST DWELLING 3CHEDULED
4RIBES AND OTHER TRADITIONAL FOREST DWELLERS
3ECTION OF THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT PRESCRIBES
DUTIES OF HOLDERS OF FOREST RIGHTS WHICH READS AS HEREUNDER
$UTIES OF HOLDERS OF FOREST RIGHTS
4HE HOLDERS OF ANY FOREST RIGHT 'RAM 3ABHA AND VILLAGE LEVEL INSTITUTIONS IN AREAS
WHERE THERE ARE HOLDERS OF ANY FOREST RIGHT UNDER THIS !CT ARE EMPOWERED TO
A PROTECT THE WILD LIFE FOREST AND BIODIVERSITY
B ENSURE THAT ADJOINING CATCHMENT AREA WATER SOURCES AND OTHER ECOLOGICAL
SENSITIVE AREAS ARE ADEQUATELY PROTECTED
C ENSURE THAT THE HABITAT OF FOREST DWELLING 3CHEDULED 4RIBES AND OTHER
TRADITIONAL FOREST DWELLERS IS PRESERVED FROM ANY FORM OF DESTRUCTIVE PRACTICES
AFFECTING THEIR CULTURAL AND NATURAL HERITAGE
D ENSURE THAT THE DECISIONS TAKEN IN THE 'RAM 3ABHA TO REGULATE ACCESS TO
COMMUNITY FOREST RESOURCES AND STOP ANY ACTIVITY WHICH ADVERSELY AFFECTS THE
WILD ANIMALS FOREST AND THE BIODIVERSITY ARE COMPLIED WITH
3ECTION OF THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT DENES
DIFFERENT AUTHORITIES VIZ 'RAM 3ABHA 3UB
$IVISIONAL ,EVEL #OMMITTEE AND $ISTRICT ,EVEL
#OMMITTEE AND ALSO PRESCRIBES THE PROCEDURE FOR DETERMINING SUCH VESTING OF FOREST RIGHTS
WHICH READS AS HEREUNDER
!UTHORITIES TO VEST FOREST RIGHTS IN FOREST DWELLING 3CHEDULED 4RIBES AND OTHER
TRADITIONAL FOREST DWELLERS AND PROCEDURE THEREOF
4HE 'RAM 3ABHA SHALL BE THE AUTHORITY TO INITIATE THE PROCESS FOR DETERMINING
THE NATURE AND EXTENT IF INDIVIDUAL OR COMMUNITY FOREST RIGHTS OR BOTH THAT MAY
BE GIVEN TO THE OTHER FOREST DWELLING 3CHEDULED 4RIBES TRADITIONAL FOREST DWELLERS
WITHIN THE LOCAL LIMITS OF ITS JURISDICTION UNDER THIS !CT BY RECEIVING CLAIMS
CONSOLIDATING AND VERIFYING THEM AND PREPARING A MAP DELINEATING THE AREA OF EACH
RECOMMENDED CLAIM IS SUCH MANNER AS MAY BE PRESCRIBED FOR EXERCISE OF SUCH
RIGHTS AND THE 'RAM 3ABHA SHALL THEN PASS A RESOLUTION TO THAT EFFECT AND THEREAFTER
FORWARD A COPY OF THE SAME TO THE 3UB
DIVISIONAL ,EVEL #OMMITTEE
!NY PERSON AGGRIEVED BY THE RESOLUTION OF THE 'RAM 3ABHA MAY PREFER A PETITION
TO THE 3UB
$IVISIONAL ,EVEL #OMMITTEE CONSTITUTED UNDER SUB
SUCTION AND THE
3UB
$IVISIONAL ,EVEL #OMMITTEE SHALL CONSIDER AND DISPOSE OF SUCH PETITION
0ROVIDED THAT EVERY SUCH PETITION SHALL BE PREFERRED WITHIN SIXTY DAYS FROM THE
DATE OF PASSING OF THE RESOLUTION BY THE 'RAM 3ABHA
0ROVIDED 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
4HE 3TATE 'OVERNMENT SHALL CONSTITUTE A 3UB
$IVISIONAL ,EVEL #OMMITTEE TO
EXAMINE THE RESOLUTION PASSED BY THE 'RAM 3ABHA AND PREPARE THE RECORD OF
FOREST RIGHTS AND FORWARD IT THROUGH THE 3UB
$IVISIONAL /FCER TO THE $ISTRICT ,EVEL
#OMMITTEE FOR A NAL DECISION
!NY PERSON AGGRIEVED BY THE DECISION OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE
MAY PREFER A PETITION TO THE $ISTRICT ,EVEL #OMMITTEE WITHIN SIXTY DAYS FROM THE
DATE OF DECISION OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE AND THE $ISTRICT ,EVEL
#OMMITTEE SHALL CONSIDER AND DISPOSE OF SUCH PETITION
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
0ROVIDED THAT NO PETITION SHALL BE PREFERRED DIRECTLY BEFORE THE $ISTRICT ,EVEL
#OMMITTEE AGAINST THE RESOLUTION OF THE 'RAM 3ABHA UNLESS THE SAME HAS BEEN
PREFERRED BEFORE AND CONSIDERED BY THE 3UB $IVISIONAL ,EVEL #OMMITTEE
0ROVIDED 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
4HE 3TATE 'OVERNMENT SHALL CONSTITUTE A $ISTRICT ,EVEL #OMMITTEE TO CONSIDER
AND NALLY APPROVE THE RECORD OF FOREST RIGHTS PREPARED BY THE 3UB
$IVISIONAL
,EVEL #OMMITTEE
4HE DECISION OF THE $ISTRICT ,EVEL #OMMITTEE ON THE RECORD OF FOREST RIGHTS SHALL
BE NAL AND BINDING
4HE 3TATE 'OVERNMENT SHALL CONSTITUTE A 3TATE ,EVEL -ONITORING #OMMITTEE TO
MONITOR THE PROCESS OF RECOGNITION AND VISITING OF FOREST RIGHTS AND TO SUBMIT TO
THE NODAL AGENCY SUCH RETURNS AND REPORTS AS MAY BE CALLED FOR BY THAT AGENCY
4HE 3UB
$IVISIONAL ,EVEL #OMMITTEE THE $ISTRICT ,EVEL #OMMITTEE AND THE
3TATE ,EVEL -ONITORING #OMMITTEE SHALL CONSIST OF OFCERS OF THE DEPARTMENTS OF
2EVENUE &OREST AND 4RIBAL !FFAIRS OF THE 3TATE 'OVERNMENT AND THREE MEMBERS
OF THE 0ANCHAYATI 2AJ )NSTITUTIONS AT THE APPROPRIATE LEVEL APPOINTED BY THE
RESPECTIVE 0ANCHAYATI 2AJ )NSTITUTIONS OF WHOM TWO SHALL BE THE 3CHEDULED 4RIBE
MEMBERS AND AT LEAST ONE SHALL BE A WOMAN AS MAY BE PRESCRIBED
4HE COMPOSITION AND FUNCTIONS OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE THE
$ISTRICT ,EVEL #OMMITTEE AND THE 3TATE ,EVEL -ONITORING #OMMITTEE AND THE
PROCEDURE TO BE FOLLOWED BY THEM IN THE DISCHARGE OF THEIR FUNCTIONS SHALL BE SUCH
AS MAY BE PRESCRIBED
3ECTION OF THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT EMPOWERS
THE #ENTRAL 'OVERNMENT TO MAKE RULES IN THIS REGARDS
!CCORDINGLY THE 'OVERNMENT OF )NDIA -INISTRY OF 4RIBAL !FFAIRS BY A NOTICATION
DATED
IN EXERCISE OF THE POWERS CONFERRED UNDER 3ECTIONS AND OF
THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT OF FRAMED THE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
2ULES
2ULES DENES THE 'RAM 3ABHA 2ULE PRESCRIBES THE FUNCTIONS OF THE 'RAM 3ABHA
2ULE DEALS WITH THE CONSTITUTION OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE 2ULE
PROVIDES THE FUNCTIONS OF THE 3UB
$IVISIONAL ,EVEL #OMMITTEE 2ULE DEALS WITH THE
$ISTRICT ,EVEL #OMMITTEE 2ULE DEALS THE FUNCTIONS OF THE $ISTRICT ,EVEL #OMMITTEE
2ULE DEALS WITH THE 3TATE ,EVEL -ONITORING #OMMITTEE 2ULE DEALS WITH THE
FUNCTIONS OF THE 3TATE ,EVEL -ONITORING #OMMITTEE 2ULE DEALS WITH THE PROCEDURE
FOR LING DETERMINATION AND VERICATION OF CLAIMS BY THE 'RAM 3ABHA 2ULE DEALS
WITH PROCESS OF VERIFYING CLAIMS BY &OREST 2IGHTS #OMMITTEE AND 2ULE DEALS WITH
EVIDENCE FOR DETERMINATION OF FOREST RIGHTS
)T IS THEREFORE CLEAR THAT THE !CT AND THE 2ULES FRAMED THEREUNDER DENE THE FOREST
RIGHTS OF THE 3CHEDULED 4RIBES AND OTHER TRADITIONAL FOREST DWELLERS RESIDING IN THE
FOREST AND THE PROCEDURE TO BE FOLLOWED IN DETERMINING SUCH RIGHTS )F THAT BE THE
CASE THE PETITIONERS REPRESENTATIONS MADE AS EARLY AS IN CLAIMING HIS LEGITIMATE
RIGHTS UNDER THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT OUGHT TO
4 / \
HAVE BEEN CONSIDERED BY THE COMPETENT AUTHORITIES IN THE MANNER PROVIDED UNDER
THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT AND THE 3CHEDULED 4RIBES
AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS 2ULES "UT
WITHOUT FOLLOWING SUCH DUE PROCESS OF LAW THE 2ANGE /FCER BY PROCEEDING DATED
WHICH IS IMPUGNED IN THE WRIT PETITION HAS DIRECTED THE PETITIONER TO REMOVE
THE UNAUTHORISED CONSTRUCTION AND ALSO INFORMED THE PETITIONER THAT ACTION WOULD
BE INITIATED AGAINST HIM UNDER THE 3IKKIM &ORESTS 7ATER #OURSES AND 2OAD 2ESERVE
0RESERVATION AND 0ROTECTION !CT WHICH WAS ENACTED BY THE 3TATE OF 3IKKIM AS A
CONSOLIDATED ENACTMENT RELATING TO THE FORESTS PRODUCE WATER COURSES AND ROAD RESERVE
AND FOR THE MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO
7HEN THE !CT PRESCRIBES SUCH A FOREST RIGHTS OF FOREST DWELLING 3CHEDULED 4RIBES AND
OTHER TRADITIONAL FOREST DWELLERS THE AUTHORITIES CONSTITUTED UNDER THE !CT AND 2ULES
FRAMED THEREUNDER ARE EXPECTED TO CONSIDER THE RIGHTS OF THE 3CHEDULED 4RIBES AND
FOREST DWELLERS FOLLOWING THE PROCEDURE AND IN THE MANNER KNOWN TO LAW &AILURE TO
FOLLOW SUCH PROCEDURE NOT ONLY VIOLATES THE PRINCIPLES OF NATURAL JUSTICE BUT ALSO IS
CONTRARY TO THE PROVISIONS OF THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT
AND THE PROVISIONS OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS 2ULES
4HEREFORE WITHOUT EXPRESSING ANY OPINION AS TO THE RIGHTS CLAIMED BY THE PETITIONER
SUFCE IT TO PERMIT THE PETITIONER TO MAKE A REPRESENTATION TO THE COMPETENT AUTHORITY
WITHIN WEEKS FROM THE DATE OF RECEIPT OF THIS ORDER SEEKING HIS ENTITLEMENT UNDER
THE PROVISIONS OF THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT AND THE
PROVISIONS OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 2IGHTS 2ULES AND DIRECT THE RESPONDENTS TO CONSIDER THE SAID REPRESENTATION
OF THE PETITIONER AND PASS APPROPRIATE ORDERS FOLLOWING THE PROCEDURE PRESCRIBES UNDER
THE 3CHEDULED 4RIBES 2ECOGNITION OF &OREST 2IGHTS !CT AND THE PROVISIONS OF
THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS 2ULES WITHIN WEEKS FROM THE DATE OF RECEIPT OF THE REPRESENTATION OF
THE PETITIONER 4HE RESPONDENTS ARE ALSO DIRECTED TO MAINTAIN STATUS
QUO TILL SUCH NAL
ORDERS ARE PASSED BY THE COMPETENT AUTHORITY
4HE WRIT PETITION IS DISPOSED OF ACCORDINGLY WITH NO ORDER AS TO COST
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
#HEWANG 0INTSO "HUTIA !NR VS
3TATE OF 3IKKIM /RS
70 # ./3 !.$ /&
()'( #/524 /& 3)++)-
#/2!- .+ *!). #* !.$ 30 7!.$') *
#)4!4)/. 3## /.,).% 3)++ !)2 ./#
3 5--!29
4HE PETITIONERS IN THIS BATCH OF WRIT PETITIONS ASSAILED THE IMPLEMENTATION OF THE
-7 4ASHIDING
(YDRO %LECTRIC 0ROJECT SET UP BY THE RESPONDENT 3TATE GOVERNMENT
ON THE RIVER 2ATHONG #HU 7EST 3IKKIM ON A VARIETY OF GROUNDS INCLUDING
I 2ELIGIOUS CULTURAL AND HISTORICAL ASPECT NOT CONSIDERED RESULTING IN VIOLATION
OF THE PETITIONERS FUNDAMENTAL RIGHTS UNDER !RTICLES AND OF THE
#ONSTITUTION
II VIOLATION OF THE ENVIRONMENTAL LAWS BY THE PROJECT
III INTER
GENERATIONAL EQUITY AND PUBLIC TRUST DOCTRINE
IV THAT MONEY HAS BEEN RAISED THROUGH FINANCIAL INSTITUTIONS FOR THIS PROJECT
WHICH WILL BE A DRAINBURDEN ON THE PUBLIC EXCHEQUER IN THE LONG TERM AND
THEREFORE ILL
ADVISED
4HE PETITIONERS ARGUED THAT THE RELIGIOUS RIGHTS OF THE "UDDHIST COMMUNITY UNDER
!RTICLES AND OF THE #ONSTITUTION OF )NDIA AND THEIR RIGHTS TO CONSERVE THEIR
CULTURE UNDER !RTICLE HAVE BEEN INFRINGED BY THE 3TATE IN COMMENCING WITH THE
4ASHDING (%0 4HEY ARGUED THAT THE RIVER 2ATHONG #HU ON WHICH THIS PROJECT IS
BEING CONSTRUCTED IS SACRED AND HOLY
4HE RESPONDENT 3TATE GOVERNMENT DENIED ALL MATERIAL ALLEGATIONS MADE IN THE WRIT
PETITIONS AND IN PARTICULAR ARGUED THAT THE 2IVER IS NOT A NOTIFIED SACRED SITE AND
THEREFORE NO RELIGIOUS RIGHT IS VIOLATED
&).$ ) .' 3 /& 4( % #/524
)N A DETAILED JUDGMENT THE #OURT EXAMINED IN DEPTH THE ARGUMENTS RECORDS AND
CASE LAW RELIED UPON BY THE PARTIES
/N THE ISSUE OF NOTIFICATION OF ECO SENSITIVE ZONE AT A DISTANCE OF TEN KILOMETRES FROM
4 / \
NATIONAL PARKS AND SANCTUARIES IN THIS CASE THE +HANGCHENDZONGA .ATIONAL 0ARK
THE #OURT RELIED UPON THE JUDGMENT OF THE 3UPREME #OURT IN THE 'OA &OUNDATION
CASE 4HE #OURT HELD THAT THE ABSENCE OF A DIRECTION FROM THE 3UPREME #OURT FOR
MAINTAINING KILOMETRES AS ECO SENSITIVE ZONE DOES NOT RENDER THE REQUIREMENT
OF DELINEATION OF ECO SENSITIVE ZONE UNNECESSARY
/N THE ISSUE OF RIGHTS OF RELIGIOUS AND CULTURAL FREEDOM THE #OURT EXAMINED IN
DETAIL A WEALTH OF MATERIAL PRODUCED BY THE PETITIONERS AND CONCLUDED THAT JUST
BECAUSE A SITE IS NOT NOTIFIED AS SACRED DOES NOT PRECLUDE ITS BEING A SACRED SITE )T
REFERRED TO THE JUDGMENT OF THE 3UPREME #OURT IN THE .IYAMGIRI CASE WHERE THE
.IYAMGIRI HILLS HELD TO BE SACRED BY THE TRIBALS IN THE AREA WERE PROPOSED TO BE
MINED FOR BAUXITE 4HE #OURT OBSERVED
IV !S IS APPARENT FROM THE ABOVE IT HAD BEEN NOTED BY THE (ONBLE 3UPREME
#OURT THAT ISSUES PERTAINING TO THE RELIGIOUS RIGHTS OF WORSHIP OVER .IYAMGIRI
(ILLS BY THE TRIBALS HAD NOT BEEN TAKEN INTO CONSIDERATION DURING THE PUBLIC
HEARING AS WOULD APPEAR FROM THE LAST PART OF PARAGRAPH EXTRACTED ABOVE )N
THE PRESENT CASE ALSO WE FIND THAT THE QUESTIONS AND ANSWERS RECORDED IN THE
PROCEEDINGS OF THE 0UBLIC (EARING ONLY DEAL WITH THE INDIVIDUAL CLAIMS ARISING
OUT OF THE 0ROJECT 7E DID NOT FIND A WHISPER ON THE RELIGIOUS ASPECT OF THE RIVER
AND THE AREA AND OTHER SOCIAL ISSUES THAT MAY BE IMPACTED BY THE 0ROJECT
XXX
VI !LTHOUGH THE DECISION IN /RISSA -INING #ORPORATION ,TD CASE SUPRA WAS
RENDERED IN THE CONTEXT OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT WE ARE OF THE CONSIDERED VIEW
THAT THE PRINCIPLE FORMING THE BASIS OF THE DECISION WOULD BE APPLICABLE IN THE
PRESENT CASE ALSO PARA IV AND VI
!CCORDINGLY THE #OURT DIRECTED THAT THE -INISTRY OF %NVIRONMENT AND &ORESTS SHALL
DECIDE ON THE QUESTION OF ECO
SENSITIVE ZONE AND THE ISSUE OF VIOLATIONS OF RELIGIOUS
RIGHTS IN ACCORDANCE WITH LAW AND THE PROCEDURE PRESCRIBED IN THAT BEHALF IN SIX
MONTHS 7HILE THERE WAS NO ORDER SUSPENDING THE 0ROJECT IN QUESTION THE #OURT
MADE IT CLEAR THAT THE IMPLEMENTATION OF THE 0ROJECT SHALL BE AT THE RISK AND PERIL OF
THE RESPONDENT 3TATE GOVERNMENT AND SHALL BE SUBJECT TO THE DECISION OF THE -O%&
% $ ) 4 /23 . /4%
!LTHOUGH THE PETITIONERS IN THIS CASE DID NOT RAISE THE ISSUE OF VIOLATION OF FOREST
RIGHTS UNDER &2! THE RELIANCE OF THE (IGH #OURT ON THE LANDMARK JUDGMENT OF THE
3UPREME #OURT IN THE .IYAMGIRI CASE IS IMPORTANT FOR THE REASON THAT IT DEMONSTRATES
THE CROSS
CUTTING NATURE OF THE RIGHTS &2! IS DESIGNED TO PROTECT 4HE ESSENTIAL
INTERLINKAGES BETWEEN THE ENVIRONMENT THE FORESTS AND THE CULTURAL RIGHTS OF
FOREST DWELLING COMMUNITIES WHICH THE EXTANT REGULATORY REGIME ATTEMPTS TO
COMPARTMENTALIZE FINDS A HOLISTIC ARTICULATION IN &2!
*UDGMENT DT IN 'OA &OUNDATION VS 5NION OF )NDIA /RS 70# .O OF 3UPREME #OURT OF
)NDIA 3##
/RISSA -INING #ORPORATION ,TD VS -INISTRY OF %NVIRONMENT &OREST /THERS 3##
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
* 5$ '-% . 4
THE *UDGMENT OF THE #OURT WAS DELIVERED BY 3ONAM 0HINTSO 7ANGDI *
7RIT 0ETITION # .OS AND OF WERE ORIGINALLY LED BEFORE THE (ONBLE 3UPREME
#OURT BEING 7RIT 0ETITION # .OS AND OF RESPECTIVELY 6IDE ORDER DATED
THE (ONBLE 3UPREME #OURT WAS PLEASED TO TRANSFER THEM TO THIS #OURT FOR DISPOSAL
UNDER !RTICLE OF THE #ONSTITUTION OF )NDIA AS VARIOUS ISSUES INVOLVED IN THE CASES WERE
OF LOCAL NATURE 7E MAY REPRODUCE THE SAID ORDER OF THE (ONBLE 3UPREME #OURT WHICH
READS AS UNDER
4HE QUESTION RAISED IN THESE WRIT PETITIONS UNDER !RTICLE OF THE #ONSTITUTION
SHOULD IN OUR VIEW BE RST CONSIDERED BY THE 3IKKIM (IGH #OURT UNDER !RTICLE
OF THE #ONSTITUTION 4HERE ARE VARIOUS ISSUES INVOLVED WHICH ARE LOCAL IN NATURE AND
SHOULD BE CONSIDERED AT THAT LEVEL
!CCORDINGLY LET THE WRIT PETITIONS LED BY 4ENZING "HUTIA AND !NOTHER AND 3ONAM
,AMA WHICH HAVE BEEN REGISTERED AS 7RIT 0ETITION # .OS AND OF BE
TRANSFERRED TO THE 3IKKIM (IGH #OURT TO BE TREATED AS WRIT PETITIONS UNDER !RTICLE
OF THE #ONSTITUTION
4HE 2EGISTRY IS DIRECTED TO ARRANGE FOR TRANSFERRING THE RECORDS OF THE WRIT PETITIONS
TO THE 3IKKIM (IGH #OURT WITHIN A WEEK FROM DATE
,IBERTY IS GIVEN TO THE PETITIONERS IN THESE WRIT PETITIONS TO MENTION THE MATTER
BEFORE THE 3IKKIM (IGH #OURT FOR TAKING UP THE MATTERS AT AN EARLY DATE
4HE WRIT PETITIONS ARE DISPOSED OF ACCORDINGLY
)N PURSUANCE OF THE ABOVE THE CASES WERE THUS TAKEN UP BY THIS #OURT AND ARE BEING
DISPOSED OF BY THIS COMMON JUDGMENT AS THE QUESTIONS INVOLVED ARE IDENTICAL
4HE 0ETITIONERS ARE MEMBERS OF THE "HUTIA
,EPCHA #OMMUNITY WHO ARE PREDOMINANTLY
"UDDHIST BY RELIGION 4HEY MOVE THE 7RIT 0ETITIONS SEEKING TO ASSAIL THE IMPLEMENTATION OF
THE -7 4ASHIDING
(YDRO %LECTRIC 0ROJECT IN SHORT THE (%0 SET UP BY THE 2ESPONDENTS
ON THE RIVER 2ATHONG #HU 7EST 3IKKIM PRIMARILY ON TWO GROUNDS
I 6IOLATION OF THE 0ETITIONERS FUNDAMENTAL RIGHTS UNDER !RTICLES AND OF THE
#ONSTITUTION OF )NDIA AND
II 6IOLATION OF THE ENVIRONMENTAL LAWS
4HE 2ESPONDENT .O IS THE 3TATE OF 3IKKIM IN WHICH THE 0ETITIONERS RESIDE AND THE 3TATE
IN WHICH THE 0ROJECT IS BEING IMPLEMENTED UNDER A -EMORANDUMS OF 5NDERSTANDING IN
SHORT THE -O5 BY THE 2ESPONDENT .O #OMPANY PROMOTED BY THE 2ESPONDENT .O
2ESPONDENT .O IS THE -INISTRY OF %NVIRONMENT AND &ORESTS WHICH GIVES CLEARANCES AND
.O /BJECTION #ERTICATES IN SHORT THE ./#S TO VARIOUS POWER 0ROJECTS AFTER SCRUTINY
UNDER THE RELEVANT ENVIRONMENT RULES AND REGULATIONS 2ESPONDENT .O IS THE .ATIONAL
"OARD FOR 7ILD ,IFE IN SHORT THE ."7, CONSTITUTED UNDER 3ECTION ! OF THE 7ILD ,IFE
0ROTECTION !CT 2ESPONDENT .O 3HIGA %NERGY 0RIVATE ,IMITED IS THE (YDRO
0OWER #OMPANY SET UP AS A 3PECIAL 0URPOSE 6EHICLES 306 TO IMPLEMENT THE 0ROJECT IN
QUESTION 2ESPONDENT .O 4 .AGENDRA 2AO IS THE -ANAGING $IRECTOR OF #OMPANY CALLED
2ANGIT 6ALLEY (YDRO 0RIVATE ,IMITED AND IS THE PROMOTER OF 2ESPONDENT .O #OMPANY
2ESPONDENTS .O AND ARE PUBLIC NANCIAL INSTITUTIONS WHICH PROVIDE FUNDING TO POWER
0ROJECTS AND HAVE BEEN APPROACHED BY THE 2ESPONDENTS .O AND
4 / \
)T IS RELEVANT TO NOTE THAT OUT OF THE TWO 0ETITIONERS WHO HAD ORIGINALLY LED 7RIT 0ETITION
.O OF THE 0ETITIONER .O 4ENZING "HUTIA DIED DURING THE PENDENCY OF THE CASE
AND ACCORDINGLY HIS NAME WAS STRUCK OFF ON BEING MENTIONED LEAVING THE 0ETITIONER .O
#HEWANG 0INTSO "HUTIA AS THE SOLE 0ETITIONER 4HE 2ESPONDENTS .O AND BEING
2URAL %LECTRICATION #ORPORATION )NDIA ,IMITED 0OWER 4RADING #ORPORATION OF )NDIA AND
0UNJAB .ATIONAL "ANK RESPECTIVELY WERE DELETED FROM THE ARRAY OF 2ESPONDENTS BY ORDER
OF THIS #OURT DATED PASSED IN #- !PPL .OS OF OF AND OF
RESPECTIVELY
I 4HE RST GROUND TAKEN IN THE 7RIT 0ETITIONS IS THAT THE RELIGIOUS RIGHTS OF THE 0ETITIONERS
COMMUNITY UNDER !RTICLES AND OF THE #ONSTITUTION OF )NDIA AND THEIR RIGHTS TO CONSERVE
THEIR CULTURE UNDER !RTICLE THERETO HAVE BEEN INFRINGED BY THE 3TATE IN COMMENCING
WITH THE -7 4ASHIDING (%0 IN 7EST 3IKKIM )T IS STATED THAT "UDDHISM IS INTEGRAL TO THE
"HUTIA
,EPCHA #OMMUNITY AND VARIOUS SITES AND PLACES CONSIDERED SACRED UNDER "UDDHIST
BELIEFS HAVE BEEN ACCORDED STATUTORY PROTECTION UNDER THE 0LACES OF 7ORSHIP 3PECIAL
0ROVISIONS !CT BY VIRTUE OF .OTICATION ISSUED BY THE 2ESPONDENT .O
3TATE IN THE
YEAR AND 4HE EFFECT OF THESE .OTICATIONS AS PER THE 0ETITIONERS IS THAT THE
DEVELOPMENTAL ACTIVITY IS STRICTLY PROHIBITED AT THE SACRED SITES OR IN CLOSE VICINITY TO PLACES
OF WORSHIP AND RELIGIOUS INSTITUTIONS
II !PART FROM THESE IT IS AVERRED THAT THE 2ATHONG #HU RIVER IS CONSIDERED SACRED BY THE
"UDDHISTS AND IT NDS SPECIC MENTION IN THE SACRED "UDDHIST TEXT NAMELY $ENJONG
.EYIG !CCORDING TO THIS TEXT 3IKKIM IS THE HOLIEST OF ALL THE HIDDEN COUNTRIES OF -AHAGURU
0ADMASAMBHAVA WHICH NDS NUMEROUS REECTIONS IN MOST OF THE SACRED "UDDHIST
SCRIPTURES 4HE $ENJONG .EYIG GUIDE TO THE SACRED LOCATIONS OF 3IKKIM EXPLICITLY
MENTIONS THAT AREA LYING AT THE STRETCH OF +HANGCHENDZONGA 9UKSAM 4ASHIDING ALONGSIDE
THE (OLY 2ATHONG #HU RIVER MUST BE PRESERVED )T IS ALSO WRITTEN THAT THE -AHAGURU
0ADMASAMBHAVA HAS HIDDEN NUMEROUS MAJOR AND MINOR $HARMA TREASURES BOTH VISIBLE
AND INVISIBLE IN STREAMS CLIFFS ROCKS TREES CAVES MOUNTAINS RIDGES ETC OF THESE LOCATIONS
III )T IS STATED THAT THE "HUMCHU CEREMONY "HUM VASE AND #HU WATER WHICH TILL
DATE IS HELD ON THE TH DAY OF THE RST LUNAR MONTH AS PER "UDDHIST #ALENDAR IS INTRINSICALLY
CONNECTED TO THE 2ATHONG #HU RIVER AND IS ONE OF 3IKKIMS MOST REVERED EVENTS ANNUALLY
ATTRACTING THOUSANDS OF PILGRIMS FROM 3IKKIM .EPAL "HUTAN AND OTHER 3TATES OF )NDIA )T
IS SAID THAT IN THE EIGHT CENTURY 'URU 2INPOCHE CONSECRATED THE "HUMCHU OR THE SACRED
VASE WHICH IS THE VERY SAME ONE THAT IS PRESERVED TODAY IN 4ASHIDING -ONASTERY IN 7EST
3IKKIM 4HE SACRED VASE IS BELIEVED TO HAVE BEEN GRANTED ITS MIRACULOUS POWER BY 'URU
2INPOCHE AFTER BESTOWING THE UNPARALLEL 4ANTRIC SYSTEM OF TUTELARY DEITY ;-AHA +ARUNIKA
!VALOKETESHWARA= MEDITATION IN THE TH CENTURY 4HIS CAUSED THE 9IDAM AND THE ENTIRE
RETINUE OF DEITIES TO APPEAR IN THE SKY AND IMMERSED IN THE WATER CONTAINED IN THE VASE
&INALLY 'URU 2INPOCHE CONCEALED THE "HUMCHU AS A SUBLIME HIDDEN TREASURE AND
ENTRUSTED IT TO THE PROTECTIVE DEITIES 4HE "HUMCHU IS OPENED DURING THE NIGHTS OF THE
TH DAY OF THE RST MONTH OF THE LUNAR CALENDAR AND THREE CUPS OF WATER ARE TAKEN FROM IT
WHICH ARE REPLACED WITH WATER BROUGHT FROM THE BLESSED 2ATHONG #HU RIVER
IV #ONSIDERING THE ABOVE POSITION THE %CCLESIASTICAL $EPARTMENT OF THE 2ESPONDENT .O
3TATE HAD ON CLEARLY EXPRESSED ITS RESERVATIONS TO A -7 2ATHONG #HU (YDEL
0OWER 0ROJECT WHICH WAS EARLIER STARTED ON THE 2ATHONG #HU 2IVER IN ON THE GROUND
OF IMPORTANCE AND SIGNICANCE OF THE AREA AND SACREDNESS OF THE 2IVER 4HIS COMBINED
WITH STRONG PROTESTS FROM THE PEOPLE FORCED THE 2ESPONDENT .O 3TATE TO CANCEL THE SAID
0ROJECT IN IN DEFERENCE TO THE RELIGION HISTORY AND CULTURE OF THE 3IKKIMESE PEOPLE
V )T IS SUBMITTED THAT EVER SINCE THE CLOSING DOWN OF THE -7 2ATHONG #HU (YDEL
0OWER 0ROJECT NO OTHER (YDRO 0ROJECT SHOULD HAVE BEEN ALLOWED TO COME UP ON THE SAID
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
SACRED RIVER
VI (OWEVER AFTER A DECADE IN A CURIOUS TURN AROUND BY THE 2ESPONDENT .O
3TATE
AGREEMENTS WERE SIGNED WITH THE 2ESPONDENT .O A #OMPANY PROMOTED BY 2ESPONDENT
.O FOR IMPLEMENTATION AND CONSTRUCTION OF THE THREE (%0S NAMELY -7 4ING 4ING
-7 ,ETHANG (%0 AND -7 4ASHIDING ON THE 2ATHONG #HU RIVER
VII )T IS SUBMITTED THAT NUMEROUS SCHOLARS AND EXPERTS HAVE EXPRESSED THE IMPERATIVE
NEED TO PRESERVE THE SANCTITY OF THE 2ATHONG #HU RIVER 0ROMINENT AMONGST THEM HAS BEEN
0ROF 03 2AMAKRISHNAN OF *AWAHARLAL .EHRU 5NIVERSITY WHO STRESSED ON THIS AT VARIOUS
)NTERNATIONAL #ONFERENCES AND 7ORKSHOPS 4HIS POSITION STANDS FURTHER REINFORCED BY
+ALOP RELIGIOUS ENDORSEMENTS OF SOME OF THE GREATEST "UDDHIST -ASTERS INCLUDING ,ATE
(IS (OLINESS $ILGO +HYENTSE 2INPOCHE (IS (OLINESS #HATRAL 3ANGYE 2INPOCHE (IS (OLINESS
$ODRUP #HEN 2INPOCHE (IS (OLINESS ,ACHEN 'OMCHEN 2INPOCHE AND (IS (OLINESS +HENPO
$ORJE $ECHEN OF 3IKKIM AMONGST OTHERS
VIII )NTERESTINGLY TWO OF THE THREE (%0S PROPOSED ON THE 2ATHONG #HU RIVER NAMELY
-7 ,ETHANG (%0 AND -7 4ING 4ING (%0 WERE SUBSEQUENTLY SCRAPPED BY THE
2ESPONDENT .O
3TATE ON GROUNDS OF RELIGIOUS SENTIMENTS AND WANT OF ENVIRONMENT
CLEARANCES
IX !PART FROM THE SERIOUS AFFRONT TO "UDDHIST SENTIMENTS THE 0ROJECT IS ALSO ALLEGED TO BE
IN GROSS VIOLATION OF THE APPLICABLE ENVIRONMENTAL LAWS AND PROCEDURES
I /N THE SECOND GROUND OF ATTACK IT IS SUBMITTED THAT THE (ONBLE 3UPREME #OURT BY ITS
ORDER DATED IN 'OA &OUNDATION VS 5NION OF )NDIA BEING 7RIT 0ETITION #IVIL .O
OF HAD LAID DOWN THAT THE 0ROJECT WITHIN KMS RADIUS FROM THE BOUNDARY OF THE
.ATIONAL 0ARKS AND 3ANCTUARIES HAD TO OBTAIN CLEARANCE FROM THE ."7, THE 2ESPONDENT
.O )T IS ALLEGED THAT IN SPITE OF THE FACT THAT THE 0ROJECT IS SITUATED WITHIN THE KMSRADIUS
FROM THE BOUNDARY OF THE +HANGCHENDZONGA .ATIONAL 0ARK THE MANDATORY CLEARANCE FROM
THE ."7, HAS NOT BEEN OBTAINED THEREBY RENDERING THE 0ROJECT ILLEGAL
II )T IS STATED THAT SEVERAL EXPERTS HAVE RECOMMENDED NON IMPLEMENTATION OF (%0S IN THE
3TATE ESPECIALLY THOSE INVOLVING CREATION OF A DAM AS MOST OF THE 3TATE FALLS UNDER 3EISMIC
:ONES )6 6 MAKING IT A HIGH RISK EARTHQUAKE PRONE AREA
III )T IS ALLEGED THAT THE REGULATORY AUTHORITIES APPEAR TO HAVE IGNORED THE AFORESAID
FACTS AND ARE DELIBERATELY ALLOWING THE 0ROJECT TO CONTINUE IN VIOLATION OF THE MANDATORY
PROVISIONS OF THE LAW RELATING TO THE RELIGIOUS SITES AS WELL AS DAMAGE TO THE ENVIRONMENT
AND ECOLOGY
IV )T IS FURTHER ALLEGED THAT THE VARIOUS REPRESENTATIONS BY CONCERNED PERSONS INCLUDING
LETTERS BY 3PALZES !NGMO -EMBER OF THE .ATIONAL #OMMISSION FOR -INORITIES AND THE
CONCERN EXPRESSED THEREIN HAVE REMAINED UNANSWERED AND UNADDRESSED
V 4HAT THE 0ETITIONERS HAVE ALSO COME TO KNOW THAT UNOBSTRUCTED BY THE REGULATORY
AUTHORITIES THE 2ESPONDENTS .O AND ARE RAISING CAPITAL THROUGH LOANS AND INVESTMENTS
FROM PUBLIC SECTOR BANKS AND NANCIAL INSTITUTIONS
VI 4HAT THE PROSPECT OF POTENTIALLY LARGE AMOUNTS OF PUBLIC MONEY BEING TIED UP IN THE
0ROJECT ALSO NEEDS TO BE ADDRESSED IMMEDIATELY IN ORDER TO PREVENT PUBLIC MONEY BEING
SQUANDERED AWAY IN A PATENTLY ILLEGAL AND DUBIOUS ACTIVITIES AND THAT 2ESPONDENTS .O
AND ARE DELIBERATELY CONCEALING MATERIAL FACTS IN AN ATTEMPT TO DECEIVE CERTAIN PUBLIC
SECTOR NANCIAL INSTITUTIONS INTO INVESTING LARGE AMOUNTS OF PUBLIC MONEY
4 / \
)N THE ABOVE PREMISES THE 0ETITIONERS HAVE PRAYED FOR
I ! WRIT IN THE NATURE OF MANDAMUS DIRECTING THE 2ESPONDENT 3TATE TO CANCEL THE
-7 4ASHIDING (YDRO %LECTRIC 0ROJECT
II ! 7RIT IN THE NATURE OF MANDAMUS DIRECTING THE 2ESPONDENT .O -O%& ALONG
WITH THE NATIONAL "OARD FOR 7ILD ,IFE TO WITHHOLD OR WITHDRAW CLEARANCE GRANTED TO THE
4ASHIDING (YDRO %LECTRIC 0ROJECT
III ! 7RIT IN THE NATURE OF PROHIBITION RESTRAINING THE 2ESPONDENT NANCIAL INSTITUTIONS
AND ALL OTHER PUBLIC NANCIAL INSTITUTIONS FROM LENDING PUBLIC MONEYFURTHER PUBLIC
MONEY OR INVESTING OR FURTHER INVESTING PUBLIC MONEY IN THE 4ASHIDING (YDRO %LECTRIC
0ROJECT
IV )SSUE OR PASS ANY WRIT DIRECTION OR ORDER WHICH THIS (ONBLE #OURT MAY DEEM T
AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE
4HE 2ESPONDENTS HAVE LED THEIR RESPECTIVE COUNTER
AFDAVITS DENYING ALL MATERIAL
ALLEGATIONS MADE IN THE 7RIT 0ETITIONS )N THEIR COUNTER
AFDAVIT THE 2ESPONDENT .O
3TATE OF 3IKKIM HAS RAISED CERTAIN PRELIMINARY OBJECTIONS WHICH ARE SET OUT AS UNDER
I 4HE 7RIT 0ETITIONS HAVE BEEN LED WITH AN INORDINATE DELAY WHICH HAS NOT BEEN
EXPLAINED AND THEREFORE LIABLE TO BE DISMISSED 4HAT WIDE PUBLICITY WAS GIVEN IN
RESPECT OF THE SAID PROJECT IN AS MUCH AS ADVERTISEMENTS WERE ISSUED ON
IN
VARIOUS NEWSPAPERS INCLUDING LOCAL NEWSPAPERS BOTH IN %NGLISH AND LOCAL VERNACULAR
LANGUAGE REGARDING THE 0UBLIC (EARING BEING HELD FOR THE 0ROJECT BY THE 3TATE 0OLLUTION
#ONTROL "OARD 'OVERNMENT OF 3IKKIM 4HE FACT THAT THE PUBLIC PARTICIPATED DURING THE
0UBLIC (EARING HELD ON
AND RAISED VARIOUS ISSUES ESTABLISHES THAT THE PUBLIC
AT LARGE WERE AWARE OF THE IMPLEMENTATION OF THE 0ROJECT 4HAT NOTICE UNDER 3ECTION
OF THE ,AND !CQUISITION !CT WAS ALSO PUBLISHED ON
4HE 0ETITIONERS THUS
BEING AWARE OF THE IMPLEMENTATION OF THE 0ROJECT REMAINED SILENT AND DID NOT TAKE ANY
STEPS FOR THREE YEARS THEREBY ALLOWING THE 0ROJECT TO PROGRESS RESULTING IN CREATION OF A
THIRD PARTY RIGHT 4HE 7RIT 0ETITIONS SEEKING CANCELLATION OF THE 0ROJECT WAS LED ONLY
ON
WHICH IS ALMOST AFTER MORE THAN THREE YEARS AFTER THE COMMENCEMENT OF
THE PROCESS OF PROJECT IMPLEMENTATION
II 4HE 0ETITIONERS HAVE NO LOCUS STANDI TO MAINTAIN THE PRESENT 7RIT 0ETITIONS AS THEY
ARE NOT RESIDENTS OF 4ASHIDING AND DO NOT HAVE ANY ACTIVITIES THERE AND ARE NOT AFFECTED
BY THE 0ROJECT .EITHER THE MONKS OF THE 4ASHIDING -ONASTERY NOR THE PUBLIC OF THE AREA
HAVE RAISED ANY OBJECTION EXCEPT FOR THE 0ETITIONERS WHO ARE IN FACT RESIDENTS OF 3AJONG
2UMTEK %AST 3IKKIM AND 3INGTAM ALSO IN %AST 3IKKIM RESPECTIVELY
III 4HE 0ETITIONERS ARE NEITHER SPIRITUAL PERSONS NOR DO THEY HAVE ANY RECORD OF PUBLIC
SERVICES NOR HAVE THEY BEEN ASSOCIATED WITH ANY 0ROJECT OR ANY ACTIVITIES CONCERNED
WITH GENERAL PUBLIC !S SUCH THE 7RIT 0ETITIONS CANNOT BE TREATED AS A 0UBLIC )NTEREST
,ITIGATION IN SHORT THE 0), )T IS ALSO AVERRED THAT THE RELIGIOUS SENTIMENTS OF AN
INDIVIDUAL OR A MEMBER OF A PARTICULAR RELIGION CANNOT BE TREATED AS PUBLIC INTEREST
4HAT THE IMPLEMENTATION OF THE -7 4ASHIDING (%0 IN NO WAY AFFECTS THE RIGHTS OF
THE 0ETITIONERS UNDER !RTICLES AND OF THE #ONSTITUTION OF )NDIA AS THE FREEDOM OF
CONSCIENCE AND FREE PROFESSION PRACTICE AND PROPAGATION OF RELIGION DO NOT GET AFFECTED
BY THE IMPLEMENTATION OF THE 0ROJECT
IV 4HAT IT IS A SETTLED PRINCIPLE OF LAW THAT THE #OURTS DO NOT INTERFERE WITH ECONOMIC
POLICY OF EXPERTS AND WILL NOT SIT IN JUDGMENT ON MATTERS OF POLICY )T IS STATED THAT
THE 0ROJECT IN QUESTION WAS SCRUTINISEDVETTED BY A (YDRO #OMMITTEE CONSISTING OF
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
TECHNICAL EXPERTS WITH THE TASK TO LOOK INTO VARIOUS ASPECTS OF HYDRO POWER DEVELOPMENT
AND MAKE RECOMMENDATIONS AND FOUND THE 0ROJECT IN CONSONANCE WITH THE HYDRO
POLICY OF THE 3TATE %VEN -S 3HIGA %NERGY 0RIVATE ,IMITED 2ESPONDENT .O TO WHOM
THE QUESTIONED 0ROJECT WAS ALLOTTED HAD ENGAGED 7!0#/3 A 'OVERNMENT OF )NDIA
5NDERTAKING TO STUDY AND PREPARE A DETAILED 0ROJECT 2EPORT
4HAT THE IMPLEMENTATION OF THE 0ROJECT IS A 3TATE ACTION AND THE #OURTS WHILE EXERCISING
ITS POWER OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IS NOT AN !PPELLATE !UTHORITY
V 4HE 7RIT 0ETITIONS INVOLVE DISPUTED QUESTIONS OF FACT AND THEREFORE LIABLE TO BE
DISMISSED ON THE GROUND ALONE
VI 4HAT NO LEGAL OR FUNDAMENTAL RIGHTS OF THE 0ETITIONERS HAVE BEEN INFRINGED OR
WILL BE INFRINGED BY THE IMPLEMENTATION OF THE -7 4ASHIDING (%0 AND IN FACT THE
IMPLEMENTATION OF THE 0ROJECT WILL RESULT IN THE INCREASE OF 3TATE REVENUE AND INCREASE
OF EMPLOYMENT OPPORTUNITIES TO THE PEOPLE OF 3IKKIM AND ALSO DEVELOPMENT OF THE
REGION
VII 4HAT THE RELIGIOUS ISSUES RAISED IN THE 7RIT 0ETITIONS HAVE ALREADY BEEN SETTLED BY
THIS #OURT BY ORDER DATED
IN 7RIT 0ETITION .O OF IN THE MATTER OF
$ENZONG ,HO -AN #HODA /THERS VS 5NION OF )NDIA /THERS AND 7RIT 0ETITION .O
OF IN THE MATTER OF #HUKIE 4OBDON /THERS VS 5NION OF )NDIA /THERS WHEREIN IT
HAS BEEN HELD THAT DEVELOPMENT OF (%0 ON THE 2ATHONG #HU RIVER NEITHER AFFECTS THE
RELIGIOUS SENTIMENTS NOR INTERFERES WITH THE PERFORMANCE OF THE "HUMCHU CEREMONY
4HE 0ETITIONERS ARE THUS BARRED FROM RAISING THE SAME ISSUES ON SIMILAR GROUNDS AGAIN
VIII 4HAT AS THE 0ETITIONERS HAVING FAILED TO DISCLOSE THE $ENZONG ,HO -AN #HODA SUPRA
ORDER DATED
THE 7RIT 0ETITIONS ARE LIABLE TO BE DISMISSED FOR CONCEALMENT OF
MATERIAL FACT
IX 4HAT THE PRESENT 0ROJECT HAS BEEN INITIATED AFTER DULY COMPLYING WITH THE RELEVANT
REQUIREMENTS UNDER THE APPLICABLE LAWS OBTAINING ALL THE NECESSARY APPROVALS )T
IS STATED THAT PURSUANT TO THE SIGNING OF -O5 BETWEEN THE 2ESPONDENT .O -S
3HIGA %NERGY 0VT ,TD WITH THE 'OVERNMENT OF 3IKKIM ON
THE $ETAILED
0ROJECT 2EPORT OF THE 0ROJECT WAS APPROVED BY THE 'OVERNMENT OF 3IKKIM /PEN 0UBLIC
(EARING FOR THE 0ROJECT WAS CONDUCTED BY THE 3TATE 0OLLUTION #ONTROL "OARD 3IKKIM ON
4HEREAFTER -O%& ACCORDED ITS NAL ENVIRONMENT CLEARANCE ON
AFTER DUE RECOMMENDATION FROM THE 3TATE 7ILDLIFE AND &OREST $EPARTMENT 4HE 3TATE
0OLLUTION #ONTROL "OARD 3IKKIM ISSUED THE #ONSENT TO %STABLISH THE 0ROJECT UNDER
THE !IR 0REVENTION AND #ONTROL OF 0OLLUTION !CT AND THE 7ATER 0REVENTION AND
#ONTROL OF 0OLLUTION !CT ON
&URTHER THE REVISED NAL APPROVAL FROM THE
-O%& VIDE LETTER 2EF .O &#!&%7-$
DATED
FOR DIVERSION OF
(A OF FOREST LAND REQUIRED FOR CONSTRUCTION OF THE 0ROJECT WERE RECEIVED THROUGH
THE 'OVERNMENT OF 3IKKIM ON
AND THE AREA HAS ALSO BEEN HANDED OVER
X 4HAT AT THE END OF YEARS THE 0ROJECT WOULD BE TRANSFERRED TO THE 'OVERNMENT OF
3IKKIM WHICH SHALL PROVIDE 3IKKIM WITH REVENUE AMOUNTING TO CRORES OF RUPEES FOR ITS
REMAINING LIFETIME
XI 4HAT THE DEVELOPMENT OF 0ROJECT IS ALSO IN LINE WITH THE (YDRO 0OLICIES ISSUED BY
THE -INISTRY OF 0OWER WHICH INTER ALIA ENVISAGES ENCOURAGEMENT OF INVESTMENT FROM
PRIVATE SECTORS FOR (%0S BY PROVIDING CONDUCIVE ENVIRONMENT FOR SUCH INVESTMENTS
XII 4HAT THE QUESTION RAISED AS REGARDS THE MANDATORY CLEARANCE OF THE ."7, AS
4 / \
REQUIRED UNDER THE /RDER DATED PASSED BY THE (ONBLE 3UPREME #OURT IN
'OA &OUNDATION CASE SUPRA AND THE JUDGMENT )N 2E #ONSTRUCTION OF 0ARK AT .OIDA
.EAR /KHLA "IRD 3ANCTUARY !NAND !RYA AND !NOTHER VS 5NION OF )NDIA AND /THERS AND
4. 'ODAVARMAN 4HIRUMULPAD VS 5NION OF )NDIA AND /THERS 3## IS PURELY
A QUESTION OF INTERPRETATION OF THE ORDER AND THE JUDGMENT PASSED BY THE (ONBLE
3UPREME #OURT
XIII )T IS STATED THAT DURING THE ST -EETING OF THE )NDIAN "OARD FOR 7ILDLIFE HELD ON
A 7ILDLIFE #ONSERVATION 3TRATEGY
WAS ADOPTED VIDE LETTER & .O
7,
) PT DATED
!NNEXURE 2
WHEREIN IT WAS PROPOSED THAT LANDS
FALLING WITHIN KMSOF THE BOUNDARIES OF .ATIONAL 0ARKS AND 3ANCTUARIES SHOULD BE
NOTIED AS ECO
FRAGILE ZONES UNDER THE %NVIRONMENT 0ROTECTION !CT AND 2ULES FRAMED
THEREUNDER
XIV 0URSUANT TO THE SAID MEETING LETTER & .O
7,
) DATED
!NNEXURE 2
WAS RECEIVED BY THE #HIEF 7ILD ,IFE 7ARDEN OF ALL THE 3TATES5NION
4ERRITORIES WHEREBY IT WAS CONVEYED THAT THE REQUISITE INFORMATION PERTAINING TO
NOTIFYING AREAS WITHIN KMS OF THE BOUNDARIES OF .ATIONAL 0ARKS 3ANCTUARIES AND
7ILD ,IFE CORRIDORS AS ECO
SENSITIVE AREAS HAD NOT YET BEEN RECEIVED BY THE -INISTRY
FROM THE 3TATE OF 3IKKIM 4HIS WAS THEN FOLLOWED BY THE ORDER DATED
IN
70# .O OF IE THE 'OA &OUNDATION CASE SUPRA OBSERVING THAT
4HE -INISTRY IS DIRECTED TO GIVE A NAL OPPORTUNITY TO ALL 3TATES5NION
4ERRITORIES TO RESPOND TO ITS LETTER DATED TH -AY 4HE 3TATE OF 'OA ALSO IS
PERMITTED TO GIVE APPROPRIATE PROPOSAL IN ADDITION TO WHAT IS SAID TO HAVE ALREADY
BEEN SENT TO THE #ENTRAL 'OVERNMENT 4HE COMMUNICATION SENT TO THE 3TATES5NION
4ERRITORIES SHALL MAKE IT CLEAR THAT IF THE PROPOSALS ARE NOT SENT EVEN NOW WITHIN A
PERIOD OF FOUR WEEKS OF RECEIPT OF THE COMMUNICATION FROM THE -INISTRY THIS #OURT
MAY HAVE TO CONSIDER PASSING ORDERS FOR IMPLEMENTATION OF THE DECISION THAT WAS
TAKEN ON ST *ANUARY NAMELY NOTICATION OF THE AREAS WITHIN KM OF THE
BOUNDARIES OF THE SANCTUARIES AND NATIONAL PARKS AS ECO
SENSITIVE AREAS WITH A
VIEW TO CONSERVE THE FOREST WILDLIFE AND ENVIRONMENT AND HAVING REGARD TO THE
PRECAUTIONARY PRINCIPLES )F THE 3TATES5NION 4ERRITORIES NOW FAIL TO RESPOND THEY
WOULD DO SO AT THEIR OWN RISK AND PERIL
XV 4HE -INISTRY OF %NVIRONMENT AND &ORESTS VIDE LETTER & .O 7, )PT DATED
!NNEXURE 2 HAD ONCE AGAIN REMINDED THE #HIEF 3ECRETARY OF ALL THE 3TATES
5NION 4ERRITORIES REGARDING THE DECLARATION OF %CO &RAGILE%CO 3ENSITIVE :ONES AROUND
.ATIONAL 0ARKS AND 7ILDLIFE 3ANCTUARIES WITHIN THEIR 3TATES 4HE #HIEF 7ILDLIFE 7ARDEN
'OVERNMENT OF 3IKKIM ACCORDINGLY RESPONDED VIDE HIS LETTER .O #7,7 DATED
CONVEYING TO THE $EPUTY )NSPECTOR 'ENERAL OF &OREST -INISTRY OF %NVIRONMENT
AND &ORESTS .EW $ELHI THE VIEWS OF THE 3TATE 'OVERNMENT ENCLOSING A COPY OF THE
AFDAVIT !NNEXURE 2 LED BEFORE THE (ONBLE 3UPREME #OURT IN 70# .O OF
IN 'OA &OUNDATION CASE SUPRA WHEREIN IT HAD BEEN INTER ALIA AVERRED THAT THE
CONDITION OF DECLARING %CO FRAGILE%CO SENSITIVE ZONES WITHIN TEN KILOMETER LIMIT
CROW YING FROM THE PERIPHERY OF THE 0!S WAS NOT TENABLE AS PER 3IKKIM CONDITIONS
AND THAT IF THE PROPOSED IDENTICATION IS CARRIED OUT A SUBSTANTIAL PORTION OF THE 3TATE
WILL BE COVERED UNDER SUCH ZONES AND MAY INTRUDE WITH THE ONGOING DEVELOPMENTAL
PROCESS IN THE 3TATE (OWEVER THE 3TATE 'OVERNMENT HAD ALREADY INITIATED SURVEY IN
THIS DIRECTION IN RESPONSE TO THE (ONBLE 3UPREME #OURT DIRECTIVES
XVI ! DRAFT PROPOSAL WAS FORWARDED BY THE &OREST %NVIRONMENT AND 7ILDLIFE
-ANAGEMENT $EPARTMENT 'OVERNMENT OF 3IKKIM VIDE LETTER .O '/3#7,7
&ORESTS DATED
!NNEXURE 2
IDENTIFYING SIX %CO
3ENSITIVE :ONES AROUND
.ATIONAL 0ARK AND 7ILDLIFE 3ANCTUARIES ON THE BASIS OF THE GUIDELINES ISSUED BY THE
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
-O%&
XVII (OWEVER THE -O%& 7ILDLIFE $IVISION BY ITS LETTER .O 7, )PT DATED
CONVEYED THAT THE PROPOSALS WERE NOT IN ACCORD WITH THE GUIDELINES OF
DECLARATION OF %CO SENSITIVE :ONE AND DIRECTED THAT A #OMMITTEE BE CONSTITUTED TO
IDENTIFY THE PRESCRIBED ACTIVITIES WITHIN THE %CO 3ENSITIVE :ONES AND THAT THE REVISED
PROPOSAL SHOULD CONTAIN DETAILS AS INDICATED IN THE SAID LETTER
XVIII 4HAT THE 0##& CUM 0R 3ECRETARY VIDE -EMO .O &%7-$ DATED
!NNEXURE 2 HAS SINCE FORWARDED A REVISED PROPOSAL FOR DECLARATION OF METERS
AS %CO SENSITIVE :ONES AROUND PROTECTED AREAS OF 3IKKIM !NNEXURE 2 BASED ON THE
RECOMMENDATION OF THE #OMMITTEE SET UP BY THE 3TATE 'OVERNMENT AS DIRECTED BY THE
-O%& 4HE PROPOSAL IS STILL UNDER CONSIDERATION OF THE -O%&
XIX 4HAT THE 'OVERNMENT OF 3IKKIM HAD ALREADY NOTIED ITS BUFFER ZONES FOR
+HANGCHENDZONGA .ATIONAL 0ARK AND THE 0ROJECT DID NOT FALL WITHIN SUCH BUFFER ZONE
(OWEVER PURSUANT TO THE RESOLUTION PASSED IN THE MEETING OF THE ."7, ON
IT WAS DECIDED THAT THE DELINEATION OF ECO SENSITIVE ZONES WOULD HAVE
TO BE SITE SPECIC AND RELATE TO REGULATION RATHER THAN PROHIBITION OF SPECIC ACTIVITIES
3TATE 'OVERNMENT WILL HAVE TO BE CONSULTED IN THIS REGARD AND CONCURRENCE OBTAINED
AND THEREFORE ECO
SENSITIVE ZONES WERE TO BE DELINEATEDNOTIED BY THE 3TATE
'OVERNMENTS5NION 4ERRITORIES
XX 4HAT AFTER THE 3UPREME #OURT JUDGMENT IN !NAND !RYA CASE SUPRA THE -O%& HAS
ISSUED 'UIDELINES FOR $ECLARATION OF %CO 3ENSITIVE :ONES AROUND .ATIONAL 0ARKS AND
7ILDLIFE 3ANCTUARIES VIDE & .O 7, )PT DATED 'UIDELINES 4HE
'UIDELINES AT 0ARAGRAPH DEALING WITH %XTENT OF %CO 3ENSITIVE :ONSE AT SUB PARAGRAPH
SET OUT THE FOLLOWING
-ANY OF THE EXISTING 0ROTECTED !REAS HAVE ALREADY UNDERGONE TREMENDOUS
DEVELOPMENT IN CLOSE VICINITY TO THEIR BOUNDARIES 3OME OF THE 0ROTECTED !REAS
ACTUALLY LYING IN THE URBAN SET UP %G 'UINDY .ATIONAL 0ARK 4AMI .ADU 3ANJAY
'ANDHI .ATIONAL 0ARK -AHARASHTRA ETC 4HEREFORE DENING THE EXTENT OF ECO
SENSITIVE ZONES AROUND 0ROTECTIVE !REAS WILL HAVE TO BE KEPT EXIBLE AND 0ROTECTED
!REAS SPECIC 4HE WIDTH OF THE %CO SENSITIVE :ONE AND TYPE OF REGULATIONS WILL DIFFER
FROM 0ROTECTED !REA TO 0ROTECTED !REA (OWEVER AS A GENERAL PRINCIPLE THE WIDTH OF
THE %CO 3ENSITIVE :ONE COULD GO UPTO KMSAROUND A 0ROTECTED !REA AS PROVIDED IN
THE 7ILDLIFE #ONSERVATION 3TRATEGY
XXI !S FAR AS THE 3TATE OF 3IKKIM IS CONCERNED OUT OF (%0S ALLOTTED FALL WITHIN
THE KMSRADIUS OF .ATIONAL 0ARKS AND 7ILDLIFE 3ANCTUARIES LOCATED IN 3IKKIM 4HESE
WOULD INCLUDE (%0S CURRENTLY UNDER CONSTRUCTION NAMELY 4EESTA ))) (%0 -7
4EESTA 6) (%0 -7 2ONGNI #HU (%0 #HUZACHEN (%0 "HASMEY (%0 2ANGIT ))
(%0 $IKCHU (%0 ETC )N THE EVENT KMSAREA AROUND 7ILDLIFE 3ANCTUARY AND .ATIONAL
0ARKS ARE CONSIDERED AS AN ECO SENSITIVE ZONE MORE THAN OF THE LAND AREA OF 3IKKIM
WOULD FALL WITHIN SUCH ECO SENSITIVE ZONE RESULTING IN SERIOUS RAMICATIONS TO THE
3TATES ECONOMIC GROWTH
XXII 4HAT THE 0ROJECT IN QUESTION BEING MORE THAN KMSAWAY FROM THE NEAREST BOUNDARY
OF THE +HANGCHENDZONGA .ATIONAL 0ARK IT NEITHER FALLS WITHIN THE ECO
SENSITIVE ZONES
ENVISAGED IN THE $RAFT 0ROPOSAL NOR WITHIN THE EARLIER DEMARCATED BUFFER ZONE %VEN
BEFORE THE 0ROJECT GOT ITS FORMAL CLEARANCES UNDER THE EARLIER NOTIED BUFFER ZONE THE
!0##&
CUM
#HIEF 7ILDLIFE 7ARDEN $EPARTMENT OF &OREST %NVIRONMENT AND 7ILDLIFE
-ANAGEMENT 'OVERNMENT OF 3IKKIM VIDE LETTER & .O .0:7,&OREST DATED
HAS ISSUED ./# AS NONE OF THE COMPONENTS OF THE 0ROJECT IN QUESTION FALL
4 / \
WITHIN THE BOUNDARY OF THE +HANGCHENDZONGA .ATIONAL 0ARK AND ITS "UFFER :ONE AT
4ASHIDING +ABIRTHANG 6ILLAGE 7EST 3IKKIM
XXIII $EALING WITH THE VARIOUS AVERMENTS CONTAINED IN THE 7RIT 0ETITIONS THE
2ESPONDENT .O HAS DENIED THAT THE 2ATHONG #HU RIVER IS THE MOST SACRED RIVER WITH
4ASHIDING NAVEL TO ALL AND THAT THE RIVER HAS NOT BEEN CLASSIED AS A PROTECTED PLACE OF
WORSHIP BY THE 'OVERNMENT OF 3IKKIM AND THAT NO IMPORTANT PLACES OF WORSHIP ARE
AFFECTED BY THE 0ROJECT UNDER CONSTRUCTION AT 4ASHIDING AREA
XXIV 4HAT A #OMMITTEE WAS CONSTITUTED BY THE 3TATE 'OVERNMENT VIDE .OTICATION
.O (/-% DATED
!NNEXURE 2
TO REVIEW AND EXAMINE ISSUES
RELATING TO THE IMPLEMENTATION OF I -7 4ING 4ING (%0 II -7 ,ETHANG (%0
AND III -7 4ASHIDING (%0 AT 9UKSAM
4ASHIDING #ONSTITUENCY HEADED BY THE #HIEF
3ECRETARY 'OVERNMENT OF 3IKKIM AS THE #HAIRMAN
XXV "ASED ON THE RECOMMENDATION OF THE #OMMITTEE THE 3TATE 'OVERNMENT ORDERED
THE CLOSURE OF I -7 4ING 4ING (%0 AND II -7 ,ETHANG (%0 VIDE .OTICATION
.O (OME DATED
!NNEXURE 2
XXVI 4HAT IN THE 'OA &OUNDATION CASE SUPRA NO DIRECTION WAS ISSUED BY THE (ONBLE
3UPREME #OURT DIRECTING REFERENCE OF ALL THE FUTURE 0ROJECTS TO THE 3TANDING #OMMITTEE
OF ."7, FOR CLEARANCE AND THAT THE ORDER DID NOT HOLD THAT AN AREA OF KMSAROUND
A .ATIONAL 0ARK7ILD ,IFE 3ANCTUARY WILL AUTOMATICALLY BE CONSTRUED AS ECO SENSITIVE
ZONE OR THAT THE PROPOSAL FOR DEVELOPMENT OF ANY 0ROJECTS IN FUTURE WITHIN
KMSRADIUS OF ANY .ATIONAL 0ARK7ILD ,IFE 3ANCTUARY WILL REQUIRE APPROVAL FROM ."7,
!S REGARDS THE CANCELLATION OF ,ETHANG (%0 IS CONCERNED IT IS STATED THAT THIS 0ROJECT
WAS LOCATED AT A DISTANCE OF KM FROM THE +HANGCHENDZONGA .ATIONAL 0ARK BUT THIS
WAS NOT RELEVANT IN THE CONTEXT OF THE 0ROJECT IN QUESTION 2EJECTION OF THE PROPOSAL
FOR DEVELOPMENT OF ,ETHANG (%0 BY THE 3TANDING #OMMITTEE OF THE ."7, IN ITS TH
-EETING ON IN CONSIDERATION OF RELIGIOUS SENTIMENTS WAS FAR IN EXCESS OF
ITS POWER AND MANDATE UNDER THE 7ILD ,IFE 0ROTECTION !CT WHICH ONLY PROVIDES
FOR PROTECTION OF WILD ANIMALS BIRDS AND PLANTS AND MATTERS RELATED THERETO (OWEVER
AS THE PRESENT 0ROJECT DID NOT REQUIRE ."7, CLEARANCE ITS PARALLEL COULD NOT BE DRAWN
WITH THE ,ETHANG (%0
XXVII !S REGARDS THE LETTER DATED WRITTEN BY 3PALZES !NGMO IT IS STATED THAT
THE CONTENTION THAT DEVELOPMENT OF (%0S SHOULD NOT BE ALLOWED IN SEISMIC REGIONS IN
VIEW OF EARTHQUAKES WAS MISC CONCEIVED AND DEVOID OF ANY SUBSTANCE AS THERE WAS NO
EVIDENCE THAT THE EARTHQUAKE WAS CAUSED DUE TO IMPLEMENTATION OF (%0S IN 3IKKIM
2ESPONDENT .O THE -INISTRY OF %NVIRONMENT AND &ORESTS 'OVERNMENT OF )NDIA IN ITS
BRIEF COUNTER AFDAVIT HAS STATED AS UNDER
I 4HAT THE -O%& ACCORDED %NVIRONMENT #LEARANCE FOR -7 4ASHIDING (%0 IN 3IKKIM
TO -S 3HIGA %NERGY 0VT ,TD AS PER THE PROVISIONS OF %NVIRONMENTAL )MPACT !SSESSMENT
.OTICATION SUBJECT TO STRICT COMPLIANCE OF THE TERMS AND CONDITIONS 3PECIC AND
'ENERAL #ONDITIONS STIPULATED VIDE -O%&S LETTER DATED
II )N ORDER TO ADDRESS THE ENVIRONMENTAL SAFEGUARDS OF THE 2ESERVE THE %NVIRONMENTAL
#LEARANCE /RDER FOR 4ASHIDING (%0 INTER ALIA PROVIDES FOR THE FOLLOWING CONDITION UNDER
0ART ! 3PECIC #ONDITIONS
VIII 4HE PROPOSED SITE IS ABOUT KM AWAY FROM THE BUFFER ZONE OF +HANGCHENDZONGA
"IOSPHERE 2ESERVE AS PER 3UPREME #OURT ORDER CLEARANCE FROM ."7, MAY BE OBTAINED IF
REQUIRED
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
III 4HE %NVIRONMENTAL )MPACT !SSESSMENT %)! AND %NVIRONMENTAL -ANAGEMENT 0LAN
%-0 FOR -7 4ASHIDING (%0 WAS PREPARED BY -S 23 %NVIROLINKS 4ECHNOLOGIES
0VT ,TD 'URGAON 4HE 0UBLIC (EARING WAS CONDUCTED ON
4HE METHODOLOGY
FOLLOWED FOR PREPARATION OF %)! AND %-0 HAD BEEN THOROUGHLY EXAMINED BY THE %XPERT
!PPRAISAL #OMMITTEE %!# IN ITS MEETINGS HELD ON
AND
AND
ACCORDINGLY RECOMMENDED FOR ACCORDING ENVIRONMENTAL CLEARANCE %# TO THE 0ROJECT
4HUS THE -O%& HAS FOLLOWED THE DUE PROCEDURE AND NORMS TAKING INTO ACCOUNT ALL RELEVANT
FACTORS REQUIRED FOR ACCORDING %# FOR THE 0ROJECT
IV !LL 3TATE 'OVERNMENTS5NION 4ERRITORIES WERE REQUESTED TO SEND THEIR PROPOSALS
INCLUDING 3IKKIM IN ACCORDANCE WITH THE GUIDELINES FOR DECLARATION OF ECO
SENSITIVE ZONES
AROUND .ATIONAL 0ARKS AND 7ILD ,IFE 3ANCTUARIES ISSUED BY THE 7ILDLIFE $IVISION OF THE
-O%&
V %CO
3ENSITIVE :ONE HAS NOT YET BEEN NOTIED AROUND THE +HANGCHENDZONGA .ATIONAL
0ARK BUT A PROPOSAL HAS BEEN RECEIVED FROM THE 'OVERNMENT OF 3IKKIM IN !UGUST
WHICH IS UNDER EXAMINATION &URTHER THE 7ILDLIFE $IVISION OF -O%& HAS NOT RECEIVED ANY
SPECIC PROPOSAL WITH RESPECT TO -7 4ASHIDING (%0
VI )N VIEW OF THE ABOVE IT IS CLEAR THAT THE %NVIRONMENTAL #LEARANCE ISSUED TO THE 0ROJECT
PROPONENT IS SUBJECT INTER ALIA TO THE 3PECIC #ONDITION OF IT OBTAINING CLEARANCE FROM
."7, IF REQUIRED IN ORDER TO MAKE THE %NVIRONMENTAL #LEARANCE EFFECTIVE
4HE 2ESPONDENT .O ."7, IN ITS COUNTER AFDAVIT HAS AVERRED AS FOLLOWS
I !S PER THE PRACTICE IN VOGUE RECOMMENDATIONS OF THE 3TANDING #OMMITTEE OF THE ."7,
ARE NECESSARY ALONG WITH THE ENVIRONMENTAL CLEARANCE FOR TAKING UP ACTIVITIES WITHIN THE
NOTIED %CO SENSITIVE ZONES AROUND 7ILDLIFE 3ANCTUARIES AND .ATIONAL 0ARKS FALLING WITHIN
KMSIN THE ABSENCE OF DELINEATION OF SUCH A ZONE -INISTRY OF %NVIRONMENT AND &ORESTS
HAS ISSUED GUIDELINES IN THIS RESPECT WHICH HAVE BEEN CIRCULATED TO ALL THE 3TATES INCLUDING
3IKKIM !NNEXURE !
II %CO SENSITIVE :ONE HAS NOT YET BEEN NOTIED AROUND THE +HANGCHENDZONGA .ATIONAL
0ARK ! PROPOSAL IN THIS REGARD HAS BEEN RECEIVED IN THE -O%& FROM 'OVERNMENT OF 3IKKIM
IN !UGUST WHICH IS UNDER SCRUTINY
III "ASED ON THE REPRESENTATION RECEIVED FROM THE 3IKKIM "HUTIA ,EPCHA !PEX #OMMITTEE
INDICATING THAT THE -7 4ASHIDING (%0 IN 7EST 3IKKIM IS LOCATED WITHIN KMSFROM
THE +HANGCHENDZONGA .ATIONAL 0ARK THE 'OVERNMENT OF 3IKKIM HAS BEEN REQUESTED
TO LOOK IN TO THE MATTER TO ASCERTAIN AS TO WHETHER THE CONSTRUCTION OF THE 0ROJECT WAS
ALREADY UNDERWAY AND IF YES IT WAS ASKED TO BE STOPPED IMMEDIATELY UNTIL FURTHER ORDERS
AS IT DID NOT HAVE NECESSARY RECOMMENDATIONS OF THE 3TANDING #OMMITTEE OF THE ."7,
!NNEXURE !
IV )T IS ALSO STATED THAT THE -INISTRY OF %NVIRONMENT AND &ORESTS HAS SO FAR NOT RECEIVED
ANY PROPOSAL FROM THE 'OVERNMENT OF 3IKKIM WITH RESPECT TO THE -7 4ASHIDING (%0
OVER THE RIVER 2ATHANG #HU IN 7EST 3IKKIM FOR CONSIDERATION BY THE 3TANDING #OMMITTEE
OF ."7,
I )N ITS COUNTER AFDAVIT THE 2ESPONDENT .O HAS TAKEN THE VERY SAME OBJECTIONS AS THE
3TATE 2ESPONDENT .O )T IS ALLEGED THAT THERE HAS BEEN INORDINATE DELAY OF APPROXIMATELY
YEARS IN LING THE 7RIT 0ETITIONS FROM THE DATE OF THE /PEN 0UBLIC (EARING HELD BY THE
3TATE 0OLLUTION #ONTROL "OARD ON 4HE 7RIT 0ETITIONS ARE LIABLE TO BE DISMISSED
FOR LACHES PARTICULARLY WHEN HUNDREDS OF CRORES OF RUPEES HAVE ALREADY BEEN INVESTED IN
THE 0ROJECT AFTER OBTAINING ALL REQUISITE CLEARANCES 4HAT THE RELIGIOUS ISSUES RAISED IN THE
4 / \
7RIT 0ETITIONS HAVE ALREADY BEEN SETTLED BY THIS #OURT IN $ENZONG ,HO -AN #HODA SUPRA
AND #HUKIE 4OBDON SUPRA A FACT WHICH HAS BEEN CONCEALED BY THE 0ETITIONERS 4HAT THE
0ROJECT HAS FULLLED ALL THE REQUIREMENTS UNDER THE APPLICABLE LAWS AND IS A LOW IMPACT
ENVIRONMENT FRIENDLY PROJECT
II 4HAT THE PRESENT 0ROJECT IS ENTIRELY IN COMPLIANCE WITH THE REQUIREMENTS UNDER THE
APPLICABLE LAWS HAVING OBTAINED ALL THE NECESSARY APPROVALS REQUIRED FOR DEVELOPMENT OF
THE 0ROJECT AND WAS NOT IN BREACH OF ANY LEGAL COMPLIANCE
III 4HE LAND ACQUISITION PROCESS HAS BEEN CARRIED OUT IN A LAWFUL AND TRANSPARENT MANNER
IV 4HE 0ROJECT IS A RUN
OF
RIVER RENEWABLE ENERGY AND GREENHOUSE GAS FREE 0ROJECT
AND IS AMONGST THE MOST SUSTAINABLE (%0S IN THE COUNTRY 4HE 0ROJECT DOES NOT INVOLVE
CONSTRUCTION OF ANY LARGE DAM BUT A SMALL BARRAGE TO DIVERT PART OW OF WATER FROM
THE RIVER THROUGH A TUNNEL TO THE POWER HOUSE AND IS CHANNELLED BACK TO THE RIVER 4HE
SUBMERGENCE AREA OF THE RESERVOIR IS ONLY HA WHILE SIMILAR CAPACITY HYDRO PROJECTS IN
THE COUNTRY GENERALLY SUBMERGE MORE THAN TEN HECTARES OF LAND
V !S REGARDS THE IMPACT OF THE 0ROJECT ON ORA AND FAUNA IN THE VICINITY OF THE SITE IS
CONCERNED IT IS STATED THAT THE %NVIRONMENT )MPACT !SSESSMENT STUDY CONDUCTED BY A
REPUTED !GENCY AND APPROVED BY THE -O%& STATES THAT
)MPACTS ON 4ERRESTRIAL &AUNA
$ISTURBANCE TO 7ILDLIFE
"ASED ON THE ELD SURVEY AND INTERACTION WITH LOCALS IT WAS CONRMED THAT NO
MAJOR WILDLIFE IS REPORTED IN THE PROPOSED SUBMERGENCE AREA 4HE PROJECT AREA AND
ITS SURROUNDINGS ARE NOT REPORTED TO SERVE AS HABITAT FOR WILDLIFE NOR DO THEY ARE LOCATED
ON ANY KNOWN MIGRATORY ROUTE 4HUS NO IMPACTS ARE ANTICIPATED ON THIS ACCOUNT
(OWEVER NO LARGE
SCALE FAUNA IS OBSERVED IN THE AREA 4HUS IMPACTS ON THIS ACCOUNT
ARE NOT EXPECTED TO BE SIGNICANT
VI 4HE 0ROJECT WAS FOUND TO BE AND CONTINUES TO BE OVERWHELMINGLY IN LARGER INTEREST
OF PUBLIC )T IS SUBMITTED THAT A VAST MAJORITY OF THE LOCAL POPULATION OF THE REGION FROM
ALL COMMUNITIES INCLUDING THOSE TO WHICH THE 0ETITIONERS CLAIMS TO REPRESENT HAVE
WHOLEHEARTEDLY SUPPORTED THE 0ROJECT SINCE THEY RECOGNISE THAT THE 0ROJECT WILL NOT ONLY
BE IN THE INTEREST OF THE 3TATE BUT WILL ALSO GENERATE REVENUE AND EMPLOYMENT
VII 4HAT NO ISSUE WITH REGARD TO THE RELIGIOUS SENTIMENTS WAS RAISED DURING THE PROCESS OF
ACQUISITION OF THE LAND FOR THE 0ROJECT OF WHICH WAS FROM THE MEMBERS OF THE "HUTIA
,EPCHA #OMMUNITY !NNEXURE 2
VIII 4HAT A BUDGET OF 2S CRORES HAS BEEN ALLOCATED TO BE SPENT ON %NVIRONMENTAL
-ANAGEMENT 0LAN %-0 FOR THE 0ROJECT WHICH INCLUDES #ATCHMENT !REA 4REATMENT 0LAN
"IODIVERSITY -ANAGEMENT 0LAN ETC 4HE MONEYS ARE BEING SPENT AS PER THE %-0 REPORT
APPROVED BY THE -O%&
4HE ABOVE SUBSTANTIALLY ARE THE AVERMENTS WHICH ARE MORE OR LESS IDENTICAL TO THAT OF
THE 3TATE
2ESPONDENT .O 7E MAY NOT DEAL WITH THE REST AS BEING IMMATERIAL FOR THE
DISPOSAL OF THE 7RIT 0ETITIONS
4HE CASE OF THE 2ESPONDENT .O IN ITS SHORT COUNTER
AFDAVIT IS THAT IT HAS SANCTIONED
NANCIAL ASSISTANCE OF 2S CRORES FOR IMPLEMENTATION OF -7 4ASHIDING (%0 EXECUTED
BY THE 2ESPONDENT .O IN CONSORTIUM ARRANGEMENT WITH 2ESPONDENT .O AS BEING THE
UNDERWRITER AND THAT THE LOAN DOCUMENT IS UNDER EXECUTION 4HAT CLEARANCE OF -INISTRY
OF %NVIRONMENT AND &ORESTS WAS SUBMITTED BY THE 2ESPONDENT .O BASED UPON WHICH IT
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
HAD APPRAISED AND SANCTIONED THE NANCIAL ASSISTANCE AND THAT AS PER THE ENVIRONMENTAL
CLEARANCE DATED
THE PROPOSED SITE IS ABOUT KMSAWAY FROM THE BUFFER ZONE OF
+HANGCHENDZONGA "IOSPHERE 2ESERVE REQUIRING ."7, CLEARANCE IF REQUIRED AS PER THE
ORDER OF THE 3UPREME #OURT 4HIS WAS SUITABLY ADDRESSED IN THE SANCTION LETTER ISSUED TO
THE 2ESPONDENT .O FOR THE NANCIAL ASSISTANCE TO BE PROVIDED FOR THE 0ROJECT
I 2ESPONDENT .O IN A SEPARATE COUNTER
AFDAVIT APART FROM TAKING THE OBJECTION
OF DELAY AND LACHES AS THE 2ESPONDENTS .O AND HAS STATED THAT THE 2ESPONDENT .O
)&#), IS A NANCIAL INSTITUTION WHICH WAS ESTABLISHED WITH A VIEW TO OVERCOME THE
SCARCITY OF LONG TERM NANCE PLANS IN THE INDUSTRIAL SECTOR
II 4HAT PRIOR TO INVESTING IN THE 4ASHIDING (%0 THE 2ESPONDENT .O CONDUCTED PROPER
AND THOROUGH APPRAISAL OF THE SAID 0ROJECT 5PON RECEIVING THE PROPOSAL FROM 2ESPONDENT
.O THE 2ESPONDENT .O HAD DULY VERIED AS TO WHETHER THE 0ROJECT WAS IN COMPLIANCE
WITH THE NECESSARY LEGAL REQUIREMENTS WITH REQUIRED CONSENTS AND APPROVALS OBTAINED
FROM THE RELEVANT 'OVERNMENT !UTHORITIES 4HAT WHILE INVESTING IN THE 4ASHIDING (%0 THE
FOLLOWING FACTORS WERE INTO CONSIDERATION
A 4HE $ETAILED 0ROJECT 2EPORT FOR THE 4ASHIDING (%0 WAS APPROVED BY THE 3IKKIM
0OWER $EVELOPMENT #ORPORATION ,IMITED ON
B 4HE 3IKKIM 0OLLUTION #ONTROL "OARD IN TERMS OF THE !IR 0REVENTION AND #ONTROL OF
0OLLUTION !CT AND THE 7ATER 0REVENTION AND #ONTROL OF 0OLLUTION !CT HAD
ISSUED THE #ONSENT TO %STABLISH TO THE 4ASHIDING (%0 ON
C 4HE NAL APPROVAL FROM THE -O%& THROUGH THE 'OVERNMENT OF 3IKKIM FOR DIVERSION
OF (A OF FOREST LAND REQUIRED FOR CONSTRUCTION OF THE 4ASHIDING (%0 WAS OBTAINED
ON
AND
D 4HE PROCEDURE AND FORMALITIES IN RESPECT OF ACQUISITION OF LAND WAS SUBSTANTIALLY
COMPLIED WITH
III 4HAT ONLY AFTER HAVING SATISED ITSELF WITH THE VARIOUS ASPECTS DID THE 2ESPONDENT .O
EXECUTE THE SYNDICATED SECURED TERM FACILITY AGREEMENT WITH 2ESPONDENT .O WHEREBY
IT HAS UNDERWRITTEN A LOAN OF 2S CRORES FOR THE CONSTRUCTION AND DEVELOPMENT OF THE
4ASHIDING (%0 4HAT THE 2ESPONDENT .O HAS ALREADY DISBURSED 2S CRORES AND IN
ADDITION IT HAS ALSO ENTERED INTO AN AGREEMENT WHEREBY IT HAS COMMITTED TO INVEST 2S
CRORES AS EQUITYPREFERENTIAL CAPITAL CONTRIBUTION IN 2ESPONDENT .O /UT OF THIS IT HAS
ALREADY INVESTED A SUM OF 2S CRORES FOR SHAREHOLDING OF IN 2ESPONDENT .O
I "EFORE DEALING WITH THE RIVAL CONTENTIONS OF THE PARTIES IT WOULD BE RELEVANT TO NOTE
THAT THE 0ETITIONERS ON HAD MOVED FOR STAY OF THE 4ASHIDING (%0 ON THE GROUND
THAT THE MANDATORY REQUIREMENT OF CLEARANCE BY THE 3TANDING #OMMITTEE OF ."7, HAD
NOT BEEN OBTAINED BY THE 2ESPONDENT .O BEFORE COMMENCING WITH THE 0ROJECT WORK
"Y ORDER DATED THIS #OURT HAD DIRECTED THAT THE EXECUTION OF THE PROJECT SHALL
REMAIN SUBJECT TO THE OUTCOME OF THE WRIT PETITION /N THE PRAYER FOR STAY HAVING AGAIN
PRESSED ON IT WAS OBSERVED BY US AS FOLLOWS
7E HAVE HEARD -R !SHOK "HAN LEARNED 3ENIOR #OUNSEL FOR RESPONDENTS
.O AND -R "HAN SUBMITS THAT THE WORK IS AT AN ADVANCED STAGE AND A SUM OF 2S
CRORES HAS ALREADY BEEN EXPENDED 4HIS AMOUNT WAS RAISED BY RESPONDENTS .O
AND BY BORROWING FROM PUBLIC INSTITUTIONS !CCORDING TO THE LEARNED 3ENIOR #OUNSEL
IT IS TOO LATE FOR THE PETITIONER TO REQUEST FOR A STAY OF THE WORK 4HE ORDER ALREADY PASSED
TO THE EFFECT THAT THE WORK WILL BE SUBJECT TO THE NAL OUTCOME OF THE WRIT PETITION
WILL PROTECT THE INTEREST OF THE PETITIONER 4HE RESPONDENTS .O AND ARE READY TO
4 / \
TAKE THE RISK IN GOING AHEAD WITH THE CONSTRUCTION 7E RECORD THE SUBMISSION OF THE
LEARNED 3ENIOR #OUNSEL 7E INFORM THE RESPONDENTS .O AND THAT THE ONGOING
WORK WILL BE AT THE RISK OF THOSE RESPONDENTS ,EARNED 3ENIOR #OUNSEL SUBMITTED THAT
EVEN AT THE TIME WHEN (ONBLE !PEX #OURT WAS MOVED THE WORK HAD PROGRESSED TO A
CONSIDERABLE EXTENT AND INTERIM ORDER OF STAY WOULD HAVE BEEN DECLINED AT THAT STAGE
ALSO ;EMPHASIS SUPPLIED=
II 4HE 7RIT 0ETITIONS HAD THUS PROCEEDED IN THE ABOVE PREMISES
I /PENING HIS ARGUMENTS -R :ANGPO 3HERPA ,EARNED !DVOCATE APPEARING FOR THE
0ETITIONERS LAID THE PREMISES OF HIS ARGUMENTS ON THE FOLLOWING
A RELIGIOUS CULTURAL AND HISTORICAL ASPECT
B ASPECT OF ENVIRONMENTAL LAWS AS REGARDS THE 0ROJECT IN QUESTION BEING REGULATORY
AND NOT PROHIBITORY AND
C INTER GENERATIONAL EQUITY AND PUBLIC TRUST DOCTRINE
II 4HE ,EARNED #OUNSEL ADDRESSED US RSTLY ON THE QUESTION AS REGARDS THE VIOLATION OF THE
ENVIRONMENTAL LAWS SEEKING LIBERTY TO ADDRESS ON THE OTHERS LATER (AVING BEEN PERMITTED
TO DO SO HE PROCEEDED TO ADDRESS US BY REFERRING TO A 0RESS 2EPORT APPEARING IN AN %NGLISH
DAILY THE 4ELEGRAPH DATED
STATING THAT THE -7 2ATHONG #HU 0ROJECT WAS
BEING CANCELLED WHICH AS PER THE STATEMENT OF THE #HIEF -INISTER OF 3IKKIM WAS TO HONOUR
AND UPHOLD THE SENTIMENTS RELIGION AND CULTURE OF THE 3IKKIMESE PEOPLE AND TO SAVE THE
ENVIRONMENT 4HEREAFTER THE 'AZETTE .OTICATION DATED
WAS PUBLISHED BY THE
3TATE 'OVERNMENT ORDERING CLOSURE OF THE 2ATHONG #HU (YDRO %LECTRIC 0ROJECT WEF
!S PER ,EARNED #OUNSEL THIS PERTAINS TO AN EARLIER (YDRO %LECTRIC 0ROJECT WHICH HAD
BEEN PROPOSED TO BE SET UP ON THE VERY RIVER 2ATHONG #HU ON WHICH THE PRESENT 0ROJECT HAS
NOW BEEN TAKEN UP
III 2EBUTTING THE CONTENTION AS REGARDS THE 'OA &OUNDATION CASE SUPRA IT WAS ARGUED
THAT THE ORDER OF THE (ONBLE 3UPREME #OURT WAS CLEAR TO INDICATE THAT IF THE 3TATE5NION
4ERRITORIES FAILED TO GIVE PROPOSALS IDENTIFYING AREAS ON THE BOUNDARIES OF .ATIONAL 0ARKS AND
7ILDLIFE 3ANCTUARIES AS ECO SENSITIVE AREAS WITHIN WEEKS OF RECEIPT OF THE COMMUNICATION
FROM THE -INISTRY THE #OURT MAY CONSIDER PASSING ORDERS FOR IMPLEMENTATION OF THE
PROPOSAL MADE IN THE 7ILDLIFE #ONSERVATION 3TRATEGY ON TO NOTIFY THE
AREAS WITHIN KMS OF THE BOUNDARIES OF .ATIONAL 0ARKS AND 3ANCTUARIES AS ECO SENSITIVE
ZONES WITH A VIEW TO CONSERVE THE FOREST WILDLIFE AND ENVIRONMENT AND HAVING REGARD
TO THE PRECAUTIONARY PRINCIPLE 4HAT SINCE THE 3TATES PARTICULARLY THE 3TATE 2ESPONDENT
.O ADMITTEDLY HAVE NOT COMPLIED WITH THE DIRECTION WITHIN THE TIME STIPULATED BY
THE (ONBLE 3UPREME BY IMPLICATION THE ECO SENSITIVE AREA WILL HAVE TO BE CONSIDERED
AS KMS OF THE BOUNDARIES OF THE +HANGCHENDZONGA .ATIONAL 0ARK )T WAS ALSO DIRECTED
UPON THE -O%& 2ESPONDENT .O THAT ALL CASES WHERE ENVIRONMENTAL CLEARANCES
HAD BEEN GIVEN ACTIVITIES OF WHICH WERE WITHIN KMSZONE SHOULD BE REFERRED TO THE
3TANDING #OMMITTEE OF THE ."7, )T WAS SUBMITTED THAT 3PECIC #ONDITIONS VIII OF THE
ENVIRONMENTAL CLEARANCE DATED !NNEXURE 0 GRANTED BY THE 2ESPONDENT
.O MANDATES THAT CLEARANCE FROM ."7, WAS NECESSARY IF REQUIRED !S PER THE ,EARNED
#OUNSEL THIS REQUIREMENT WAS ALSO REECTED IN PARAGRAPH OF THE 'ENERAL 2EMARKS OF THE
%NVIRONMENT #LEARANCE 3TATUS 1UERY &ORM !NNEXURE 0 IN #- !PPL .O OF THAT
THE ."7, CLEARANCE WAS REQUIRED TO BE OBTAINED IMMEDIATELY
IV 4HAT THIS POSITION ALSO STANDS CONRMED BY LETTER DATED
!NNEXURE
! WRITTEN BY THE $EPUTY )NSPECTOR 'ENERAL OF &ORESTS 7, ADDRESSED TO THE 0R #HIEF
#ONSERVATOR OF &ORESTS AND (/&& 'OVERNMENT OF 3IKKIM BY WHICH IT HAD BEEN CLEARLY
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
SPELT OUT THAT AS THE 0ROJECT DID NOT HAVE THE NECESSARY RECOMMENDATIONS OF THE 3TANDING
#OMMITTEE OF THE ."7, AND IF IT WAS UNDERWAY THE SAME MAY BE STOPPED IMMEDIATELY
!S PER THE ,EARNED #OUNSEL THE AFDAVIT DATED
#- !PPL .O OF LED
ON BEHALF OF THE 2ESPONDENT .O DULY AFRMED BY THE VERY $EPUTY )NSPECTOR 'ENERAL
OF &ORESTS STATES IN MOST UNEQUIVOCAL TERMS THAT AS THERE WAS NO NOTIED ECO
SENSITIVE
ZONE THE RECOMMENDATION OF THE 3TANDING #OMMITTEE OF THE ."7, WAS MANDATORY AND
NEEDED TO BE APPLIED FOR AND THAT A PROPOSAL FOR AN %CO
3ENSITIVE :ONE AND NOTICATION
THEREOF AT THAT DATE WOULD NOT ABSOLVE THE 0ROJECT AUTHORITIES FROM SUCH REQUIREMENT
V )N THE ABOVE PREMISES THE ,EARNED #OUNSEL WOULD SUBMIT THAT THERE COULD BE NO OTHER
CONCLUSION BUT TO HOLD THAT CLEARANCE FROM THE ."7, WAS AND IS A MANDATORY REQUIREMENT
FAILING WHICH ALL ACTIONS TAKEN WOULD BE HELD ILLEGAL AND UNDER SUCH CIRCUMSTANCES THE
ORDER DATED
IN 'OA &OUNDATION CASE SUPRA STILL HOLDS GOOD
VI 4HAT ALTHOUGH IN !NAND !RYAS CASE SUPRA IT WAS THE STAND OF 2ESPONDENT .O THAT
IN THE ABSENCE OF A DECLARED ECO SENSITIVE ZONE THE CONSTRUCTION WORK DID NOT APPEAR TO
VIOLATE ANY LAW WHICH WAS ALSO THE SUBMISSION ON BEHALF OF THE 3TATE OF 5TTAR 0RADESH
IN SUBSTANCE THE DECISION DID NOT DEPART FROM THE ESSENCE OF THE 'OA &OUNDATION CASE
SUPRA WHEN IT WAS ALSO HELD THAT ABSENCE OF A STATUTE WOULD NOT PRECLUDE THE #OURT
FROM EXAMINING THE 0ROJECTS EFFECT ON THE ENVIRONMENT WITH PARTICULAR REFERENCE TO THE
SANCTUARY IN QUESTION AS IT INVOLVED THE RIGHT TO LIFE UNDER !RTICLE OF THE #ONSTITUTION
OF )NDIA !S PER THE ,EARNED #OUNSEL THE CONDITIONAL DIRECTION CONTAINED IN THE 'OA
&OUNDATION CASE SUPRA STILL SUBSISTED IN VIEW OF THE ADMITTED POSITION THAT THE ECO
SENSITIVE AREA HAS NOT YET BEEN DECLARED BY THE 2ESPONDENT .O
VII 4HE SENSITIVITY OF THE 2ATHONG #HU 6ALLEY IN THE CONTEXT OF THE ENVIRONMENT IS CLEARLY
SET OUT IN THE %NVIRONMENTAL )MPACT !SSESSMENT AND %NVIRONMENTAL -ANAGEMENT 0LAN
PREPARED FOR THE 2ESPONDENT .O BY -S 23 %NVIROLINK 4ECHNOLOGIES 0VT ,TD 'URGAON
4HE REPORT INDICATES THE FRAGILE NATURE OF THE ECOLOGICAL LAY OUT ITS PROXIMITY TO THE
BUFFER ZONE OF +HANGCHENDZONGA "IOSPHERE 2ESERVE INNUMERABLE TAXONOMIC DIVERSITY
HUGE SUBMERGENCE AREA THE RESULTANT DISSEMINATION OF RICH MEDICINAL PLANTS AND TREES
LOSS OF ORA EFFECT UPON AT LEAST SPECIES OF MAMMALS MOST OF WHICH FALL UNDER THE
ENDANGERED SPECIES UNDER 3CHEDULE ) OF THE 7ILD ,IFE 0ROTECTION !CT THE AVIFAUNA
REPTILES BUTTERIES SH ETC 4HE REPORT SPELLS OUT THE ADVERSE IMPACT ON ACCOUNT OF THE
IMMIGRATION OF CONSTRUCTION WORKERS TO THE AREA WHICH IS ESTIMATED TO BE ABOUT THE
IMPACT ON THE ENVIRONMENT DUE TO UTILISATION OF MATERIALS FROM THE RIVER BED DEGRADATION
OF THE QUALITY OF WATER OF 2ATHONG #HU RIVER BY SEWAGE OF THE CONSTRUCTION WORKERS CAMPS
EFUENT FROM CRUSHERS IMPACTS DUE TO DAMMING OF RIVER HUMAN ACTIVITIES DISCHARGE OF
SEWAGE ETC 4HE ,EARNED #OUNSEL SUBMITS THAT THE %NVIRONMENT -ANAGEMENT 0LAN PUT IN
PLACE WOULD NOT BE SUFCIENT TO MITIGATE THE SERIOUS IMPACT ON THE 2ATHONG 2IVER 6ALLEY
BY THE 0ROJECT
VIII -R 3HERPA SUBMITS THAT THE PROCEDURE FOR ENVIRONMENTAL CLEARANCE IS NOT LINKED
WITH CLEARANCES FROM FORESTRY AND WILD LIFE ANGLE BEING INDEPENDENT OF EACH OTHER AS
WOULD BE EVIDENT FROM THE MINUTES OF THE TH -EETING OF THE 3TATE %NVIRONMENT )MPACT
!SSESSMENT !UTHORITY HELD ON
!NNEXURE 0
$URING THE SAID MEETING
/FCE -EMORANDUM DATED
!NNEXURE ! LAYING DOWN THE PROCEDURE FOR
CONSIDERATION OF PROPOSALS FOR GRANT OF ENVIRONMENTAL CLEARANCE UNDER %)! .OTICATION
DATED
!NNEXURE ! TO THE COUNTER
AFDAVIT OF THE 2ESPONDENT .O WAS
DISCUSSED 4HE ,EARNED #OUNSEL REFERRED TO 0ARAGRAPH I II II B AND III OF THE SAID
/FCE -EMORANDUM WHICH STIPULATES THAT ENVIRONMENT CLEARANCE WILL NOT BE LINKED WITH
THE CLEARANCES OF FORESTRY AND WILD LIFE ANGLE BEING INDEPENDENT OF EACH OTHER AND THAT THE
APPLICATION FOR WILD LIFE CLEARANCE AND CLEARANCE FROM 3TANDING #OMMITTEE OF ."7, SHOULD
BE SUBMITTED BY THE 0ROJECT PROPONENT BEFORE APPLYING FOR THE ENVIRONMENT CLEARANCE
4 / \
AND A COPY OF SUCH APPLICATION SHOULD ALSO BE FURNISHED ALONG WITH THE ENVIRONMENT
CLEARANCE APPLICATION 4HAT THE /FCE -EMORANDUM ALSO MADE IT CLEAR THAT THE STIPULATION
OF KMSRADIUS LAID DOWN IN 'OA &OUNDATION CASE SUPRA WOULD APPLY 4HAT THE $EPUTY
)NSPECTOR 'ENERAL OF &ORESTS 7, HAD ONLY RE EMPHASISED THIS POSITION WHEN IN HIS LETTER
DATED HE HAD ASKED THE 0R #HIEF #ONSERVATOR OF &ORESTS AND (/&& UNDER THE
2ESPONDENT .O TO STOP THE 0ROJECT IN QUESTION UNTIL FURTHER ORDERS AS IT DID NOT HAVE
THE NECESSARY RECOMMENDATIONS OF THE 3TANDING #OMMITTEE OF ."7, 4HIS HAS BEEN
FURTHER REINFORCED BY THE 2ESPONDENTS .O AND IN THEIR COUNTER AFDAVITS IN STATING
THAT THE 0ROJECT PROPONENT NEEDS TO OBTAIN CLEARANCE FROM ."7, IF REQUIRED IN ORDER TO
MAKE THE ENVIRONMENTAL CLEARANCE EFFECTIVE !S PER -R 3HERPA IT IS IN THIS LIGHT THAT THE
STATEMENT OF THE ."7, IN ITS AFDAVIT AS 2ESPONDENT .O THAT THE RECOMMENDATIONS OF
THE 3TANDING #OMMITTEE OF THE ."7, WAS ALSO NECESSARY AS PER THE PRACTICE IN VOGUE
HAS TO BE UNDERSTOOD
IX )T IS SUBMITTED THAT THE 2ESPONDENTS .O AND WERE AWARE OF THIS LEGAL POSITION
AND THE REQUIREMENTS PRESCRIBED UNDER THE PROCEDURE AS THEY WERE AVAILABLE ON THE
WEBSITE OF THE 2ESPONDENT .O 4HE FACT THAT THE 2ESPONDENT .O ALSO WAS PERSONALLY
AWARE OF THE ABOVE POSITION CAN BE INFERRED FROM THE LETTER OF THE -O%& DATED
ADDRESSED TO THE 2ESPONDENT .O AS THE $IRECTOR OF -S 44 %NERGY 0VT ,IMITED THE
0ROJECT PROPONENT OF -7 4ING 4ING (%0 ON THE VERY RIVER 2ATHONG #HU AS IT REFERS
TO THE /FCE -EMORANDUM DATED
!NNEXURE ! TO THE COUNTER
AFDAVIT ON
BEHALF OF THE 2ESPONDENT .O CONVEYING THE NECESSITY OF WILD LIFE CLEARANCECLEARANCE
FROM THE ."7,
X -R 3HERPA ALSO POINTS OUT THAT THE /FCE -EMORANDUM DATED WHILE LAYING
DOWN THE PROCEDURE AND INDICATING THE MANDATORY NATURE OF THE REQUIREMENT FOR SEEKING
FORESTRY AND WILD LIFE CLEARANCES APART FROM THE ENVIRONMENTAL CLEARANCES ALSO MADE IT
CLEAR THAT 4HE INVESTMENT MADE IN THE PROJECT IF ANY BASED ON ENVIRONMENTAL CLEARANCE
SO GRANTED IN ANTICIPATION OF CLEARANCE FROM FORESTRY AND WILDLIFE ANGLE SHALL BE ENTIRELY AT
THE COST AND RISK OF THE PROJECT PROPONENT AND -INISTRY OF %NVIRONMENT AND &ORESTS SHALL
NOT BE RESPONSIBLE IN THIS REGARD IN ANY MANNER 4HIS AS PER THE ,EARNED #OUNSEL WAS ALSO
RE EMPHASISED IN THE LETTER DATED OF -O%& 2ESPONDENT .O COPIES OF WHICH
WERE ENDORSED TO ALL THE 0RINCIPAL #HIEF #ONSERVATOR OF &ORESTS #HIEF 7ILDLIFE 7ARDENS
THE .ODAL /FCER &#! OF ALL THE 3TATES INCLUDING ALL 2EGIONAL /FCES OF THE -INISTRY 4HUS
ESTABLISHING THAT THE 3TATE 2ESPONDENTS WERE FULLY AWARE OF THE REQUIREMENT OF SEEKING
."7, CLEARANCE IN RESPECT OF 0ROJECTS OF THE KIND IN QUESTION
XI )T IS SUBMITTED THAT THE DIRECTIONS CONTAINED IN THE LETTER DATED ISSUED BY
THE $EPUTY )NSPECTOR 'ENERAL OF &ORESTS 7, !NNEXURE ! TO THE AFDAVIT ON BEHALF OF
THE 2ESPONDENT .O THE ."7, HAS NOT YET BEEN COMPLIED WITH ALTHOUGH IT WAS ISSUED IN
PURSUANCE TO 3ECTION READ WITH 3ECTIONS I V AND VI OF THE %NVIRONMENT
0ROTECTION !CT AND ALSO 3ECTION # AND 3UB 3ECTIONS THEREUNDER OF THE 7ILD ,IFE
0ROTECTION !CT -OREOVER AS PER THE ,EARNED #OUNSEL THE %)! .OTICATION
WOULD BRING THE 0ROJECT UNDER THE PURVIEW OF #ENTRAL 'OVERNMENT AS IT FALLS UNDER
#ATEGORY ! CONTAINED IN THE 3CHEDULE APPENDED THERETO
XII -R 3HERPA FURTHER WOULD SUBMIT THAT /FCE -EMORANDUM DATED
AND
THE LETTER DATED
HAVE STATUTORY FORCE AS THE POWER TO ISSUE SUCH DIRECTIONS
EMANATE FROM 3ECTIONS ! " # AND OF THE 7ILD ,IFE 0ROTECTION !CT 4HE ORDERS
AND PROCEDURES LAID DOWN THEREUNDER ARE THEREFORE BINDING AND UNAVOIDABLE 4HE
STIPULATION OF KMSAS THE ECO
SENSITIVE ZONE AS PER -R 3HERPA HAS BEEN PRESCRIBED BY
THE (ONBLE 3UPREME #OURT BY INVOKING THE PRECAUTIONARY PRINCIPLE AS WOULD APPEAR FROM
THE OBSERVATION IN THE VERY ORDER THAT IF THE PROPOSALS ARE NOT SENT EVEN NOW WITHIN A
PERIOD OF FOUR WEEKS OF RECEIPT OF THE COMMUNICATION FROM THE -INISTRY THIS #OURT MAY
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
HAVE TO CONSIDER PASSING ORDERS FOR IMPLEMENTATION OF THE DECISION THAT WAS TAKEN ON ST
*ANUARY NAMELY NOTICATION OF THE AREAS WITHIN KM OF THE BOUNDARIES OF THE
SANCTUARIES AND NATIONAL PARKS AS ECO
SENSITIVE AREAS WITH A VIEW TO CONSERVE THE FOREST
WILDLIFE AND ENVIRONMENT AND HAVING REGARD TO THE PRECAUTIONARY PRINCIPLES
XIII 2ELYING UPON -# -EHTA VS 5NION OF )NDIA AND /THERS !)2 3# AND -#
-EHTA VS 5NION OF )NDIA AND /THERS 3## IT WAS SUBMITTED THAT THE %)!
.OTICATION IS MANDATORY HAVING STATUTORY FORCE
XIV 2ELYING UPON +RISHNADEVI -ALCHAND +AMATHIA AND /THERS VS "OMBAY %NVIRONMENTAL
!CTION 'ROUP AND /THERS 3## IT WAS SUBMITTED THAT IT WAS NOT PERMISSIBLE FOR
THE 2ESPONDENTS .O OR TO IGNORE AN ORDER AS BEING VOID AND WOULD RATHER REQUIRE
COMPLIANCE UNTIL IT IS DECLARED SO BY A COMPETENT FORUM 4HE ,EARNED #OUNSEL WOULD
SUBMIT THAT UNTIL IT WAS DECIDED BY AN APPROPRIATE FORUM THAT ."7, CLEARANCE WAS NOT
REQUIRED FOR WHATEVER REASON IT WAS NOT PERMISSIBLE FOR 2ESPONDENTS .O AND TO
IGNORE THE ORDERS PASSED BY THE 2ESPONDENTS .O AND HOLDING THOSE AS VOID OR NON EST
XV !LTHOUGH THE LEGAL ENTITY OF THE ."7, AS A STATUTORY BODY CREATED UNDER 3ECTION !
OF THE 7ILDLIFE 0ROTECTION !CT IS SELF
EVIDENT -R 3HERPA WOULD REFER TO #ENTRE FOR
%NVIRONMENTAL ,AW 7ORLD 7IDE &UND
)NDIA VS 5NION OF )NDIA AND /THERS 3## TO
RE
EMPHASISE THE POSITION THAT STATUTORILY IT IS THE DUTY OF ."7, TO PROMOTE CONSERVATION
AND DEVELOPMENT OF WILDLIFE WITH A VIEW TO ENSURING ECOLOGICAL ENVIRONMENTAL AND SECURITY
OF THE COUNTRY AND ALSO ITS PARAMOUNTCY OVER THE 3TATE "OARD OF 7ILD ,IFE 3"7, )T WAS
SUBMITTED THAT THE DOCTRINE OF PUBLIC TRUST MAKES IT INCUMBENT UPON THE 'OVERNMENT TO
PROTECT THE RESOURCES FOR THE ENJOYMENT OF THE GENERAL PUBLIC RATHER THAN TO PROMOTE THEIR
USE FOR PRIVATE OWNERSHIP OR FOR COMMERCIAL EXPLOITATION TO SATISFY THE GREED OF A FEW AS
HELD IN !SSOCIATION FOR %NVIRONMENT 0ROTECTION VS 3TATE OF +ERALA AND /THERS 3##
)T IS IN ORDER TO UPHOLD THE DOCTRINE OF PUBLIC TRUST THAT THE ENVIRONMENTAL AND OTHER
COGNATE LAWS HAVE BEEN FRAMED BY THE LEGISLATURE 4HE ACTION OF THE 2ESPONDENTS .O
AND WOULD CLEARLY INDICATE THAT THEY HAVE DELIBERATELY CHOSEN TO OUT THE MANDATE OF
THE LAW AND THE ORDERS ISSUED BY THE AUTHORITIES CREATED THEREUNDER
XVI )T IS NEXT CONTENDED THAT AS PER THE !NNUAL 2EPORT FOR THE YEAR SUBMITTED BY
THE %NERGY AND 0OWER $EPARTMENT 'OVERNMENT OF 3IKKIM !NNEXURE 2 TO THE COUNTER
AFDAVIT OF 2ESPONDENT .O THERE ARE ALMOST 0ROJECTS OF -EGA 3MALL -INI AND
-ICRO MAGNITUDE (YDEL 0ROJECTS IN DIFFERENT STAGES OF PROGRESS IN THE 3TATE OF WHICH THE
4ASHIDING (%0 IS ONE 4HEREFORE IT IS INCORRECT TO STATE THAT SCRAPPING OF THE 0ROJECT WOULD
ADVERSELY AFFECT THE ECONOMY OF THE 3TATE AND THAT BECAUSE THERE WERE ALREADY (YDEL
0ROJECTS ON THE 2IMBI RIVER THE WATER OF THE 2ATHONG #HU RIVER STANDS ALREADY POLLUTED
AND DELED -R 3HERPA REITERATES THAT IN A SIMILAR 0ROJECT ON THE 2ATHONG #HU RIVER
HAD BEEN WITHDRAWN
XVII 4HE ,EARNED #OUNSEL BY REFERRING TO THE NOTES OF THE #OMMITTEE DATED
!NNEXURE 0
AND THE RECOMMENDATION OF THE 0RINCIPLE #HIEF %NGINEER %NERGY AND
0OWER $EPARTMENT SUBMITTED THAT THE 0ROJECT IN QUESTION HAD BEEN WITHDRAWN FROM
THE 2ESPONDENT .O BY A #ABINET DECISION DATED
ON ACCOUNT OF ITS DUBIOUS
INTENTIONS AND INCAPABILITY BUT SURPRISINGLY THE DECISION WAS REVIEWED AND THE EARLIER
,/) WAS REVIVED PERMITTING THE 2ESPONDENT .O TO DEVELOP THE 0ROJECT !S PER THE
,EARNED #OUNSEL THIS DID NOT REECT BONA DES ON THE PART OF THE 3TATE
2ESPONDENTS
XVIII )T WAS THEN CONTENDED THAT AS A CONSEQUENCE OF THE OBJECTIONS FROM VARIOUS GROUPS
INCLUDING THOSE WHOSE CAUSE IS BEING ESPOUSED BY THE 0ETITIONER AS WELL AS THE CONCERNS
EXPRESSED BY THE -EMBER .ATIONAL #OMMISSION FOR -INORITIES A #OMMITTEE WAS SET UP
BY THE 3TATE 'OVERNMENT VIDE .OTICATION DATED
HEADED BY THE #HIEF 3ECRETARY
4 / \
TO EXAMINE THE ISSUES RELATING TO THE IMPLEMENTATION OF THE THREE 0ROJECTS INCLUDING
4ASHIDING (%0 ON THE RIVER 2ATHONG #HU 4HE #OMMITTEE UPON CONSIDERATION OF VARIOUS
FACTORS RECOMMENDED SCRAPPING OF -7 4ING 4ING (%0 AND -7 ,ETHANG (%0 BUT
THE DECISION AS TO WHETHER OR NOT THE -7 4ASHIDING (%0 SHOULD BE SCRAPPED WAS
LEFT ON THE 'OVERNMENT 7HILE DOING SO THE #OMMITTEE NOTED THAT THE #OMPANY HAD
INCURRED AN EXPENDITURE OF MORE THAN CRORES WITH THE WORK IN PROGRESS ON THE VERGE
OF CONSTRUCTING ADITS AND HEAD REST TUNNEL AND THAT IF THE 'OVERNMENT DECIDED TO SCRAP
THE 0ROJECT THE 0ROJECT PROPONENT WILL REQUIRE TO BE COMPENSATED IN EXCESS OF CRORES
)T WAS ALSO POINTED OUT THAT IF THE 0ROJECT WAS TO CONTINUE RAMICATION IN TERMS OF PUBLIC
OPINION AND RELIGIOUS INSTITUTIONS HAD TO BE EFFECTIVELY DEALT WITH BEING A SENSITIVE ISSUE
XIX 5PON THE ABOVE RECOMMENDATIONS OF THE #OMMITTEE THE MATTER WAS REFERRED FOR
EXPERT OPINION BUT WAS CURIOUSLY MARKED TO THE ,AW 3ECRETARY WHO HIMSELF WAS ONE OF THE
-EMBERS OF THE VERY #OMMITTEE WHICH HAD MADE THE RECOMMENDATIONS )T IS SUBMITTED
THAT THE ENTIRE EXERCISE WAS AN EYE
WASH AND A USELESS FORMALITY
XX -R 3HERPA SUBMITS THAT 3HRI 2+ 0URKAYASTHA THE ,AW 3ECRETARY COULD NOT BE
CONSIDERED AS AN EXPERT WHO WAS QUALIED TO GIVE AN OPINION ON THE QUESTION )N ANY
CASE EVEN THE OPINION GIVEN BY HIM COULD NOT BE STATED TO BE OF SUBSTANCE AS THE ONLY
CONSIDERATION FOR HIS RECOMMENDATION THAT THE 0ROJECT SHOULD NOT BE SCRAPPED WAS THAT
AMOUNT OF ABOUT 2S CRORES HAD BEEN SPENT ON THE 0ROJECT BY THE 0ROJECT PROPONENT )T IS
SUBMITTED THAT THE MONETARY VALUE SPENT WAS NOT SUCH THAT IT COULD NOT BE COMPENSATED
AND SUCH LIABILITY COULD NOT OVER
RIDE THE IMMENSE PUBLIC INTEREST THAT WOULD HAVE SERVED
IN SCRAPPING THE 0ROJECT
XXI /F THE THREE TWO (%0S NAMELY 4ING 4ING AND ,ETHANG (%0S WERE CANCELLED BY
THE 2ESPONDENT .O BY .OTICATION .O (OME DATED
BUT DECIDED TO
CARRY ON WITH THE 4ASHIDING (%0 ON THE BASIS OF THE OPINION OF THE ,AW 3ECRETARY DESPITE
OBJECTIONS FROM VARIOUS PUBLIC ORGANISATIONS INCLUDING THE 3IKKIM "HUTIA
,EPCHA !PEX
#OMMITTEE AND OTHER ORGANISATIONS LIKE 3AVE 3IKKIM 2EFERENCES WERE MADE TO A NUMBER
OF REPRESENTATIONS INCLUDING LETTER DATED
ADDRESSED TO THE $ISTRICT #OLLECTOR
7EST 3IKKIM AND REPRESENTATION DATED
ADDRESSED TO 3MT *AYANTHI .ATARAJAN
5NION -INISTER OF 3TATE -O%&
XXII 4HE OPINION AND THE DECISION TAKEN THEREON AS PER THE ,EARNED #OUNSEL WERE IN
CONICT WITH THE PUBLIC TRUST PRINCIPLE AS DISCUSSED IN THE !SSOCIATION FOR %NVIRONMENT
0ROTECTION CASE SUPRA 4HAT THE 2ESPONDENTS .O AND WERE IN THE BREACH OF THE
PUBLIC TRUST AND THE STATUTORY ORDERS AND NOTICATIONS IS CLEARLY ESTABLISHED BY THE FACT
THAT TO A QUESTION PUT IN THE PRESCRIBED FORMAT WHILE SEEKING INFORMATION UNDER THE 2IGHT
TO )NFORMATION !CT DEMANDING FOR COPIES OF THE REVISED REPORT OF %)! AND %-0 OF
-7 4ASHIDING (%0 BY THE 2ESPONDENT .O AND OBSERVATIONS OF THE %XPERT !PPRAISAL
#OMMITTEE IN ITS TH -EETING UNDER THE %)! .OTICATION HELD ON
IT WAS
STATED THAT THE INFORMATION WAS NOT AVAILABLE WITH THE $EPARTMENT
XXIII 4HERE IS ALSO A CONICT AS REGARDS THE AGENCY WHICH PREPARED THE $02 FOR THE 0ROJECT
-R 3HERPA POINTS OUT THAT WHILE THE 2ESPONDENT .O IN HIS AFDAVIT HAS STATED THAT IT
WAS BY -S 23 %NVIROLINK 4ECHNOLOGIES 0VT ,TD 2ESPONDENT .O ON THE OTHER HAND HAS
NAMED 7!0#/3 AS THE ONE WHICH PREPARED IT 4HERE ARE CONTRADICTIONS ON OTHER ASPECTS
ALSO WHICH RENDER THE BONA DES OF THE 2ESPONDENTS .O AND SUSPECT
XXIV )T IS SUBMITTED THAT ENVIRONMENT ECOLOGY AND THE BOUNTIES OF NATURE ARE FOR EVERY
CITIZEN AND THE 3TATE IS THE TRUSTEE OF THESE WHICH HAS THE RESPONSIBILITY TO APPROPRIATE
THEM IN A JUST AND EQUITABLE MANNER WITHOUT BEING INUENCED BY THE UNWANTED
COMMERCIAL EXPLOITATION 4HE PUBLIC TRUST DOCTRINE INITIATED BY THE #OURTS CHARGES THE
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
3TATE WITH SUCH RESPONSIBILITY WITH THE OBJECT TO MEET INTER
GENERALISATION EQUITY BY
RESORTING TO THE PRINCIPLES OF SUSTAINABLE DEVELOPMENT 2EFERRING TO THE DECISION OF
&OMENTO 2ESORTS AND (OTELS ,IMITED AND !NOTHER VS -INGUEL -ARTINS AND /THERS
3## IT WAS SUBMITTED THAT THE ,EGISLATURE INTRODUCED !RTICLE
! WITH THE OBJECT
OF PROTECTING AND IMPROVING ENVIRONMENT AND SAFEGUARDING FOREST AND WILDLIFE AND
!RTICLE
! ENUMERATED FUNDAMENTAL DUTIES OF EVERY CITIZEN #LAUSE G OF WHICH ENJOINS
UPON EVERY CITIZEN OF )NDIA TO PROTECT AND IMPROVE THE NATURAL ENVIRONMENT 4HE ,EARNED
#OUNSEL ALSO REFERRED TO )NTELLECTUALS &ORUM 4IRUPATHI VS 3TATE OF !0 AND /THERS
3## TO ASSERT THAT WHILE THE 3TATE
2ESPONDENTS INVOKE THE PRINCIPLE OF SUSTAINABLE
DEVELOPMENT IT HAS FAILED TO MAINTAIN BALANCE BETWEEN THE DEVELOPMENT NEEDS WHICH THE
2ESPONDENT ASSERTS AND THE ENVIRONMENTAL DEGRADATION )T IS SUBMITTED THAT THE BALANCE IS
SKEWED AGAINST PROTECTION OF THE ENVIRONMENT AND ECOLOGY OF THE 3TATE DUE TO THE 0ROJECT
IN QUESTION )T IS ALSO ASSERTED THAT THE 7RIT 0ETITIONS CANNOT BE THROWN OUT SOLELY ON THE
CONSIDERATION OF THE 2ESPONDENT .O HAVING INVESTED HUGE AMOUNTS OF MONEY )F SUCH
BE THE CONSIDERATION THE #OURTS WILL NOT HAVE ANY OPTION BUT TO DEEM A 0ROJECT LEGAL ONLY
BECAUSE A PARTY HAS MADE CERTAIN INVESTMENTS
XXV /N THE POINT OF ENCROACHMENT ON RELIGIOUS AND CUSTOMARY RIGHTS OF THE 0ETITIONER
THE ,EARNED #OUNSEL WOULD SUBMIT THAT THE 0ETITIONERS WERE NOT AGAINST THE DEVELOPMENT
OF THE 3TATE AND THE ECONOMIC PROSPERITY OF THE PEOPLE AS WAS BEING ALLEGED ON BEHALF OF
THE 2ESPONDENTS 4HEIR OBJECTION WAS ONLY RESTRICTED TO THE 2ATHONG #HU 6ALLEY AND THE
RIVER 2ATHONG #HU IN THE FAR CORNER OF 7EST 3IKKIM UPON WHICH THE -7 (%0 IN QUESTION
WAS BEING SET UP )T IS URGED THAT THERE WERE ALREADY A LARGE NUMBER OF (YDRO 0ROJECTS
WHICH WERE IN DIFFERENT STAGES OF DEVELOPMENT AND OTHER INDUSTRIES OF HUGE MAGNITUDE
IN OTHER PARTS OF THE 3TATE AGAINST WHICH THE 0ETITIONERS HAD NOT RAISED ANY QUESTION )T IS
AN ADMITTED POSITION ON THE PART OF THE 3TATE
2ESPONDENT THAT THERE WERE AT LEAST SUCH
(YDRO 0ROJECTS OUT OF WHICH AT LEAST OF THEM WERE -EGA 0ROJECTS WITH MORE THAN
-7 CAPACITIES AND THE REST WERE VARYING BETWEEN
-7 /F THEM 4ESSTA
6 0ROJECT
HAVING AN INSTALLED CAPACITY OF -7 WAS PARTIALLY IN COMMISSION
XXVI 4HE REPORT OF THE %NERGY AND 0OWER $EPARTMENT 'OVERNMENT OF 3IKKIM !NNEXURE
2 INDICATES -7 AS THE PEAK LOAD OF THE 3TATE WHICH OF COURSE WAS EXPECTED TO GROW
4HE ENTIRE (YDRO 0ROJECTS TAKEN TOGETHER WOULD HAVE AN INSTALLED CAPACITY OF -7
&OR A 3TATE HAVING AN AREA OF SQ MILES WITH A POPULATION OF ABOUT LAKHS THE REVENUE
THAT WOULD BE GENERATED FROM THESE WOULD BE MANIFOLD IN EXCESS OF ITS REQUIREMENT TO
MEET THE NECESSARY DEVELOPMENTAL EXPENDITURE -OREOVER DUE TO THE TERRAIN AND ALTITUDE
OF THE 3TATE ONLY OF THE TOTAL AREA OF THE LAND IS CULTIVABLE AND INHABITED AND MOST OF
THESE LIE ALONG WITH THE RIVER VALLEYS WHICH ARE BEING TAPPED FOR (YDRO %LECTRIC GENERATION
5NDER THESE CIRCUMSTANCES AS PER THE ,EARNED #OUNSEL IT WAS INCORRECT TO STATE THAT IF THE
4ASHIDING (%0 ON THE 2ATHONG #HU RIVER IN A FAR CORNER OF 7EST 3IKKIM WAS STOPPED IT
WOULD ADVERSELY AFFECT THE DEVELOPMENT PROCESS OF THE 3TATE
XXVII 4HAT THE 2ATHONG #HU RIVER AND THE ENTIRE AREA BELOW THE -OUNT +HANGCHENDZONGA
IN 7EST 3IKKIM IS CONSIDERED AS THE MOST SACRED AREA OF 3IKKIM IS WELL
ESTABLISHED AS WOULD
APPEAR FROM THE RELIGIOUS TEXTS AND IN PARTICULAR .EYSOL WHICH DESCRIBES THE NAMES OF
ALL THE DEITIES OF 3IKKIM MENTIONED BY ONE OF ITS 3AINTS OF 3IKKIM 'YALWA ,HATSUN #HENPO
2EFERRING TO THE EXCERPTS OF THE NOTE SHEETS AT PAGES NO AND OF THE FORMER 3ECRETARY OF THE
%CCLESIASTICAL $EPARTMENT 'OVERNMENT OF 3IKKIM !NNEXURE 0 IT HAS BEEN RECORDED THAT
STRICTLY FROM THE RELIGIOUS POINT OF VIEW THE 0ROJECT IS LOCATED AT THE HEART OF THE SACRED AREAS
OF 3IKKIM INDICATED IN THE .EYSOL TEXT AND THAT THE 0ROJECT FROM THE RELIGIOUS PERSPECTIVE
WOULD DELE THE SANCTITY OF THE AREA )T IS STATED THAT THE 3IKKIM IS THE ONLY 3TATE WHICH
HAS AN %CCLESIASTICAL $EPARTMENT LOOKING AFTER THE RELIGIOUS AFFAIRS OF THE 3TATE IN VIEW OF
THE HISTORICAL SETTING 'REAT "UDDHIST MASTERS AND SCHOLARS HAVE ALSO EMPHASISED ON THE
SACREDNESS OF THE 2ATHONG #HU AND ITS SURROUNDING AREAS -R 3HERPA DREW OUR ATTENTION
4 / \
TO THE VIEWS EXPRESSED BY (IS %MINENCE $ODRUP #HEN 2INPOCHE 6ENERABLE ,ACHEN
'OMCHEN 2INPOCHE (( $ILGO +HYENTSE 2INPOCHE AND (( #HATRAL 3ANGYE $ORJE 2INPOCHE
LED AS !NNEXURE 0 COLLECTIVELY 2EFERENCE WAS MADE TO THE PAPER 4HE )MPORTANCE OF
3ACRED .ATURAL 3ITES FOR "IODIVERSITY #ONSERVATION SUBMITTED TO THE 5.%3#/ DURING THE
)NTERNATIONAL 7ORKSHOP ON THE SUBJECT HELD IN +UNMING AND 8ISHUANGBANNA "IOSPHERE
2ESERVE 0EOPLES 2EPUBLIC OF #HINA BETWEEN BY 0ROF 03 2AMAKRISHNAN
IN WHICH HE HAS ALSO REFERRED TO THE .EYSOL TEXT 4HE ,EARNED #OUNSEL SUBMITS THAT THE
PAPER INTER ALIA REFERRING TO THE .EYSOL TEXT MOST LUCIDLY SETS OUT THE IMPORTANCE OF THE
2ATHONG #HU CATCHMENT AREA CONSIDERED AS THE MYTHICAL $EMAJONG THAT HAS A CLEARLY
DENED NORMS AND WELL DENED BOUNDARY OF SACREDNESS WHERE THE AIR SOIL WATER AND
BIOTA ARE ALL SACRED WITH AN AREA MEASURING ABOUT HECTARES OUT OF WHICH
HECTARES IS UNDER SNOW COVER )T IS STATED THAT ENTIRE CULTURAL FABRIC OF 3IKKIMESE SOCIETY IS
DEPENDENT UPON THE CONSERVATION OF THE WHOLE SACRED LANDSCAPE
XXVIII 4HE .ATIONAL "IODIVERSITY 3TRATEGY AND !CTION 0LAN ."3!0 PREPARED BY THE
-INISTRY OF %NVIRONMENT AND &ORESTS 'OVERNMENT OF )NDIA 2ESPONDENT .O !NNEXURE
0 TO THE 7RIT 0ETITION WAS ALSO REFERRED TO POINT THAT THE .ODAL !GENCY OF ."3!0 ALSO
CONSISTED OF THE 0##,7
CUM
3ECRETARY OF THE $EPARTMENT OF &OREST %NVIRONMENT
AND 7ILDLIFE 'OVERNMENT OF 3IKKIM AND OTHER /FCERS OF THE DEPARTMENT 4HE PLAN WHICH
IS A 'OVERNMENT DOCUMENT ALSO EMPHASISES ON THE SACREDNESS OF THE 9UKSAM VALLEY IN
WHICH THE RIVER 2ATHONG #HU OWS )T IS SUBMITTED THAT AN ENTIRE SECTION OF THE REPORT IS
DEVOTED TO THIS ASPECT AT SERIAL NO UNDER THE HEAD 3ACRED ,ANDSCAPES WHICH WAS POINTED
OUT TO US )T IS SUBMITTED THAT THE ENTIRE 9UKSAM VALLEY THROUGH WHICH THE RIVER 2ATHONG
#HU OWS AND THE RIVER ITSELF ARE WORSHIPPED BY THE "UDDHISTS IN GENERAL AND THESE FORM
AN ESSENTIAL PART OF THEIR RELIGIOUS PRACTICES (E SUBMITTED THAT ANY ENCROACHMENT IN THE
NATURAL SETTINGS OF THE VALLEY AND THE RIVER WOULD ENCROACH UPON THEIR RIGHTS GUARANTEED
BY !RTICLES AND ALSO !RTICLE OF THE #ONSTITUTION OF )NDIA
XXIX (E FURTHER WENT ON TO REFER TO THE CASE OF /RISSA -INING #ORPORATION ,TD VS -INISTRY
OF %NVIRONMENT &OREST /THERS 3CALE WHEREIN THE (ONBLE 3UPREME #OURT
UPON CONSIDERATION OF A SIMILAR ASPECT PERTAINING TO THE .IYAMGIRI HILL OF /RISSA HAVING
RELIGIOUS SIGNICANCE TO THE TRIBALS OF THAT VALLEY REFERRED THE CASE BACK FOR A FRESH PUBLIC
HEARING IN SPITE OF TWO PUBLIC HEARINGS HAVING ALREADY BEEN HELD EARLIER
XXX /N THE QUESTION OF DELAY IN LING THE 7RIT 0ETITIONS IT WAS SUBMITTED THAT THERE
WAS NO DELAY AT ALL IN LING THE 7RIT 0ETITIONS )T IS STATED THAT THE 0ROJECT WAS BEING
OBJECTED TO RIGHT FROM THE INCEPTION BY VARIOUS GROUPS AS WOULD APPEAR FROM THE REPORT
ON VISIT OF (IGH 0OWERED #OMMITTEE DATED .OVEMBER WHICH REFERS TO A 'ROUP 3AVE
3IKKIM !NNEXURE 0 AND LETTER DATED
BY $ISTRICT #OLLECTOR 7EST TO 0#%
CUM
3ECRETARY %NERGY AND 0OWER $EPARTMENT 'OVERNMENT OF 3IKKIM !NNEXURE 2
FORWARDING RECORD OF DISCUSSIONS HELD IN HIS #HAMBER TO DISCUSS A REPRESENTATION DATED
SUBMITTED BY THE VILLAGERS IN THE NAME OF 3AVE 3IKKIM
XXXI 6IOLATION OF THE GUIDELINES PRESCRIBING THE PROCEDURE FOR OBTAINING ENVIRONMENTAL
CLEARANCE STAND ESTABLISHED ON THE 2ESPONDENTS OWN ADMISSION 4HIS IS A CONTINUING WRONG
AND THE CAUSE OF ACTION STILL CONTINUES &ROM THE REPORT OF THE (IGH 0OWERED #OMMITTEE
ON THE -7 4ASHIDING (%0 DATED .OVEMBER WHICH THE ,EARNED #OUNSEL REFERS TO
IT IS SUBMITTED THAT NO PHYSICAL WORK OF SUBSTANCE APPEAR TO HAVE TAKEN PLACE EXCEPT FOR
PAYMENT OF LAND COMPENSATION BOTH PRIVATE AND FOREST LANDS FOR WHICH 2S CRORES HAD
BEEN SPENT WITH JUST ABOUT TO OF THE CIVIL WORKS COMPLETED
XXXII 3IMILARLY THE 3IXTH -ONTHLY #OMPLIANCE 2EPORT ON 3TATUS OF %NVIRONMENTAL
3AFEGUARDS OF -7 4ASHIDING (%0 FORWARDED BY LETTER DATED
BY THE
%NVIRONMENT /FCER TO THE *OINT $IRECTOR .ORTH %ASTERN 2EGIONAL /FCE -O%& !NNEXURE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
0 ALSO INDICATES THAT THE CONSTRUCTION PHASE HAD JUST STARTED WITH THE NANCIAL CLOSURE
OF THE 0ROJECT HAVING BEEN ACHIEVED ONLY IN *ULY AFTER WHICH ONLY THE CONSTRUCTION
OF ROADS IN THE AREA COMMENCED )T IS THEREFORE SUBMITTED THAT ON THE 2ESPONDENTS OWN
ADMISSION AT THE TIME WHEN THE 7RIT 0ETITIONS WERE LED THE 0ROJECT WAS AT ITS INITIAL
STAGE OF IMPLEMENTATION
XXXIII )N VIEW OF THE WIDESPREAD PROTEST AGAINST THE (%0S THE 3TATE 'OVERNMENT
ULTIMATELY HAD CONSTITUTED A #OMMITTEE TO REVIEW AND EXAMINE THE ISSUES PERTAINING TO
THOSE BY .OTICATION DATED
0URSUANT TO ITS DECISION TAKEN IN ITS MEETING HELD ON
A TEAM OF OFCERS COMPRISING OF THE #OMMISSIONER
CUM
3ECRETARY #OMMERCE
AND )NDUSTRIES $EPARTMENT AND 3ECRETARY %NERGY AND 0OWER $EPARTMENT VISITED THE
SPOT "ASED ON THIS REPORT THE #OMMITTEE IN ITS MEETING HELD ON
PROPOSED
CLOSURE OF 4ING 4ING AND ,ETHANG (%0S BUT REFERRED THE DECISION ON THE 4ASHIDING (%0 TO
THE 'OVERNMENT 4HE 3TATE 'OVERNMENT ACCEPTED THE RECOMMENDATION FOR CLOSURE OF THE
TWO BUT DECIDED TO CONTINUE WITH THE 4ASHIDING (%0 BY .OTICATION ONLY ON
!NNEXURE 2
LEADING TO THE LING OF THE 7RIT 0ETITIONS ON
BEFORE THE (ONBLE
3UPREME #OURT
)T WAS THEREFORE SUBMITTED THAT THERE WAS NO DELAY ON THE PART OF THE 0ETITIONER IN LING
THE 7RIT 0ETITION
XXXIV 4HE ,EARNED #OUNSEL URGED THAT EVEN THE /FCE -EMORANDUM DATED
PRESCRIBING PROCEDURE FOR CONSIDERATION OF PROPOSALS FOR GRANT OF ENVIRONMENTAL CLEARANCE
UNDER %)! .OTICATION CLEARLY STATED THAT THE INVESTMENT MADE IN THE 0ROJECT IF
ANY BASED ON ENVIRONMENTAL CLEARANCE GRANTED IN ANTICIPATION OF THE CLEARANCE FROM THE
&ORESTRY AND 7ILD ,IFE ANGLE SHALL BE ENTIRELY AT THE COST AND RISK OF THE 0ROJECT PROPONENT
XXXV -R 3HERPA ALSO REFERRED TO THE ORDER OF THIS #OURT DATED WHEREBY THIS VERY
PRINCIPLE HAD BEEN ADOPTED WHILE DEALING WITH THE PRAYER FOR STAY OF THE 0ROJECT WHEN IT
WAS CLARIED THAT THE EXECUTION OF THE PROJECT SHALL REMAIN SUBJECT TO THE OUTCOME OF THE
WRIT PETITION FOLLOWED BY OUR ORDER DATED WHEREIN THE SUBMISSION OF THE 3ENIOR
#OUNSEL FOR THE 2ESPONDENTS .O AND TO THE EFFECT THAT THEY ARE READY TO TAKE THE RISK
IN GOING AHEAD WITH THE CONSTRUCTION WAS RECORDED 4HEREFORE WHEN SUBSTANTIAL PORTION
OF THE EXPENDITURE WAS INCURRED BY THE 2ESPONDENTS .O AND DURING THE PENDENCY OF
THE CASE THEY CANNOT NOW TAKE THE PLEA OF BEING IN A DISADVANTAGEOUS POSITION ON THE
PRINCIPLE OF EQUITY !S PER THE ,EARNED #OUNSEL THE CASE HAS BEEN PENDING FOR THE LAST
ALMOST YEARS HAVING BEEN DULY ADMITTED FOR HEARING IN CONSIDERATION OF THE IMMENSE
PUBLIC IMPORTANCE INVOLVED IN THE MATTER !S SUCH EVEN ON THIS ACCOUNT THE QUESTION OF
DELAY WOULD PALE INTO INSIGNICANCE
XXXVI /N THE 0UBLIC (EARING CONDUCTED BY THE 3TATE 0OLLUTION #ONTROL "OARD AND THE
./#S RECEIVED FROM DIFFERENT -ONASTERIES IT IS SUBMITTED THAT THOSE DO NOT REECT THE
CORRECT POSITION FROM THE VERY RECORDS OF THE 0UBLIC (EARING LED AS !NNEXURE 2
BY
THE 2ESPONDENTS FROM WHICH IT WILL BE MANIFEST THAT NONE OF THE PERSONS BELONGING TO THE
PEOPLE WHOSE CAUSE THE 0ETITIONER ESPOUSES ARE FOUND TO BE IN THE LIST OF PEOPLE CONTAINED
IN THE REPORT .O MONKS OF THE PREMIER -ONASTERIES NAMELY $UBDI 0REMAYANGTSE
4ASHIDING ETC WERE REPRESENTED DURING THE 0UBLIC (EARING (E SUBMITS THAT THE QUESTIONS
AND THE ANSWERS LISTED OUT IN THE REPORT DO NOT PERTAIN TO THEIR RELIGIOUS CUSTOMARY
AND TRADITIONAL ASPECTS AT ALL BUT DEAL ONLY WITH INDIVIDUAL BENETS ACCRUING OUT OF THE
0ROJECT 4HE ./# !NNEXURE 2
SERIES OF THE 2ESPONDENT .O ARE GIVEN BY PERSONS WHO
APPARENTLY ARE NOT AUTHORISED 4HE ./#S ARE WRITTEN IN %NGLISH AND IN COMPUTER PRINTS
SOME OF WHICH ARE IN VERBATIM COPIES WHICH THE MONKS DO NOT UNDERSTAND /BVIOUSLY
THOSE WERE PROCURED OR OBTAINED BY MISLEADING THE SIGNATORIES 4HAT AS PER TRADITIONAL
PRACTICE IT IS THE ADMINISTRATIVE BODY OF THE -ONASTERY KNOWN AS 5DOER #HOESUM OR
4 / \
$UCHI #OMMITTEE WHO ARE AUTHORISED TO MAKE COMMITMENTS OF SUCH NATURE 4HIS IS
OBVIOUS FROM !NNEXURE 0
SERIES LED BY THE 0ETITIONERS CONSISTING OF OBJECTIONS FROM SIX
-ONASTERIES OUT OF WHICH FOUR -ONASTERIES VIZ 4ASHIDING 0EMAYANGTSE +HECHOPERI AND
$UBDI ARE FROM 7EST 3IKKIM LOCATED IN THE 2ATHONG 6ALLEY AND ITS VICINITY AND CONSIDERED
TO BE THE PREMIER ONES )T IS STATED THAT THE LEGITIMATE AUTHORITIES OF THOSE -ONASTERIES
HAVE EXPRESSED THEIR OPPOSITION TO THE 0ROJECT ON THE RIVER 2ATHONG #HU AND ITS PERIPHERY
4HE ./#S GIVEN BY THE PERSONS INDICATED IN !NNEXURE 2
SERIES LED ON BEHALF OF THE
2ESPONDENT .O HAVE BEEN DENIED BY THEM AS INVALID 4HE CLAIM OF THE 2ESPONDENT .O
THAT MONKS OF THE 0EMAYANGTSE -ONASTERY HAD PERFORMED THE PUJA PURPORTEDLY FOR
RESTART OF THE 0ROJECT DURING 3EPTEMBER CONTAINED IN THE APPLICATION DATED
HAS BEEN DENIED BY THOSE VERY MONKS AND THAT THE SAID PUJA WAS PERFORMED FOR UNIVERSAL
PEACE AS REQUESTED BY THE 2ESPONDENTS .O AND
XXXVII 3UMMING UP HIS SUBMISSIONS -R 3HERPA URGED THAT THE 0ROJECT WAS IN VIOLATION
OF THE ENVIRONMENTAL LAWS FOR WANT OF THE NECESSARY ."7, CLEARANCE AND THAT THE 0ROJECT
ON THE RIVER 2ATHONG #HU IS IN VIOLATION OF THE RIGHTS OF THE 0ETITIONERS UNDER !RTICLES
AND OF THE #ONSTITUTION OF )NDIA GUARANTEEING FREEDOM OF RELIGIOUS PRACTICE AND
CONSCIENCE AND OF PRESERVING THE CUSTOMS AND TRADITION OF THE 0ETITIONERS )T IS SUBMITTED
THAT THE CLOSURE OF THE 0ROJECT WOULD NOT HINDER THE DEVELOPMENT WORK OF THE 3TATE AND
EVEN IF THERE BE ANY IT WOULD BE INSIGNICANT AND WORTH THE CANCELLATION IN VIEW OF THE
IMMENSE PUBLIC INTEREST THAT IT WOULD RESULT IN 4HE 0ROJECT AS STATED LIES IN THE FAR CORNER
OF 7EST 3IKKIM
I 2EPLYING ON BEHALF OF THE 3TATE OF 3IKKIM -R *" 0RADHAN ,EARNED !DDITIONAL
!DVOCATE 'ENERAL SUBMITTED THAT THE ORAL ARGUMENTS PLACED BY THE ,EARNED #OUNSEL ON
BEHALF OF THE 0ETITIONERS WERE BEYOND THE SCOPE OF THE PLEADINGS AS THE ONLY CHALLENGE TO
THE 0ROJECT IN QUESTION IN THE 7RIT 0ETITION IS ON THE VIOLATION OF THE 3UPREME #OURT ORDER
DATED
PASSED IN 'OA &OUNDATION CASE SUPRA 4HAT ALTHOUGH THE 0ETITIONERS
HAVE PRAYED FOR CANCELLATION OF THE 4ASHIDING (%0 THE -O5 ENTERED BETWEEN THE 3TATE
2ESPONDENT .O AND THE 2ESPONDENT .O AND THE REASSIGNMENT OF THE 0ROJECT AFTER IT
HAD BEEN WITHDRAWN FROM IT EARLIER HAVE REMAIN UNCHALLENGED
II )T WAS NEXT CONTENDED THAT THE 7RIT 0ETITIONS WERE FACTUALLY MIS
CONCEIVED AND
CLARIED THAT WHILE THE EARLIER 2ATHONG #HU (%0 WHICH WAS SCRAPPED BY THE 'OVERNMENT
WAS LOCATED UPSTREAM THE RIVER 2ATHONG #HU AND ABOVE 9OKSUM TOWNSHIP THE PRESENT
-7 4ASHIDING (%0 IS LOCATED AFTER THE CONUENCE OF RIVER 2ATHONG #HU AND RIVER 2IMBI
2EFERRING TO A MAP !NNEXURE 2 IT WAS ASSERTED THAT THE NAME OF THE RIVER WHERE THE
PRESENT 0ROJECT IS BEING SET UP IS LOCALLY CALLED ,ADONG +HOLA AND THEREFORE WOULD NOT
HINDER THE "HUMCHU CEREMONY 4HAT IN HIS LETTER DATED
!NNEXURE 2 THE 0#%
CUM
3ECRETARY %NERGY AND 0OWER $EPARTMENT 'OVERNMENT OF 3IKKIM ADDRESSED TO THE
-INISTRY OF %NVIRONMENT AND &ORESTS HAS STATED THAT OF THE LOCAL PEOPLE SUPPORTED
THE DEVELOPMENT OF THE 0ROJECT AND THAT IT DID NOT CAUSE DISTURBANCE DISPLACEMENT
OR DELEMENT OF ANY KIND TO ANY HOLY PLACE OF WORSHIP HOLY SHRINE STRUCTURAL AND
ARCHEOLOGICAL IMPORTANCE OR HERITAGE AND THE SANCTITY OF THE SACRED 4ASHIDING "HUMCHU
4HAT THE EARLIER 2ATHONG #HU (%0 HAD BEEN SCRAPPED AS OPEN CHANNEL WATER CONDUCTOR
OF THE 0ROJECT WAS PROPOSED TO PASS THROUGH 9UKSAM VILLAGE WHERE SOME OF THE RELIGIOUS
STRUCTURES WERE LOCATED WHICH IS NOT THE CASE IN THE PRESENT 0ROJECT BEING IS FAR FROM
THOSE PLACES 4HAT THE MONKS OF $ENZONG 0AO (UNGRY -ONASTERY 4ASHIDING -ONASTERY
$UCHI #OMMITTEE OF +HECHEOPALRI -ONASTERY AND $UCHI #OMMITTEE OF $UBDI -ONASTERY
7EST 3IKKIM HAVE GIVEN THEIR ./#S IN SUPPORT OF THE 0ROJECT )T IS CONTENDED THAT THE
'OVERNMENT .OTICATION .O (/-% DATED
WHICH DECLARED SACRED
PLACES LAKES ETC ALSO DOES NOT MENTION THE 2ATHONG #HU RIVER AS A SACRED RIVER
III )T IS HIS SUBMISSION THAT THE ENTIRE 7RIT 0ETITIONS BEING BASED ON FACTUALLY INCORRECT
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
PREMISES IT DESERVES TO BE DISMISSED AS SUCH
IV )T IS CONTENDED THAT THE 0ETITIONERS WERE GUILTY OF DELAY AND LACHES IN LING THE 7RIT
0ETITIONS IN AS MUCH AS -O5 WAS SIGNED ON
THE ADVERTISEMENT FOR CONDUCTING
0UBLIC (EARING OF THE 0ROJECT WAS PUBLISHED BY 3IKKIM 0OLLUTION #ONTROL "OARD ON
/N
/PEN 0UBLIC (EARING WAS CONDUCTED WHEREIN THE PUBLIC OF THAT AREA
AND MANY OTHERS PARTICIPATED .OTICATIONS UNDER 3ECTION OF THE ,AND !CQUISITION
!CT FOR ACQUISITION OF LAND FOR THE 0ROJECT WERE PUBLISHED RSTLY ON
AND
SECONDLY ON
%NVIRONMENTAL CLEARANCE FROM -O%& WAS OBTAINED ON
./#S WERE ISSUED BY MONKS OF VARIOUS -ONASTERIES IN /CTOBER AND .OVEMBER BUT
THE 0ETITIONERS HAVE CHOSEN TO APPROACH THIS (ONBLE #OURT AFTER A PERIOD OF TWO YEARS AND
NINE MONTHS FROM THE DATE OF /PEN 0UBLIC (EARING 4HE 7RIT 0ETITIONS ARE THEREFORE HIT
BY UNEXPLAINED DELAY AND LACHES AND THUS NOT MAINTAINABLE AND LIABLE TO BE DISMISSED ON
THIS GROUND ALONE
V )N SUPPORT OF HIS CONTENTION REFERENCE WAS MADE TO $ELHI $EVELOPMENT !UTHORITY VS
2AJENDRA 3INGH AND /THERS 3## TO EMPHASISE ON THE PRINCIPLE THAT DELAY RULES
WERE ALSO APPLICABLE TO 0UBLIC )NTEREST ,ITIGATIONS 0),S AND THAT IF THERE WAS NO PROPER
EXPLANATION FOR THE DELAY 0),S ARE ALSO LIABLE TO BE SUMMARILY DISMISSED
VI 2EFERRING TO .ARMADA "ACHAO !NDOLAN VS 5NION OF )NDIA AND /THERS 3##
UPON WHICH HEAVY RELIANCE WAS PLACED IT WAS SUBMITTED THAT WHEN HUGE AMOUNT OF
PUBLIC MONEY HAS ALREADY BEEN SPENT THE 0ETITIONER IN THE GARB OF 0), CANNOT BE PERMITTED
TO CHALLENGE A POLICY DECISION BELATEDLY AND THAT SUCH CHALLENGE AFTER EXECUTION OF THE
0ROJECT HAD COMMENCED SHOULD BE THROWN OUT AT THE VERY THRESHOLD ON THE GROUND OF
LACHES IF THE 0ETITIONER HAD THE KNOWLEDGE OF SUCH DECISION
VII 0RINTERS -YSORE ,TD VS -! 2ASHEED AND /THERS 3## AND #HAIRMAN
-$ "0, ,TD VS 30 'URURAJA AND /THERS 3## WERE ALSO REFERRED TO ON THE SAME
POINT BUT WE NEED NOT DEAL WITH THOSE BEING REPETITIVE
VIII 4HAT THE 7RIT 0ETITIONS WERE ALSO LIABLE TO BE DISMISSED AS THERE WAS NO VIOLATION OF
THE LAWS AND OF THE RELEVANT PROCEDURES REQUIRING COMPLIANCE
IX )T IS ASSERTED THAT THE 0ETITIONERS HAVE NO LOCUS STANDI TO LE THE 7RIT 0ETITIONS AND IS
NOT IN PUBLIC INTEREST BUT IS RATHER VEXATIOUS AND FRIVOLOUS DESERVING OUTRIGHT REJECTION
&ROM THE VERY AVERMENTS CONTAINED IN THE 7RIT 0ETITIONS THEY ARE NOT THE RESIDENTS OF THE
0ROJECT AREA IN 7EST 3IKKIM
X 4HE ALLEGATION THAT THE 0ROJECT IN QUESTION WAS ARBITRARY AND WAS BAD FOR NON
APPLICATION OF MIND WAS SOUGHT TO BE REPELLED BY SUBMITTING THAT ALL RELEVANT FACTORS HAVE
BEEN TAKEN INTO CONSIDERATION AND NECESSARY PROCEDURES FOLLOWED BEFORE NALISATION OF
THE 0ROJECT
XI 4HE ,EARNED !DDITIONAL !DVOCATE 'ENERAL THEN WENT ON TO SUBMIT THAT IT WAS NOT FOR
THE #OURTS TO INTERFERE WITH THE POLICIES OF THE 'OVERNMENT ! CATENA OF DECISIONS WERE
CITED ON THE POINT THE SUBSTANCE OF WHICH IS THAT WHEN 3TATE ACTION IS CHALLENGED THE
FUNCTION OF THE #OURT IS TO EXAMINE THE ACTION IN ACCORDANCE WITH LAW AND TO DETERMINE
WHETHER THE ,EGISLATURE OR %XECUTIVE HAS ACTED WITHIN THE POWERS AND FUNCTIONS ASSIGNED
UNDER THE #ONSTITUTION AND IF NOT THE #OURT MUST STRIKE DOWN THE ACTION
XII 2ELYING UPON 5NION OF )NDIA AND /THERS VS *$ 3URYAVANSHI 3## IT WAS
SUBMITTED THAT JUDICIAL INTERFERENCE BY WAY OF 0), IS AVAILABLE ONLY IF THERE IS INJURY TO
PUBLIC OR DERELICTION OR CONSTITUTIONAL OBLIGATION BY THE 3TATE AND THAT #OURT SHOULD
4 / \
GENERALLY NOT INTERFERE WITH TECHNICAL AND ADMINISTRATIVE DECISIONS
XIII 2EBUTTING THE CONTENTION OF THE 0ETITIONERS OF THE 2ESPONDENTS HAVING VIOLATED THE
ENVIRONMENTAL LAW FOR FAILING TO SEEK CLEARANCE FROM ."7, IT WAS SUBMITTED THAT ALL
RELEVANT APPROVAL AND CONSENTS REQUIRED FOR DEVELOPMENT OF THE 0ROJECT HAD BEEN OBTAINED
AND THE 0ROJECT IS IN COMPLIANCE WITH THE APPLICABLE LAWS 4HE VIOLATION OF THE ORDER DATED
PASSED BY THE (ONBLE 3UPREME #OURT IN 'OA &OUNDATION CASE SUPRA IS MIS
CONCEIVED )T WAS STATED THAT THE ORDER DID NOT HOLD THAT AN AREA OF KMSAROUND THE
.ATIONAL 0ARKS7ILD ,IFE 3ANCTUARIES WILL AUTOMATICALLY BE CONSTRUED AS AN ECO
SENSITIVE
ZONE OR THAT THE PROPOSAL FOR DEVELOPMENT OF ANY 0ROJECT IN FUTURE WITHIN KMSRADIUS
OF ANY .ATIONAL 0ARKS7ILD ,IFE 3ANCTUARIES WILL REQUIRE APPROVAL FROM ."7, !S PER THE
,EARNED !DDITIONAL !DVOCATE 'ENERAL THE AREA IN 'OA &OUNDATION CASE SUPRA HAS BEEN
CLARIED IN !NAND !RYA CASE SUPRA AND BY REFERRING TO PARAGRAPH OF THE REPORT OF THE
#ENTRAL %MPOWERED #OMMITTEE #%# EXTRACTED IN PARAGRAPH WHEREIN IT WAS OBSERVED
THAT IN THE ABSENCE OF A DECISIONNOTICATION PRESENTLY THERE IS NO LEGAL RESTRICTION AGAINST
THE IMPLEMENTATION OF THE 0ROJECT ON THE GROUND THAT THE 0ROJECT WAS ADJACENT TO THE
/KHLA "IRD 3ANCTUARY AND FURTHER THAT IT WAS DECIDED BY THE ."7, THAT ECO
SENSITIVE ZONE
SHOULD BE SPECIC TO EACH .ATIONAL 0ARKS7ILD ,IFE 3ANCTUARIES
XIV )T WAS THEN SUBMITTED THAT A #OMMITTEE WAS CONSTITUTED BY THE 0##& CUM 3ECRETARY
ON TO MONITOR ACTIVITIES IN ECO SENSITIVE ZONES AND THAT THE #OMMITTEE IN ITS
MEETING HELD ON TO DETERMINE THE ECO SENSITIVE ZONE BEYOND THE BOUNDARY
OF THE PROTECTED AREA SUBMITTED A PROPOSAL WHICH WAS FORWARDED TO THE -O%& BY LETTER
DATED !NNEXURE 2
XV 4HIS WAS ALSO IN COMPLIANCE TO LETTER DATED WRITTEN BY $EPUTY )NSPECTOR
'ENERAL 7, TO THE #HIEF 7ILDLIFE 7ARDEN OF ALL 3TATES5NION 4ERRITORIES DIRECTING THEM
TO FORWARD SITES SPECIC PROPOSALS ON THE BASIS OF A GUIDELINE FRAMED BY THE -INISTRY
ENCLOSED WITH THE SAID LETTER FOR TAKING NECESSARY STEPS
XVI 4HAT THE 'OA &OUNDATION CASE SUPRA DID NOT MANDATE CREATION OF AN ECO SENSITIVE
ZONE WITHIN A RADIUS OF KMSOF THE BOUNDARY OF .ATIONAL 0ARKS7ILD ,IFE 3ANCTUARIES IS
ALSO APPARENT FROM THE ORDER DATED PASSED BY THE (ONBLE 3UPREME #OURT IN
THE CASE OF 4. 'ODAVARMAN 4HIRUMULPAD VS 5NION OF )NDIA AND /THERS IN )! .O IN
7RIT 0ETITION #IVIL .O OF WHICH ALSO COVERED THE 'OA &OUNDATION CASE SUPRA AS
WOULD APPEAR FROM THE CAUSE TITLE NAMELY )! .OS IN 70# .O OF AND )!
.OS IN 70# .O OF 4HE ORDER DATED RECORDS THE SUGGESTIONS
OF THE #ENTRAL %MPOWERED #OMMITTEE #%# TO RESTRICT THE SAFETY ZONE AROUND .ATIONAL
0ARKS7ILD ,IFE 3ANCTUARIES TO AREAS NOT LESS THAN KMS !LTHOUGH THIS WAS NOT DECIDED
NALLY IT CLEARLY ILLUSTRATES THE FACT THAT THE EXTENT OF THE ECO SENSITIVE ZONE HAS NOT YET
BEEN DECIDED
XVII )N THE PROPOSAL SUBMITTED BY THE 2ESPONDENT .O THE BOUNDARY OF THE ECO SENSITIVE
ZONE HAS BEEN PROPOSED AT METERS OF THE BOUNDARY OF THE +HANGCHENDZONGA .ATIONAL
0ARK )T IS URGED THAT THE 3TATE OF 3IKKIM HAD LED AFDAVITS IN RESPONSE TO THE ORDER DATED
IN THE 'OA &OUNDATION CASE SUPRA EXPRESSING ITS RESERVATION IN DECLARING
KMSAREA AS ECO SENSITIVE ZONE )T IS THUS SUBMITTED THAT THE ASSERTION MADE ON BEHALF OF
THE 0ETITIONERS THAT THE 0ROJECT WAS LIABLE TO BE CANCELLED FOR HAVING FAILED TO OBTAIN ."7,
CLEARANCE IS MIS CONCEIVED AS BEING BASED UPON AN ERRONEOUS INTERPRETATION OF THE 'OA
&OUNDATION CASE SUPRA !S PER THE ,EARNED !DDITIONAL !DVOCATE 'ENERAL THERE WAS NO
MANDATE IN LAW TO SEEK SUCH CLEARANCE
XVIII /N THE QUESTION OF THE RELIGIOUS AND CULTURAL ASPECTS RAISED BY THE 0ETITIONERS IT WAS
STRONGLY ARGUED THAT THE 0ROJECT DID NOT AT ALL INTERFERE WITH RIGHTS OF RELIGIOUS PRACTICE OF
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
THE 0ETITIONERS IN AS MUCH AS THE 2ATHONG #HU RIVER IS NOT AT ALL DECLARED AS A SACRED RIVER
UNDER THE .OTICATION ISSUED BY THE 3TATE 'OVERNMENT
XIX 4HE GRIEVANCE OF THE RIVER BEING DELED BY THE 0ROJECT WAS UNJUSTIED AS IN THE RST
PLACE IT IS NOT BEEN INDICATED AS TO FROM WHICH THE PLACE OF THE RIVER THE WATER IS DRAWN
FOR THE PURPOSE OF "HUMCHU CEREMONY )T IS SUBMITTED THAT THERE IS ALREADY AN OLD (YDRO
%LECTRIC 0ROJECT ON THE 2IMBI RIVER A TRIBUTARY TO THE 2ATHONG #HU WHICH WOULD INDICATE
THAT THE WATER OF THE 2ATHONG #HU RIVER ALREADY STANDS DELED AND MADE IMPURE AND
THEREFORE THE PLEA THAT THE PRESENT 0ROJECT WILL DELE THE RIVER WOULD NOT STAND TO SUSTAIN
ANY LONGER )T IS SUBMITTED THAT THIS VERY QUESTION HAD ARISEN IN $ENZONG ,HO -AN #HODA
CASE SUPRA BEFORE THIS #OURT AND THIS #OURT HAD REJECTED THE PLEA HOLDING THAT THE DAMAGE
TO THE WATER HAD ALREADY BEEN DONE AND NO GRAVER INFRINGEMENT TO THE PURITY OF THE WATER
WAS EXPECTED ON ACCOUNT OF ANOTHER (YDRO 0ROJECT ON 2ATHONG #HU RIVER
XX 2ELIANCE PLACED UPON THE REPORT OF 0ROF 03 2AMAKRISHNAN WAS ASSAILED ON THE GROUND
THAT IT HAD ALSO BEEN REJECTED BY THIS #OURT IN $ENZONG ,HO -AN #HODA CASE SUPRA DATED
HOLDING THAT 0ROF 03 2AMAKRISHNAN WAS NOT AN EXPERT IN THE RELIGIOUS ASPECT
OR IN SOCIAL CULTURAL AND RELIGIOUS ASPECT AND THAT HE DID NOT TAKE ASSISTANCE OF ANY EXPERT
IN THE MATTER ALTHOUGH HE HAD THE OPTION TO DO SO
XXI 4HE ,EARNED !DDITIONAL !DVOCATE 'ENERAL RE EMPHASISES THAT THE RELIGIOUS RIGHTS OF
A FEW CANNOT OVERRIDE THE PARAMOUNT RIGHT OF THE 3TATE IN FORMULATING POLICIES FOR GENERAL
GOOD AND THAT A BALANCE HAS TO BE STRUCK BETWEEN TWO
XXII 2EFERENCE WAS MADE 4HE #OMMISSIONER (INDU 2ELIGIOUS %NDOWMENTS -ADRAS VS 3RI
,AKSHMINDRA 4HIRTHA 3WAMIAR OF 3RI 3HIRUR -UTT !)2 3# !CHARYA *AGDISHWARANAND
!VADHUTA AND /THERS VS #OMMISSIONER OF 0OLICE #ALCUTTA AND !NOTHER 3## 32
"OMMAI AND /THERS VS 5NION OF )NDIA AND /THERS 3## AND $R - )SMAIL &ARUQUI
AND /THERS VS 5NION OF )NDIA AND /THERS 3## WHICH DEAL WITH THE PRINCIPLE
WHICH -R 0RADHAN LAID STRESS UPON
I !PPEARING ON BEHALF OF THE 2ESPONDENTS .O AND -INISTRY OF %NVIRONMENT AND
&ORESTS AND THE .ATIONAL "OARD FOR 7ILD ,IFE RESPECTIVELY -R +ARMA 4HINLAY .AMGYAL
,EARNED #ENTRAL 'OVERNMENT #OUNSEL SOUGHT TO EXPLAIN THE LETTER DATED
!NNEXURE ! BY SUBMITTING THAT THE 0ROJECT WAS DIRECTED TO BE STOPPED UNTIL FURTHER
ORDERS AS IT DID NOT HAVE THE NECESSARY RECOMMENDATIONS OF THE 3TANDING #OMMITTEE
OF ."7, AS ENVISAGED UNDER /FCE -EMORANDUM DATED PRESCRIBING THE
PROCEDURE FOR GRANT OF ENVIRONMENTAL CLEARANCE UNDER %)! .OTICATION 4HE SAID
/FCE -EMORANDUM UNDER 0ARAGRAPH II HAD MADE IT CLEAR THAT THE PROPOSAL FOR
ENVIRONMENTAL CLEARANCE WAS INDEPENDENT FROM THE &ORESTRY AND 7ILDLIFE CLEARANCES
WHICH WERE REQUIRED TO BE OBTAINED AS APPLICABLE TO 0ROJECT BEFORE STARTING ANY ACTIVITY AT
SITE AND THAT WHILE GRANTING ENVIRONMENTAL CLEARANCE TO 0ROJECTS INVOLVING LAND LOCATED
WITHIN KMSOF THE .ATIONAL 0ARKS AND 7ILDLIFE 3ANCTUARIES A SPECIC CONDITION SHOULD BE
STIPULATED THAT THE ENVIRONMENTAL CLEARANCE IS SUBJECT TO THEIR OBTAINING CLEARANCE FROM
THE 3TANDING #OMMITTEE OF THE ."7, AS APPLICABLE 4HIS STIPULATION AS PER THE ,EARNED
#OUNSEL WAS INSERTED IN PURSUANCE OF THE ORDER DATED IN 'OA &OUNDATION
CASE SUPRA 3PECIAL #ONDITIONS VIII OF THE LETTER !NNEXURE 0 GRANTING ENVIRONMENTAL
CLEARANCE THEREFORE STIPULATED THAT THE PROPOSED SITE BEING KMSAWAY FROM THE BUFFER
ZONE OF +HANGCHENDZONGA "IOSPHERE 2ESERVE AS PER (ONBLE 3UPREME #OURT ORDER
CLEARANCE FROM THE ."7, MAY BE OBTAINED IF REQUIRED
II 4HE ,EARNED #OUNSEL URGED THAT THE EXPRESSION IF REQUIRED HAD TO BE UNDERSTOOD IN THE
CONTEXT OF THE FACT THAT THE ECO
SENSITIVE ZONEBIOSPHERE RESERVE HAD NOT BEEN NOTIED AS
THE 3TATES HAD NOT SENT ANY PROPOSALS FOR DECLARATION OF THE ECO
SENSITIVE ZONEBIOSPHERE
4 / \
RESERVE AS DIRECTED BY THE (ONBLE 3UPREME #OURT IN THE 'OA &OUNDATION CASE SUPRA
)T IS CONCEDED THAT THERE IS NO ORDER PASSED BY THE (ONBLE 3UPREME #OURT THAT THE ECO
SENSITIVE ZONEBIOSPHERE RESERVE SHOULD MANDATORILY BE KMSOF THE +HANGCHENDZONGA
.ATIONAL 0ARKS AND 7ILDLIFE 3ANCTUARIES )T HAD ONLY OBSERVED THAT IF THE 3TATES DID NOT
RESPOND TO THE -O%& BY SUBMITTING ITS PROPOSALS WITHIN THE TIME STIPULATED THEN ONLY
IT MAY CONSIDER TAKING KMSAS THE ECO SENSITIVE ZONEBIOSPHERE RESERVE 4HE ,EARNED
#ENTRAL 'OVERNMENT #OUNSEL STRESSED THAT THE -INISTRY HAS NOT STATED THAT THE 0ROJECT
IS ILLEGAL BUT THAT THE RECOMMENDATION OF THE 3TANDING #OMMITTEE OF THE ."7, WAS
ESSENTIAL IN THE ABSENCE OF A NOTIED ECO SENSITIVE ZONEBIOSPHERE RESERVE
III 2EITERATING ITS AVERMENTS CONTAINED IN THE COUNTER AFDAVIT ON BEHALF OF THE 2ESPONDENT
.O -INISTRY OF %NVIRONMENT AND &ORESTS 'OVERNMENT OF )NDIA IT IS SUBMITTED THAT A
PROPOSAL HAS BEEN RECEIVED FROM THE 'OVERNMENT OF 3IKKIM IN !UGUST WHICH IS UNDER
EXAMINATION BUT THE 7ILDLIFE $IVISION OF THE -O%& HAS NOT RECEIVED ANY PROPOSAL FROM
THE 3TATE WITH RESPECT TO -7 4ASHIDING (%0 )T IS THEREFORE RE EMPHASISED THAT THE
0ROJECT PROPOSAL IS SUBJECT INTER ALIA TO THE 3PECIC #ONDITIONS VIII OF THE ENVIRONMENTAL
CLEARANCE WHICH STIPULATE THAT CLEARANCE FROM ."7, WOULD BE NECESSARY IF REQUIRED IN
ORDER TO MAKE THE ENVIRONMENTAL CLEARANCE EFFECTIVE
I /N BEHALF OF THE 2ESPONDENTS .O AND -R 6 'IRI ESSENTIALLY PLACED THE SAME
ARGUMENTS AS THAT OF THE 3TATE 2ESPONDENT )T WAS SUBMITTED THAT THE SCOPE OF THE
%NVIRONMENT 0ROTECTION !CT AND THE 7ILD ,IFE 0ROTECTION !CT ENVISAGES TWO
DIFFERENT SCHEMES (E TOOK US THROUGH THE VARIOUS PROVISIONS TO INDICATE THE SCOPE OF THESE
TWO LEGISLATIONS (E HOWEVER EMPHASISED THAT UNDER 3ECTIONS AND UNDER #HAPTER
)6 OF THE !CT PROVIDED FOR 0ROTECTED !REAS IT WAS THE 3TATE 'OVERNMENTS WHICH HAD BEEN
VESTED WITH THE POWER TO DECLARE 3ANCTUARIES AND .ATIONAL 0ARKS RESPECTIVELY 3IMILARLY
UNDER 3ECTION ! THE 3TATE 'OVERNMENT WAS EMPOWERED TO DECLARE ANY AREA OWNED BY
THE 'OVERNMENT PARTICULARLY AREAS ADJACENT TO THE .ATIONAL 0ARKS AND 3ANCTUARIES ETC AS
A CONSERVATION RESERVE FOR PROTECTING LANDSCAPE SEASCAPE ORA FAUNA AND THEIR HABITAT
II 2EITERATING THE SUBMISSIONS MADE ON BEHALF OF THE 3TATE 2ESPONDENT -R 'IRI POINTED
OUT THAT THE 0ETITIONER AS PER THEIR OWN AVERMENT CONTAINED IN 0ARAGRAPH OF THE 7RIT
0ETITION WAS NOT CHALLENGING ANY CLEARANCE GRANTED BY THE REGULATORY AUTHORITIES BUT ONLY
POINTING OUT THE VIOLATION OF THE (ONBLE 3UPREME #OURT ORDER DATED PASSED IN
'OA &OUNDATION CASE SUPRA WHEREBY A 0ROJECT OF THE KIND INVOLVED IN THE PRESENT CASE
REQUIRES CLEARANCE FROM THE ."7, )T IS THUS SUBMITTED THAT THE ONLY ISSUE INVOLVED IN THE
PRESENT CASE IS THE INTERPRETATION OF THE AFORESAID ORDER DATED AND NOTHING
ELSE
III )T IS THEN SUBMITTED THAT THE 0ROJECT IN QUESTION WAS CLEARED AFTER FOLLOWING AN
ELABORATE PROCEDURE LAID DOWN UNDER -O%& .OTICATION DATED
WHICH INCLUDES
AMONGST OTHERS DETAILED SCRUTINY BY %XPERT !PPRAISAL #OMMITTEE %!# PROVIDED UNDER
,IST )6 OF THE .OTICATION 4HAT BEFORE THE GRANT OF ENVIRONMENT CLEARANCE A 0ROJECT IS
REQUIRED TO COMPLY WITH VARIOUS REQUIREMENTS SET OUT IN THE #HECK ,IST OF %NVIRONMENTAL
)MPACTS CONTAINED IN !PPENDIX )) OF THE .OTICATION 4HAT AMONGST THE -EMBERS OF THE
%!# IS ALSO AN EXPERT IN &ORESTRY AND 7ILDLIFE AS WOULD APPEAR UNDER SERIAL NO OF THE
!PPENDIX 6) )T IS THUS SUBMITTED THAT BEFORE THE ENVIRONMENTAL CLEARANCE WAS GRANTED
ALL RELEVANT FACTORS HAD BEEN TAKEN INTO CONSIDERATION AND THEREFORE IT COULD NOT BE HEARD
TO SAY THAT THE ASPECT AS REGARDS THE ISSUE RAISED IN 'OA &OUNDATION CASE SUPRA WAS NOT
CONSIDERED
IV )N ITS ST MEETING HELD ON THE )NDIAN "OARD FOR 7ILDLIFE )"7 FOR THE RST
TIME ADOPTED THE 7ILDLIFE #ONSERVATION 3TRATEGY STIPULATING THAT LANDS FALLING
WITHIN KMSOF THE BOUNDARIES OF .ATIONAL 0ARKS AND 3ANCTUARIES SHOULD BE NOTIED AS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
ECO
FRAGILE ZONES UNDER SECTION V OF THE %NVIRONMENT 0ROTECTION !CT AND 2ULE 3UB
RULE VIII X OF THE %NVIRONMENT 0ROTECTION 2ULES )N PURSUANCE OF THIS THE !DDITIONAL
$IRECTOR 'ENERAL OF &ORESTS 7, VIDE LETTER DATED
REQUESTED ALL #HIEF 7ILDLIFE
7ARDENS OF ALL 3TATES TO LIST SUCH AREAS WITHIN KMSOF BOUNDARIES OF .ATIONAL 0ARKS AND
3ANCTUARIES AND FURNISH DETAILED PROPOSALS FOR .OTICATION AS ECO
SENSITIVE AREAS UNDER
THE %NVIRONMENT 0ROTECTION !CT
V ,ATER ON IN ITS MEETING THE ."7, RE EXAMINED THE ABOVE PROPOSAL OF THE
)"7 IN VIEW OF MANY 3TATES HAVING RAISED CONCERNS OVER THE KMSRANGE LIMITS AND NOTED
IN ITS MEETING ON THAT DELINEATION OF THE ECO SENSITIVE ZONES WOULD HAVE TO BE
SITE SPECIC AND RELATE TO REGULATION RATHER THAN PROHIBITION OF SPECIC ACTIVITIES 4HIS
DECISION WAS COMMUNICATED TO THE 3TATE VIDE LETTER DATED ASKING THE 3TATES
5NION 4ERRITORIES TO IDENTIFY SUITABLE ECO SENSITIVE ZONES
VI 4AKING NOTE OF THIS LETTER THE (ONBLE 3UPREME #OURT PASSED THE CONTENTIOUS ORDER DATED
IN THE 'OA &OUNDATION CASE SUPRA VIDE 7RIT 0ETITION .O OF 4HAT IT IS
IN THIS LIGHT THAT THE DIRECTION WAS ISSUED UPON THE -O%& TO GIVE A NAL OPPORTUNITY TO ALL
3TATES5NION 4ERRITORIES TO RESPOND TO ITS LETTER DATED
AND IF THE PROPOSALS WERE
NOT SENT WITHIN A PERIOD OF WEEKS OF THE RECEIPT OF THE COMMUNICATION FROM THE -INISTRY
THE #OURT MAY THEN HAVE TO CONSIDER PASSING ORDERS FOR IMPLEMENTATION OF THE DECISION
THAT WAS TAKEN ON
BY THE )"7 4HUS NO ECO
SENSITIVE ZONE OF KMSHAD BEEN
LAID DOWN BY THE (ONBLE 3UPREME #OURT
VII )N THE GUIDELINES OF -O%& FOR DECLARATION OF THE ECO SENSITIVE ZONES IT HAS ALSO BEEN
STIPULATED AT 0ARAGRAPH THAT THE EXTENT OF ECO SENSITIVE ZONE AROUND 0ROTECTED !REAS
WILL HAVE TO BE KEPT EXIBLE AND 0ROTECTIVE !REA SPECIC 4HE WIDTH OF THE ECO SENSITIVE
ZONE AND TYPE OF REGULATIONS WILL DIFFER FROM 0ROTECTED !REA TO 0ROTECTED !REA (OWEVER
AS A GENERAL PRINCIPLE THE WIDTH OF THE ECO SENSITIVE ZONE COULD GO UP TO KM
)N VIEW OF THE ABOVE DIFFERENT 3TATES HAVE DECLARED DIFFERENT AREAS AS ECO SENSITIVE ZONE
AND NOT KMSFROM THE BOUNDARY OF THE .ATIONAL 0ARKS AND 3ANCTUARIES
VIII )N ITS LETTER DATED THE -O%& WHILE CONVEYING THAT THE (ONBLE 3UPREME
#OURT IS CONSIDERING THE ISSUE IN )! .O IN 7RIT 0ETITION #IVIL .O BEING
4. 'ODAVARMAN 4HIRUMULPAD CASE SUPRA AND IN 7RIT 0ETITION #IVIL .O OF
BEING 'OA &OUNDATION CASE SUPRA ASKED ALL 3TATES5NION 4ERRITORIES TO SUBMIT SITE
SPECIC PROPOSALS FOR DECLARATION OF ECO SENSITIVE ZONES LATEST BY )T REMINDED
THE 3TATES5NION 4ERRITORIES OF THE LETTER DATED WHEREBY IT HAD BEEN WARNED
THAT FAILURE TO SUBMIT THE PROPOSAL WITHIN THE ACTIVITIES PROHIBITED AS PER THE
GUIDELINES DATED WOULD STAND PROHIBITED WITHIN KMSOF THE BOUNDARY OF THE
.ATIONAL 0ARKS AND 3ANCTUARIES
IX )T IS STATED THAT THE 'OVERNMENT OF 3IKKIM SUBMITTED ITS RST PROPOSAL IN !PRIL
IN COMPLIANCE TO THE ABOVE BUT IN VIEW OF THE CLARICATIONS SOUGHT FOR BY THE -O%& A
REVISED ONE IN !UGUST AND IN THE NAL PROPOSAL THE 3TATE 'OVERNMENT HAS PROPOSED
METERS FROM THE BOUNDARY OF +HANGCHENDZONGA .ATIONAL 0ARK AS ECO SENSITIVE ZONE
WHICH IS STILL UNDER CONSIDERATION OF THE -O%& ALTHOUGH THIS #OURT BY ITS ORDER DATED
HAD DIRECTED THAT A DECISION BE TAKEN ON THE PROPOSAL WITHIN ONE MONTH
X 4HE UNREASONABLENESS OF THE KMSSTIPULATION WAS SOUGHT TO BE ILLUSTRATED BY THE
,EARNED 3ENIOR #OUNSEL IN STATING THAT OUT OF THE (%0S OF THEM FALL WITHIN
KMSFROM THE +HANGCHENDZONGA .ATIONAL 0ARK 4HAT THE 3TATE OF 3IKKIM HAD ALREADY
PREPARED A 0ROJECT DOCUMENT FOR DESIGNATING CORE ZONE BUFFER ZONE AND A TRANSITION ZONE
WHICH WAS ACCEPTED BY THE -O%& ON
DIRECTING THAT THOSE WILL BE DESIGNATED
4 / \
AS +HANGCHENDZONGA "IOSPHERE 2ESERVE 4HAT THIS "IOSPHERE 2ESERVE WAS FOR THE SAME
PURPOSE FOR WHICH THE ECO SENSITIVE ZONES WERE BEING PROPOSED IE TO CREATE SOME KIND
OF A SHOCK ABSORBER FOR THE 0ROTECTED !REAS 4HUS AS THE 3TATE OF 3IKKIM WAS ALREADY
REGULATING ACTIVITIES IN THE BUFFER ZONE AND TRANSITION ZONES NO 0ROJECT LOCATED WITHIN
BUFFER ZONE HAS BEEN APPROVED BY THE 3TATE AND THAT TILL THE ECO SENSITIVE ZONES ARE
DECLARED BY THE -O%& THE OBJECT OF SUCH DECLARATION IS BEING ACHIEVED BY THE .OTICATION
4HAT THE 0ROJECT IN QUESTION BEING KMSAWAY FROM THE DESIGNATED BUFFER ZONE IT IS
EVEN OUTSIDE THE TRANSITION ZONE
XI 4HE /FCE -EMORANDUM DATED
WAS ASSAILED AS BEING AN INTERNAL
MEMORANDUM AND NOT A MANDATORY ORDER )N ANY CASE THE /FCE -EMORANDUM ALSO
STIPULATES THAT ."7, CLEARANCE WOULD BE NECESSARY IF REQUIRED AND THEREFORE SINCE IN THE
PRESENT CASE NO ."7, CLEARANCE WAS REQUIRED NONE WAS OBTAINED )T IS FURTHER SUBMITTED
THAT EVEN OTHERWISE THE /FCE -EMORANDUM WAS ISSUED ONLY AFTER THE APPLICATION FOR
ENVIRONMENTAL CLEARANCE HAD BEEN SUBMITTED BY THE 2ESPONDENT .O AND MUCH AFTER THE
0UBLIC (EARING HAD TAKEN PLACE AND THEREFORE THERE WAS NO QUESTION OF THE 2ESPONDENT
.O SUBMITTING APPLICATION FOR WILD LIFE CLEARANCE PRIOR TO MAKING AN APPLICATION FOR
ENVIRONMENTAL CLEARANCE AS REQUIRED UNDER THE /FCE -EMORANDUM DATED
4HAT NEITHER A SHOW CAUSE NOTICE NOR A DIRECTION NOR ANY OTHER COMMUNICATION WAS ISSUED
TO THE 2ESPONDENT .O TO OBTAIN ."7, CLEARANCE )T IS STATED THAT REFERENCE TO THE (ONBLE
3UPREME #OURT ORDER DATED
WAS A CLEAR MISREADING OF THE ORDER BY THE PERSON
ISSUING THE /FCE -EMORANDUM
XII 3IMILARLY AS REGARDS THE LETTER DATED
IT WAS SUBMITTED THAT THE SAID
COMMUNICATION APART FROM BEING AN INTERNAL CORRESPONDENCE BETWEEN 5NION AND 3TATE
WHICH WAS NEVER COMMUNICATED TO THE 2ESPONDENT .O IT WAS ISSUED ONLY IN THE CONTEXT
OF DIVERSION OF FOREST LANDS FOR NON
FOREST PURPOSES UNDER THE &OREST #ONSERVATION !CT
AND THAT ALTHOUGH THE LETTER STATES THAT 0ROJECTS FALLING WITHIN KMSFROM THE
BOUNDARY WERE BEING GRANTED ENVIRONMENTAL CLEARANCES WITH A CONDITION TO OBTAIN
RECOMMENDATIONS OF THE ."7, THERE WAS NO SUCH STIPULATION IN THE CASE OF 2ESPONDENT
.O EXCEPT THAT ."7, MAY BE OBTAINED IF REQUIRED
XIII -R 'IRI RELYING UPON "HARAT 3ANCHAR .IGAM ,IMITED AND !NOTHER VS "0, -OBILE #ELLULAR
,IMITED AND /THERS 3## SUBMITTED THAT INTERNAL LETTERSMEMORANDUMS WERE
NOT BINDING UNLESS COMMUNICATED TO THE CONCERNED PARTIES 0 -AHENDRAN AND /THERS VS
3TATE OF +ARNATAKA AND /THERS 3## WAS CITED ON THE PROPOSITION THAT /FCE
-EMORANDUMS OR INTERNAL LETTERS CANNOT HAVE ANY RETROSPECTIVE APPLICATION UNLESS
SPECICALLY STATED THEREIN
XIV /N THE LETTER DATED !NNEXURE ! TO THE AFDAVIT OF THE 2ESPONDENT .O
IT WAS SUBMITTED THAT IT WAS ONLY A RESPONSE TO A REPRESENTATION DATED
SUBMITTED BY 3)",!# ONE DAY AFTER THE (ONBLE 3UPREME #OURT TRANSFERRED THE 7RIT
0ETITIONS TO THIS #OURT AND THEREFORE WAS PREEMPTIVE AND ALSO HIT BY THE PRINCIPLE OF LIS
PENDENS 4HAT THE LETTER WAS ISSUED WITHOUT ANY NOTICE TO THE 2ESPONDENT .O AND IN
COMPLETE VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND IN VIOLATION OF 2ULES II AND
III OF THE %NVIRONMENT 0ROTECTION 2ULES )T IS SUBMITTED THAT THE 0ETITIONERS HAVE
SUPPRESSED THE REPLY OF THE 3TATE TO THE SAID LETTER ISSUED VIDE LETTER .O &#!&%7-$
DATED !NNEXURE ! TO THE AFDAVIT OF THE 2ESPONDENT .O )N THE REPLY IT HAD
BEEN CONVEYED THAT THE 'OVERNMENT OF 3IKKIM HAD ALREADY SUBMITTED ITS DRAFT PROPOSAL
NOTIFYING ECO SENSITIVE ZONE OF METERS FROM THE BOUNDARY OF THE +HANGCHENDZONGA
.ATIONAL 0ARK FOLLOWED BY A REVISED PROPOSAL DATED AND THAT THE PROPOSAL WAS
UNDER CONSIDERATION OF THE -O%&
XV )T IS THEN STATED THAT THE 0ETITIONERS HAVE SINGLED OUT THE 0ROJECT OF THE 2ESPONDENT
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
.O WHEN THERE ARE AT LEAST (%0S WHICH FALL WITHIN THE ECO SENSITIVE ZONE REQUIRING
."7, CLEARANCE WHEN NONE OF THEM HAVE TAKEN SUCH CLEARANCE )T IS SUBMITTED THAT
THE WORK ON THE 0ROJECT HAS ADVANCED CONSIDERABLY HAVING COMPLETED ALL THREE ADITS OF
TUNNEL OF TUNNELING AND OF THE EXCAVATION WORK OF THE POWER HOUSE AREA /F THE
0ROJECT ESTIMATES OF CRORES CRORES HAVE ALREADY BEEN SPENT OF WHICH CRORES IS
BORROWED FROM NANCIAL INSTITUTIONS WITH ABOUT AROUND PEOPLE EMPLOYED DIRECTLY OR
INDIRECTLY 4HE ,EARNED #OUNSEL WENT ON TO HIGHLIGHT THE BENETS OF THE 0ROJECTS ACCRUING
TO THE 3TATE .ATION THE LOCAL POPULATION AND THE ENVIRONMENT
XVI 4HE QUESTION OF DELAY IN LING THE 0), WAS ALSO RAISED BY THE ,EARNED #OUNSEL BUT
WE MAY NOT DELAY OURSELVES ON THIS AS IT HAS BEEN DEALT WITH IN EXTENSO EARLIER 7E MAY
HOWEVER INDICATE THAT A NUMBER OF OTHER DECISIONS WERE CITED APART FROM ONE CITED ON
BEHALF OF THE 3TATE
2ESPONDENT WHICH WE MAY ENUMERATE BELOW
A #HAIRMAN AND -$ "0, ,TD SUPRA AND
B 2AUNAQ )NTERNATIONAL ,TD VS )62 #ONSTRUCTION ,TD AND /THERS 3##
XVII /N THE QUESTION OF SUSTAINABLE DEVELOPMENT AND PRECAUTIONARY PRINCIPLE RELIANCE
WAS PLACED ON THE FOLLOWING
A !CHARYA -AHARAJSHRI .ARENDRA 0RASADJI !NANDPRASADJI -AHARAJ AND /THERS VS 4HE
3TATE OF 'UJARAT AND /THERS 3##
B .$ *AYAL AND !NOTHER VS 5NION OF )NDIA AND /THERS 3## AND
C -# -EHTA SUPRA !)2 3#
XVIII -R 'IRI THEN EMPHASISED ON THE ROLE OF THE #OURTS IN MATTERS OF POLICY DECISIONS BUT
SINCE THIS HAS BEEN DISCUSSED ELABORATELY WHILE DEALING WITH THE SUBMISSIONS MADE ON
BEHALF OF THE 3TATE
2ESPONDENT WE MAY NOT DISCUSS FURTHER ON THIS FOR THE SAKE OF BREVITY
XIX /N THE QUESTION OF RELIGIOUS CULTURAL AND CUSTOMARY RIGHTS THE STAND OF THE 3TATE
2ESPONDENT WAS REITERATED IN AS MUCH AS THE 0ROJECT DOES NOT VIOLATE ANY SACRED RIGHTS OF
THE LOCAL POPULATION AND THAT THERE IS NO OBSTRUCTION TO THE "HUMCHU CEREMONY WHICH
HAS BEEN CARRIED OUT EACH YEAR 2EFERRING TO AND RELYING UPON /RISSA -INING #ORPORATION
,TD SUPRA !3 .ARAYANA $EEKSHITULU VS 3TATE OF !0 AND /THERS 3## AND (IS
(OLINESS 3RIMAD 0ERARULALA %THIRAJA 2AMANUJA *EEYAR 3WAMI ETC VS 3TATE OF 4AMIL .ADU
!)2 3# IT WAS STATED THAT ONLY THESE RELIGIOUS CULTURAL AND CUSTOMARY RIGHTS
SACRED RIGHTS ESPECIALLY OF THE 34S WHICH FORM AN INTEGRAL PART OF THE RELIGION IS TO BE
PROTECTED
XX )T WAS NALLY SUBMITTED THAT THE 0ETITIONER HAS NOT FULLLED THE REQUIREMENTS
PERTAINING TO 0), GUIDELINES SINCE THE 0ETITIONER HAS NOT ESTABLISHED HIS CREDENTIALS AS A
PUBLIC SPIRITED PERSON AND THAT HE HAS CONCEALED AND MISREPRESENTED SEVERAL FACTS AND
DOCUMENTS AND ALSO HAS INDULGED IN MAKING WILD AND RECKLESS ALLEGATION AGAINST THE
2ESPONDENT .O WITHOUT ANY PROOF
-R 6 3EKHAR ,EARNED 3ENIOR #OUNSEL ALSO APPEARING ON BEHALF OF THE 2ESPONDENTS
.O AND AND -S )NDU -ALHOTRA ,EARNED 3ENIOR #OUNSEL APPEARING ON BEHALF OF THE
2ESPONDENT .O ALSO ADDRESSED US BUT WE NEED DELAY ON THOSE AS THEIR SUBMISSIONS WERE
SUBSTANTIALLY THE SAME AS WAS URGED BY -R 6 'IRI ,EARNED 3ENIOR #OUNSEL APPEARING ON
BEHALF OF 2ESPONDENTS .O AND
7E HAVE GIVEN OUR ANXIOUS CONSIDERATION TO THE RIVAL CONTENTIONS MADE ON BEHALF OF
THE PARTIES AND HAVE CAREFULLY EXAMINED THE MATERIALS PLACED ON RECORD AND WE ND THAT
4 / \
THERE ARE ESSENTIALLY ONLY TWO QUESTIONS IN THE 7RIT 0ETITION THAT REQUIRE DETERMINATION
BY US 4HEY ARE
I 7HETHER THE 2ESPONDENTS .O AND HAVE VIOLATED THE ORDER OF THE (ONBLE 3UPREME
#OURT DATED IN 'OA &OUNDATION CASE SUPRA IN SETTING UP THE 4ASHIDING (%0
IN 7EST 3IKKIM WHEREBY SUCH 0ROJECTS REQUIRE CLEARANCE FROM THE ."7,
AND
II 7HETHER THE RIVER 2ATHONG #HU IN 7EST 3IKKIM AND THE ENTIRE AREA BELOW -OUNT
+HANGCHENDZONGA IN 7EST 3IKKIM THROUGH WHICH IT OWS IS SACRED )F SO WHETHER
THE 4ASHIDING (%0 BEING SET UP ON THE RIVER IS IN VIOLATION OF THE 0ETITIONERS RIGHT TO
PRACTICE AND PROPAGATE THEIR RELIGION
%LABORATE SUBMISSIONS WERE MADE BY THE ,EARNED #OUNSEL NOT ONLY ON THE ABOVE TWO
QUESTIONS BUT ALSO ON OTHER ISSUES WHICH IN OUR VIEW WOULD NOT BE OF RELEVANCE AND
THEREFORE DEEM IT APPROPRIATE NOT TO DEAL WITH THOSE 7E MAY THEREFORE RESTRICT OURSELVES
TO THE ABOVE TWO QUESTIONS AND DEAL WITH THEM INDIVIDUALLY HEREUNDER IN SERIATIM
7HETHER THE 0ROJECT IN QUESTION WAS IN VIOLATION OF THE ORDER DATED
PASSED
IN 'OA &OUNDATION CASE
I &OR THE SAKE OF CONVENIENCE THE ORDER DATED
IS REPRODUCED BELOW
4HE ORDER DATED TH /CTOBER REFERS TO A LETTER DATED TH -AY WHICH
WAS ADDRESSED BY THE -INISTRY OF %NVIRONMENT AND &ORESTS -O%& TO THE #HIEF
7ILDLIFE 7ARDENS OF ALL 3TATES5NION 4ERRITORIES REQUIRING THEM TO INITIATE MEASURES
FOR IDENTICATION OF SUITABLE AREAS AND SUBMIT DETAILED PROPOSALS AT THE EARLIEST 4HE
ORDER PASSED ON THAT DATE WAS THAT -O%& SHALL LE AN AFDAVIT STATING WHETHER THE
PROPOSALS RECEIVED PURSUANT TO THE LETTER OF TH -AY HAVE BEEN REFERRED TO THE
3TANDING #OMMITTEE OF .ATIONAL "OARD FOR 7ILDLIFE UNDER THE 7ILD ,IFE 0ROTECTION !CT
OR NOT )T WAS FURTHER DIRECTED THAT SUCH OF THE 3TATES5NION 4ERRITORIES WHO HAVE
NOT RESPONDED TO THE LETTER DATED TH -AY SHALL DO THE NEEDFUL WITHIN FOUR
WEEKS OF THE COMMUNICATION OF THE DIRECTIONS OF THIS #OURT BY THE -INISTRY TO THEM
)T SEEMS THAT DESPITE THE LETTER DATED TH -AY AND DESPITE THE -INISTRY HAVING
ISSUED REMINDERS AND ALSO BRINGING TO THE NOTICE OF THE 3TATES5NION 4ERRITORIES THE
ORDERS OF THIS #OURT DATED TH /CTOBER THE 3TATES5NION 4ERRITORIES HAVE NOT
RESPONDED (OWEVER WE ARE TOLD THAT THE 3TATE OF 'OA ALONE HAS SENT THE PROPOSAL BUT
THAT TOO DOES NOT APPEAR TO BE IN FULL CONFORMITY WITH WHAT WAS SOUGHT FOR IN THE LETTER
DATED TH -AY
4HE ORDER EARLIER PASSED ON TH *ANUARY REFERS TO THE DECISION WHICH WAS TAKEN
ON ST *ANUARY TO NOTIFY THE AREAS WITHIN KM OF THE BOUNDARIES OF NATIONAL
PARKS AND SANCTUARIES AS ECO
SENSITIVE AREAS 4HE LETTER DATED TH -AY IS A
DEPARTURE FROM THE DECISION OF ST *ANUARY &OR THE PRESENT IN THIS CASE WE ARE
NOT CONSIDERING THE CORRECTNESS OF THIS DEPARTURE 4HAT IS BEING EXAMINED IN ANOTHER
CASE SEPARATELY "E THAT AS IT MAY IT IS EVIDENT THAT THE 3TATES5NION 4ERRITORIES HAVE
NOT GIVEN THE IMPORTANCE THAT IS REQUIRED TO BE GIVEN TO MOST OF THE LAWS TO PROTECT
ENVIRONMENT MADE AFTER 2IO $ECLARATION
4HE -INISTRY IS DIRECTED TO GIVE A NAL OPPORTUNITY TO ALL 3TATES5NION 4ERRITORIES
TO RESPOND TO ITS LETTER DATED TH -AY 4HE 3TATE OF 'OA ALSO IS PERMITTED TO
GIVE APPROPRIATE PROPOSAL IN ADDITION TO WHAT IS SAID TO HAVE ALREADY BEEN SENT TO THE
#ENTRAL 'OVERNMENT 4HE COMMUNICATION SENT TO THE 3TATES5NION 4ERRITORIES SHALL
MAKE IT CLEAR THAT IF THE PROPOSALS ARE NOT SENT EVEN NOW WITHIN A PERIOD OF FOUR
WEEKS OF RECEIPT OF THE COMMUNICATION FROM THE -INISTRY THIS #OURT MAY HAVE TO
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
CONSIDER PASSING ORDERS FOR IMPLEMENTATION OF THE DECISION THAT WAS TAKEN ON ST
*ANUARY NAMELY NOTICATION OF THE AREAS WITHIN KM OF THE BOUNDARIES OF
THE SANCTUARIES AND NATIONAL PARKS AS ECO
SENSITIVE AREAS WITH A VIEW TO CONSERVE THE
FOREST WILDLIFE AND ENVIRONMENT AND HAVING REGARD TO THE PRECAUTIONARY PRINCIPLES )F
THE 3TATES5NION 4ERRITORIES NOW FAIL TO RESPOND THEY WOULD DO SO AT THEIR OWN RISK
AND PERIL
4HE -O%& WOULD ALSO REFER TO THE 3TANDING #OMMITTEE OF THE .ATIONAL "OARD FOR
7ILDLIFE UNDER 3ECTIONS B AND C II OF THE 7ILD ,IFE 0ROTECTION !CT THE CASES
WHERE ENVIRONMENT CLEARANCE HAS ALREADY BEEN GRANTED WHERE ACTIVITIES ARE WITHIN
KM ZONE ;EMPHASIS SUPPLIED=
II /N A PLAIN READING OF THE ABOVE AND IN CONSIDERATION OF THE SUBMISSIONS OF THE ,EARNED
#OUNSEL FOR THE PARTIES THERE CAN BE NO DISPUTE OF THE FACT THAT THE ORDER WAS A CONDITIONAL
ONE PASSED FOLLOWING THE PRECAUTIONARY PRINCIPLE 4HE ORDER CLEARLY REECTS THE CONCERN OF
THE (ONBLE 3UPREME #OURT IN THE 3TATES5NION 4ERRITORIES HAVING IGNORED THE LETTERS OF
THE -O%& CONVEYING ITS EARLIER ORDER DATED
REQUIRING COMPLIANCE OF THE -O%&
LETTER DATED
AND THE FACT THAT DUE IMPORTANCE WAS NOT BEING GIVEN TO THE LAWS
TO PROTECT ENVIRONMENT BY THE 3TATES5NION 4ERRITORIES
III 3INCE THE LETTER & .O
7,
) DATED
!NNEXURE !
ISSUED BY THE
!SSISTANT )NSPECTOR 'ENERAL -O%& TO THE #HIEF 7ILDLIFE 7ARDEN OF ALL 3TATES5NION
4ERRITORIES HAS BEEN REFERRED TO BY THE (ONBLE 3UPREME #OURT IN ITS ORDER DATED
IN 'OA &OUNDATION CASE SUPRA AND IS OF SIGNICANCE FOR THE PURPOSE OF THIS CASE WE
MAY REPRODUCE ITS TEXT WHICH READS AS UNDER
4HE 7ILDLIFE #ONSERVATION 3TRATEGY ADOPTED DURING 88 ST MEETING OF )NDIAN
"OARD FOR 7ILDLIFE HELD ON ST *ANUARY STIPULATED THAT ,ANDS FALLING WITHIN
KM OF THE BOUNDARIES OF .ATIONAL 0ARKS AND 3ANCTUARIES SHOULD BE NOTIED AS %COFRAGILE
:ONES UNDER 3ECTION 6 OF THE %NVIRONMENT 0ROTECTION !CT AND RULE SUB
RULE 6)))
8 OF THE %NVIRONMENT 0ROTECTION 2ULE 4HE -EMBER 3ECRETARY OF THE )"7, VIDE $/
.O
7,
) DATED TH &EBRUARY REQUESTED THE 3TATE 'OVERNMENT TO LIST OUT
SUCH AREAS AND FURNISH DETAILED PROPOSALS FOR THEIR NOTICATION AS %COSENSITIVE AREAS
UNDER THE %NVIRONMENT 0ROTECTION !CT
(OWEVER MANY 3TATES$EPARTMENTS HAD RAISED CONCERNS OVER THE KM RANGE LIMITS
4HE MATTER WAS THEREFORE PLACED BEFORE THE .ATIONAL "OARD FOR 7ILDLIFE IN ITS MEETING
HELD ON TH -ARCH UNDER THE CHAIRMANSHIP OF (ONBLE 0RIME -INISTER OF )NDIA
4HE DECISION TAKEN IN THE MEETING IS MENTIONED BELOW
4HE PROPOSAL FOR AUGMENTING THE CONSERVATION OF THE EXISTING 0ROTECT AREAS WAS AGREED
TO (OWEVER THE DELINEATION OF ECO SENSITIVE ZONES WOULD HAVE TO BE SITE SPECIC AND RELATE
TO REGULATION RATHER THAN PROHIBITION OF SPECIC ACTIVITIES 3TATE 'OVERNMENT WILL HAVE
TO BE CONSULTED IN THIS REGARD AND CONCURRENCE OBTAINED 4HIS BEING AN AREA OF POTENTIAL
CONICT WITH LOCAL COMMUNITIES NO ENHANCEMENT OF AREA SHOULD BE DONE ARBITRARILY
) AM THEREFORE DIRECTED TO REQUEST YOU TO KINDLY INITIATE MEASURES FOR IDENTICATION OF
SUITABLE AREAS AND SUBMIT DETAILED PROPOSALS AT THE EARLIEST ;EMPHASIS SUPPLIED=
IV )T IS IN THIS BACKDROP OF THE CIRCUMSTANCES SET OUT ABOVE THAT BY THE ORDER DATED
THE -O%& WAS AGAIN DIRECTED TO WRITE TO THE 3TATES5NION 4ERRITORIES GIVING THEM A
NAL OPPORTUNITY TO RESPOND TO -O%& LETTER DATED
FOR SUBMISSION OF PROPOSAL
FOR DECLARATION OF %CO
3ENSITIVE :ONE 4HE ORDER WAS APPARENTLY AN EFFORT AT PERSUADING
THE 3TATE 'OVERNMENTS TO EXPEDITE THE NECESSARY STEPS AS REQUIRED FOR DECLARING THE %CO
3ENSITIVE :ONE AND NOTHING FURTHER
4 / \
V 7ITHOUT DELVING INTO THIS FURTHER IT WOULD BE PERTINENT TO NOTE THAT THE ORDER WAS
ALSO CONSIDERED IN !NAND !RYA CASE SUPRA )T MAY ALSO BE NOTED THAT CONCEDEDLY THE ECO
SENSITIVE ZONE HAS STILL NOT BEEN DECLARED ALTHOUGH A REVISED PROPOSAL WAS FORWARDED BY
THE 2ESPONDENT .O THE 3TATE OF 3IKKIM TO THE 2ESPONDENT .O -O%& ONLY ON
WHICH IS PRESENTLY SAID TO BE UNDER ITS CONSIDERATION 4HIS IS APPARENT FROM THE AFDAVIT
DATED LED ON BEHALF OF THE 2ESPONDENT .O 3INCE THE AVERMENTS CONTAINED
IN THAT AFDAVIT IS OF CONSIDERABLE SIGNICANCE HAVING A BEARING ON THE INTERPRETATION OF
THE ORDER DATED IN 'OA &OUNDATION CASE SUPRA WE MAY CONSIDER ITS MATERIAL
PORTIONS WHICH READ AS UNDER
4HAT THE ISSUE OF NOTICATION OF %CO SENSITIVE ZONES AS PRAYED IN THESE #-!S IS A
PART OF A LARGER PROCESS IN -O%& BEING TAKEN UP UNDER THE PROVISIONS OF %NVIRONMENT
0ROTECTION !CT UNDER 3ECTION V IN THE BACKGROUND OF EARLIER ADOPTION OF A
RECOMMENDATION OF THE .ATIONAL "OARD FOR 7ILD ,IFE FOR DECLARATION OF THE %CO SENSITIVE
ZONE AROUND THE 0ROTECTED !REAS FOR REGULATING LAND USE 4HE MATTER CONCERNS ALL THE
3TATES AND 54S OF THE COUNTRY AND IS ALSO BEING OVERSEEN BY THE (ONBLE 3UPREME #OURT
IN 7RIT 0ETITION # .O OF 4. 'ODAVARMAN 4HIRUMULPAD VS 5NION OF )NDIA
/RS AND 70 # IE 'OA &OUNDATION VS 5NION OF )NDIA /RS
4HE PROPOSAL ARE PROCESSED AND DEALT UNDER THE SECTION III OF THE %NVIRONMENT
0ROTECTION 2ULES WHICH ENVISAGES PUBLICATION OF A DRAFT NOTICATION IN PUBLIC
DOMAIN FOR SEEKING COMMENTS OF PUBLIC CONSIDERATION OF THE COMMENTS AND
THEREAFTER ONLY NALIZATION OF THE NOTICATION IN THE 'OVERNMENT GAZETTE 7HILE IT
TAKES EFFORT FOR THE WHOLE PROCESS A TIME PERIOD OF DAYS HAS BEEN PRESCRIBED VIDE
NOTICATION NO % DATED 4HIS TIME IS PRESCRIBED FROM THE
DATE OF PUBLICATION OF THE NOTICATION IN THE OFCIAL 'AZETTE IMPLYING THAT THE TIME
TAKEN FOR RECTICATIONS OF INITIAL DECIENCIES IN THE PROPOSAL AND APPROVAL OF DRAFT
NOTICATION ARE NOT A PART OF THIS PRESCRIBED TIME LIMIT
)T IS SUBMITTED THAT THE EIGHT REVISED PROPOSALS WHICH INCLUDE THE +HANGCHENZONGA
.ATIONAL 0ARK SUBMITTED BY THE 'OVERNMENT OF 3IKKIM VIDE THEIR LETTER DATED
ARE UNDER PROCESS IN THE -INISTRY
4HE REVISED PROPOSALS WERE SCRUTINIZED BASED ON CRITERIA PROPOSED FOR %3:S TO
ENSURE THAT THEY ARE IN CONFORMITY WITH THE -O%& 'UIDELINES FOR DECLARATION OF %CO
3ENSITIVE :ONES (OWEVER THE EXTENT OF THE %CO
3ENSITIVE :ONE PROPOSED AROUND
0ROTECTED !REAS HAS BEEN FOUND NOT JUSTIED IN CASE OF 3INGBHA 2HODODENDRON
3ANCTUARY !CCORDINGLY A MEETING WAS CONVENED WITH THE OFCIALS OF THE 3TATE
'OVERNMENT OF 3IKKIM ON IN WHICH THEY HAVE BEEN REQUESTED TO SUBMIT
JUSTICATION ON THE EXTENT OF PROPOSED %CO
SENSITIVE ZONES OF ALL THE PROPOSALS OF
THE 3IKKIM WHICH INCLUDE THE +HANGCHENZONGA .ATIONAL 0ARK ALSO
4HAT THE MAIN PETITIONS 70 # OF AND 70 # OF UNDER WHICH
THESE #-!S HAVE BEEN LED IS ABOUT CONSTRUCTION OF THE 4ASHIDING (YDRO %LECTRIC
0ROJECT -7 ALLEGEDLY INVIOLATION OF ENVIRONMENTAL REGULATION BY NOT OBTAINING
CLEARANCE FROM THE 3TANDING #OMMITTEE OF ."7, EVEN THOUGH IT IS WITHIN THE
KMSOF THE +HANGCHANZONGA .ATIONAL 0ARK )N THE ENVIRONMENTAL CLEARANCE GRANTED
ON FOR THIS PROJECT SPECIC CONDITIONS MENTIONED IS AS FOLLOWS
0!24 ! VIII
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
4HE PROPOSED SITE IS ABOUT KM AWAY FROM THE BUFFER ZONE OF +HANGCHENDZONGA
"IOSPHERE 2ESERVE AS PER 3UPREME #OURT /RDER CLEARANCE FROM THE ."7, MAY BE
OBTAINED IF REQUIRED
!S THERE WAS NO NOTIED %CO SENSITIVE ZONE THE RECOMMENDATIONS OF THE 3TANDING
#OMMITTEE OF THE ."7, WERE MANDATORY AND NEEDED TO THE APPLIED FOR ! PROPOSAL
FOR AN ECO SENSITIVE ZONE AND NOTICATION THEREOF AT THIS DATE CANNOT ABSOLVE THE
PROJECT AUTHORITIES FROM THIS REQUIREMENT OF 7ILDLIFE CLEARANCE
!S SUCH THE PROCESS OF DECLARATION OF THE %CO
SENSITIVE ZONE AS PROPOSED BY THE
3TATE 'OVT OF 3IKKIM IS NOT LINKED TO THE REQUIRED WILDLIFE CLEARANCE FOR EFFECTIVE
%NVIRONMENT CLEARANCE GRANTED IN FOR THE 4ASHIDING (YDRO %LECTRIC 0ROJECT
4HAT THE DECLARATION OF THE %CO
SENSITIVE ZONE IS NOT A LIMITING FACTOR FOR AN
EFFECTIVE %NVIRONMENT CLEARANCE7ILDLIFE CLEARANCE OF THE 4ASHIDING (YDRO ELECTRIC
0ROJECT -7 WHICH IS THE SUBJECT MATTER OF THE MAIN PETITIONS IE 70 # OF
AND 70 # OF UNDER WHICH THESE #-!S HAVE BEEN LED
)T IS SUBMITTED THAT THESE #-!S OF THE 3TATE 'OVT OF 3IKKIM SEEKING NOTICATION
OF THE %CO
SENSITIVE ZONES AND THE PERCEIVED PACE OF THE PROCESS OF DECLARATION OF
%3: MAY BE SEEN IN THE BACKGROUND OF ABOVE MENTIONED FACTS 4HERE IS NO INACTION
ON THE PART OF THE RESPONDENTS IN THE MATTER AND THE -INISTRY OF %NVIRONMENT AND
&ORESTS HAS BEEN TAKING APPROPRIATE ACTION FOR THE NOTICATION OF THE %CO
SENSITIVE
ZONES IN ALL THE PROPOSALS RECEIVED FROM SEVERAL 3TATES 4ILL THE NAL NOTICATION THE
REQUIREMENT OF SEEKING ."7, CLEARANCES PREVAILS FOR THE ACTIVITIES BEING UNDERTAKEN
WITHIN THE KM FROM THE BOUNDARY OF THE .ATIONAL 0ARKS7ILDLIFE 3ANCTUARIES
;EMPHASIS SUPPLIED=
VI !S NOTED EARLIER THE ,EARNED #OUNSEL FOR THE 2ESPONDENTS .O AND WOULD
ARGUE THAT THE AFDAVIT IS BASED UPON AN ERRONEOUS INTERPRETATION OF THE ORDER IN 'OA
&OUNDATION CASE SUPRA AND THEREFORE NOT LEGAL AND BINDING UPON THEM )N ORDER TO GET
AT THE BOTTOM OF THIS WE HAVE EXAMINED THE VARIOUS .OTICATIONS /FCE -EMORANDUMS
AND LETTERS THAT WERE REFERRED TO ON BEHALF OF THE PARTIES
VII 4HE RST OF THOSE IS %)! .OTICATION DATED ISSUED BY THE -O%& WHICH INTER
ALIA DECLARED THAT
THE #ENTRAL 'OVERNMENT HEREBY DIRECTS THAT ON AND FROM THE DATE OF ITS
PUBLICATION THE REQUIRED CONSTRUCTION OF NEW PROJECTS OR ACTIVITIES OR THE EXPANSION
OR MODERNIZATION OF EXISTING PROJECTS OR ACTIVITIES LISTED IN THE 3CHEDULE TO THIS
NOTICATION ENTAILING CAPACITY ADDITION WITH CHANGE IN PROCESS AND OR TECHNOLOGY SHALL
BE UNDERTAKEN IN ANY PART OF )NDIA ONLY AFTER THE PRIOR ENVIRONMENTAL CLEARANCE FROM
THE #ENTRAL 'OVERNMENT OR AS THE CASE MAY BE BY THE 3TATE ,EVEL %NVIRONMENT )MPACT
!SSESSMENT !UTHORITY DULY CONSTITUTED BY THE #ENTRAL 'OVERNMENT UNDER SUB
SECTION
OF SECTION OF THE SAID !CT IN ACCORDANCE WITH THE PROCEDURE SPECIED HEREINAFTER
IN THIS NOTICATION
2EQUIREMENTS OF PRIOR %NVIRONMENTAL #LEARANCE %# 4HE FOLLOWING PROJECTS OR
ACTIVITIES SHALL REQUIRE PRIOR ENVIRONMENTAL CLEARANCE FROM THE CONCERNED REGULATORY
AUTHORITY WHICH SHALL HEREINAFTER REFERRED TO BE AS THE #ENTRAL 'OVERNMENT IN THE
-INISTRY OF %NVIRONMENT AND &ORESTS FOR MATTERS FALLING UNDER #ATEGORY ! IN THE
3CHEDULE AND AT 3TATE LEVEL THE 3TATE %NVIRONMENT )MPACT !SSESSMENT !UTHORITY 3%)!!
FOR MATTERS FALLING UNDER #ATEGORY " IN THE SAID 3CHEDULE BEFORE ANY CONSTRUCTION
WORK OR PREPARATION OF LAND BY THE PROJECT MANAGEMENT EXCEPT FOR SECURING THE LAND
4 / \
IS STARTED ON THE PROJECT OR ACTIVITY
I !LL NEW PROJECTS OR ACTIVITIES LISTED IN THE 3CHEDULE TO THIS NOTICATION
II %XPANSION AND MODERNIZATION OF EXISTING PROJECTS OR ACTIVITIES LISTED IN THE 3CHEDULE
TO THIS NOTICATION WITH ADDITION OF CAPACITY BEYOND THE LIMITS SPECIED FOR THE
CONCERNED SECTOR THAT IS PROJECTS OR ACTIVITIES WHICH CROSS THE THRESHOLD LIMITS GIVEN IN
THE 3CHEDULE AFTER EXPANSION OR MODERNIZATION
III !NY CHANGE IN PRODUCT MIX IN AN EXISTING MANUFACTURING UNIT INCLUDED IN 3CHEDULE
BEYOND THE SPECIED RANGE
V #LEARANCES FROM OTHER REGULATORY BODIES OR AUTHORITIES SHALL NOT BE REQUIRED PRIOR
TO RECEIPT OF APPLICATIONS FOR PRIOR ENVIRONMENTAL CLEARANCE OF PROJECTS OR ACTIVITIES OR
SCREENING OR SCOPING OR APPRAISAL OR DECISION BY THE REGULATORY AUTHORITY CONCERNED
UNLESS ANY OF THESE IS SEQUENTIALLY DEPENDENT ON SUCH CLEARANCE EITHER DUE TO A
REQUIREMENT OF LAW OR FOR NECESSARY TECHNICAL REASONS ;EMPHASIS SUPPLIED=
VIII 4HE NEXT IS -O%& /FCE -EMORANDUM DATED PRESCRIBING PROCEDURE FOR
CONSIDERATION OF PROPOSALS FOR GRANT OF ENVIRONMENTAL CLEARANCE UNDER %)! .OTICATION
4HE RELEVANT PORTION OF WHICH READS AS UNDER
4HE ISSUE REGARDING THE PROCEDURE TO BE FOLLOWED FOR CONSIDERATION OF PROPOSALS FOR GRANT
OF ENVIRONMENTAL CLEARANCE UNDER %)! .OTICATION WHICH INVOLVE FORESTLAND AND
OR WILDLIFE HABITAT HAS BEEN UNDER CONSIDERATION OF THIS -INISTRY 4HE ISSUE HAS BEEN
DISCUSSED AND DELIBERATED AT LENGTH AND THE PROVISIONS OF %)! .OTICATION AS
CONTAINED IN PARA V OF THE SAID NOTICATION HAVE ALSO BEEN CONSIDERED
)T HAS NOW BEEN DECIDED THAT THE FOLLOWING PROCEDURE SHALL BE ADOPTED IN DEALING
WITH SUCH CASES
I 4HE PROPOSALS FOR ENVIRONMENTAL CLEARANCE WILL NOT BE LINKED WITH THE CLEARANCES
FROM FORESTRY AND WILDLIFE ANGLE EVEN IF IT INVOLVES FORESTLAND AND OR WILDLIFE HABITAT
AS THESE CLEARANCES ARE INDEPENDENT OF EACH OTHER AND WOULD IN ANY CASE NEED TO BE
OBTAINED AS APPLICABLE TO SUCH PROJECTS BEFORE STARTING ANY ACTIVITY AT SITE
II 7HILE CONSIDERING SUCH PROPOSALS UNDER %)! .OTICATION SPECIC INFORMATION
ON THE FOLLOWING SHOULD BE OBTAINED FROM THE PROPONENT
A
B )NFORMATION ABOUT WILDLIFE CLEARANCE AS APPLICABLE TO THE PROJECT SHOULD ALSO BE
OBTAINED 4HE PROJECT PROPONENT SHOULD SUBMIT THEIR APPLICATION FOR WILDLIFE CLEARANCE
CLEARANCE FROM 3TANDING #OMMITTEE OF THE .ATIONAL "OARD FOR 7ILDLIFE TO THE #OMPETENT
!UTHORITY BEFORE COMING FOR ENVIRONMENT CLEARANCE AND A COPY OF THEIR APPLICATION
SHOULD BE FURNISHED ALONG WITH ENVIRONMENT CLEARANCE APPLICATION
III 4HE PROPOSAL FROM ENVIRONMENTAL ANGLE WILL BE APPRAISED BY THE RESPECTIVE
%XPERT !PPRAISAL #OMMITTEE AND RECOMMENDATIONS MADE ON THE SAME WHICH WILL
BE PROCESSED BY THE )! $IVISION AND APPROVAL OBTAINED FROM #OMPETENT !UTHORITY
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
(OWEVER WHILE GRANTING ENVIRONMENTAL CLEARANCE TO PROJECTS INVOLVING FORESTLAND
WILDLIFE HABITAT CORE ZONE OF ELEPHANTTIGER RESERVE ETC AND OR LOCATED WITHIN KM OF
THE .ATIONAL 0ARK7ILDLIFE 3ANCTUARY AT PRESENT THE DISTANCE OF KM HAS BEEN TAKEN
IN CONFORMITY WITH THE ORDER DATED IN WRIT PETITION NO OF IN THE
MATTER OF 'OA &OUNDATION VS 5NION OF )NDIA A SPECIC CONDITION SHALL BE STIPULATED
THAT THE ENVIRONMENTAL CLEARANCE IS SUBJECT TO THEIR OBTAINING PRIOR CLEARANCE FROM
FORESTRY AND WILDLIFE ANGLE INCLUDING CLEARANCE FROM THE 3TANDING #OMMITTEE OF THE
.ATIONAL "OARD FOR 7ILDLIFE AS APPLICABLE &URTHER IT WILL ALSO BE CATEGORICALLY STATED
IN THE ENVIRONMENT CLEARANCE THAT THE GRANT OF ENVIRONMENTAL CLEARANCE DOES NOT
NECESSARILY IMPLIES THAT FORESTRY AND WILDLIFE CLEARANCE SHALL BE GRANTED TO THE PROJECT
AND THAT THEIR PROPOSALS FOR FORESTRY AND WILDLIFE CLEARANCE WILL BE CONSIDERED BY THE
RESPECTIVE AUTHORITIES ON THEIR MERITS AND DECISION TAKEN 4HE INVESTMENT MADE IN THE
PROJECT IF ANY BASED ON ENVIRONMENTAL CLEARANCE SO GRANTED IN ANTICIPATION OF THE
CLEARANCE FROM FORESTRY AND WILDLIFE ANGLE SHALL BE ENTIRELY AT THE COST AND RICK OF THE
PROJECT PROPONENT AND -INISTRY OF %NVIRONMENT &ORESTS SHALL NOT BE RESPONSIBLE IN
THIS REGARD IN ANY MANNER
IV ! COPY OF THE CLEARANCE LETTER BESIDES OTHERS SHALL ALSO BE ENDORSED TO I )'&&#
-O%& II )'&7, -O%& III 0##& OF RESPECTIVE 3TATES AND IV #HIEF 7ILDLIFE 7ARDEN
OF THE 3TATE
.OTE 4HERE WILL NOT BE ANY NEED TO REFER THE LES RELATING TO GRANT OF ENVIRONMENTAL
CLEARANCE FROM )! $IVISION TO &# $IVISION AND OR 7ILDLIFE $IVISION DURING CONSIDERATION
OF PROPOSALS UNDER %)! .OTICATION AS DONE AT PRESENT IN VIEW OF THE COURSE OF
ACTION STIPULATED AT PARAS I
IV ABOVE
;EMPHASIS SUPPLIED=
IX .EXT IS THE ENVIRONMENT CLEARANCE GRANTED IN RESPECT OF THE 0ROJECT IN QUESTION WHICH
IS DATED
IN 0ART ! 3PECIC #ONDITIONS VIII 4HE FOLLOWING IS FOUND TO HAVE BEEN
STIPULATED
VIII 4HE PROPOSED SITE IS ABOUT KM AWAY FROM THE BUFFER ZONE OF +HANGCHENDZONGA
"IOSPHERE 2ESERVE AS PER 3UPREME #OURT ORDER CLEARANCE FROM THE ."7, MAY BE
OBTAINED IF REQUIRED ;EMPHASIS SUPPLIED=
X 4HE OTHER IS THE CONTENTIOUS LETTER DATED !NNEXURE ! ISSUED BY THE $EPUTY
)NSPECTOR 'ENERAL OF &ORESTS 7, -O%& TO THE 0R #HIEF #ONSERVATOR OF &ORESTS AND (/&&
'OVERNMENT OF 3IKKIM WHICH READS AS FOLLOWS
4HIS -INISTRY HAS RECEIVED A REPRESENTATION FROM THE #ONVENOR 3IKKIM "HUTIA ,EPCHA
!PEX #OMMITTEE REGARDING CONSTRUCTION OF THE -7 4ASHIDING (YDRO %LECTRIC 0OWER
0ROJECT ! COPY OF THE REPRESENTATION IS ENCLOSED FOR YOUR READY REFERENCE )T HAS BEEN
MENTIONED IN THE REPRESENTATION THAT THE -7 4ASHIDING (YDRO %LECTRIC 0OWER
PROJECT SLATED OVER THE SACRED 2ATHONGCHA 2IVER IN 7EST 3IKKIM HAS CONSISTENTLY BEEN
OPPOSED BY THE "UDDHIST PEOPLE OF 3IKKIM SINCE THE RIVER IS REGARDED VERY SACRED AS PER
3IKKIMESE "UDDHIST TRADITION )T HAS ALSO BEEN MENTIONED THAT THE SAID PROJECT IS WITHIN
THE KMSRADIUS OF +ANGCHENGDZONGA .ATIONAL 0ARK 4HEY HAVE THEREFORE REQUESTED
THAT THIS -INISTRY MAY INITIATE NECESSARY ACTIONS URGENTLY FOR CLOSING DOWN THE ANTI
"UDDHIST 4ASHIDING (%0
)N THIS CONTEXT IT IS REQUESTED TO KINDLY LOOK INTO THE MATTER AS TO WHETHER THE
4 / \
CONSTRUCTION OF THE -7 4ASHIDING (YDRO %LECTRIC 0OWER 0ROJECT IN 7EST 3IKKIM IS
ALREADY UNDERWAY AND IF YES THE SAME MAY KINDLY BE STOPPED IMMEDIATELY UNTIL FURTHER
ORDERS AS THEY DO NOT HAVE NECESSARY RECOMMENDATIONS OF THE 3TANDING #OMMITTEE
OF .ATIONAL "OARD FOR 7ILDLIFE 4HE SAID INFORMATION MAY KINDLY BE FORWARDED TO THIS
/FCE -/34 52'%.4,9
XI 4HERE ARE ALSO OTHER CORRESPONDENCES BUT IN OUR VIEW THE ONES SET OUT ABOVE ARE
THE CRUCIAL ONES THAT WOULD SHED LIGHT ON THE QUESTION 5PON A CLOSE EXAMINATION AND
A CONJOINT READING OF THESE DOCUMENTS IT WOULD REVEAL THAT THE STIPULATION BY THE -O%&
FOR OBTAINING CLEARANCE FROM THE 3TANDING #OMMITTEE OF THE ."7, WAS BASED UPON THE
ORDER DATED
PASSED IN 'OA &OUNDATION CASE SUPRA !S WOULD APPEAR ON A BARE
PERUSAL OF THE ORDER THE -O%& WAS DIRECTED TO GIVE A NAL OPPORTUNITY TO THE 3TATES5NION
4ERRITORIES TO COMPLY TO ITS LETTER DATED
REQUIRING THEM TO INITIATE MEASURES FOR
SITE SPECIC IDENTICATION OF ECO
SENSITIVE ZONES AROUND THE BOUNDARIES OF .ATIONAL 0ARKS
AND 3ANCTUARIES AND THAT THE COMMUNICATION SHOULD MAKE IT CLEAR THAT IF THE 3TATES5NION
4ERRITORIES FAILED TO SEND THEIR PROPOSAL WITHIN FOUR WEEKS OF THE RECEIPT OF THE LETTER IT MAY
THEN CONSIDER PASSING ORDERS FOR IMPLEMENTATION OF ITS DECISION TAKEN ON
IE
.OTICATION OF THE AREAS WITHIN KM OF THE BOUNDARIES OF THE 3ANCTUARIES AND .ATIONAL
0ARKS AS ECO
SENSITIVE AREAS WITH A VIEW TO CONSERVE THE FOREST WILDLIFE AND ENVIRONMENT
AND HAVING REGARD TO THE PRECAUTIONARY PRINCIPLES AND FURTHER THAT FAILURE BY THE 3TATES
5NION 4ERRITORIES TO RESPOND WOULD BE AT THEIR OWN RISK AND PERIL
XII !PART FROM THIS WE ALSO ND OTHER LETTERS DATED AND
ISSUED BY THE -O%& REITERATING WHAT HAD BEEN CONVEYED IN THE LETTER DATED FOR
SITE SPECIC DELINEATION OF ECO SENSITIVE ZONES
XIII 7E THEREFORE ND THE EXPRESSION IF REQUIRED INSERTED IN EVERY CLEARANCES AND
NOTICATIONS OR OFCE MEMORANDUMS ISSUED BY THE -O%& IS DEPENDENT UPON THE EXTENT OF
THE ECO
SENSITIVE ZONES TO BE NOTIED AND THAT WHATEVER BE THE EXTENT OF THE %CO
SENSITIVE
:ONE CLEARANCE OF THE ."7, WOULD REMAIN MANDATORY
XIV 4HE /FCE -EMORANDUM OF THE -O%& DATED
REFERRED TO ABOVE WAS
SERIOUSLY ASSAILED ON BEHALF OF THE 2ESPONDENTS .O AND IN AS MUCH IT WAS ONLY AN
INTER
DEPARTMENTAL CORRESPONDENCE NOT HAVING THE FORCE OF LAW AND NOT AT ALL BROUGHT
TO THE NOTICE OF THE GENERAL PUBLIC AND THE 2ESPONDENT .O 7E ARE NOT ABLE TO ACCEPT
THIS SUBMISSION AS WE ND THAT THE /FCE -EMORANDUM DATED
WAS ISSUED IN
FURTHERANCE OF PARAGRAPH V OF THE %)! .OTICATION PRESCRIBING THE PROCEDURE FOR
OBTAINING CLEARANCES FROM THE OTHER REGULATORY BODIES OR AUTHORITIES MENTIONED THEREIN
#ONTRARY TO THE SUBMISSIONS OF -R 'IRI WE ND THAT THE /FCE -EMORANDUM HAD BEEN
DULY PUT UP IN THE WEBSITE OF THE -O%& AS WOULD APPEAR FROM THE ENDORSEMENT OF COPIES
AT SL .O WHICH READS AS 7EBSITE OF THE -INISTRY 4HEREFORE THE /FCE -EMORANDUM
WAS ACCESSIBLE TO THE GENERAL PUBLIC 4HE 2ESPONDENTS .O AND ARE EXPECTED TO HAVE
ACCESSED IT AS THEY ARE VITALLY INTERESTED WITH THE ORDERS AND NOTICATIONS ISSUED BY THE
-O%& IN VIEW OF THEIR INVOLVEMENT IN THE 0ROJECT UNDER CONSIDERATION 1UESTIONING THE
VALIDITY OF THE /FCE -EMORANDUM NOW CANNOT DETRACT FROM THE FACT THAT IT WAS IN THE
PUBLIC DOMAIN AND THAT THE 2ESPONDENTS WERE AWARE OF IT
XV )T APPEARS TO US THAT THE /FCE -EMORANDUM ONLY QUALIES THAT THE GRANT OF
ENVIRONMENT CLEARANCE UNDER %)! .OTICATION WOULD NOT ABSOLVE A 0ROJECT PROPONENT
FROM THE NECESSITY OF OBTAINING FORESTRY AND WILDLIFE CLEARANCES AS THEY ARE DISTINCT FROM
ENVIRONMENT CLEARANCE AND THAT WHILE GRANTING ENVIRONMENTAL CLEARANCE TO 0ROJECTS
OF THE PRESENT KIND A SPECIC CONDITION SHOULD BE STIPULATED THAT THE ENVIRONMENTAL
CLEARANCE GRANTED IS SUBJECT INTER ALIA TO THEIR OBTAINING PRIOR CLEARANCE FROM THE 3TANDING
#OMMITTEE OF THE ."7, AS APPLICABLE IN CONFORMITY WITH THE ORDER DATED
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
IN 'OA &OUNDATION CASE SUPRA 7E OF COURSE ALSO NOTICE THAT THE /FCE -EMORANDUM
FURTHER STIPULATES THAT THE EXPENDITURE INCURRED ON A 0ROJECT IN ANTICIPATION OF FORESTRY AND
WILD LIFE CLEARANCES SHALL BE AT THE COST AND RISK OF THE 0ROJECT PROPONENT 4HE STIPULATION
INDICATED IN THE %NVIRONMENTAL #LEARANCE AT #LAUSE VIII OF THE 3PECIC #ONDITIONS IS ALSO
INDICATIVE OF THE DIRECTIONS CONTAINED IN THE 'OA &OUNDATION ORDER SUPRA
XVI 4HE CORRECTNESS OF THE LETTER DATED
WAS ALSO QUESTIONED WITH GREAT
VEHEMENCE ON BEHALF OF THE 2ESPONDENTS )T WAS SUBMITTED THAT THE -O%& 7ILDLIFE
$IVISION HAD NO JURISDICTION TO ENTER INTO RELIGIOUS ASPECTS AND THAT THE LETTER WAS ONLY
A REACTION TO A REPRESENTATION RECEIVED FROM 3IKKIM "HUTIA
,EPCHA !PEX #OMMITTEE
DATED
)N OUR VIEW THIS SUBMISSION ALSO DOES NOT APPEAR TO BE CORRECT AS A
BARE PERUSAL OF THE LETTER WOULD SHOW THAT ONE OF THE ALLEGATIONS TAKEN UP SERIOUSLY WAS
THAT THE 0ROJECT WAS WITHIN KMSRADIUS OF +HANGCHENDZONGA .ATIONAL 0ARK BY WHICH
OBVIOUSLY REFERENCE WAS BEING MADE TO THE 'OA &OUNDATION CASE SUPRA
XVII 4HESE QUESTIONS HOWEVER NOW STAND SETTLED AND IS NO MORE RES INTEGRA IN VIEW
OF THE NAL JUDGMENT OF THE (ONBLE 3UPREME #OURT DATED
IN 'OA &OUNDATION
VS 5NION OF )NDIA AND /THERS 3CALE IN 7RIT 0ETITION #IVIL .O OF IN
WHICH QUESTIONS HAVE BEEN SQUARELY DEALT WITH BY THE (ONBLE 3UPREME #OURT 7E MAY
REPRODUCE BELOW ITS RELEVANT PORTIONS
7HEN HOWEVER WE READ THE ORDER DATED OF THIS #OURT IN 7RIT 0ETITION
# .O OF 'OA &OUNDATION V 5NION OF )NDIA WE ND THAT THE #OURT HAS NOT
PROHIBITED ANY MINING ACTIVITY WITHIN KILOMETER DISTANCE FROM THE BOUNDARIES
OF THE .ATIONAL 0ARKS OR 7ILDLIFE 3ANCTUARIES 4HE RELEVANT PORTION OF THE ORDER DATED
IS QUOTED HERE IN BELOW
4HE -INISTRY IS DIRECTED TO GIVE A NAL OPPORTUNITY TO ALL 3TATES5NION 4ERRITORIES
TO RESPOND TO ITS LETTER DATED TH -AY 4HE 3TATE OF 'OA ALSO IS PERMITTED TO
GIVEN APPROPRIATE PROPOSAL IN ADDITION TO WHAT IS SAID TO HAVE ALREADY BEEN SENT TO
THE #ENTRAL 'OVERNMENT 4HE #OMMUNICATION SENT TO THE 3TATES5NION 4ERRITORIES
SHALL MAKE IT CLEAR THAT IF THE PROPOSALS ARE NOT SENT EVEN NOW WITHIN A PERIOD OF
FOUR WEEKS OF RECEIPT OF THE COMMUNICATION FROM THE -INISTRY THIS #OURT MAY HAVE
TO CONSIDER PASSING ORDERS FOR IMPLEMENTATION OF THE DECISION THAT WAS TAKEN ON ST
*ANUARY NAMELY NOTICATION OF THE AREAS WITHIN KM OF THE BOUNDARIES OF
THE SANCTUARIES AND NATIONAL PARKS AS ECO
SENSITIVE AREAS WITH A VIEW TO CONSERVE THE
FOREST WILDLIFE AND ENVIRONMENT AND HAVING REGARD TO THE PRECAUTIONARY PRINCIPLES
)F THE 3TATE5NION 4ERRITORIES NOW FAIL TO RESPOND THEY WOULD DO SO AT THEIR OWN RISK
AND PERIL
4HE -O%& WOULD ALSO REFER TO THE 3TANDING #OMMITTEE OF THE .ATIONAL "OARD FOR
7ILDLIFE UNDER SECTIONS B AND C II OF THE 7ILD ,IFE 0ROTECTION !CT THE CASES
WHERE ENVIRONMENT CLEARANCE HAS ALREADY BEEN GRANTED WHERE ACTIVITIES ARE WITHIN
KM ZONE
)T WILL BE CLEAR FROM THE ORDER DATED OF THIS #OURT THAT THIS #OURT HAS
NOT PASSED ANY ORDERS FOR IMPLEMENTATION OF THE DECISION TAKEN ON ST *ANUARY
TO NOTIFY AREAS WITHIN KMS OF THE BOUNDARIES OF .ATIONAL 0ARKS OR 7ILDLIFE
3ANCTUARIES AS ECO SENSITIVE AREAS WITH A VIEW TO CONSERVE THE FOREST WILDLIFE AND
ENVIRONMENT "Y THE ORDER DATED OF THIS #OURT HOWEVER THE -INISTRY
OF %NVIRONMENT AND &OREST 'OVERNMENT OF )NDIA WAS DIRECTED TO GIVE A NAL
OPPORTUNITY TO ALL 3TATES5NION 4ERRITORIES TO RESPOND TO THE PROPOSAL AND ALSO TO
REFER TO THE 3TANDING #OMMITTEE OF THE .ATIONAL "OARD FOR 7ILDLIFE THE CASES IN WHICH
ENVIRONMENT CLEARANCE HAS ALREADY BEEN GRANTED IN RESPECT OF ACTIVITIES WITHIN THE
KMS ZONE FROM THE BOUNDARIES OF THE WILDLIFE SANCTUARIES AND NATIONAL PARKS
4HERE IS THEREFORE NO DIRECTION INTERIM OR NAL OF THIS #OURT PROHIBITING MINING
4 / \
ACTIVITIES WITHIN KMS OF THE BOUNDARIES OF .ATIONAL 0ARKS OR 7ILDLIFE 3ANCTUARIES
;EMPHASIS SUPPLIED=
XVIII 4HE QUESTION THAT WOULD THEN FOLLOW WOULD BE AS TO WHETHER THE ABSENCE OF THE
DIRECTION FROM THE (ONBLE 3UPREME #OURT FOR MAINTAINING KMSAS ECO
SENSITIVE ZONE
WOULD RENDER THE VERY REQUIREMENT OF DELINEATION OF ECO
SENSITIVE ZONE UNNECESSARY XIX
)N ORDER TO ANSWER THIS QUESTION IT WOULD BE ESSENTIAL TO APPRECIATE THE IMPORT OF THE %)!
.OTICATION DATED
AND THE FORCE OF THE ORDERS ISSUED BY THE -O%& IN PURSUANCE
OF THE 7ILD ,IFE 0ROTECTION !CT
XX 4HE FACT THAT THE %)! .OTICATION WAS ISSUED BY THE -O%& IN EXERCISE OF ITS
POWERS CONFERRED BY 3ECTION OF THE %NVIRONMENT 0ROTECTION !CT CANNOT BE
DISPUTED AS WAS ALSO NOTICED IN THE !NAND !RYA CASE SUPRA ;PARAGRAPHS AND = 4HE
POWER TO ISSUE ORDERS AND NOTICATIONS BY THE ."7, CAN BE TRACED TO 3ECTION # OF THE
7ILD ,IFE 0ROTECTION !CT WHICH PROVIDES THAT IT SHALL BE THE DUTY OF THE .ATIONAL
"OARD TO PROMOTE THE CONSERVATION OF WILDLIFE AND FOREST BY SUCH MEASURE AS IT THINKS
T AND THE MEASURES REFERRED TO WOULD INTER ALIA INCLUDE MAKING RECOMMENDATIONS ON
THE SETTING UP OF A MANAGEMENT OF .ATIONAL 0ARKS 3ANCTUARIES AND OTHER PROTECTED AREAS
AND ON MATTERS RELATING TO RESTRICTIONS OF ACTIVITIES IN THOSE AREAS AS PROVIDED UNDER 3UB
3ECTION C OF 3ECTION # OF THE 7ILD ,IFE 0ROTECTION !CT 4HE (ONBLE 3UPREME #OURT
HAD THE OCCASION TO EXAMINE THE SCOPE OF THIS POWER IN #ENTRE FOR %NVIRONMENTAL ,AW
7ORLD 7IDE &UND
)NDIA SUPRA WHERE IT HAS BEEN OBSERVED AS FOLLOWS
0ARLIAMENT LATER VIDE !CT OF INSERTED 3ECTION
! WEF
AUTHORISING
THE #ENTRAL 'OVERNMENT TO CONSTITUTE THE .ATIONAL "OARD FOR 7ILDLIFE IN SHORT ."7,
"Y THE SAME !MENDMENT !CT 3ECTION
# WAS ALSO INTRODUCED ELICITING FUNCTIONS OF
THE .ATIONAL "OARD 3ECTION
" WAS ALSO INTRODUCED BY THE AFORESAID AMENDMENT
AUTHORISING THE .ATIONAL "OARD TO CONSTITUTE A 3TANDING #OMMITTEE FOR THE PURPOSE
OF EXERCISING SUCH POWERS AND PERFORMING SUCH DUTIES AS MAY BE DELEGATED TO THE
#OMMITTEE BY THE .ATIONAL "OARD ."7, IS THEREFORE THE TOP MOST SCIENTIC BODY
ESTABLISHED TO FRAME POLICIES AND ADVISE THE #ENTRAL AND 3TATE 'OVERNMENTS ON THE
WAYS AND MEANS OF PROMOTING WILDLIFE CONSERVATION AND TO REVIEW THE PROGRESS IN THE
ELD OF WILDLIFE CONSERVATION IN THE COUNTRY AND SUGGESTING MEASURES FOR IMPROVEMENT
THERETO 4HE #ENTRAL AND THE 3TATE 'OVERNMENTS CANNOT BRUSH ASIDE ITS OPINION WITHOUT
ANY COGENT OR ACCEPTABLE REASONS 4HE LEGISLATION IN ITS WISDOM HAS CONFERRED A DUTY ON
."7, TO PROVIDE CONSERVATION AND DEVELOPMENT OF WILDLIFE AND FORESTS
."7, HAS A DUTY TO PROMOTE CONSERVATION AND DEVELOPMENT OF WILDLIFE
AND FRAME POLICIES AND ADVISE THE #ENTRAL 'OVERNMENT AND THE 3TATE 'OVERNMENTS ON
THE WAYS AND IMPORTANCE OF PROMOTING WILDLIFE CONSERVATION )T HAS TO CARRY OUTMAKE
ASSESSMENT OF VARIOUS PROJECTS AND ACTIVITIES ON WILDLIFE OR ITS HABITAT ."7, HAS ALSO TO
REVIEW FROM TIME TO TIME THE PROGRESS IN THE ELD OF WILDLIFE CONSERVATION IN THE COUNTRY
AND SUGGEST MEASURES FOR IMPROVING THERETO 3TATUTORILY THEREFORE IT IS
THE DUTY OF ."7, TO PROMOTE CONSERVATION AND DEVELOPMENT OF WILDLIFE WITH A VIEW
TO ENSURING ECOLOGICAL AND ENVIRONMENTAL SECURITY IN THE COUNTRY 4HIS
#OURT SITTING IN THE JURISDICTION IS NOT JUSTIED IN TAKING A CONTRARY VIEW FROM THAT OF
."7,
;EMPHASIS SUPPLIED=
)T THEREFORE FOLLOWS THAT THE ORDERS AND NOTICATIONS ISSUED BY THE ."7, HAVE STATUTORY
FORCE REQUIRING DUE COMPLIANCE AND EVEN THE #OURTS SITTING IN 7RIT JURISDICTION WILL NOT BE
JUSTIED IN TAKING A CONTRARY VIEW FROM THAT OF THE ."7,
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
XXI 4HAT APART EVEN IN THE 3HAH #OMMISSION 2EPORT ON )LLEGAL -INING IN THE 3TATE OF
'OA IT HAS BEEN OBSERVED THAT
C !PPROVALS HAVE BEEN GRANTED IN MANY CASES UNDER THE &OREST #ONVERSATION !CT
FOR DIVERSION OF FOREST LAND FOR IRON ORE MINING LEASES IN THE ECO
SENSITIVE ZONES
WITHOUT PLACING THE PROJECT PROPOSALS BEFORE THE 3TANDING #OMMITTEE OF NATIONAL "OARD
FOR 7ILD ,IFE )T IS ONE OF THE SERIOUS LAPSES ON THE PART OF -O%& &# 3ECTION 4HIS HAS
CAUSED AN IRREVERSIBLE AND IRREPARABLE DAMAGE TO BIO
DIVERSITY WILDLIFE ENVIRONMENT
AND ECOSYSTEM AS A WHOLE IN THE ECO
SENSITIVE ZONE OF THE 7ESTERN 'HATS OF 3TATE OF 'OA
)MMEDIATE ACTION SHOULD BE TAKEN IN THIS REGARD WHEREVER NECESSARY AND RESPONSIBILITY
AND ACCOUNTABILITY SHOULD BE XED ON THE OFCERS CONCERNED
;EMPHASIS SUPPLIED=
XXII )N OUR VIEW ALTHOUGH NO DIRECTION WAS PASSED BY THE (ONBLE 3UPREME #OURT TO
MAINTAIN KMSAS THE ECO
SENSITIVE ZONES AROUND THE .ATIONAL 0ARKS AND 3ANCTUARIES
IT HAS ALSO NOT HELD THAT SUCH ZONE SHOULD NOT BE DECLARED AT ALL AND AS A CONSEQUENCE
CLEARANCE FROM THE ."7, WAS NO MORE REQUIRED (AD IT BEEN SO IT WAS NOT EXPECTED OF THE
-O%& TO HAVE INSISTED ON THE DELINEATION OF THE ECO
SENSITIVE ZONES )T HAS RATHER PERSISTED
WITH IT 4HIS WOULD BE EVIDENT FROM THE FACT THAT THE 3TATE
2ESPONDENT .O AND SOME
OTHER 3TATES HAVE SUBMITTED THEIR PROPOSALS AND THE SAME IS UNDER CONSIDERATION BEFORE
THE -O%& 4HIS THEREFORE EXPLAINS THE EXPRESSION IF REQUIRED OR AS APPLICABLE FOUND
MENTIONED IN THE ORDER OF THE (ONBLE 3UPREME #OURT IN ITS ORDER DATED
IN 'OA
&OUNDATION CASE SUPRA AND THE LETTERS OFCE MEMORANDUMS AND NOTICATIONS ISSUED BY
THE -O%& AS WELL AS THE ENVIRONMENT CLEARANCE DATED
GRANTED BY THE -O%& IN
RESPECT OF THE 0ROJECT IN QUESTION
XXIII )T IS HOWEVER AN ADMITTED POSITION THAT THE NAL .OTICATION IS YET TO BE ISSUED
PURPORTEDLY IN VIEW OF THE VARIOUS STEPS THAT ARE REQUIRED TO BE TAKEN IN TERMS OF THE
STATUTORY PROVISIONS AND THE RULES
6IOLATION OF THE RELIGIOUS AND CUSTOMARY RIGHTS UNDER !RTICLES AND OF THE
#ONSTITUTION OF )NDIA
I 4HE 0ETITIONERS CONTEND THAT THE RIVER 2ATHONG #HU IS A VERY SACRED RIVER AND THE
ENTIRE VALLEY BELOW -OUNT +HANGCHENDZONGA WITH 4ASHIDING AS THE NAVEL ARE HELD
WITH REVERENCE BY THE ENTIRE "UDDHISTS 4HE SACRED LANDSCAPE THAT STRETCHES FROM
-OUNT +HANGCHENDZONGA DOWN TO LOWER VALLEY THAT CONSISTS OF THE 2ATHONG #HU
CATCHMENT AREA AS PER THE .EYSOL TEXT 'UIDE TO SACRED PLACES OF 3IKKIM IS WORSHIPPED
BY 3IKKIMESE "UDDHIST AS BLESSED BY 'URU 0ADMASAMBHAVA WITH A LARGE NUMBER OF
HIDDEN TREASURES TER CONCEALED BY HIM IN THE AREA )T IS BELIEVED THAT THESE TREASURES
ARE BEING DISCOVERED GRADUALLY AND ONLY REVEALED TO THE ENLIGHTENED ,AMAS AT PROPER
TIMES #ONSERVING THESE TREASURES AND PROTECTING THEM FROM POLLUTING INUENCE IS
CONSIDERED IMPORTANT FOR HUMAN WELFARE !NY MAJOR DISTURBANCE TO THE RIVER SYSTEM
WOULD DISTURB THE RULING DEITIES OF THE HIDDEN LAKES IN EXISTENCE IN THAT AREA AND OF
THE RIVER RESULTING IN SERIOUS CALAMITY )T IS SUBMITTED THAT THE VERY CULTURAL FABRIC OF THE
3IKKIMESE 3OCIETY IS DEPENDENT UPON THE CONSERVATION OF THE WHOLE SACRED LANDSCAPE
II A /N BEHALF OF THE 3TATE THE ABOVE CLAIMS ARE SOUGHT TO BE REPELLED BY SUBMITTING
THAT THE 'OVERNMENT WHILE ISSUING .OTICATION .O (/-% DATED
HAS NOT DECLARED RIVER 2ATHONG #HU AS A SACRED RIVER AND THEREFORE ANY CLAIM TO THE
CONTRARY IS INCORRECT
B 4HE NEXT IS THAT THE 0ROJECT IN QUESTION WILL NOT AFFECT THE "HUMCHU CEREMONY AS
THE WATER FOR THE CEREMONY IS COLLECTED UPSTREAM THE CONUENCE OF RIVER 2IMBI AND
4 / \
RIVER 2ATHONG #HU WHEREAS THE 0ROJECT IS DOWNSTREAM OF THE CONUENCE
C .EXT IS THAT THE ASSERTION OF DELEMENT OF THE RIVER 2ATHONG #HU NO MORE HOLDS
GOOD IN VIEW OF TWO (YDEL 0ROJECTS ALREADY BEING IN EXISTENCE ON THE 2IMBI RIVER WHICH
OWS INTO THE 2ATHONG #HU RIVER 4HAT THE NAME OF THE RIVER BEYOND THE CONUENCE
DOWNSTREAM IS NOT 2ATHONG BUT ,ADONG AND THEREFORE THE PROPOSED BARRAGE THAT
IS NOT ON THE RIVER 2ATHONG BUT RIVER ,ADONG 4HAT THERE HAS BEEN NO OBSTRUCTION TO
THE PERFORMANCE OF THE "HUMCHU CEREMONY AS WOULD BE EVIDENT FROM THE FACT THAT
FESTIVALS ARE BEING HELD UNINTERRUPTEDLY FOR THE LAST THREE YEARS DURING THE PROGRESS OF
THE 0ROJECT
D 4HE OTHER ASPECT RAISED AS NOTED ALREADY IS THE IMPERMISSIBILITY ON THE PART OF THE
0ETITIONER TO SEEK PREVENTION OF THE DEVELOPMENTAL ACTIVITIES AND DENIAL OF BENETS OF
THE DEVELOPMENT TO THE PEOPLE OF THE 3TATE AND THE AREA IN QUESTION AND THAT SENTIMENTAL
OBJECTIONS CANNOT BE A GROUND FOR DENIALS OF SUCH BENETS TO OTHER CITIZENS WHO ALSO
HAVE FUNDAMENTAL RIGHTS OF BETTER QUALITY AND AMENITIES OF LIFE $ECISION OF THIS #OURT
DATED
IN $ENZONG ,HO -AN #HODA SUPRA AND #HUKIE 4OBDON SUPRA WAS
RELIED UPON IN SUBMITTING THAT THIS QUESTION ALREADY STANDS DECIDED TO STRESS THAT THE
0ETITIONERS ARE BARRED FROM RAISING THE SAME ISSUE IN THE PRESENT 7RIT 0ETITIONS
III 4HE 0ETITIONERS ON THE OTHER HAND HAS PLACED BEFORE US A LARGE NUMBER OF DOCUMENTS
IN SUPPORT OF HIS CONTENTION AS REGARDS THE RELIGIOUS SIGNICANCE OF THE PLACE TO THE
LOCAL "UDDHISTS
IV 4HE RST OF THESE IS A REPORT SUBMITTED BY A #OMMITTEE CONSTITUTED VIDE .OTICATION
.O (/-% DATED
TO IDENTIFY 3ECURITY OF )MPORTANT (ISTORICAL
-ONUMENTS AND 2ELIGIOUS 0LACES OF 7ORSHIP OF 3IKKIM !NNEXURE 0 TO THE 7RIT
0ETITION )N THE REPORT UNDER (ISTORICAL -ONUMENTS AND 2ELIGIOUS 0LACES OF 7ORSHIP AT
PARAGRAPH B MENTION OF THE $UBDI 'UMPA 3ANGA #HOLLING 'UMPA 0EMAYANGTSE
'UMPA 4ASHIDING 'UMPA WAS POINTED OUT TO EMPHASISE THAT THESE -ONASTERIES
FALL IN THE VALLEY LYING IN THE LAP OF -OUNT +HANGCHENDZONGA THROUGH WHICH THE RIVER
2ATHONG #HU OWS
V 4HE NEXT IS EXCERPTS FROM THE NOTE SHEET PAGES NO AND CONTAINING NOTES WRITTEN
BY THE FORMER 3ECRETARY %CCLESIASTICAL $EPARTMENT WHICH CONTAINS THE FOLLOWING
)T IS TO SUBMIT THAT THE ENTIRE AREA BELOW THE -OUNT +ANCHENJUNGA IN
7EST 3IKKIM AS INDICATED IN THE ROUGH SKETCH " IS REGARDED AS MOST SACRED AREAS OF
3IKKIM IN RELIGIOUS TEXTS ! COPY OF RELIGIOUS TEXT .EYSAL DESCRIBING THE NAMES OF
ALL DEITIES OF 3IKKIM BY 'YALWA ,HATSUN #HENPO IS ALSO AGED AT ! BELOW
)T IS MENTIONED THAT -OUNT +ANCHENJUNGA THE ABODE OF THE GUARDIAN DEITY OF
3IKKIM IS SURROUNDED BY OTHER DEITIES OF 3IKKIM 4HE EXISTENCE OF ALL THESE DEITIES
ARE IDENTIED IN THE FORM OF MOUNTAINS ROCKS WATERFALLS LAKES TREES AND SACRED
CAVES LIKE $ICHEN
0HUK AND ,HARIK .YING 0HUK 4HERE IS MENTION OF 4ASHIDING
3ANGACHHOLING 0EMAYANGTSE AND 2ABDENTSE AS ABODES OF DEITIES GUARDING THE
LAND FROM ALL DIRECTIONS )T WAS ALSO MENTIONED IN THE TEXT THAT ANY BURNING OF
UNDESIRABLE THINGS LIKE MEAT KILLINGS DESTRUCTION OF OBJECT OF WORSHIP LIKE CHORTENS
CUTTING DOWN OF TREES AND PLANTS MISUSE OF LAKES DESTRUCTIONDEFACEMENT OF HILLS
AND ROCKS OF THE SACRED AREAS OF 3IKKIM WOULD DIRECTLY AFFECT THE DEITIES OF 3IKKIM AND
WILL PROVOKE
DISASTERS IN THE FORM OF NATURAL CALAMITIES 7ITH VERY CONCERN ABOUT
POSSIBILITY OF SUCH HAPPENINGS IN FUTURE AND TO AVOID THE SAME 'YALWA +HATSUN
#HENPO PRESCRIBED PRAYERS FOR THE DEITIES
)T IS THEREFORE TO SUBMIT THAT STRICTLY JUDGING FROM THE RELIGIOUS POINT OF VIEW THE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
PRESENT PROJECT IS LOCATED AT HEART OF THE SACRED AREAS OF 3IKKIM INDICATED IN THE
.EYSOL TEXT 4HIS PROJECT THEREFORE IS UNDESIRABLE FROM THE RELIGIOUS POINT OF VIEW
AND IS AGAINST THE SANCTITY OF THE AREA CONCERNED PLEASE
2EFERENCE 05# BELOW THE (ONBLE -INISTER %CCLESIASTICAL ACCOMPANIED BY THE
UNDERSIGNED PAID A VISIT TO 9OKSAN ON THE TH 3EPTEMBER 4HE AREAS INVOLVED
FOR 2ATHONGCHU PROJECT WAS INSPECTED FROM 9OKSAN .ORBUGANG )T IS FOUND THAT TWO
APPROACH ROADS TOWARDS THE PROJECT SOURCES ARE UNDER CONSTRUCTION )N THE .ORTH
SIDE OF 9OSAN .ORBUGANGANEAR THE 2EST (OUSES OF 4OURISM $EPARTMENT THE WORKS
ARE FOUND BEING INITIATED FOR THE CONSTRUCTION OF STAFF QUARTERS ETC .O 'OVT OFCIALS
OF THE PROJECT COULD BE CONTACTED OUT THAT DAY 4HE LOCATION OF THE PROJECT COULD BE
CONTACTED OUT THAT DAY 4HE LOCATION OF 9OLISUM .ORBUGANG AND ITS SURROUNDING
MOUNTAINS AND HILLS WERE PHOTOGRAPHED TO INDICATE THE LOCATIONS OF THE PROJECT
4HE ROADS LEADING TO THE PROJECT SOURCES ARE PASSING THROUGH THE MIDDLE OF 9OKSAN
.ORBUGANG HILL 4HE SITES ACQUIRED FOR THE SETTLEMENT OF STAFF ETC ARE WITHIN THE
CLOSE PROXIMITY OF .ORBUGANG .ORTHERN
)T IS TO SUBMIT THAT THE ENTIRE AREA BELOW THE -OUNT +ANCHENJUNG IN 7EST 3IKKIM
AS INDICATED IN THE ROUGH SKETCH " ARE REGARDED AS MOST SACRED AREAS OF 3IKKIM IN
RELIGIOUS TOXTS ! COPY OF THE RELIGIOUS TEXT .EYSOL DESCRIBING THE NAMES OF ALL DEITIES
OF 3IKKIM BY 'YALWA ,HATSUN #HENPO IS ALSO AGED AT " BELOW )T IS MENTIONED THAT
-OUNT +ANCHENGJUNGA THE ABOVE OF THE GUARD AN DEITY OF 3IKKIM IS SURROUNDED BY
OTHER DEITIES OF 3IKKIM 4HE EXISTENCE OF ALL THESE DEITIES ARE IDENTIED IN THE FORM
OF MOUNTAINS ROCKS WATERFALLS LAKES TREES AND SACRED CORES LIKE +ECHEN
0HUK AND
,HARI .YING
0HUK 4HERE IS MENTION OF 4ASHIDING SON SANCHOLLING 0ENAYANGTAC AND
2ABDENTSO AS ABODES OF DEITIES GARAGING THE LAND FROM ALL DIRECTIONS )T WAS ALSO
MENTIONED IN THE TEXT THAT ANY BURNING OF UNDESIRABLE THING LIKE MEAT KILLINGS
DESTRUCTIONS OF OBJECTS OF WORSHIP LIKE CHORTENS CUTTING DOWN OF TREES AND PLANTS
MISUSE OF LAKES DESTRUCTIONSDEFACEMENT OF HILLS AND ROCKS OF THE SACRED AREAS OF
3IKKIM WOULD DIRECTLY AFFECT THE DEITIES OF 3IKKIM AND WILL PROVOKE DISASTERS IN THE
FORM OF NATURAL CALAMITIES 7ITH VERY CONCERN ABOUT POSSIBILITY OF SUCH HAPPENINGS
IN FUTURE AND TO AVOID THE SAME #YALWA ,HATSUN #HENPO PRESCRIBED PLAYERS FOR
THE DEITIES )T IS THEREFORE TO SUBMIT THAT STRICTLY JUDGING FROM THE RELIGIOUS POINT
OF VIEW THE PRESENT PROJECT IS LOCATED AT THE HEART OF THE SACRED AREAS OF 3IKKIM
INDICATED IN THE .EYSOL TEXT 4HIS PROJECT THEREFORE IS CONSIDERABLE FROM RELIGIOUS
POINT OF VIEW AND IS AGAINST THE SANCTITY OF THE AREA CONCERNED PLEASE
)T MAY BE RELEVANT TO NOTE THAT THE OBSERVATIONS CONTAINED IN THE NOTES PERTAIN TO THE VERY
RIVER 2ATHONG #HU WHERE THE PRESENT 0ROJECT IS UNDER CONSTRUCTION AND THE SURROUNDING
AREAS IN THE 6ALLEY
VI 4HE NEXT IS THE PROCEEDINGS OF THE )NTERNATIONAL 7ORKSHOP ON THE )MPORTANCE OF
3ACRED .ATURAL 3ITES FOR "IODIVERSITY #ONSERVATION HELD AT +UNMING AND 8ISHUANGBANNA
"IOSPHERE 2ESERVE 0EOPLES 2EPUBLIC OF #HINA BETWEEN
/UR ATTENTION WAS
DRAWN TO THE FOLLOWING PORTIONS
4(% #/.#%04 /& 3!#2%$
4HERE IS WIDE RECOGNITION WORLDWIDE AND ACROSS DISCIPLINES THAT REGIONS OF ECOLOGICAL
CAUTION EXHIBIT A SYMBIOTIC RELATIONSHIP BETWEEN THE BIOPHYSICAL ECOSYSTEM AND
THE SOCIAL SYSTEM WITH STRONG CULTURAL INTERCONNECTIONS BETWEEN THE TWO 4HIS
DEMONSTRATES THAT CULTURE AND ENVIRONMENT ARE COMPLEMENTARY AND IN VARIOUS
STAGES OF EVOLUTION 2AMAKRISHNAN (OWEVER THESE TRADITIONAL SOCIETIES ARE NO
LONGER IMMUNE TO CHANGES OCCURRING EVERYWHERE AND CONTINUALLY 4HE PREDOMINANT
4 / \
CULTURE OF THE OVER CONSUMPTION OF NATURAL RESOURCES IS MAKING AN IMPRESSION IN THESE
SOCIETIES RESULTING IN THE EROSION OF THEIR TIME TESTED AND VALUE BASED INSTITUTIONS
3ACRED LANDSCAPES HAVE A PARTICULAR SIGNICANCE IN TERMS OF BIODIVERSITY CONSERVATION
)T IS IN THIS CONTEXT THAT THE $EMAJONG LANDSCAPE OF THE 4IBETAN "UDDHISTS IN THE
3IKKIM 3TATE OF THE )NDIAN (IMALAYAN REGION BECOMES SIGNICANT
3!#2%$ ,!.$3#!0%3 !3 ! 4//, &/2 ")/$)6%23)49 #/.3%26!4)/.
"IODIVERSITY
RICH MOUNTAINS HAVE ALWAYS BEEN HOME TO THE GODS FOR MANY OF THE
WORLDS TRADITIONAL SOCIETIES 4HIS SACREDNESS IS RECOGNIZED IN THE SACRED LANDSCAPES
IDENTIED BY A VARIETY OF MOUNTAIN SOCIETIES "ERNBAUM AMONG RELIGIOUS FAITHS
THE WORLD OVER 4HOUGH THESE SACRED LANDSCAPES HAVE USAGE RESTRICTIONS THEY FORM
AN INTEGRAL PART OF TRADITIONAL CULTURES 4HE $EMAJONG LANDSCAPE IN WEST 3IKKIM IS
BASED ON 4IBETAN "UDDHIST PHILOSOPHY WITH CLEARLY DENED NORMS AND A WELL
DENED
BOUNDARY FOR SACREDNESS SEE &IGURE 4HE AIR SOIL WATER AND BIOTA ARE ALL SACRED
&)'52%
$EMAJONG THE LAND OF THE (IDDEN 4REASURES ! PICTORIAL DEPICTION OF HOLY SITES IN 7EST
3IKKIM ACCORDING TO THE .EYSOL TEXT OF 4IBETAN "UDDHISM .AMES WITH 4SO SIGNIFY
A LAKE WHILE #HU IS A RIVER 4HIS SACRED LANDSCAPE STRETCHES FROM +HANGCHENDZONGA
PEAK DOWN TO SUBTROPICAL FOREST NATURAL AND HUMAN MANAGED ECOSYSTEMS AND
HISTORICAL MONUMENTS $RAWING COURTESY OF #ONCERNED #ITIZENS OF 3IKKIM 'ANGKOK
ANY DISTURBANCE IN THE LANDSCAPE IS RESTRICTED AND BOUNDED BY CULTURAL NORMS AND
THE GUIDING PRINCIPLES FOR NATURAL RESOURCE USE ARE DETERMINED BY SOCIAL INSTITUTIONS
7ITH A VARIETY OF RITUALS LINKED TO THE DIVERSE COMMUNITIES LIVING WITHIN THIS LANDSCAPE
BOUNDARY WHO HAVE THEIR OWN PREDETERMINED RIGHTS TO USE NATURAL RESOURCES LARGER
COMMUNITY PARTICIPATION IS ENSURED "OX
/F THE 2ATHANG +HOLA CATCHMENT AREA
THE MYTHICAL $EMAJONG TOTALLING
HECTARES
HECTARES IS UNDER SNOW COVER 4HE VEGETATION IS VARIED RANGING
FROM ALPINE 2HODODENDRON SCRUB VEGETATION AT HIGHER REACHES TO SUB
TROPICAL MOIST
EVERGREEN FORESTS BELOW 4HESE FORESTS COVER A DISTANCE OF ABOUT FTEEN KILOMETRES
AND ARE EXTREMELY RICH IN PLANT BIODIVERSITY INCLUDING MEDICINAL PLANTS OF VALUE TO
TRADITIONAL 4IBETAN PHARMACOPOEIA $UE TO EXTERNAL PRESSURES ON THESE RESOURCES THESE
ECOSYSTEMS ARE DEGRADED IN MANY AREAS
4(% $%-!*/.' ,!.$3#!0%
0ADMASAMBHAVA WORSHIPPED BY 3IKKIMESE "UDDHISTS IS CONSIDERED TO HAVE BLESSED
9OKSUM AND THE SURROUNDING SACRED LAND AND WATER BODIES IN 7EST 3IKKIM $ISTRICT IN
EASTERN (IMALAYA HAVING PLACED A LARGE NUMBER OF HIDDEN TREASURES TER IN THE AREA
)T IS BELIEVED THAT THESE TREASURES ARE BEING DISCOVERED GRADUALLY AND WILL BE ONLY BE
REVEALED TO THE ENLIGHTENED ,AMAS AND ONLY AT APPROPRIATE TIMES &OR THE 3IKKIMESE
"UDDHISTS CONSERVING THESE TREASURES AND PROTECTING THEM FROM POLLUTING INUENCES
IS CONSIDERED IMPORTANT FOR HUMAN WELFARE 4HE AREA BELOW -OUNT +HANGCHENDZONGA
IN 7EST 3IKKIM REFERRED TO AS $EMOJONG IS THE CORE OF THE SACRED LAND OF 3IKKIM
(ERE OFFERINGS ARE MADE TO THE PROTECTIVE DEITIES BUT NO MEANINGFUL PERFORMANCE OF
"UDDHIST RITUALS IS POSSIBLE IF THE LAND AND WATER IS DESECRATED 6ILLAGE LEVEL ACTIVITIES
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
ON THE LAND AND WATER RESOURCES ARE PERMITTED
!NY LARGE
SCALE HUMAN
INDUCED DISTURBANCE IN THE LAND OF THE HOLY 9OKSUM REGION
WOULD DESTROY THE HIDDEN TREASURES TERS IN SUCH A WAY THAT THE CHANCES OF A VISIONARY
RECOVERING THEM SOME TIME IN THE FUTURE WILL DIMINISH THE LAST SUCH DISCOVERY IS
THOUGHT TO HAVE OCCURRED YEARS AGO !NY MAJOR DISTURBANCE TO THE RIVER SYSTEM
WOULD DISTURB THE RULING DEITIES OF THE HIDDEN LAKES OF THE RIVER THUS LEADING TO
SERIOUS CALAMITY )NDEED THE VERY CULTURAL FABRIC OF 3IKKIMESE SOCIETY IS OBVIOUSLY
DEPENDENT UPON THE CONSERVATION OF THE WHOLE SACRED LANDSCAPE 4HE UNIQUENESS OF
THIS HERITAGE SITE LIES IN THE HOLISM AND INTERCONNECTION BETWEEN THE SOIL WATER BIOTA
VISIBLE WATER BODIES THE RIVER AND THE LAKE SYSTEMS ON THE RIVER BED TOGETHER WITH
PHYSICAL MONUMENTS SUCH AS MONASTERIES
VII /UR ATTENTION WAS THEN DRAWN TO THE .ATIONAL "IODIVERSITY 3TRATEGY AND !CTION 0LAN
."3!0 CONSTITUTED BY THE -O%& 'OVERNMENT OF )NDIA A 5.$0 FUNDED PROGRAMME
WITH THE $EPARTMENT OF &OREST %NVIRONMENT AND 7ILDLIFE -ANAGEMENT 'OVERNMENT OF
3IKKIM AS THE .ODAL !GENCY FOR THE 3TATE 4HE %XECUTIVE 3UMMARY OF THE ."3!0 0ROJECT
WHICH WAS BROUGHT TO OUR NOTICE IS REPRODUCED BELOW
)TS EXECUTION WAS DONE BY A TECHNICAL AND POLICY CORE GROUP OF VARIOUS EXPERTS
FROM ALL PARTS OF )NDIA HEADED BY THE REPUTED )NDIAN .'/ +ALPAVRIKSH 4HE "IOTECH
#ONSORTIUM )NDIA ,TD COORDINATED ITS ADMINISTRATION
4HE STATE GOVERNMENT OF 3IKKIM APPROVED THIS PROJECT IN 3EPTEMBER 3INCE *UNE
THE $EPARTMENT OF &OREST %NVIRONMENT 7ILDLIFE TRIED TO REACH OUT TO ALL SECTIONS
OF PEOPLE ACROSS THE LENGTH AND BREADTH OF THE 3TATE IN A MASSIVE EFFORT TO FORMULATE THE
3IKKIM "IODIVERSITY 3TRATEGY !CTION 0LAN IN A PARTICIPATORY MANNER 4HIS INVOLVED
THE FULL PARTICIPATION OF MAXIMUM NUMBER OF PEOPLE FROM ALL WALKS OF LIFE HAVING ANY
SORT OF TRADITIONALSCIENTIC KNOWLEDGE TO CONTRIBUTE 3OME OF THE REMOTEST VILLAGES
WERE VISITED AS ALSO VILLAGES ON THE PERIPHERIES OF WILDLIFE PROTECTED AREAS "ESIDES
INTENSIVE PUBLIC HEARINGS TWO BIODIVERSITY FESTIVALS WERE HELD AT 9UKSAM IN THE WEST
AND 4SUNGTHANG IN THE NORTH 4HE RST STATE LEVEL STEERING COMMITTEE MEETING OF
VARIOUS LUMINARIES IN THE ELD WAS HELD AT 'ANGTOK ON TH !UGUST
VIII 4HE ,EARNED #OUNSEL THEN DREW OUR ATTENTION TO 3ECTION UNDER #HAPTER OF THE
ABOVE REPORT ON THE TOPIC 3ACRED ,ANDSCAPE WHICH IS REPRODUCED BELOW
3!#2%$ ,!.$3#!0%3
9UKSAM IS A MEETING PLACE OF ,AMAS ,HATSUN #HEMPO 'NADAK 2INZING #HEMPO AND
+ATHOK 3EMPA #HEMPO WHO CAME TO 3IKKIM FROM THREE DIFFERENT DIRECTIONS WITH AN
INTENTION OF ESTABLISHING "UDDHISM 4HESE MONKS SEARCHED FOR A FOURTH PERSONS AS
PER THE VISION OF 3AINT 0ADMA 3AMBHAVA 'URU 2IM
BO
CHE 4HEY FOUND 0HUNSTSOG
.AMGYAL WHO WAS BROUGHT TO 9UKSAM AND CORONATED AS THE RELIGIOUS KING OF 3IKKIM
WITH THE TITLE OF #HOGYAL MEANING THE +ING WHO RULES WITH RIGHTEOUSNESS OR $HARMA
2AJA 4HE EVENT TOOK PLACE IN AT .ORBUGYANG 4HE CONSTRUCTION OF $UBDI MONASTERY
ALSO TOOK PLACE AROUND THE SAME TIME 4HE ,AMAS AND THE LOCAL PEOPLE OF 3IKKIM AND
4IBETANS IMPLICITLY BELIEVE THAT 3AINT 0ADMA 3AMBHAVA FOUND 3IKKIM DURING HIS
JOURNEY TO 4IBET AND PERSONALLY CONSECRATED EVERY SACRED SPOT ALONG THE 2ATHONG #HU
6ALLEY IN 3IKKIM
2ATHONG #HU IS AN AREA WHICH THE PEOPLE OF 3IKKIM PERCEIVE AS THE VERY BASIS OF
THEIR PRESENT CULTURE 0ADMA 3AMBHYAVA WHO IS HIGHLY REVERED AND WORSHIPED BY
THE 3IKIMESE "UDDHISTS IS CONSIDERED TO HAVE BLESSED 9UKSAM AND THE SURROUNDING
LANDSCAPE BY HAVING PLACED WITHIN IT A LARGE NUMBER OF HIDDEN TREASURES TERS AND
4 / \
IT IS BELIEVED THAT THEY WILL ONLY BE SLOWLY REVEALED TO ENLIGHTENED TERTEN ,AMAS AND
DISCOVERED AT APPROPRIATE TIME
9UKSAM REGION IS CONSIDERED TO HAVE HIDDEN LAKES "OTH THE VISIBLE AND LESS OBVIOUS
NOTIONAL LAKES IDENTIED BY RELIGIOUS VISIONARIES ARE SAID TO BE PRESIDING DEITIES
REPRESENTING GOOD AND EVIL 0ROPITIATING THESE DEITIES WITH DIFFERENT CEREMONIES IS
CONSIDERED TO BE THE PATH FOR SALVATION #ONSERVING AND PROTECTING THESE TREASURES FROM
POLLUTING AND DISTURBING INUENCES IS CONSIDERED TO BE VITALLY IMPORTANT FOR HUMAN
WELFARE !NY MAJOR DISRUPTION TO THE RIVER SYSTEM WOULD DISTURB THE ENTIRE SYSTEM OF
THE AREA
3IKKIM IS THE ONLY STATE WITH AN %CCLESIASTICAL $EPARTMENT IN THE STATE GOVERNMENT
WHICH IS ENTRUSTED WITH THE RESPONSIBILITY OF THE UPKEEP OF THE MONASTERIES AND
OTHER PLACES OF WORSHIP !LMOST ALL THE GOMPAS MONASTERIES AND OTHER RELIGIOUS
INSTITUTIONS ARE RESPONSIBLE FOR A CONSIDERABLE DEGREE OF UNINTENTIONAL BIODIVERSITY
CONSERVATION .ATURAL LANDSCAPES HAVE BEEN CONSECRATED AS SACRED FORESTS SACRED LAKES
SACRED BOULDERS STONES AND SACRED SPACES AROUND THESE MONASTERIES %VEN LAKES AND
MOUNTAINS ROCKS AND CAVES SPRINGS AND RIVERS HERE ARE CONSIDERED HOLY AS A RESULT OF
WHICH THERE IS NATURAL INHIBITION ABOUT POLLUTION THEM (OWEVER THESE TRADITIONAL
BELIEFS ARE SLOWLY ERODING UNDER THE ONSLAUGHT OF MODERN EDUCATION CONSUMPTIVE
LIFESTYLES AND OTHER WESTERN INUENCES
IX !PART FROM THE ABOVE A MAP SHOWING DEPICTION OF HOLY SITES IN 7EST 3IKKIM ACCORDING
TO THE HOLY .EYSOL TEXT AND THE VIEWS OF THE SEVERAL "UDDHIST -ASTERS OF HIGH ACCLAIM
WERE ALSO PLACED BEFORE US 7E HOWEVER NEED NOT GO INTO THOSE BUT SUFCE IT TO NOTE
THAT THE ,EARNED #OUNSEL HAS SOUGHT TO IMPRESS US ON THE UNANIMITY OF THE VIEWS ON THE
SACREDNESS OF THE RIVER 2ATHONG #HU AND THE VALLEY ON THE LAP OF -OUNT +HANGCHENDZONGA
WITH 4ASHIDING AS THE NAVEL
)NDISPUTABLY THE SUBMISSION MADE ON BEHALF OF THE 0ETITIONERS IS WEIGHTY AS WE ND
HIS CONTENTIONS SUPPORTED BY CREDIBLE DOCUMENTS 4HE FORMER 3ECRETARY %CCLESIASTICAL
$EPARTMENT IS A RESPONSIBLE PUBLIC SERVANT AND HIS REPORT IS BASED UPON A TOUR OF THE PLACE
IN QUESTION AND THE HOLY TEXT .EYSOL
4HE PAPER "IODIVERSITY #ONSERVATION ,ESSONS FROM THE "UDDHIST $EMAJONG ,ANDSCAPE
IN 3IKKIM )NDIA PLACED BEFORE 5.%3#/ BY NO LESS THAN 0ROF 03 2AMAKRISHNAN HAS
ALSO REFERRED TO THE .EYSOL TEXT AS ONE OF THE BASIS OF HIS OPINION 4HE ."3!0 REPORT IS
UNDENIABLY A 'OVERNMENT DOCUMENT 4HE REPORT IS CONSISTENT WITH THE OPINIONS AND
COMMENTS OF THE EMINENT "UDDHIST -ASTERS WHO ARE HIGHLY REVERED NOT ONLY IN 3IKKIM
BUT ALL OVER THE "UDDHIST WORLD
$ESPITE THIS WE ND THAT THERE ARE CERTAIN CONTRADICTIONS ALSO 7E ND THAT A GROUP
OF MONKS FROM THE VERY -ONASTERIES INDICATED AS ANCIENT AND HOLY HAVE DECLARED THAT
THE RIVER IS NOT SACRED AND THAT THEY WOULD HAVE NO OBJECTIONS IF THE 0ROJECT WAS ALLOWED
TO CONTINUE 4HERE IS ANOTHER GROUP WHO CLAIM TO BE THE LEGITIMATE AUTHORITIES OF THE
VERY -ONASTERIES WHO CONTEND TO THE CONTRARY BY SUBMITTING WRITTEN DECLARATIONS TO
THAT EFFECT 7E ARE CONSCIOUS OF THE BELIEF THAT THE ENTIRE 9UKSAM
4ASHIDING 6ALLEY LYING
BELOW -OUNT +HANGCHENDZONGA CONSISTING OF THE RIVER 2ATHONG #HU IN 7EST 3IKKIM IS
HOLY AND CONSIDERED AS THE CRADLE OF THE 3IKKIMESE HISTORY CULTURE AND RELIGION BUT WE
DEEM IT APPROPRIATE NOT TO VENTURE INTO THOSE AREAS IN THE PRESENT PROCEEDINGS AND WOULD
RATHER ISSUE AN APPROPRIATE DIRECTION TO ARRIVE AT A NDING ON THOSE IN THE MANNER THAT WILL
FOLLOW HEREAFTER
4HERE ARE OTHER FACTS STATED ON BEHALF OF THE 3TATE WHICH WE ND QUITE CONTRADICTORY
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
AND CONICTING 4HE MAPS !NNEXURE 2
TO THE COUNTER
AFDAVIT OF 2ESPONDENT .O AND
!NNEXURE TO #- !PPL .O OF REECT EVEN THE ENTIRE PORTION UPSTREAM AS ,ADONG
+HOLA LEAVING ONLY THE STRETCH WHICH ACTUALLY IS #HORANG #HU AS 2ATHONG #HU 4HESE
ARE INCONSISTENT ALSO WITH THE PHYSICAL MAP OF THE 3TATE WHICH SHOWS THE ENTIRE STRETCH
FROM THE SOURCE TO THE POINT WHERE IT JOINS RIVER 2ANGIT AS 2ATHONG #HU 4HAT APART WE ND
OTHER MAPS ON RECORD WHICH CONFORM TO THE PHYSICAL MAP OF THE 3TATE 3OME OF THEM ARE
I !NNEXURE 2
TO THE COUNTER
AFDAVIT OF THE 2ESPONDENT .O II MAPS FOUND AT PAGES
AND INTERNAL OF THE %)! AND %-0 !NNEXURE 0
TO #- !PPL .O OF PREPARED
BY THE 2ESPONDENT .O WHICH ALSO CONTAINS THE NOTE UNDER PARAGRAPH TO THE EFFECT
THAT 4HE 4ASHIDING $IVERSION SITE IS LOCATED ON 2ATHANG #HU RIVER AND UNDER THE
HEAD 4AXONOMIC $IVERSITY MENTIONING CLEARLY THAT 4ASHIDING (% 0ROJECT AREA EXTENDS
FROM ,EGSHIP VILLAGE NEAR THE CONUENCE OF 2ATHONG #HHU WITH 2ANGIT RIVER UP TO 9UKSUM
VILLAGE AND TOUCHES THE "UFFER ZONE
)6 OF +HANGCHENDZONGA "IOSPHERE 2ESERVE IN THE
CATCHMENT OF 2ATHONG #HHU AND III MAP ATTACHED TO THE DRAFT NOTICATION DATED
!NNEXURE 2 TO #- !PPL .O OF
&ROM THE FACTS AND CIRCUMSTANCES SET OUT UNDER THE TWO QUESTIONS DISCUSSED ABOVE
TWO CONCLUSIONS ARE FOUND TO HAVE EMERGED &IRSTLY THERE IS NO DISPUTE OF THE FACT THAT
THE ECO
SENSITIVE ZONE ALONG THE BOUNDARY OF +HANGCHENDZONGA .ATIONAL 0ARK IS YET TO BE
DECLARED BY THE -O%& AS THE PROPOSAL SENT BY THE 3TATE 'OVERNMENT ON
IS STILL
UNDER ITS CONSIDERATION
3ECONDLY THE QUESTION AS REGARDS THE SACREDNESS OF THE AREA BELOW THE -OUNT
+HANGCHENDZONGA THROUGH WHICH THE RIVER 2ATHONG #HU OWS SACREDNESS OF THE RIVER
2ATHONG #HU AND THE DELEMENT OF THE WATER OF THE RIVER BY CONSTRUCTION OF THE 4ASHIDING
(%0 AS PERCEIVED BY BOTH THE SIDES DO APPEAR TO REQUIRE SERIOUS CONSIDERATION FOR THE
REASONS ALREADY INDICATED ABOVE 7EIGHTY MATERIALS HAVE BEEN PLACED ON BEHALF OF THE
0ETITIONERS TO SUPPORT THEIR VIEW WHICH WE ND DIFCULT TO IGNORE COMPLETELY BUT THOSE
ARE QUESTIONS WHICH WE DESIST OURSELVES FROM ADJUDICATING THIS BEING A PROCEEDING UNDER
!RTICLE OF THE #ONSTITUTION OF )NDIA
.O DOUBT IT WAS SUBMITTED ON BEHALF OF THE 3TATE 2ESPONDENT THAT PROTECTION UNDER
!RTICLES AND OF THE #ONSTITUTION ENVISAGES PROTECTION OF RELIGIOUS PRACTICE THAT ARE
CONSIDERED AS ESSENTIAL AND INTEGRAL PART OF THE RELIGION WHICH THE "HUMCHU CEREMONY
PERFORMED AT THE 4ASHIDING -ONASTERY AND THE WORSHIP OF THE OTHER SACRED PLACES IN THE
2ATHONG 6ALLEY MAY NOT BE 4HIS PRINCIPLE IS INDEED WELL SETTLED BUT IN !3 .ARAYANA
$EEKSHITULU SUPRA REITERATING THIS VERY PRINCIPLE IT WAS HELD THAT 7HAT ARE ESSENTIAL
PARTS OF RELIGION OR RELIGIOUS BELIEF OR MATTERS OF RELIGION AND RELIGIOUS PRACTICE IS ESSENTIALLY
A QUESTION OF FACT TO BE CONSIDERED IN THE CONTEXT IN WHICH THE QUESTION HAS ARISEN AND
THE EVIDENCE FACTUAL OR LEGISLATIVE OR HISTORIC PRESENTED IN THAT CONTEXT IS REQUIRED TO BE
CONSIDERED AND A DECISION REACHED
(OWEVER BEFORE WE VENTURE TO DEAL WITH THE ABOVE IT WOULD BE NECESSARY FOR US TO
CONSIDER TWO TECHNICAL OBJECTIONS RAISED ON BEHALF OF THE 2ESPONDENTS ON THE QUESTION OF
A DELAY AND LACHES ON THE PART OF THE 0ETITIONERS TO BRING THE 7RIT 0ETITION AND B THAT
THE 7RIT 0ETITIONS ARE HIT BY THE PRINCIPLE OF RES JUDICATA ON THE GROUND THAT THE VERY ISSUES
INVOLVED IN THIS CASE HAVE ALREADY BEEN DECIDED NALLY BY THIS #OURT IN $ENZONG ,HO -AN
#HODA SUPRA AND #HUKIE 4OBDON SUPRA 7E MAY THEREFORE PROCEED TO DEAL WITH THE
ABOVE IN SERIATIM BELOW
7HETHER THE 0ETITIONERS ARE GUILTY OF DELAY AND LACHES IN BRINGING THE 7RIT 0ETITION
I /N BEHALF OF THE 0ETITIONERS IT WAS SUBMITTED THAT THERE WAS NO DELAY AS ADMITTEDLY THE
0ROJECT WAS REASSIGNED TO THE 2ESPONDENT .O IN THE /PEN 0UBLIC (EARING HAD TAKEN
4 / \
PLACE ON CONSENT TO ESTABLISH THE 0ROJECT WAS ISSUED BY THE 3TATE 0OLLUTION
#ONTROL "OARD ON THE ENVIRONMENT CLEARANCE GRANTED BY THE -O%& ONLY ON
APPROVAL FOR DIVERSION OF FOREST LANDS FOR CONSTRUCTION OF 0ROJECT WAS GRANTED
ON AND AND VARIOUS APPROVALS GRANTED ONLY BETWEEN TO
/BJECTIONS WERE BEING RAISED BY THE 0ETITIONERS FROM TIME TO TIME WHICH AS
PER THE 0ETITIONERS IS EVIDENT FROM THE REPRESENTATION !NNEXURE 0 DATED
CONSTITUTION OF A (IGH 0OWERED #OMMITTEE BY THE 3TATE 'OVERNMENT VIDE .OTICATION
DATED TO REVIEWEXAMINE ISSUES RELATING TO IMPLEMENTATION OF I -7 4ING
4ING (%0 II -7 ,ETHANG (%0 AND III -7 4ASHIDING (%0 AT 9UKSAM 4ASHIDING
#ONSTITUENCY HEADED BY THE #HIEF 3ECRETARY REPRESENTATIONS DATED !NNEXURE
0 AND !NNEXURE 0 CONCERNS EXPRESSED BY -EMBER .ATIONAL #OMMISSION
FOR -INORITIES DATED REECTING THE OBJECTIONS RAISED BY THE "UDDHISTS AND OTHER
REPRESENTATIONS SUBMITTED FROM TIME TO TIME INCLUDING REPRESENTATION DATED
UPON WHICH DISCUSSIONS WERE HELD ON 4HEN NALLY THE 'OVERNMENT DECISION TO
PROCEED WITH THE 4ASHIDING (%0 WAS TAKEN ON BASED ON THE RECOMMENDATION OF
THE #OMMITTEE AND THE ADVICE OF THE ,AW 3ECRETARY WHICH LED TO THE 7RIT 0ETITIONS BEING
LED ON IN THE (ONBLE 3UPREME #OURT BEFORE IT WAS TRANSFERRED TO THIS #OURT
FOR DISPOSAL ON THE GROUND THAT AS LOCAL ISSUES WERE INVOLVED IN THE CASE IT WOULD BE BEST
DECIDED BY THIS #OURT AT THE RST INSTANCE
II -R 3HERPA ALSO POINTED OUT THAT THE 2ESPONDENTS .O AND WERE AWARE OF THE
NEED TO OBTAIN CLEARANCE FROM THE 3TANDING #OMMITTEE OF THE ."7, RIGHT FROM THE
INCEPTION AS WOULD BE EVIDENT FROM THE FACT THAT THE %)! .OTICATION AND THE /FCE
-EMORANDUM DATED
WERE PUT UP ON THE WEBSITE OF -O%& 4HE SERIES OF OTHER
CORRESPONDENCES EXCHANGED THEREAFTER BETWEEN THEM AS NOTED EARLIER ALSO CONRMS THIS
POSITION 4HE FACT THAT THE 2ESPONDENT .O WAS AWARE OF SUCH NECESSITY IS EVIDENT ALSO
FROM THE )NVESTMENT /VERVIEW 0ROJECT REPORT DATED -ARCH PREPARED BY -S +0-'
)NDIA 0RIVATE ,IMITED WHICH CLEARLY REVEALS THAT 2ANGIT 6ALLEY (YDRO 0RIVATE ,IMITED
HAD OATED THREE COMPANIES AS 3PECIAL 0URPOSE 6EHICLES NAMELY I $ANS %NERGY 0RIVATE
,IMITED II 44 %NERGY 0RIVATE ,IMITED III 3HIGA %NERGY 0RIVATE ,IMITED FOR IMPLEMENTATION
OF THREE (%0S OF WHICH 4ASHIDING (%0 THE 0ROJECT IN QUESTION WAS ONE 4HE PROMOTER OF
ALL THE THREE COMPANIES WAS -R 4 .AGENDRA 2AO 2ESPONDENT .O -S 3HIGA %NERGY
0RIVATE ,IMITED IS THE 2ESPONDENT .O THE 0ROJECT PROPONENT OF 4ASHIDING (%0
III 4HE -O%& BY LETTER DATED !NNEXURE 0 HAD BROUGHT TO THE NOTICE OF THE
2ESPONDENT .O AS THE $IRECTOR OF -S 44 %NERGY 0VT ,TD THAT %)! .OTICATION
AND /FCE -EMORANDUM DATED WERE NECESSARY TO BE COMPLIED WITH 4HE FACT
THAT THE 2ESPONDENT .O HAD NOT COMPLIED WITH THOSE IS EVIDENT FROM ITS STAND THAT THE
REQUIREMENT OF GETTING CLEARANCE FROM THE ."7, STIPULATED BY THE -O%& BEING BASED ON
AN ERRONEOUS INTERPRETATION OF THE ORDER DATED IN 'OA &OUNDATION CASE SUPRA
IT WAS NOT NECESSARY TO BE COMPLIED WITH AND ACCORDINGLY DID NOT COMPLY
7E ND THAT THE AFORESAID FACTS HAVE REMAINED UNDISPUTED AND ARE FOUND TO HAVE BEEN
BORNE OUT BY THE RECORDS 7E THEREFORE DO NOT HAVE ANY HESITATION IN ACCEPTING THOSE AS
TRUE
IV !S SUBMITTED ON BEHALF OF THE 0ETITIONER THE PRINCIPLE OF 3ECTION OF THE ,IMITATION
!CT WOULD HAVE APPLICATION IN THE CIRCUMSTANCE AS THE PRESENT ONE 4HE FACT THAT
THE 2ESPONDENTS HAVE DELIBERATELY NOT COMPLIED WITH THE ."7, REQUIREMENT FOR SEEKING
CLEARANCE IS A CONTINUING WRONG AND THEREFORE A FRESH PERIOD OF LIMITATION WOULD BEGIN TO
RUN AT EVERY MOMENT OF THE TIME DURING THE PERIOD WHICH THE BREACH OR TORTS AS THE CASE
MAY BE CONTINUES AS PROVIDED UNDER 3ECTION OF THE ,IMITATION !CT
V 4HE REPORT ON THE VISIT OF THE (IGH 0OWER #OMMITTEE TO THE 0ROJECT DATED .OVEMBER
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
REVEALS THAT NO MAJOR CONSTRUCTION WORK HAD COMMENCED TILL THEN AND THAT THE
EXPENDITURE HAD BEEN INCURRED MAINLY ON THE PAYMENT OF LAND COMPENSATION BOTH PRIVATE
AND FOREST LANDS WHICH WAS ONLY TO THE TUNE OF 2S CRORES )T ALSO APPEARS FROM THE
3IX -ONTHLY #OMPLIANCE 2EPORT ON 3TATUS OF %NVIRONMENTAL 3AFEGUARDS OF THE 0ROJECT IN
QUESTION DATED
!NNEXURE 0
THAT THE CONSTRUCTION PHASE ON THE 0ROJECT HAD
JUST STARTED )T THEREFORE CANNOT BE SAID THAT THE 2ESPONDENTS ARE SO ADVERSELY SITUATED
THAT THE 7RIT 0ETITIONS CALLED FOR DISMISSAL ONLY ON THAT ACCOUNT )N )NTELLECTUALS &ORUMS
CASE SUPRA IT HAS BEEN HELD THAT DECISION IN THE CASE OF THE PRESENT KIND CANNOT BE BASED
SOLELY UPON INVESTMENTS COMMITTED BY ANY PARTY SINCE OTHERWISE IT WOULD SEEM THAT
ONCE ANY PARTY MAKES CERTAIN INVESTMENTS IN A PROJECT IT WOULD BE A FAIT ACCOMPLI AND THIS
#OURT WILL NOT HAVE ANY OPTION BUT TO DEEM IT LEGAL
VI 7E ARE CONSCIOUS OF THE DECISIONS CITED ON BEHALF OF THE 2ESPONDENTS ON THE PRINCIPLE
GOVERNING DELAY PARTICULARLY THE .ARMADA "ACHAO !NDOLAN CASE SUPRA BUT THOSE DO NOT
APPEAR TO HOLD GOOD IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THEREFORE ARE
OF NO ASSISTANCE TO THE 2ESPONDENTS 7E THEREFORE HOLD THAT THE 0ETITIONERS ARE NOT GUILTY
OF DELAY AND LACHES IN BRINGING THE 7RIT 0ETITION
!RE THE 7RIT 0ETITIONS HIT BY THE PRINCIPLE OF CONSTRUCTIVE OF RES JUDICATA
I 4HIS PRINCIPLE OBVIOUSLY EMANATING FROM 3ECTION OF THE #ODE OF #IVIL 0ROCEDURE
CONTEMPLATES IN SUBSTANCE THAT A SUIT WOULD BE BARRED IF AN ISSUE ARISING IN A SUBSEQUENT
SUIT WAS DIRECTLY AND SUBSTANTIALLY IN ISSUE IN A FORMER SUIT BETWEEN THE SAME PARTIES
OR BETWEEN PARTIES UNDER WHOM THEY OR ANY OF THEM CLAIM LITIGATING UNDER SAME TITLE
HAD BEEN HEARD AND NALLY DECIDED IN THAT SUIT )T IS THEREFORE TO BE SEEN AS TO WHETHER
QUESTIONS RAISED IN THE PRESENT 7RIT 0ETITION WERE HEARD AND NALLY DECIDED IN $ENZONG
,HO -AN #HODA SUPRA AND #HUKIE 4OBDON SUPRA AS ASSERTED BY THE 2ESPONDENTS
II 4HE ABOVE CASES WERE DISMISSED BY A COMMON JUDGMENT DATED BY A "ENCH
OF THIS #OURT REJECTING THE PLEA OF DELEMENT OF THE RIVER AND THE AREA BY THE CONCERNED
0ROJECT BUT AT THE SAME TIME ACCEPTING THE SACREDNESS ATTACHED TO THOSE 4HIS WILL BE
EVIDENT FROM THE FOLLOWING PORTIONS OF THE JUDGMENT
! VERY IMPORTANT MATTER AGITATED ON BEHALF OF THE PETITIONERS IS THAT THE PROJECT
WOULD POLLUTE THE WATER OF 2ATHONG #HU WHICH THE 3IKKIMESE "UDDHISTS CONSIDER TO
BE PUREST OF THE PURE FROM RELIGIOUS POINT OF VIEW 4HEY REQUIRE TO TAKE OUT A TUMBLER
OF WATER FROM 2ATHONG #HU 2IVER FOR PERFORMANCE OF THE "OOMCHU CEREMONY ON A
PARTICULAR DAY EVERY YEAR 4HE PETITIONERS APPREHEND THAT EXISTENCE OF SOME OBSTRUCTION
TO THE OW OF 2ATHONG #HU 2IVER WOULD POLLUTE ITS WATER )T HAS BEEN STATED THAT THE
REFUGE SIC OF THE PEOPLE WHO WOULD BE STAYING IN THE LOCALITY DURING THE CONSTRUCTION
OF THE PROJECT AND ALSO DURING THE FUNCTIONING OF THE PROJECT WOULD POLLUTE THE WATER
-OREOVER DECOMPOSED ANIMAL CADAVERS AND OTHER NUISANCE ACCUMULATING IN THE RIVER
ON ACCOUNT OF OBSTRUCTION TO ITS OW WOULD CONTRIBUTE TO FURTHER POLLUTION OF THE WATER
)T WAS SUGGESTED FROM THE SIDE OF THE RESPONDENTS THAT THE PLACE FROM WHERE THE WATER
IS COLLECTED DURING "OOMCHU CEREMONY IS AT A PLACE MUCH BELOW THE PROJECT AREA AND
ALSO MUCH AHEAD OF THE PLACE WHERE RIVER 2IMBI MEETS WITH THE 2ATHONG 2IVER AND OW
TOGETHER 4HERE IS ALREADY A HYDEL PROJECT ON 2IMBI THEREFORE POLLUTION OF WATER IN THE
PARTICULAR AREA IF AT ALL BE HAS ALREADY BEEN EFFECTED SINCE A NUMBER OF YEARS 4O MEET
THIS ARGUMENT IT HAS BEEN CONTENDED BY THE PETITIONERS THAT THEY DO NOT MEAN THE
PHYSICAL PURITY OF THE WATER )T IS SOMETHING DIFFERENT 4HE 2ATHONG #HU IS A HOLY RIVER
AND ANCIENT TEXTS INDICATE THE HOLINESS OF ITS WATER "E IT PHYSICAL OR OTHERWISE IF ANY
HYDEL PROJECT COULD CAUSE ANY DAMAGE TO THE WATER IT HAS ALREADY BEEN DONE AND NO
GRAVER INFRINGEMENT TO THE PURITY OF THE WATER IS EXPECTED ON ACCOUNT OF ANOTHER HYDEL
PROJECT ON 2ATHONG RIVER 4HOUGH WE MUST FEEL SORRY FOR WOUNDING THE RELIGIOUS FEELING
OF A SECTION OF PEOPLE BUT NOTHING IS LEFT TO BE DONE AS ALLEGED VIOLATION TO THE PURITY HAS
4 / \
ALREADY BEEN CAUSED WHEN THE 2IMBI (YDEL PROJECT WAS STARTED
.O DOUBT THE REGION IS OF VALUE TO THE 3IKKIMESE OF "UDDHIST FAITH OF THIS AREA .O DOUBT
THE AREA IS COVERED WITH RELIGIOUS MONUMENTS AND THEIR RUINS .O DOUBT THE RELIGIOUS
FAITH IN OBSERVANCE OF THE "OOMCHU CEREMONY WOULD GET SOME AMOUNT OF JOLT "UT ON
OVERALL ASSESSMENT OF THE ENTIRE SITUATION IT DOES NOT LEAD US TO IRRESISTIBLE CONCLUSION
THAT THE SCHEME IS NOT VIABLE FROM THE SOCIO
CULTURAL AND RELIGIOUS CONSIDERATION 3OME
AMOUNT OF TOLERANCE FROM THE SIDE OF SOME SECTION OF PEOPLE HELPS THE 3TATE TO A GREAT
EXTENT IN UNDERTAKING WORKS WHICH ULTIMATELY CULMINATE IN MAXIMUM BENET TO
MAXIMUM PEOPLE !S THE (ONBLE 3UPREME #OURT OBSERVED IN "IJOE %MMANUELS CASE
REPORTED IN !)2 3UPREME #OURT OUR TRADITION TEACHES TOLERANCE OUR VALUES
PREACHES TOLERANCE OUR CONSTITUTION PRACTICES TOLERANCE LET US NOT DILUTE IT 3AME HAS
BEEN ECHOED IN 32 "OMMAIS CASE REPORTED IN 3## 4HE 'OVERNMENT APPEARS
TO BE SINCERE IN TAKING CARE OF THE SUGGESTIONS ON THE CONDITIONS OR SAFEGUARDS INDICATED
NOT ONLY IN THESE REPORTS BUT ALSO IN SEVERAL OTHER REPORTS OF SEVERAL INSTITUTIONS AND
ORGANISATIONS )T IS BELIEVED THE 'OVERNMENT WOULD ALSO MAKE GOOD THE DECIENCIES
FOUND IN THESE RESPECTS ;EMPHASIS SUPPLIED=
III 4HE 0ETITIONS FOR 3PECIAL ,EAVE TO !PPEAL LED BY THE 0ETITIONERS BEFORE THE (ONBLE
3UPREME #OURT AGAINST THE JUDGMENT WERE ALLOWED BY ORDER DATED
BUT THE
CONSEQUENT #IVIL !PPEALS WERE DISPOSED OF AS BEING INFRUCTUOUS ON THE DECLARATION OF THE
3TATE 'OVERNMENT VIDE .OTICATION DATED
DECLARING THE CLOSURE OF THAT 0ROJECT
%VIDENTLY THEREFORE THE !PPEAL WAS NOT DISPOSED OF ON ITS MERITS BUT ON THE CASE BEING
RENDERED INFRUCTUOUS #ONSIDERING THE TRITE POSITION THAT AN !PPEAL IS A CONTINUATION OF
THE ORIGINAL PROCEEDINGS IT CANNOT BUT BE HELD THAT THERE WAS NO NDING ON THE MERITS OF
THE CASE AND THUS COULD NOT BE SAID TO HAVE BEEN HEARD AND NALLY DECIDED
IV )N OUR VIEW WHEN THE 'OVERNMENT HAD SET AT NAUGHT THE VERY CAUSE OF ACTION THE
ISSUES ARISING IN THOSE 7RIT 0ETITIONS STOOD WIPED OUT AND RESULTANTLY THE NDINGS ON
THOSE ISSUES CEASED TO SURVIVE 7E MAY REPRODUCE THE ORDER DATED THE 'AZETTE
.OTICATION .O DATED !NNEXURE 0 AND THE ORDER OF THE (ONBLE 3UPREME
#OURT DATED IN #IVIL !PPEALS .O OF BELOW
/ 2 $% 2 $! 4% $
,EAVE GRANTED
3TAY VACATED ON THE UNDERTAKING GIVEN BY -R 2EDDY ,EARNED !DDITIONAL 3OLICITOR
'ENERAL THAT WHATEVER ACTIVITY
CONSTRUCTIONAL OR OTHERWISE WHICH HAS BEEN OR MAY
IN FUTURE BE DONE PURSUANT TO THE PROJECT THAT SHALL BE AT THE RISK AND PERIL OF THE 3TATE
'OVERNMENT AND THAT IN THE EVENT OF THE APPEAL SUCCEEDING THE ECOLOGY WILL PUT BACK
TO ITS OWN ORIGINAL POSITION -R 2EDDY FURTHER SAYS THAT WHATEVER CONDITIONS HAVE BEEN
IMPOSED BY THE (IGH #OURT THEY TOO WOULD BE STRICTLY FOLLOWED ,ASTLY IT IS CONCEDED
BY -R 2EDDY THAT BUT FOR THE PROJECT IN QUESTION NO OTHER PROJECT WOULD BE OATED OR
EXECUTED IN THE 9UKSOM 6ALLEY TILL FURTHER ORDERS
'AZETTE .OTICATION DATED
3IKKIM
'OVERNMENT 'AZETTE
%XTRA /RDINARY
0UBLISHED BY !UTHORITY
'ANGTOK 7EDNESDAY ND 3EPTEMBER
.O
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
'OVERNMENT OF 3IKKIM
(OME $EPARTMENT
'ANGTOK
.O !(OME
$ATED
./4)&)#!4)/.
4HE 3TATE 'OVERNMENT IS HEREBY PLEASED TO ORDER THE CLOSURE OF THE 2ATHONG #HU (YDE
0ROJECT WITH EFFECT FROM TH !UGUST
"Y ORDER AND IN THE NAME OF THE 'OVERNOR
3D
;+ 3REEDHAR 2AO=
#HIEF 3ECRETARY
& .O (OME
/2 $% 2 $! 4% $
4HE !PPEALS ABOVE
MENTIONED BEING CALLED ON HEARING BEFORE THIS #OURT ON THE ST
DAY OF .OVEMBER 50/. PERUSING THE RECORD AND 50/. COUNSEL FOR THE APPELLANTS
HEREIN STATING BEFORE THE #OURT THAT IN VIEW OF SUBSEQUENT DEVELOPMENT THESE APPEALS
ARE RENDERED INFRUCTUOUS 4()3 #/524 $/4( /2$%2
4(!4 THE APPEALS ABOVE
MENTIONED BE AND ARE HEREBY DISMISSED AS HAVING BECOME
INFRUCTUOUS
!.$ 4()3 #/524 $/4( &524(%2 /2$%2 THAT THIS /2$%2 BE PUNCTUALLY OBSERVED AND
CARRIED INTO EXECUTION BY ALL CONCERNED
;EMPHASIS SUPPLIED=
V 4HE SUBSEQUENT DEVELOPMENT NOTED IN THE ABOVE ORDER IS FOUND REECTED IN A NEWS
REPORT PUBLISHED IN THE 4ELEGRAPH IN ITS ISSUE DATED
WHICH READS AS UNDER
4HE 3IKKIM GOVERNMENT HAS SCRAPPED THE CONTROVERSIAL MW HYDEL POWER PROJECT
AT 2ATHONGCHU IN 7EST 3IKKIM 4HE PROJECT CONCEIVED IN AND LAUNCHED IN
HAD INCURRED AN EXPENDITURE OF 2S CRORE OVER THE LAST SIX YEARS 4HE CHIEF MINISTER
-R 0AWAN +UMAR #HAMLING SAID WORK ON THE PROJECT BUT SIC WOULD BE STOPPED TO
HONOUR THE SENTIMENTS RELIGION CULTURE OF THE 3IKKIMESE PEOPLE
4HE CHIEF MINISTERS ANNOUNCEMENT CAME AT A PUBLIC MEETING IN 0ALJOR GYMNASIUM
HERE YESTERDAY 4HE MEETING WAS ATTENDED MOSTLY BY LAMAS FROM DIFFERENT MONASTERIES
AND VARIOUS TRIBAL CAMPAIGNING AGAINST THE PROJECT
-R #HAMLING SAID )N WITNESS OF ALL ) CLOSE THE 2ATHONGCHU PROJECT IN THE INTEREST OF
THE 3IKKIMESE PEOPLE (E SAID HE WAS READY TO SACRICE HIS CHAIR IN THE INTEREST OF THE
STATE 4HE CHIEF MINISTER SAID HIS GOVERNMENT HAD LAID GREATER EMPHASIS ON THE STATE
AND ITS PEOPLE AS THEY WERE MORE VALUABLE THAN THE 2S CRORE WHICH HAD ALREADY
4 / \
BEEN SPENT ON THE PROJECT SINCE ITS INCEPTION
+EEPING IN MIND THE RELIGIOUS SENTIMENT OF THE PEOPLE AS THE PROJECT SITE HOUSES
VALUABLE RELIES SIC OF THE "UDDHIST PREACHER 'URU 2IMPOCHE THE GOVERNMENT HAD
SCRAPPED THE PROJECT HE SAID
2ATHONGCHU WIDELY HELD AS A SACRED RIVER IN 9OKSUM VALLEY IS BELIEVED TO HAVE
HIDDEN LAKES WITH PRESIDING DEITIES 4HE PROJECT HAD SPARKED OFF RESENTMENT AMONG THE
PEOPLE WHO PROTESTED FOR MORE THAN A YEAR ! SOCIAL ACTIVIST 3ONAM 0LAJOR HAD EVEN
RESORTED TO A HUNGERSTRIKE FOR DAYS FROM *UNE TO PRESS FOR THE SCRAPPING OF
THE PROJECT
! ONE MAN COMMISSION HEADED BY 0ROF 03 2AMAKRISHNAN OF THE 3CHOOL OF
%NVIRONMENTAL 3CIENCES OF THE *AWAHARLAL .EHRU 5NIVERSITY IN ITS REPORT SUBMITTED
ON /CTOBER ALSO RECOMMENDED SCRAPPING OF THE PROJECT (E SAID
9UKSUM WAS A
NATIONAL HERITAGE SITE AND THE 5NESCO WAS PLANNING TO UPGRADE IT AS A WORLD HERITAGE
SITE (OWEVER THE CHIEF MINISTERS SPEECH WHICH WAS BASED ON THE COMMISSION REPORT
DID NOT ACKNOWLEDGE THE FACT
9OKSUM IN 7EST 3IKKIM IS REFERRED TO AS $ENZONG LAND OF RICE AS WELL AS "AIYUL THE
HIDDEN VALLEY 3INCE ASSUMING POWER TWO AND HALF
YEAR AGO THE 3IKKIM $EMOCRATIC
&RONT GOVERNMENT FACED OPPOSITION FROM VARIOUS RELIGIOUS GROUPS ENVIRONMENTALISTS
AND SOCIAL ORGANISATIONS FOR SCRAPPING THE PROJECT
4HE GOVERNMENT EVEN WON A CASE LED BY THE NON
GOVERNMENTAL ORGANISATIONS
ON GROUND THAT THE PROJECT WAS NOT ECONOMICALLY VIABLE (AVING WON THE CASE THE
GOVERNMENT WENT AHEAD WITH CONSTRUCTION WORK DISREGARDING THE PROTESTS MAINLY
FROM THE RELIGIOUS ORGANIZATIONS WHICH CLAIMED THAT THE PROJECT WOULD SUBMERGE
IMPORTANT "UDDHIST MONUMENTS
4HE FALLOUT OF THE GOVERNMENTS MOVE MAY BE MANIFOLD 4HE #ENTRE WAS LIKELY TO
QUESTION THE RATIONALE OF SCRAPPING THE PROJECT AFTER THE STATE GOVERNMENT RECEIVED
FUNDS FOR IT IN
-OREOVER THE CONTRACTORS WOULD ALSO OPPOSE THE DECISION
;EMPHASIS SUPPLIED=
VI !PART FROM THE FACTUAL SETTING INDICATED ABOVE WHICH NEGATES THE PLEA OF CONSTRUCTIVE
RES JUDICATA RAISED ON BEHALF OF THE 2ESPONDENTS WE ALSO ND THAT WHILE DEALING WITH THIS
VERY QUESTION IN 6 0URUSHOTHAM 2AO VS 5NION OF )NDIA AND /THERS 3## IT
HAS BEEN HELD AS UNDER
4HEN AGAIN THE PRINCIPLES OF 3ECTION AS WELL AS /RDER 2ULE UNDOUBTEDLY
CONTEMPLATE AN ADVERSARIAL SYSTEM OF LITIGATION WHERE THE COURT ADJUDICATES THE RIGHTS
OF THE PARTIES AND DETERMINES THE ISSUES ARISING IN A GIVEN CASE 4HE 0UBLIC )NTEREST
,ITIGATION OR A PETITION LED FOR PUBLIC INTEREST CANNOT BE HELD TO BE AN ADVERSARIAL
SYSTEM OF ADJUDICATION AND THE PETITIONER IN SUCH CASE MERELY BRINGS IT TO THE NOTICE
OF THE COURT AS TO HOW AND IN WHAT MANNER THE PUBLIC INTEREST IS BEING JEOPARDISED BY
ARBITRARY AND CAPRICIOUS ACTION OF THE AUTHORITIES 4HE #OURT REPELLED THE SAME
BY HOLDING THAT THE WRIT PETITIONS ARE NOT INTER PARTES DISPUTES AND HAVE BEEN RAISED BY
WAY OF PUBLIC INTEREST LITIGATION AND THE CONTROVERSY BEFORE THE #OURT IS AS TO WHETHER
FOR SOCIAL SAFETY AND FOR CREATING A HAZARDLESS ENVIRONMENT FOR THE PEOPLE TO LIVE IN
MINING IN THE AREA SHOULD BE PERMITTED OR STOPPED 4HE #OURT HASTENED TO ADD
3UPP 3## P PARA
7E MAY NOT BE TAKEN TO HAVE SAID THAT FOR PUBLIC INTEREST LITIGATIONS PROCEDURAL
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
LAWS DO NOT APPLY !T THE SAME TIME IT HAS TO BE REMEMBERED THAT EVERY TECHNICALITY
IN THE PROCEDURAL LAW IS NOT AVAILABLE AS A DEFENCE WHEN A MATTER OF GRAVE PUBLIC
IMPORTANCE IS FOR CONSIDERATION BEFORE THE COURT %VEN IF IT IS SAID THAT THERE WAS A
NAL ORDER IN A DISPUTE OF THIS TYPE IT WOULD BE DIFCULT TO ENTERTAIN THE PLEA OF RES
JUDICATA
)N OUR CONSIDERED OPINION THEREFORE THE PRINCIPLE OF CONSTRUCTIVE RES JUDICATA
CANNOT BE MADE APPLICABLE IN EACH AND EVERY PUBLIC INTEREST LITIGATION IRRESPECTIVE OF
THE NATURE OF LITIGATION ITSELF AND ITS IMPACT ON THE SOCIETY AND THE LARGER PUBLIC INTEREST
WHICH IS BEING SERVED ;EMPHASIS SUPPLIED=
VII )N ANY CASE AS ALLUDED TO EARLIER THERE ARE TWO DISTINCT ISSUES ARISING IN THIS CASE
/NE BEING THE SACREDNESS OF THE RIVER 2ATHONG #HU AND THE VALLEY BELOW THE -OUNT
+HANGCHENDZONGA AND SECONDLY THE FAILURE OF THE 2ESPONDENTS .O AND IN OBTAINING
THE NECESSARY RECOMMENDATIONS OF THE 3TANDING #OMMITTEE OF THE ."7,
VIII &OR THE AFORESAID REASONS WE HOLD THAT THE 7RIT 0ETITION IS NOT HIT BY THE PRINCIPLE OF
RES JUDICATA
!PART FROM THE ABOVE OBJECTIONS WERE ALSO TAKEN ON THE QUESTION OF I THE LOCUS STANDI
OF THE 0ETITIONERS IN BRINGING THE 7RIT 0ETITIONS AS THEY WERE NOT THE RESIDENTS OF 7EST
3IKKIM AND II IMPERMISSIBILITY OF THIS #OURT TO INTERFERE IN ECONOMIC AND POLICY MATTERS
I /N THE RST OBJECTIONS OF LOCUS STANDI THE GRIEVANCE EXPRESSED IN THE 7RIT 0ETITIONS
PERTAIN TO AN AREA CONSIDERED AS SACRED BY THE ENTIRE "UDDHIST #OMMUNITY IN THE 3TATE TO
WHICH THE 0ETITIONERS BELONG AND THEREFORE PLACE OF RESIDENCE WOULD BE OF NO RELEVANCE
4HE 0ETITIONERS AS "UDDHISTS ARE ESPOUSING THE CAUSE OF ENTIRE "UDDHIST #OMMUNITY AND
THEREFORE THE OBJECTION DOES NOT APPEAR TO SUSTAIN
II 4HE OTHER OBJECTION AS REGARDS THE INTERFERENCE WITH THE POLICY AND ECONOMIC AFFAIRS
ARE CONCERNED THE FACTS AND CIRCUMSTANCES OF THE CASE DISCUSSED WOULD REVEAL THAT
THESE OBJECTIONS ALSO WOULD BE OF NO CONSEQUENCE AS THE QUESTIONS INVOLVED IN THE CASE
PRIMARILY ARE THE VIOLATION OF THE REQUIREMENT OF OBTAINING ."7, CLEARANCE FOR THE 0ROJECT
AND DELEMENT OF THE 2ATHONG #HU RIVER AND THE SURROUNDING AREAS HELD AS SACRED BY THE
"UDDHISTS DUE TO THE 0ROJECT IN QUESTION 7E DO NOT INTEND TO INTERFERE WITH ANY OF THE
POLICIES OF THE 3TATE 'OVERNMENT NOTWITHSTANDING THE TRITE POSITION THAT IN THE EVENT OF
THERE BEING ARBITRARINESS UNREASONABLENESS ILLEGALITY AND UNCONSTITUTIONALITY IN A POLICY
DECISION OF THE 'OVERNMENT THE #OURT HAVE THE NECESSARY JURISDICTION TO INTERFERE
#ONSIDERING THE FACTS AND CIRCUMSTANCES DISCUSSED ABOVE THESE OBJECTIONS DO NOT APPEAR
TO HAVE ANY MERIT AND OF NO RELEVANCE AND ACCORDINGLY WE REJECT THEM
(AVING HELD SO WE MAY NOW REVERT BACK TO OUR NDINGS ON THE TWO QUESTIONS NOTED
EARLIER AND PROCEED TO DEAL WITH THOSE
7HETHER THE 0ROJECT IN QUESTION WAS IN VIOLATION OF THE ORDER DATED
PASSED
IN 'OA &OUNDATION CASE
I &ROM THE ENTIRE DISCUSSION THERE CAN BE NO DOUBT OF THE FACT THAT IN TERMS OF THE ORDER
DATED
IN 'OA &OUNDATION CASE SUPRA CLEARANCE OF ."7, WAS NECESSARY 4HIS
WOULD BE EVIDENT ALSO FROM THE %)! .OTICATION /FCE -EMORANDUM DATED
AND OTHER /FCE -EMORANDUMS AND LETTERS ISSUED BY THE 7ILDLIFE 7ING OF THE
-O%& 4HE NAL JUDGMENT DATED
IN 'OA &OUNDATION CASE SUPRA ONLY CLARIES
THAT NO SPECIC DIRECTION HAD BEEN ISSUED TO NOTIFY AREAS WITHIN KMSOF THE BOUNDARIES
4 / \
OF .ATIONAL 0ARKS AND 7ILDLIFE 3ANCTUARIES AS ECO SENSITIVE AREAS )T HAS NOT AND ALSO COULD
NOT HAVE HELD THAT IN 0ROJECTS OF THE PRESENT KIND CLEARANCE FROM ."7, WAS NOT NECESSARY
II !S NOTED EARLIER THE STAND OF THE 2ESPONDENTS .O AND AS REGARDS THE NECESSITY
OF SEEKING CLEARANCE FROM THE ."7, IS THAT THERE BEING NO DIRECTION FROM THE (ONBLE
3UPREME #OURT TO SEEK SUCH CLEARANCE THEY HAD NOT DONE SO AND THAT THE .OTICATIONS AND
THE /FCE -EMORANDUMS ISSUED BY THE -O%& WERE NON EST AND THEREFORE DID NOT REQUIRE
COMPLIANCE 4HIS IN OUR CONSIDERED OPINION DO NOT APPEAR TO BE THE CORRECT APPROACH
5NLESS AN APPROPRIATE FORUM DECIDES ON THE VALIDITY OF SUCH .OTICATIONS AND /FCE
-EMORANDUMS IT IS INCUMBENT FOR THEM TO HAVE COMPLIED WITH THOSE )N +RISHNADEVI
-ALCHAND +AMATHIA SUPRA IT HAS BEEN HELD AS UNDER
4HUS FROM THE ABOVE IT EMERGES THAT EVEN IF THE ORDERNOTICATION IS VOIDVOIDABLE
THE PARTY AGGRIEVED BY THE SAME CANNOT DECIDE THAT THE SAID ORDERNOTICATION IS NOT
BINDING UPON IT )T HAS TO APPROACH THE COURT FOR SEEKING SUCH DECLARATION 4HE ORDER
MAY BE HYPOTHETICALLY A NULLITY AND EVEN IF ITS INVALIDITY IS CHALLENGED BEFORE THE COURT
IN A GIVEN CIRCUMSTANCE THE COURT MAY REFUSE TO QUASH THE SAME ON VARIOUS GROUNDS
INCLUDING THE STANDING OF THE PETITIONER OR ON THE GROUND OF DELAY OR ON THE DOCTRINE
OF WAIVER OR ANY OTHER LEGAL REASON 4HE ORDER MAY BE VOID FOR ONE PURPOSE OR FOR ONE
PERSON IT MAY NOT BE SO FOR ANOTHER PURPOSE OR ANOTHER PERSON
III 4HE PRESENT CONFUSION AND THE IMBROGLIO APPEARS TO HAVE ARISEN CLEARLY ON ACCOUNT OF
THE LACK OF DILIGENCE AND RELUCTANCE ON THE PART OF THE 3TATES IN SUBMITTING ITS PROPOSALS
IN RESPONSE TO THE REPEATED REMINDERS RESULTING IN THE DELAY IN DECIDING ON THE QUESTION
OF ECO
SENSITIVE ZONES BY THE -O%& THEREBY ENABLING THE 0ROJECT PROPONENTS TO MAKE A
PREMIUM OUT OF THE NEBULAR SITUATION 4HIS EXPLAINS THE OBSERVATION OF THE (ONBLE
3UPREME #OURT IN 'OA &OUNDATION CASE SUPRA
IV !DMITTEDLY A PROPOSAL BY THE 2ESPONDENT .O IS UNDER CONSIDERATION OF THE
-O%& WHOSE EXPEDITIOUS DECISION ON THE PROPOSAL IN OUR VIEW IS IMPERATIVE AND A
DIRECTION TO THAT END IS NECESSARILY CALLED FOR
V %STABLISHMENT OF "IOSPHERE 2ESERVE IN 3IKKIM MENTIONED IN THE LETTER OF
-O%& DATED
AND THE SUBSEQUENT .OTICATION DATED
OF THE
'OVERNMENT OF 3IKKIM UPON WHICH THE 2ESPONDENTS RELY WOULD HAVE NO RELEVANCE
TO THE REQUIREMENT OF CLEARANCE BY THE ."7, IN VIEW OF THE MANDATORY NATURE OF
SUCH CLEARANCE AS THE 0ROJECT IN QUESTION FALLS UNDER #ATEGORY ! AS PROVIDED IN THE
3CHEDULE READ WITH PARAGRAPHS II AND V OF THE %)! .OTICATION AND THE
/FCE -EMORANDUM DATED
6IOLATION OF THE RELIGIOUS AND CUSTOMARY RIGHTS UNDER !RTICLES AND OF THE
#ONSTITUTION OF )NDIA
I 4HE NEXT IS THE QUESTION OF SACREDNESS OF THE RIVER 2ATHONG #HU ITS DELEMENT AND
ITS ADVERSE EFFECT ON THE "HUMCHU CEREMONY HELD AT 4ASHIDING ANNUALLY 7E HAVE
ALREADY OBSERVED THAT WEIGHTY MATERIALS HAVE BEEN PLACED ON BEHALF OF THE 0ETITIONER
IN PROOF OF THE SACREDNESS OF THE 2ATHONG #HU RIVER AND THE 6ALLEY BELOW THE -OUNT
+HANGCHENDZONGA THROUGH WHICH IT OWS "UT THERE ARE ALSO CONICTING CLAIMS MADE
BY THE MONKS OF THE PREMIER -ONASTERIES SITUATED IN THE VALLEY #ONTROVERSY HAS ALSO
BEEN RAISED BY THE 2ESPONDENT
3TATE AS REGARDS THE VERY NAME OF THE RIVER (OWEVER
THESE ARE QUESTIONS WHICH WE SHALL WITHHOLD OURSELVES FROM ENTERING INTO EXCEPT TO ISSUE
APPROPRIATE DIRECTIONS TO THE EXTENT AS SHALL BE REVEALED HEREAFTER
II 0UBLIC #ONSULTATION WHICH IS MANDATORILY REQUIRED TO BE CONDUCTED UNDER THE %)!
.OTICATION DATED
!NNEXURE
2 AS PRESCRIBED UNDER 3TATE ENVISAGES
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
INTER ALIA THE FOLLOWING
))) 3TAGE
0UBLIC #ONSULTATION
I 0UBLIC #ONSULTATION REFERS TO THE PROCESS BY WHICH THE CONCERNS OF LOCAL AFFECTED
PERSONS AND OTHERS WHO HAVE PLAUSIBLE STAKE IN THE ENVIRONMENTAL IMPACTS OF THE
PROJECT OR ACTIVITY ARE ASCERTAINED WITH A VIEW TO TAKING INTO ACCOUNT ALL THE MATERIAL
CONCERNS IN THE PROJECT OR ACTIVITY DESIGN AS APPROPRIATE !LL #ATEGORY ! AND #ATEGORY
" PROJECTS OR ACTIVITIES SHALL UNDERTAKE 0UBLIC #ONSULTATION EXCEPT THE FOLLOWING
II 4HE 0UBLIC #ONSULTATION SHALL ORDINARILY HAVE TWO COMPONENTS COMPRISING OF
A A PUBLIC HEARING AT THE SITE OR IN ITS CLOSE PROXIMITY DISTRICT WISE TO BE CARRIED OUT
IN THE MANNER PRESCRIBED IN !PPENDIX )6 FOR ASCERTAINING CONCERNS OF LOCAL AFFECTED
PERSONS
B OBTAIN RESPONSES IN WRITING FROM OTHER CONCERNED PERSONS HAVING A PLAUSIBLE STAKE
IN THE ENVIRONMENTAL ASPECTS OF THE PROJECT OR ACTIVITY
III THE PUBLIC HEARING AT OR IN CLOSE PROXIMITY TO THE SITES IN ALL CASES SHALL BE
CONDUCTED BY THE 3TATE 0OLLUTION #ONTROL "OARD 30#" OR THE 5NION TERRITORY 0OLLUTION
#ONTROL #OMMITTEE 540## CONCERNED IN THE SPECIED MANNER AND FORWARD THE
PROCEEDINGS TO THE REGULATORY AUTHORITY CONCERNED WITHIN FORTY VE OF A REQUEST TO
THE EFFECT FROM THE APPLICANT
IV IN CASE THE 3TATE 0OLLUTION #ONTROL "OARD OR THE 5NION TERRITORY 0OLLUTION #ONTROL
#OMMITTEE CONCERNED DOES NOT UNDERTAKE AND COMPLETE THE PUBLIC HEARING WITHIN
THE SPECIED PERIOD ANDOR DOES NOT CONVEY THE PROCEEDINGS OF THE PUBLIC HEARING
WITHIN THE PRESCRIBED PERIOD DIRECTLY TO THE REGULATORY AUTHORITY CONCERNED AS ABOVE
THE REGULATORY AUTHORITY SHALL ENGAGE ANOTHER PUBLIC AGENCY OR AUTHORITY WHICH IS
NOT SUBORDINATE TO THE REGULATORY AUTHORITY TO COMPLETE THE PROCESS WITHIN A FURTHER
PERIOD OF FORTY VE DAYS
V )F THE PUBLIC AGENCY OR AUTHORITY NOMINATED UNDER THE SUB PARAGRAPH III ABOVE
REPORTS TO THE REGULATORY AUTHORITY CONCERNED THAT OWING TO THE LOCAL SITUATION IT IS NOT
POSSIBLE TO CONDUCT THE PUBLIC HEARING IN A MANNER WHICH WILL ENABLE THE VIEWS OF THE
CONCERNED LOCAL PERSONS TO BE FREELY EXPRESSED IT SHALL REPORT THE FACTS IN DETAIL TO THE
CONCERNED REGULATORY AUTHORITY WHICH MAY AFTER DUE CONSIDERATION OF THE REPORT AND
OTHER RELIABLE INFORMATION THAT IT MAY HAVE DECIDE THAT THE PUBLIC CONSULTATION IN THE
CASE NEED NOT INCLUDE THE PUBLIC HEARING
VI
VII
;EMPHASIS SUPPLIED=
1UITE EVIDENTLY THE PROCESS OF 0UBLIC #ONSULTATION IS ELABORATE DURING THE PROCEEDINGS
OF WHICH CONCERNS OF AFFECTED PERSONS AND OTHERS ARE MANDATORILY REQUIRED TO BE
ASCERTAINED WITH THE OBJECT TO TAKE INTO ACCOUNT ALL MATERIAL CONCERNS IN THE 0ROJECT AND
THAT RESPONSES FROM OTHERS CONCERNED HAVING A PLAUSIBLE STAKE IN THE ENVIRONMENTAL
ASPECTS OF THE 0ROJECT OR ACTIVITY HAVE TO BE OBTAINED IN WRITING
4 / \
III )N THE PRESENT CASE THE 0UBLIC (EARING ONE OF THE COMPONENTS OF 0UBLIC #ONSULTATION
CONDUCTED BY THE 3TATE 0OLLUTION #ONTROL "OARD FOR THE PURPOSE OF %)! .OTICATION
UPON WHICH THE 2ESPONDENTS HEAVILY RELY UPON ALSO DOES NOT APPEAR TO BE BEYOND REPROACH
)N /RISSA -INING #ORPORATION ,TD SUPRA THE (ONBLE 3UPREME #OURT WHILE DEALING RIGHTS
OF THE 3CHEDULED 4RIBES OF WORSHIP OVER THE .IYAMGIRI (ILLS IN +ALAHANDI AND 2AYAGADA
DISTRICTS OF /RISSA HELD AS UNDER
4HE CUSTOMARY AND CULTURAL RIGHTS OF INDIGENOUS PEOPLE HAVE ALSO BEEN THE SUBJECT
MATTER OF VARIOUS INTERNATIONAL CONVENTIONS )NTERNATIONAL ,ABOUR /RGANIZATION ),/
#ONVENTION ON )NDIGENOUS AND 4RIBAL 0OPULATIONS #ONVENTION .O WAS THE
RST COMPREHENSIVE INTERNATIONAL INSTRUMENT SETTING FORTH THE RIGHTS OF INDIGENOUS
AND TRIBAL POPULATIONS WHICH EMPHASIZED THE NECESSITY FOR THE PROTECTION OF SOCIAL
POLITICAL AND CULTURAL RIGHTS OF INDIGENOUS PEOPLE &OLLOWING THAT THERE WERE TWO OTHER
CONVENTIONS ),/ #ONVENTION .O AND )NDIGENOUS AND 4RIBAL 0EOPLES #ONVENTION
AND 5NITED .ATIONS $ECLARATION ON THE RIGHTS OF )NDIGENOUS 0EOPLES 5.$2)0
)NDIA IS A SIGNATORY ONLY TO THE ),/ #ONVENTION .O
!PART FROM GIVING LEGITIMACY TO THE CULTURAL RIGHTS BY #ONVENTION THE
#ONVENTION ON THE "IOLOGICAL $IVERSITY #"! ADOPTED AT THE %ARTH 3UMMIT
HIGHLIGHTED NECESSITY TO PRESERVE AND MAINTAIN KNOWLEDGE INNOVATION AND PRACTICES
OF THE LOCAL COMMUNITIES RELEVANT FOR CONSERVATION AND SUSTAINABLE USE OF BIO
DIVERSITY
)NDIA IS A SIGNATORY TO #"! 2IO $ECLARATION ON %NVIRONMENT AND $EVELOPMENT !GENDA
AND &ORESTRY PRINCIPLE ALSO ENCOURAGE THE PROMOTION OF CUSTOMARY PRACTICES
CONDUCIVE TO CONSERVATION 4HE NECESSITY TO RESPECT AND PROMOTE THE INHERENT RIGHTS
OF INDIGENOUS PEOPLES WHICH DERIVE FROM THEIR POLITICAL ECONOMIC AND SOCIAL STRUCTURES
AND FROM THEIR CULTURES SPIRITUAL TRADITIONS HISTORIES AND PHILOSOPHIES ESPECIALLY THEIR
RIGHTS TO THEIR LANDS TERRITORIES AND RESOURCES HAVE ALSO BEEN RECOGNIZED BY 5NITED
.ATIONS IN THE 5NITED .ATIONS $ECLARATION ON 2IGHTS OF )NDIGENOUS 0EOPLES 34S AND
OTHER 4&$S RESIDING IN THE 3CHEDULED !REAS HAVE A RIGHT TO MAINTAIN THEIR DISTINCTIVE
SPIRITUAL RELATIONSHIP WITH THEIR TRADITIONALLY OWNED OR OTHERWISE OCCUPIED AND USED
LANDS
2ELIGIOUS FREEDOM GUARANTEED TO 34S AND THE 4&$S UNDER !RTICLES AND OF THE
#ONSTITUTION IS INTENDED TO BE A GUIDE TO A COMMUNITY OF LIFE AND SOCIAL DEMANDS 4HE
ABOVE MENTIONED !RTICLES GUARANTEE THEM THE RIGHT TO PRACTICE AND PROPAGATE NOT ONLY
MATTERS OF FAITH OR BELIEF BUT ALL THOSE RITUALS AND OBSERVATIONS WHICH ARE REGARDED
AS INTEGRAL PART OF THEIR RELIGION 4HEIR RIGHT TO WORSHIP THE DEITY .IYAM
2AJA HAS
THEREFORE TO BE PROTECTED AND PRESERVED
7E ARE THEREFORE OF THE VIEW THAT THE QUESTION WHETHER 34S AND OTHER 4&$S LIKE
$ONGARIA +ONDH +UTIA +ANDHA AND OTHERS HAVE GOT ANY RELIGIOUS RIGHTS IE RIGHTS OF
WORSHIP OVER THE .IYAMGIRI HILLS KNOWN AS .IMAGIRI NEAR (UNDALJALI WHICH IS THE HILL
TOP KNOWN AS .IYAM 2AJA HAVE TO BE CONSIDERED BY THE 'RAM 3ABHA 'RAM 3ABHA CAN
ALSO EXAMINE WHETHER THE PROPOSED MINING AREA .IYAMA $ANGER KM AWAY FROM
THE PEAK WOULD IN ANY WAY AFFECT THE ABODE OF .IYAM 2AJA .EEDLESS TO SAY IF THE "-0
IN ANY WAY AFFECTS THEIR RELIGIOUS RIGHTS ESPECIALLY THEIR RIGHT TO WORSHIP THEIR DEITY
KNOWN AS .IYAM 2AJA IN THE HILLS TOP OF THE .IYAMGIRI RANGE OF HILLS THAT RIGHT HAS TO
BE PRESERVED AND PROTECTED 7E ND THAT THIS ASPECT OF THE MATTER HAS NOT BEEN PLACED
BEFORE THE 'RAM 3ABHA FOR THEIR ACTIVE CONSIDERATION BUT ONLY THE INDIVIDUAL CLAIMS
AND COMMUNITY CLAIMS RECEIVED FROM 2AYAGADA AND +ALAHANDI $ISTRICTS MOST OF
WHICH THE 'RAM 3ABHA HAS DEALT WITH AND SETTLED
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
;EMPHASIS SUPPLIED=
IV !S IS APPARENT FROM THE ABOVE IT HAD BEEN NOTED BY THE (ONBLE 3UPREME #OURT THAT
ISSUES PERTAINING TO THE RELIGIOUS RIGHTS OF WORSHIP OVER .IYAMGIRI (ILLS BY THE TRIBALS
HAD NOT BEEN TAKEN INTO CONSIDERATION DURING THE PUBLIC HEARING AS WOULD APPEAR FROM
THE LAST PART OF PARAGRAPH EXTRACTED ABOVE )N THE PRESENT CASE ALSO WE ND THAT THE
QUESTIONS AND ANSWERS RECORDED IN THE PROCEEDINGS OF THE 0UBLIC (EARING ONLY DEAL WITH
THE INDIVIDUAL CLAIMS ARISING OUT OF THE 0ROJECT 7E DID NOT ND A WHISPER ON THE RELIGIOUS
ASPECT OF THE RIVER AND THE AREA AND OTHER SOCIAL ISSUES THAT MAY BE IMPACTED BY THE 0ROJECT
V 4HE ENTIRE PROCESS OF 0UBLIC (EARING IN THE PRESENT CASE IS REECTIVE OF THE OBSERVATION
OF (ONBLE 3HRI *USTICE +' "ALAKRISHNAN FORMER #HIEF *USTICE OF )NDIA IN HIS TALK DURING
THE SEMINAR ON ,AW AND %NVIRONMENT HELD AT #HANDIGARH ON
WHICH WE MAY
REPRODUCE BELOW
4HE IMPACT ON THE LOCAL COMMUNITIES CAN ONLY BE ACCURATELY ASSESSED IF THEIR
CONCERNS ARE EFFECTIVELY HEARD THROUGH METHODS SUCH AS 0UBIC HEARINGS (OWEVER
SEVERAL INDEPENDENT STUDIES HAVE DEMONSTRATED THE LACK OF TRANSPARENCY AND
INCLUSIVENESS IN SUCH HEARINGS )N SOME CASES THE 0UBLIC HEARINGS ARE NOT ADEQUATELY
NOTIED AND EVEN HELD IN REMOTE LOCATIONS WHERE THE CONCERNED STAKEHOLDERS DO NOT
GET A SAY 4HE PICTURE IF EVEN MORE COMPLICATED WHEN BUSINESS CONCERNS LOBBY WITH
LOCAL OFCIALS TO ENSURE THAT GENUINE CONCERNS ARE NOT VOICED )N SUCH SITUATIONS THE
COURTS ARE AGAIN CALLED ON TO PROTECT THE INTERESTS OF THE LOCAL COMMUNITIES WHO ARE
DISPLACED OR ADVERSELY AFFECTED BY DEVELOPMENTAL PROJECTS
;EMPHASIS SUPPLIED=
VI !LTHOUGH THE DECISION IN /RISSA -INING #ORPORATION ,TD CASE SUPRA WAS RENDERED IN
THE CONTEXT OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 2IGHTS !CT WE ARE OF THE CONSIDERED VIEW THAT THE PRINCIPLE FORMING THE BASIS
OF THE DECISION WOULD BE APPLICABLE IN THE PRESENT CASE ALSO
VII 4HERE IS NO DOUBT OF THE FACT THAT THE 2ATHONG #HU RIVER IS STILL IN ITS PRISTINE CONDITION
OWING THROUGH VERDANT GREEN VALLEY RICH IN BIODIVERSITY 7E ARE OF THE CONSIDERED
OPINION THAT NOT NOTIFYING A PLACE AS SACRED BY A 3TATE 'OVERNMENT CANNOT BE CONSIDERED
AS A DETERMINING FACTOR IN DECIDING AS TO WHETHER A PLACE IS SACRED OR NOT )T IS THE BELIEF
AND FAITH OF THE PEOPLE AND THE PRACTICE WHICH IS CONSIDERED ESSENTIAL TO THE FAITH THAT
WOULD BE RELEVANT AS A FACTOR FOR SUCH CONSIDERATION )T HAS BEEN ACCEPTED THAT RELIGION
CUSTOMS AND TRADITION OF THE PEOPLE FORM INTEGRAL UNITS OF THE ENTIRE BIOSPHERE ECOLOGY
AND ENVIRONMENT AND THAT MAN AND NATURE MAKE UP AN INDIVISIBLE WHOLE 4HERE IS WIDE
RECOGNITION WORLDWIDE AND ACROSS DISCIPLINES THAT REGIONS OF ECOLOGICAL CAUTION EXHIBIT A
SYMBIOTIC RELATIONSHIP BETWEEN THE BIOPHYSICAL ECOSYSTEM AND THE SOCIAL SYSTEM WITH
STRONG CULTURAL INTERCONNECTIONS BETWEEN THE TWO 4HIS DEMONSTRATES THAT CULTURE AND
ENVIRONMENT ARE COMPLEMENTARY AND IN VARIOUS STAGES OF EVOLUTION 2AMAKRISHNAN
;0ROCEEDINGS OF THE 7ORKSHOP ON THE )MPORTANCE OF 3ACRED .ATURAL 3ITES FOR "IODIVERSITY
#ONSERVATION
5.%3#/ +UNMING AND 8ISHUANGBANNA "IOSPHERE 2ESERVE 0EOPLES 2EPUBLIC
OF #HINA
= 7E ARE OF THE VIEW THAT THE ISSUES RAISED IN THE 7RIT 0ETITIONS
REQUIRE SERIOUS CONSIDERATION AND CANNOT BE IGNORED AND BRUSHED ASIDE
VIII )N /RISSA -INING #ORPORATION ,TD CASE SUPRA UNDER SOMEWHAT SIMILAR CIRCUMSTANCE
FOLLOWING DIRECTIONS WERE ISSUED
7E ARE THEREFORE INCLINED TO GIVE A DIRECTION TO THE 3TATE OF /RISSA TO PLACE THESE
ISSUES BEFORE THE 'RAM 3ABHA WITH NOTICE TO THE -INISTRY OF 4RIBAL !FFAIRS 'OVERNMENT
OF )NDIA AND THE 'RAM 3ABHA WOULD TAKE A DECISION ON THEM WITHIN THREE MONTHS AND
COMMUNICATE THE SAME TO THE -O%& THROUGH THE 3TATE 'OVERNMENT /N THE CONCLUSION
4 / \
OF THE PROCEEDING BEFORE THE 'RAM 3ABHA DETERMINING THE CLAIMS SUBMITTED BEFORE IT
THE -O%& SHALL TAKE A NAL DECISION ON THE GRANT OF 3TAGE )) CLEARANCE FOR THE "AUXITE
-INING 0ROJECT IN THE LIGHT OF THE DECISIONS OF THE 'RAM 3ABHA WITHIN TWO MONTHS
THEREAFTER
4HE PROCEEDINGS OF THE 'RAM 3ABHA SHALL BE ATTENDED AS AN OBSERVER BY A JUDICIAL
OFCER OF THE RANK OF THE $ISTRICT *UDGE NOMINATED BY THE #HIEF *USTICE OF THE (IGH #OURT
OF /RISSA WHO SHALL SIGN THE MINUTES OF THE PROCEEDINGS CERTIFYING THAT THE PROCEEDINGS
OF THE 'RAM 3ABHA TOOK PLACE INDEPENDENTLY AND COMPLETELY UNINUENCED EITHER BY
THE 0ROJECT PROPONENTS OR THE #ENTRAL 'OVERNMENT OR THE 3TATE 'OVERNMENT
;EMPHASIS SUPPLIED=
#ONSIDERING THE ENTIRE FACTS AND PECULIAR CIRCUMSTANCES OF THE CASE WE ARE OF THE
CONSIDERED OPINION THAT IN THE INTEREST OF JUSTICE IT WILL BE APPROPRIATE AND EXPEDIENT IF
BOTH THE ISSUES ARE REFERRED TO THE -O%& 2ESPONDENT .O FOR A DECISION IN ORDER TO TAKE
CARE OF THE ANXIETY WHICH NDS EXPRESSION IN PARAGRAPH OF THE JUDGMENT IN /RISSA
-INING #ORPORATION ,TD CASE SUPRA REPRODUCED ABOVE
7E THEREFORE DIRECT AS UNDER
4HE -O%& 2ESPONDENT .O SHALL IN DUE COMPLIANCE OF THE -O%& LETTER DATED
ORDER OF (ONBLE 3UPREME #OURT DATED IN 'OA &OUNDATION CASE SUPRA SO FAR AS
IT IS RELEVANT TO THAT LETTER AND -O%& /FCE -EMORANDUM DATED AND OTHER
RELATED LETTERS DECIDE ON THE QUESTION OF ECO SENSITIVE ZONE IN ACCORDANCE WITH LAW AND
THE PROCEDURE PRESCRIBED IN THAT BEHALF WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF THIS
JUDGMENT AFTER AFFORDING THE PARTIES OPPORTUNITY OF HEARING ON ALL ASPECTS INCLUDING THE
RELIGIOUS ASPECT RAISED BY THE 0ETITIONERS
(AVING REGARD TO THE FACTS AND CIRCUMSTANCES WE WITHHOLD OURSELVES FROM PASSING
ANY ORDER SUSPENDING THE 0ROJECT IN QUESTION MAKING IT CLEAR THAT THE IMPLEMENTATION OF
THE 0ROJECT SHALL BE AT THE RISK AND PERIL OF THE 2ESPONDENTS .O AND AS INDICATED IN THE
/FCE -EMORANDUM DATED
OF -O%& AND SHALL BE SUBJECT TO THE DECISION OF THE
-O%& WHICH IT MAY TAKE AFTER ISSUANCE OF THE NAL NOTICATION
)N THE INTERREGNUM IT SHALL BE OPEN FOR THE 3TATE 2ESPONDENT .O TO TAKE SUCH DECISION
AS MAY BE ADVISED UNHINDERED BY THE PROCEEDINGS BEFORE THE -O%& BEING HELD BY VIRTUE
OF THIS ORDER
7E ALSO MAKE IT CLEAR THAT THE OBSERVATIONS OR REMARKS MADE BY US IN THIS JUDGMENT
SHALL NOT BE CONSTRUED AS EXPRESSIONS OF OUR OPINION ON THE MERITS OF THE CASE
4HE 7RIT 0ETITIONS STAND DISPOSED OF IN TERMS OF THE ABOVE DIRECTIONS
.O ORDER AS TO COSTS
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
544!2!+(!.$
()'( #/524
4!",% /& *5$'-%.43 !.$ /2$%23
3
ATTAR VS 3TATE OF 5TTARAKHAND !NR
!)2 5TR \ 3## /N,INE 5TT \
3HAMSHER /RS VS 3TATE /RS
!PPLICATION .O 4HC OF #70), .O OF \
4 / \
3ATTAR VS 3TATE OF 5TTARAKHAND !NR
70-3 ./ /&
()'( #/524 /& 544!2!+(!.$
#/2!- 02!&&5,! # 0!.4 *
#)4!4)/. !)2 542 3## /.,).% 544
3 5 - -!29
! BATCH OF SEVERAL WRIT PETITIONS WAS FILED BY MEMBERS OF THE COMMUNITY OF "AN
'UJJARS WHO USED TO LIVE IN THE FOREST LAND 4HE PETITIONERS SOUGHT DIRECTIONS THAT
THEIR REPRESENTATIONS FOR RECOGNITION OF FOREST RIGHTS UNDER THE 3CHEDULED 4RIBES AND
/THER &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! BE CONSIDERED
)T WAS FURTHER PRAYED BY THE PETITIONERS THAT THEY MAY NOT BE DISPOSSESSED !
PRELIMINARY ISSUE WAS RAISED REGARDING WHETHER THE RIGHTS CAN BE CLAIMED UNDER A
STATUTE WHICH HAS BEEN PASSED BY 0ARLIAMENT BUT HAS NOT COME INTO FORCE
4HE #OURT WAS OF THE VIEW THAT WHEN IT HAD BEEN SPECIFICALLY PROVIDED IN THE
!CT ITSELF THAT IT WILL COME INTO FORCE FROM THE APPOINTED DAY MENTIONED IN THE
NOTIFICATION IT CANNOT BE SAID THAT THE !CT HAS COME INTO FORCE PRIOR TO SUCH DATE
4HE #OURT FOUND THAT THE PETITIONERS FAILED TO SHOW THE NOTIFICATION IN THE /FFICIAL
'AZETTE IN WHICH THE DATE OF COMMENCEMENT OF THE &2! IS SPECIFIED IN TERMS OF
3ECTION OF THE !CT !S SUCH THE PETITIONERS CANNOT SAY THAT THEY HAD A RIGHT TO
GET THEIR FOREST RIGHTS DETERMINED UNDER THE PROVISIONS OF THE &2!
4HE WRIT PETITIONS WERE DISMISSED FOR THIS REASON
% $ ) 4 /23 . /4%
)RONICALLY THE &2! CAME INTO FORCE BY A DULY PUBLISHED GAZETTE NOTIFICATION ONLY
WEEKS LATER IE ON
/2$%2
(EARD
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
"Y MEANS OF THIS WRIT PETITION THE PETITIONER HAS SOUGHT WRIT IN THE NATURE OF CERTIORARI
QUASHING THE ORDER DATED PASSED BY RESPONDENT .O
"RIEF FACTS OF THE CASE ARE THAT VARIOUS WRIT PETITIONS .O OF -" OF
-" .EW .O -3 OF OF -" .EW .O -3 OF
OF -" .EW .O -3 OF OF -" .EW .O -3 OF
OF -" .EW .O -3 OF OF -" .EW .O
-3 OF WERE LED )N THIS #OURT WHICH WERE DISPOSED OF BY THIS #OURT IN WHICH
DIRECTIONS WERE ISSUED TO CONSIDER THE REPRESENTATIONS OF THE PETITIONERS IN THE LIGHT OF
THE PROVISIONS OF THE 3CHEDULE 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT 4HE PETITIONERS IN SAID CASE AND THE PRESENT PETITIONER HAVE
SOUGHT REHABILITATION IN THE FOREST LAND AS THEY ALLEGEDLY BELONG TO COMMUNITY OF "AN
'UJJARS WHO USED TO LIVE IN THE FOREST LAND )T IS FURTHER PRAYED BY THE PETITIONER IN THE
PRESENT CASE THAT HE MAY NOT BE DISPOSSESSED )N THE AFORESAID WRIT PETITIONS OTHER
PETITIONERS OF SAID CASES MADE SIMILAR PRAYER )T APPEARS THAT IN COMPLIANCE OF ORDER
DATED
PASSED IN WRIT PETITION .O OF -" WHICH WAS LED BY ONE
'UJJAR +ALYAN 3AMITI THE REPRESENTATION OF THE MEMBERS OF SAID 3OCIETY AND THE OTHER
PETITIONERS OF AFORESAID WRIT PETITIONS WHO CLAIMED SIMILAR RIGHTS WERE CONSIDERED AND
RESPONDENT .O REJECTED THE REPRESENTATIONS ON THE GROUND THAT THE 3CHEDULED 4RIBE
AND /THER 4RADITIONAL $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT HAS YET NOT
#OME INTO FORCE !ND NO RIGHT CAN BE GIVEN UNDER SAID !CT TO THE PETITIONERS
,EARNED #OUNSEL FOR THE PETITIONER RELIED ON THE PRINCIPLE OF LAW LAID DOWN IN 0T 2ISHIKESH
VS 3ALMA "EGUM ! # !)2 3#7 AND ARGUED THAT IT IS NOT NECESSARY
TO ISSUE A NOTICATION IN THE OFCIAL GAZETTE BEFORE AN !CT CAN BE SAID TO HAVE COME INTO
FORCE
0ANDIT 2ISHIKESH CASE 3UPRA IS ON THE POINT AS TO FROM WHICH DATE 3TATE AMENDMENT MADE
IN THE #ODE OF #IVIL 0ROCEDURE COULD BE SAID TO BE INCONSISTENT TO THE AMENDMENT
MADE IN THE #ENTRAL #ODE )N THE ABOVE MENTIONED CASE THE !PEX #OURT HAS CLEARLY HELD
THAT THERE IS DISTINCTION BETWEEN MAKING OF LAW AND ITS COMMENCEMENT ! "ILL PASSED
BY THE 0ARLIAMENT CAN BE SAID TO HAVE BECOME LAW FROM THE DATE WHEN 0RESIDENT GIVES
HIS ASSENT "UT THE DATE OF COMMENCEMENT OF THE !CT DOES NOT NECESSARILY BE THE DATE
WHEN ASSENT WAS GIVEN BY THE 0RESIDENT
)N THE PRESENT CASE IT IS PERTINENT TO MENTION HERE 3ECTION OF 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT !CT .O OF
TO WHICH THE 0RESIDENT GAVE ITS ASSENT ON
WHICH READS AS UNDER
3HORT TITLE AND COMMENCEMENT
4HIS !CT MAY BE CALLED THE 3CHEDULED 4RIBES
AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
IT EXTENDS TO THE WHOLE OF )NDIA EXCEPT THE 3TATE OF *AMMU AND +ASHMIR
)T SHALL COME INTO FORCE ON SUCH DATE AS THE #ENTRAL 'OVERNMENT MAY BY
NOTICATION IN THE /FCIAL 'AZETTE APPOINT
,EARNED #OUNSEL FOR THE PETITIONER FAILED TO SHOW THE NOTICATION IN THE /FCIAL 'AZETTE
IN WHICH THE DATE OF COMMENCEMENT OF AFORESAID !CT IS SPECIED 3INCE REQUIREMENT OF
3UB
SECTION OF 3ECTION OF THE AFORESAID !CT REQUIRES #ENTRAL 'OVERNMENT TO APPOINT
A DATE BY ISSUING NOTICATION REQUIRED TO BE PUBLISHED IN THE /FCIAL 'AZETTE UNLESS THE
SAME IS SHOWN IT IS NOT OPEN FOR THE PETITIONER TO SAY THAT THE !CT HAS COME INTO FORCE
AND HIS REPRESENTATION IS WRONGLY REJECTED BY THE AUTHORITIES MADE UNDER THE AFORESAID
!CT ,EARNED #OUNSEL FOR THE PETITIONER ARGUED THAT UNDER THE PROVISION OF 'ENERAL
#LAUSES !CT IN VIEW OF THE ABOVE MENTIONED CASE LAW EVEN IF NO DATE IS SPECIED IN THE
4 / \
NOTICATION THE !CT HAS COME INTO FORCE
) DO NOT SEE FORCE IN THE CONTENTION FOR THE REASON THAT PROVISIONS OF 'ENERAL #LAUSES
!CT WOULD BE HELPFUL ONLY WHERE THE !CT IS SILENT AS TO ITS COMMENCEMENT 7HERE IT
HAS BEEN SPECICALLY PROVIDED IN THE !CT ITSELF THAT IT WILL COME INTO FORCE FROM THE
APPOINTED DAY MENTIONED IN THE NOTICATION IT CANNOT BE SAID THAT THE !CT HAS COME
INTO FORCE PRIOR TO SUCH DATE AS SUCH THE PETITIONER CANNOT SAY THAT HE HAD A RIGHT TO GET
HIS RIGHTS DETERMINED IN THE LIGHT OF THE PROVISIONS OF THE !CT SO MADE
&OR THE REASONS AS DISCUSSED ABOVE THE WRIT PETITION IS DISMISSED
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
3HAMSHER /RS VS 3TATE /RS
72)4 0%4)4)/. ./ /& -3
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#/2!- 02!&5,,! # 0!.4 *
3 5--!29
4HE PETITIONERS ARE TRIBALS FROM THE "AN 'UJJAR TRIBE WHO HAVE MADE REPRESENTATIONS
FOR THE RECOGNITION OF THEIR FOREST RIGHTS UNDER 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! (OWEVER
EVEN THOUGH THE &2! AND 2ULES FRAMED THEREUNDER ARE IN FORCE AND THE 3TATE
GOVERNMENT HAS ALSO ISSUED A '/ ON .O86))
DIRECTING ITS IMPLEMENTATION THE #OMMITTEES AT THE 6ILLAGE 3UBDIVISION AND
$ISTRICT LEVEL HAVE NOT BEEN CONSTITUTED
4HE WRIT PETITION SOUGHT DIRECTIONS IN THE NATURE OF MANDAMUS TO THE RESPONDENT
3TATE GOVERNMENT TO CONSTITUTE SUCH #OMMITTEES SO THAT THE REPRESENTATIONS OF THE
PETITIONERS CAN BE DECIDED
#OUNSEL APPEARING FOR THE 3TATE GOVERNMENT AGREED THAT THE 3TATE GOVERNMENT WAS
REQUIRED TO CONSTITUTE THE #OMMITTEES CONCERNED
!CCORDINGLY THE #OURT DISPOSED OF THE WRIT PETITION AT A PRELIMINARY STAGE WITH A
DIRECTION TO THE 3TATE GOVERNMENT TO CONSTITUTE THE COMMITTEES AS PROVIDED UNDER
THE &2! AND &2 2ULES WITHIN DAYS
% $ )4/23 . /4%
4HIS WRIT PETITION CLEARLY BROUGHT BEFORE THE #OURT THE SAME ISSUE RAISED IN THE
PREVIOUS CASE NAMELY FAILURE TO IMPLEMENT THE &2! WITH REGARD TO FOREST RIGHTS
OF "AN 'UJJARS 4HE (IGH #OURT WOULD HAVE BEEN WITHIN ITS JURISDICTION TO KEEP THE
MATTER PENDING UNTIL THE 3TATE GOVERNMENT IMPLEMENTS THE DIRECTIONS OF THE #OURT
TO PUT THE IMPLEMENTATION MACHINERY UNDER THE &2! INTO PLACE (OWEVER THE #OURT
CHOSE NOT TO DO THAT AND IT IS APPARENT FROM THE MONITORING REPORTS SUBMITTED TO
THE #ENTRAL GOVERNMENT OVER THE YEARS BY THE 3TATE GOVERNMENT THAT THIS ORDER WAS
NOT COMPLIED WITH AND MOST CERTAINLY NOT WITHIN THE TIMEFRAME OF DAYS
4 / \
* 5 $ ' -% . 4
(EARD LEARNED COUNSEL FOR THE PARTIES
"Y MEANS OF THIS WRIT PETITION THE PETITIONERS HAVE SOUGHT WRIT IN THE NATURE OF
MANDAMUS COMMANDING THE RESPONDENTS .O TO TO CONSTITUTE A COMMITTEE AS PER
THE 'OVERNMENT /RDER DATED FOR REDRESSAL OF GRIEVANCES OF "AN 'UJJARS
MEMBERS OF A TRIBE LIVING IN FOREST AND A FURTHER DIRECTION HAS BEEN SOUGHT DIRECTING TO
DECIDE THE REPRESENTATIONS OF THE PETITIONERS
"RIEF FACTS OF THE CASE ARE THAT IT IS PLEADED THAT THE PETITIONERS ARE "AN 'UJJARS MEMBERS
OF A TRIBE LIVING IN FOREST 5NDER 3ECTION OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT WHICH CAME INTO FORCE ON ST
OF *ANUARY 2ULES ARE SAID TO HAVE BEEN FRAMED BY THE 'OVERNMENT OF )NDIA A
COPY OF WHICH IS ANNEXED AS ANNEXURE
TO THE WRIT PETITION 2ULE AND PROVIDE
FOR CONSTITUTION OF 3UB
$IVISIONAL ,EVEL #OMMITTEE $ISTRICT ,EVEL #OMMITTEE AND 3TATE
,EVEL -ONITORING #OMMITTEE RESPECTIVELY BY 3TATE 'OVERNMENT TO DECIDE THE CLAIMS
MADE UNDER THE !CT ,EARNED COUNSEL FOR THE PETITIONERS SUBMITTED THAT EVEN AFTER
ISSUANCE OF THE 'OVERNMENT /RDER .O 86))
DATED
ISSUED BY 'OVERNMENT OF 5TTARAKHAND $ISTRICT -AGISTRATES HAVE YET NOT CONSTITUTED
THE #OMMITTEES REQUIRED TO BE CONSTITUTED AT THE $ISTRICT ,EVEL 3UB
$IVISIONAL ,EVEL AND
'RAM 3ABHA LEVEL
,EARNED !DDITIONAL #HIEF 3TANDING #OUNSEL POINTED OUT THAT UNDER THE AFORESAID 2ULES
#OMMITTEES ARE REQUIRED TO BE CONSTITUTED BY THE 3TATE 'OVERNMENT AND NOT BY THE
$ISTRICT -AGISTRATE (OWEVER HE AGREES THAT DECISION IS REQUIRED TO BE TAKEN ON THE
CLAIMS OF THE PETITIONERS UNDER THE PROVISION OF THE AFORESAID !CT AND RULES FRAMED
THEREUNDER ,EARNED COUNSEL FOR THE PARTIES HAVE NO OBJECTION IF THIS WRIT PETITION IS
DISPOSED OF SUMMARILY
)N THE ABOVE CIRCUMSTANCES HAVING HEARD LEARNED COUNSEL FOR THE PARTIES AND IN VIEW
OF THE PROVISIONS CONTAINED IN THE AFORESAID !CT AND THE 2ULES THIS WRIT PETITION IS
SUMMARILY DISPOSED OF DIRECTING THE RESPONDENT .O TO GET CONSTITUTED THE COMMITTEES
AS PROVIDED UNDER THE AFORESAID 2ULES POSITIVELY WITHIN A PERIOD OF DAYS FROM
THE DATE OF CERTIED COPY OF THIS ORDER IS PRODUCED SO THAT THE PETITIONERS MAY MAKE
REPRESENTATIONS CLAIMS BEFORE THE #OMMITTEES CONCERNED )NTERIM RELIEF APPLICATION
.O OF ALSO STANDS DISPOSED OF
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ANDURANG 3ITARAM /RS VS 3TATE OF -ADHYA 0RADESH /RS
3## /NLINE .'4 \
3
MT -ITHLESH "AI 0ATEL VS 3TATE OF -ADHYA 0RADESH /RS
3## /NLINE .'4 \
3RI $IBAKAR "HOI VS $IS -AGISTRATE #OLLECTOR -AYURBHANJ /RISSA /RS
3## /N,INE .'4 \
!
JAY +UMAR .EGI /RS VS 5NION OF )NDIA /RS
/RIGINAL !PPLICATION .O 4(# OF \
4 / \
0ANDURANG 3ITARAM /RS VS 3TATE OF
-ADHYA 0RADESH /RS
/2)').!, !00,)#!4)/. ./ /& #: 4(# .!4)/.!, '2%%. 42)"5.!, #%.42!,
:/.!, "%.#( "(/0!,
#/2!- $!,)0 3).'( * !.$ 032!/
#)4!4)/. 3## /.,).% .'4
3 5 - -!29
4HE PETITIONERS HAD ORIGINALLY APPROACHED THE -ADHYA 0RADESH (IGH #OURT BY WAY
OF A WRIT PETITION SEEKING THE #OURTS INTERVENTION IN IRREGULARITIES IN THE GRANT
OF FOREST RIGHTS CERTIFICATES TO INELIGIBLE PERSONS UNDER THE 3CHEDULED 4RIBES AND
/THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION /F &OREST 2IGHTS !CT &2!
#ONSEQUENT UPON THE 3UPREME #OURTS DIRECTIONS IN THE "HOPAL CASE THIS WRIT
PETITION WAS ALSO TRANSFERRED TO THE .ATIONAL 'REEN 4RIBUNAL .'4
(OWEVER WHEN THE MATTER CAME UP FOR HEARING THE .'4 TOOK THE VIEW THAT ITS
JURISDICTION IS RESTRICTED TO THE STATUTES LISTED IN THE 3CHEDULE UNDER THE .ATIONAL
'REEN 4RIBUNAL !CT 3INCE &2! IS NOT LISTED IN THIS 3CHEDULE IT DOES NOT HAVE
JURISDICTION TO HEAR THIS PETITION 4HE MATTER WAS ACCORDINGLY TRANSFERRED BACK TO
THE (IGH #OURT
/2$%2
4HIS !PPLICATION WAS REGISTERED AFTER THE 7RIT 0ETITION 0), .O WAS
TRANSFERRED FROM THE (ONBLE (IGH #OURT OF -ADHYA 0RADESH AT *ABALPUR VIDE /RDER
DATED IN TERMS OF THE DIRECTIONS OF THE (ONBLE 3UPREME #OURT ISSUED IN THE
CASE OF "HOPAL 'AS 0EEDITH -AHILA 5DYOG 3ANGATHAN AND /THERS VS 5NION OF )NDIA
"Y JUDGMENT AND ORDER DT IN "HOPAL 'AS 0EEDITH -AHILA 5DYOG 3ANGATHAN AND /THERS VS
5NION OF )NDIA /THERS 3## THE (ONBLE 3UPREME #OURT HAD DIRECTED THAT PETITIONS RELATING TO
ENVIRONMENTAL AND RELATED ISSUES BE TRANSFERRED TO THE .ATIONAL 'REEN 4RIBUNAL
4HE NAL ORDER DT IN 70 PASSED BY THE -ADHYA 0RADESH (IGH #OURT IS EXTRACTED
ELSEWHERE IN THIS COMPENDIUM
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
/THERS !)2 3# .OTICES WERE ORDERED TO BE ISSUED TO THE PARTIES BY THE
4RIBUNAL ON AND AFTER SERVICE THE MATTER HAS BEEN LISTED FOR HEARING TODAY
4HE 7RIT 0ETITION LED AS 0), PRIMARILY ALLEGES LARGE SCALE IRREGULARITIES FABRICATION
AND MANIPULATION OF RECORDS IN THE GRANT OF FOREST RIGHT CERTICATES ISSUED TO INELIGIBLE
PERSONS ENCROACHERS IN TERMS OF 4HE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION /F &OREST 2IGHTS !CT #ENTRAL !CT .O OF (EREINAFTER
REFERRED TO AS THE !CT OF
! PERUSAL OF THE PETITION AS CONTAINED IN PARA AND ITS VARIOUS SUB
PARAGRAPHS INDICATES
THE BRIEF HISTORY OF ENCROACHMENT OF FOREST BEFORE THE !CT OF CAME INTO FORCE
INCLUDING ORDERS PASSED BY THE (ONBLE (IGH #OURT OF -ADHYA 0RADESH AT *ABALPUR IN
70 .O OF AND THE CONSTITUTION OF (IGH ,EVEL #OMMITTEE BY THE (ONBLE (IGH
#OURT TO EXAMINE THE MATTER OF ENCROACHMENTS IN THE FOREST AND SUBMIT THE REPORT
4HE PETITIONER HAS ALLEGED THAT THE PROVISIONS OF THE !CT OF HAS BEEN MISCONSTRUED
AND WRONGLY APPLIED BY THE CONCERNED AUTHORITIES AND SUCH PERSONS WHO ARE
ENCROACHERS AS DISTINCT FROM FOREST DWELLERS HAVE BEEN GRANTED CERTICATE PATTAS
WITHOUT FOLLOWING THE DUE PROCEDURE UNDER THE LAW
7E ARE CONSCIOUS OF THE FACT THAT THE PETITIONER HAS ALSO ALLEGED THAT SUCH PATTAS HAVE
BEEN GIVEN IN THE 2ESERVE &OREST WHICH COULD NOT HAVE BEEN ISSUED (OWEVER THE BASIC
GRIEVANCE RAISED IS ON THE ACCOUNT OF ISSUANCE OF THE PATTAS UNDER THE !CT OF
7E HAVE HEARD THE ,EARNED #OUNSEL FOR THE PARTIES AND IT IS NOT DISPUTED THAT THE
PRINCIPAL GRIEVANCE RAISED RELATES TO ISSUANCE OF PATTAS TO ALLEGED FOREST DWELLERS UNDER
THE !CT OF
4HE .ATIONAL 'REEN 4RIBUNAL CONSTITUTED UNDER THE .ATIONAL 'REEN 4RIBUNAL !CT
#ENTRAL !CT OF HEREINAFTER REFERRED TO US THE !CT OF HAS BEEN CONFERRED
JURISDICTION AND POWERS WITH RESPECT TO PROCEEDINGS UNDER THE CHAPTER OF THE .'4 !CT
OF WHEREIN THE 4RIBUNAL MAY EXERCISE JURISDICTION OVER ALL #IVIL #ASES RELATING TO
ENVIRONMENT ARISING OUT OF THE IMPLEMENTATION OF ENACTMENTS SPECIED IN 3CHEDULE
)
OF THE !CT OF 0ERUSAL OF 3CHEDULE
) APPENDED TO THE !CT OF DOES NOT INCLUDE
3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT AMONG THE SEVEN ENACTMENTS SPECIED UNDER 3CHEDULE
)
!S HAS BEEN ALLEGED IN THE PETITION THE GRIEVANCE RAISED PERTAINS TO THE ALLEGED WRONGFUL
ACT OF GRANT OF 0ATTAS UNDER THE !CT OF WHICH IS NOT A SCHEDULED ACT UNDER THE !CT
OF 4HEREFORE WE ARE OF THE VIEW THAT THE .ATIONAL 'REEN 4RIBUNAL DOES NOT HAVE
JURISDICTION UNDER THE !CT OF TO DEAL WITH THE ISSUES RAISED IN THIS PETITION
4HE ,EARNED #OUNSEL FOR THE PETITIONER SUBMITTED THAT THE PETITION ALSO RAISES THE ISSUES
OF ILLEGAL FELLING OF TREES AND CLEARANCE OF FOREST LAND 3O FAR AS THE AFORESAID GRIEVANCES
ARE CONCERNED WE ND THAT THE (ONBLE (IGH #OURT HAS BEEN PLEASED TO TAKE NOTE OF THE
GRIEVANCES AND ISSUE INTERIM ORDER IN THIS REGARD IN THE EARLIER PETITION OF
ON WHICH WAS READ OUT BEFORE US BY THE ,EARNED #OUNSEL OF THE APPLICANTS
)N VIEW OF THE ABOVE DISCUSSION AND THE PROVISIONS CONTAINED IN THE !CT OF THIS
4RIBUNAL DOES NOT HAVE JURISDICTION WITH RESPECT TO MATTERS ARISING OUT OF !CT OF
4HEREFORE IT IS DIRECTED THAT THE 7RIT 0ETITION BE TRANSFERRED TO THE (ONBLE (IGH #OURT
OF -ADHYA 0RADESH OF *ABALPUR WITH A REQUEST TO THE (IGH #OURT 2EGISTRY FOR LISTING THE
SAME BEFORE THE (ONBLE (IGH #OURT FOR NECESSARY ACTION
4 / \
4HE 2EGISTRAR .ATIONAL 'REEN 4RIBUNAL #ENTRAL :ONE "ENCH "HOPAL IS DIRECTED TO RETURN
THE 7RIT 0ETITION WITH THE COPY OF THIS /RDER TO THE (ONBLE (IGH #OURT OF -ADHYA
0RADESH AT *ABALPUR 4HE /! .O ACCORDINGLY STANDS DISPOSED OF
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
-ITHLESH "AI 0ATEL VS 3TATE OF -ADHYA
0RADESH /RS
/2)').!, !00,)#!4)/. ./ /& #:
.!4)/.!, '2%%. 42)"5.!, #%.42!, :/.!, "%.#( "(/0!,
#/2!- $!,)0 3).'( * !.$ 03 2!/
#)4!4)/. 3## /.,).% .'4
3 5--!29
4HE APPLICATION WAS FILED BY -ITHLESH "AI 0ATEL ELECTED 3ARPANCH OF 6ILLAGE
0RATAPPUR IN *ABALPUR DISTRICT 4HE PRESENT APPLICATION IS PART OF A PROLONGED
LITIGATION RELATING TO A PLOT OF LAND MEASURING HECTARES IN THE SAID VILLAGE
WHICH HAS DENSE TREE GROWTH INCLUDING MAHUA TREES OVER WHICH THE TRIBAL
VILLAGERS HAVE NISTAR RIGHTS AND MORE THAN ONE THOUSAND TREES PLANTED AS PART OF
THE -AHATMA 'ANDHI .ATIONAL 2URAL %MPLOYMENT 'UARANTEE 3CHEME
)NITIALLY THE 3TATE GOVERNMENT HAD RECOMMENDED ISSUE OF A MINING LEASE -, OVER
THE SAID AREA FOR MINING OF IRON ORE A MAJOR MINERAL WHICH DID NOT FRUCTIFY FOR A
VARIETY OF REASONS ONE OF THEM BEING THAT THE APPLICANT OBTAINED DIRECTIONS FROM
THE (IGH #OURT
4HEREAFTER THE 3TATE GOVERNMENT ISSUED A PROSPECTING LICENCE 0, FOR LATERITE
A MINOR MINERAL TO ANOTHER PARTY 4HIS HAS BEEN CHALLENGED IN THE PRESENT
PROCEEDINGS ON A NUMBER OF GROUNDS WHICH NEED NOT BE EXAMINED IN GREAT DETAIL
FOR THE PRESENT PURPOSE 4HE MAIN ARGUMENT RAISED BY THE APPLICANT IS THAT FOREST
CLEARANCE UNDER THE &OREST #ONSERVATION !CT !CT HAS NOT BEEN OBTAINED
/NE OF THE ARGUMENTS RAISED BY THE APPLICANT IS THAT THE TRIBAL VILLAGERS ARE ELIGIBLE
FOR GRANT OF FOREST RIGHTS IN THE SAID AREA UNDER THE 3CHEDULED 4RIBES AND OTHER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2!
4HE 3TATE GOVERNMENT AS WELL AS THE 0, HOLDER ARGUED THAT THE LAND IN QUESTION
IS NOT FOREST LAND WITHIN THE MEANING OF THE !CT FOR THE REASON THAT IT IS
NOT A NOTIFIED FOREST NOR HAS IT BEEN IDENTIFIED AS A FOREST
LIKE AREA BY THE %XPERT
#OMMITTEE CONSTITUTED BY THE 3TATE GOVERNMENT PURSUANT TO THE JUDGMENT OF THE
3UPREME #OURT IN THE 'ODAVARMAN CASE EXPANDING THE DEFINITION OF FOREST LAND
4HE 4RIBUNAL ACCEPTED THIS ARGUMENT OF THE 3TATE GOVERNMENT OVERRIDING THE
4 / \
DOCUMENTARY PHOTOGRAPHIC AND LEGAL MATERIAL PLACED BEFORE IT BY THE APPLICANT
(AVING CONCLUDED THAT THE LAND IN QUESTION WAS NOT FOREST LAND THE 4RIBUNAL
FURTHER DECREED THAT THE &2! WHICH IS RESTRICTED IN ITS OPERATION TO FOREST LAND DOES
NOT APPLY 4HE 4RIBUNAL FURTHER OBSERVED THAT THE 0, HAS NOT PERMITTED THE CUTTING
OF ANY TREES AND IN THE EVENT A -, IS EVENTUALLY ISSUED THE APPLICANT MAY EXERCISE
THE LEGAL REMEDIES AVAILABLE TO HER
!CCORDINGLY THE APPLICATION WAS DISMISSED ALBEIT WITH OBSERVATIONS THAT MINING
OUGHT TO BE CONDUCTED WITHIN THE PRINCIPLES OF SUSTAINABLE DEVELOPMENT
% $ ) 4 /23 . /4%
4HE 4RIBUNAL PROCEEDED ON THE FLAWED PREMISE THAT THE JUDGMENT OF THE 3UPREME
#OURT EXPANDING THE DEFINITION OF FOREST LAND IS RESTRICTED BY THE FINDINGS OF THE
%XPERT #OMMITTEE APPOINTED BY THE 3TATE GOVERNMENT TO IDENTIFY FOREST
LIKE AREAS
4HEREFORE THE CONCLUSION THAT THE !CT DOES NOT APPLY APPEARS TO BE ERRONEOUS
%VEN MORE IMPORTANTLY THE 4RIBUNAL HAS PROCEEDED ON THE FOOTING THAT THE %XPERT
#OMMITTEES REPORT WHICH LIES IN THE EXECUTIVE DOMAIN WOULD RESTRICT THE OPERATION
OF THE &2! WHICH IS A LEGISLATIVE ACT OF 0ARLIAMENT 3ECTION D OF &2! PROVIDES THE
DEFINITION OF FOREST LAND AND 3ECTION PROVIDES THAT THE RIGHTS VESTED UNDER
THIS LAW OVERRIDE ANY OTHER LAW FOR THE TIME BEING IN FORCE
* 5 $ ' -% . 4
4HIS !PPLICATION HAS BEEN LED BY ONE 3MT -ITHLESH "AI 0ATEL WHO CLAIMS THAT SHE IS AN
ELECTED 3ARPANCH OF 6ILLAGE 0RATAPPUR 4EHSIL 3IROHA $ISTRICT *ABALPUR AND SHE IS LING THIS
!PPLICATION IN LARGER PUBLIC INTEREST ON BEHALF OF THE VILLAGERS OF 0RATAPPUR 3HE SAYS THAT
SHE IS CHALLENGING THE ORDER DATED TH -AY IN 2EFERENCE .O &
!NNEXURE
0 ISSUED BY THE 5NDER 3ECRETARY $EPARTMENT OF -INES 'OVERNMENT OF -ADHYA
0RADESH WHEREBY A 0ROSPECTING ,ICENSE IN SHORT REFERRED TO AS 0, FOR PROSPECTING LATERITE
MINERAL HAS BEEN GRANTED IN FAVOUR OF 2ESPONDENT .O OVER AN AREA OF HECTARES OUT
OF THE TOTAL EXTENT OF HECTARES LAND IN +HASRA .O OF VILLAGE 0RATAPPUR 4EHSIL
3IROHA $ISTRICT *ABALPUR )T IS STATED THAT THIS IS A GOVERNMENT LAND UNDER THE CONTROL
OF THE 2EVENUE $EPARTMENT AND THERE IS A DENSE TREE GROWTH WITH APPROXIMATELY
-AHUA TREES STANDING IN THE AREA ALLOTTED FOR 0, AND THE VILLAGERS ARE HAVING .ISTAR
RIGHTS OVER THE LAND )T FALLS UNDER THE DENITION OF &OREST AS GIVEN UNDER 3ECTION OF THE
&OREST #ONSERVATION !CT 3HE FURTHER STATES THAT .O /BJECTION #ERTICATE IN SHORT
REFERRED TO AS ./# WAS NOT OBTAINED FROM THE &OREST $EPARTMENT BEFORE GRANTING THE
0, )NITIALLY AN APPLICATION FOR GRANTING 0, FOR MINING IRON ORE LED BY ONE -S !NAND
-INING #ORPORATION WAS RECOMMENDED BY THE 'OVERNMENT OF -ADHYA 0RADESH AND 0,
WAS GRANTED IN THEIR FAVOUR BUT HAVING OBJECTED BY THE VILLAGERS THE LEASE HOLDER COULD
NOT COMMENCE ANY MINING WORK 3UBSEQUENTLY AN APPLICATION WAS LED SEEKING GRANT OF
-INING ,EASE IN SHORT REFERRED TO AS -, FOR MINING OF IRON ORE OVER A PERIOD OF YEARS
BY -S )ND 3YNERGY ,TD (OWEVER AS THE VILLAGERS OBJECTED THAT APPLICATION WAS NOT
CONSIDERED BY THE 'OVERNMENT OF -ADHYA 0RADESH FOR RECOMMENDING THE CASE TO THE
4. 'ODAVARMAN 4HIRUMALPAD VS 5NION OF )NDIA /RS 3##
)BID
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
#ENTRAL 'OVERNMENT AND IN THIS REGARD A 0UBLIC )NTEREST ,ITIGATION IN SHORT REFERRED TO AS
0), BY WAY OF 7RIT 0ETITION .O WAS LED BY ONE 3HRI !NADILAL 3EN BEFORE THE
(ONBLE (IGH #OURT OF -ADHYA 0RADESH !NNEXURE 0 WHEREIN THE (ONBLE (IGH #OURT
VIDE ORDER DATED TH -ARCH !NNEXURE 0 ISSUED NOTICE TO THE 2ESPONDENTS AND
ORDERED THAT IN CASE THE #ENTRAL 'OVERNMENT GRANTS APPROVAL FOR -, THE 0ETITIONER IS AT
LIBERTY TO MOVE THE #OURT FOR APPROPRIATE INTERIM RELIEF
4HE !PPLICANT FURTHER STATED IN HER APPLICATION THAT UNDER -AHATMA 'ANDHI .2%'3 THE
'RAM 0ANCHAYAT 0RATAPPUR HAS PLANTED APPROXIMATELY ONE THOUSAND TREES IN THE SAID
PIECE OF LAND IN +HASRA .O DURING THE YEAR BY INVESTING AN AMOUNT OF ABOUT
2S LAKHS "UT THE 2ESPONDENT .O UPROOTED THE PLANTS AND A COMPLAINT IN THIS REGARD
WAS MADE BEFORE THE $ISTRICT #OLLECTOR *ABALPUR VIDE COMPLAINT DATED TH 3EPTEMBER
!NNEXURE 0 BUT NO ACTION WAS TAKEN BY THE #OLLECTOR AND IT WAS INFORMED BY
THE OFCE OF THE #OLLECTOR THAT NO SUCH APPLICATION IS PENDING IN THEIR OFCE IN RESPECT
OF THE AFORESAID LAND FOR MINING PURPOSE !NNEXURE 0 4HE $IVISIONAL &OREST /FCER
*ABALPUR VIDE HIS LETTER DATED ST -AY INFORMED THE $ISTRICT #OLLECTOR THAT
-AHUA TREES ARE STANDING IN PART OF +HASRA .O IN AN AREA OF HECTARES !NNEXURE
0 7HEN THE MATTER WAS REFERRED TO THE 3$- 3IROHA IT WAS REPORTED THAT THE LAND
SITUATED IN +HASRA .O IS NOT T FOR MINING ACTIVITIES !NNEXURE 0 7HEN ./#
WAS SOUGHT FROM THE &OREST $EPARTMENT FOR GRANTING MINING LEASE IN +HASRA .O AND
A LETTER DATED TH /CTOBER WAS ADDRESSED TO THE 3ECRETARY -INING $EPARTMENT
'OVERNMENT OF -ADHYA 0RADESH THAT THIS PARTICULAR PIECE OF LAND IS NOT A FOREST LAND
!NNEXURE 0
4HUS THE !PPLICANT HAS STATED THAT THE ISSUE OF GRANTING -, FOR IRON ORE WAS TAKEN UP
TWICE IN THE ABOVE PIECE OF LAND AND THE 0), LED IS STILL PENDING BEFORE THE (ONBLE (IGH
#OURT AND NO ./# WAS ISSUED BY THE &OREST $EPARTMENT FOR GRANTING -, 3HE CONTENDED
THAT IN ORDER TO BY
PASS THE ORDERS OF THE (ONBLE (IGH #OURT SUBSEQUENTLY AN APPLICATION
WAS MOVED SEEKING 0, FOR MINING LATERITE MINERAL INSTEAD OF IRON ORE AND ACCORDINGLY
THE AFORESAID ORDER DATED
WAS ISSUED BY THE 'OVERNMENT OF -ADHYA 0RADESH
GRANTING 0, TO THE 2ESPONDENT .O 3HE FURTHER STATES THAT EARLIER VIDE MEMO DATED
RD &EBRUARY THE THEN $ISTRICT #OLLECTOR *ABALPUR HAD SUBMITTED A REPORT TO THE
3ECRETARY -INING 'OVERNMENT OF -ADHYA 0RADESH STATING THAT THERE ARE -AHUA
TREES STANDING IN +HASRA .O AND IT IS NOT SUITABLE FOR GRANTING -, !NNEXURE 0
4HUS THE !PPLICANT LAMENTED THAT DUE TO NEGATIVE REPORTS SENT FROM THE OFCE OF THE
$ISTRICT #OLLECTOR *ABALPUR AND IN SPITE OF THE FACT THAT THE LAND IN QUESTION IS HAVING
SUCH LARGE NUMBER OF -AHUA TREES THE 'OVERNMENT OF -ADHYA 0RADESH GRANTED 0, OVER
AN EXTENT OF HECTARES IN +HASRA .O FOR LATERITE MINING IN FAVOUR OF 2ESPONDENT
.O !NNEXURE 0 )T WAS FURTHER STATED BY THE !PPLICANT THAT A CLOSE LOOK AT THE ORDER
DATED TH -AY GIVES AN IMPRESSION THAT THE MINERAL LIMESTONE IS EXPECTED TO BE
FOUND RATHER THAN LATERITE AND THERE IS NEITHER LETERITE NOR LIMESTONE DEPOSITS IN THE SAID
PIECE OF LAND EXCEPT IRON ORE BUT TO CIRCUMVENT THE (ONBLE (IGH #OURT ORDER THE 0,
WAS GRANTED FOR PROSPECTING LATERITE SINCE IT IS ONLY THE #ENTRAL 'OVERNMENT WHICH IS
COMPETENT TO GRANT -, IN CASE OF IRON ORE MINING AND THUS AN INCORRECT AND FALSE MINERAL
HAS BEEN MENTIONED IN THE ORDER GRANTING 0, AND THERE IS NO CLEAR ./# ISSUED FROM THE
&OREST $EPARTMENT 4HE !PPLICANT EXPRESSED HER CONCERN THAT IF MINING ACTIVITY IS TAKEN
UP IN THE SAID PIECE OF LAND IT WILL NOT ONLY LEAD TO REMOVALDAMAGE OF THE HUGE NUMBER
OF EXISTING -AHUA TREES BUT IT WILL ALSO AFFECT THE ECOLOGY AND ENVIRONMENT IN THE AREA
BESIDES ROBBING THE LIVELIHOOD OPPORTUNITIES OF THE VILLAGERS AS THEY ARE PRESENTLY
COLLECTING THE -INOR &OREST 0RODUCE -&0 FROM THE -AHUA TREES )N SUPPORT OF HER CLAIM
SHE LED PHOTOGRAPHS DEPICTING TREE GROWTH IN THE SAID PIECE OF LAND !NNEXURE 0
3HE FURTHER ALLEGED THAT THOUGH THE 2ESPONDENT APPLIED FOR IRON ORE MINING SURPRISINGLY
0, WAS GRANTED FOR LATERITE MINING AND THIS IS A DELIBERATE ACT ON THE PART OF 2ESPONDENT
GOVERNMENT TO BYPASS THE LAW )T WAS FURTHER STATED THAT THE LAND IN QUESTION BEARS
4 / \
APPROXIMATELY MILLION TONS OF IRON ORE DEPOSITS AS PER THE SURVEY CONDUCTED BY THE
'EOLOGICAL 3URVEY OF )NDIA AND ULTIMATELY IT IS NOT THE LATERITE OR LIMESTONE BUT THE IRON
ORE THAT WILL BE MINED FROM THE AREA 3HE PRAYED THAT THOUGH THE LAND IS A 'OVERNMENT
LAND THE 2ESPONDENT .O SHOULD NOT HAVE BEEN GRANTED 0, FOR MINING BRUSHING ASIDE
THE OBJECTIONS RAISED BY THE VILLAGERS AND THUS SHE HAD NO ALTERNATIVE EXCEPT TO APPROACH
THIS 4RIBUNAL SEEKING JUSTICE 3HE PLEADED THAT THE IMPUGNED ORDER DATED TH -AY
SHOULD BE QUASHED IMMEDIATELY
5PON REGISTRATION OF THE !PPLICATION NOTICES WERE ISSUED TO THE 2ESPONDENTS AND
INTERIM STAY WAS GRANTED ON TH *ULY ON THE OPERATION OF THE IMPUGNED ORDER
4HE 2ESPONDENT .OS TO IN THEIR REPLY HAVE STATED THAT THE LAND IN QUESTION IN +HASRA
.O IS NOT A FOREST LAND )N VIEW OF THE ORDERS OF THE (ONBLE 3UPREME #OURT DATED TH
$ECEMBER IN THE MATTER OF 4. 'ODAVARMAN VS 5NION OF )NDIA 3## AND
AS PER THE #IRCULAR .O
! DATED TH *ANUARY !NNEXURE 2)
ISSUED BY
THE 2EVENUE $EPARTMENT 'OVT OF -ADHYA 0RADESH WHEREIN ON THE RECOMMENDATION OF
THE %XPERT #OMMITTEE THE FOLLOWING CRITERIA HAS BEEN XED TO DECLARE THE TREE CLAD AREAS
IN THE STATE AS &OREST BUT NOT YET NOTIED AS &OREST UNDER ANY !CT AND NOT RECORDED AS
&OREST IN 'OVERNMENT RECORDS
I 4HE EXTENT OF AREA SHOULD BE HECTARES OR MORE
II /N AN AVERAGE THE AREA SHOULD CONSIST AT LEAST NATURALLY GROWING TREES PER
HECTARE
4HE 2ESPONDENT .OS TO FURTHER STATED THAT THE GOVT LAND IN +HASRA .O IS LESS
THAN HECTARES IN EXTENT AND IT WAS FURTHER DIVIDED INTO RESTRICTED AND UNRESTRICTED
PARTS 4HE RESTRICTED PART IS OF HECTARES WHILE THE UNRESTRICTED PART IS HECTARES
AND THE 2ESPONDENT .O HAS BEEN SANCTIONED 0, FOR MINING OVER THE UNRESTRICTED
AREA 4HEREFORE THE CONTENTION OF THE !PPLICANT THAT THE LAND IS A FOREST LAND IS
MISCONCEIVED AND IT DOES NOT QUALIFY TO BE BROUGHT UNDER THE PROVISIONS OF THE &OREST
#ONSERVATION !CT 4HE UNRESTRICTED AREA WHERE THE 0, FOR MINING WAS GRANTED
CONSISTS -AHUA TREES WHICH BECOMES ON AN AVERAGE -AHUA TREES PER HECTARE
)T WAS FURTHER STATED IN THE REPLY THAT THE 3TATE 'OVERNMENT HAS NOT SANCTIONED THE
0, IN FAVOUR OF THE 2ESPONDENT .O IN SUPPRESSION OF EARLIER ORDERS BUT THE 0, WAS
SANCTIONED IN ACCORDANCE WITH LAW WITHIN THE PURVIEW OF 3ECTION OF THE -INES
-INERALS $EVELOPMENT 2EGULATIONS !CT CONSIDERING THE PREFERENTIAL RIGHTS OF
THE 2ESPONDENT .O AFTER GIVING OPPORTUNITY OF HEARING TO ALL THE PARTIES 4HE RELIEF
SOUGHT BY THE !PPLICANT IS PREMATURE BECAUSE IT IS ONLY THE 0, THAT HAS BEEN GRANTED IN
FAVOUR OF THE 2ESPONDENT .O AND NO PERMISSION WAS GRANTED FOR CUTTING THE -AHUA
TREES AS PROSPECTING OF MINERAL DOES NOT REQUIRE CUTTING OF TREES )T WAS FURTHER STATED
IN THE REPLY THAT -,S WERE SANCTIONED IN THE AREAS ADJACENT TO THE LAND IN QUESTION AND
THIS APPLICATION WAS LED ON THE INSTIGATION OF THOSE MINE OWNERS WHOSE MINES ARE
LOCATED ADJACENT TO +HASRA .O
!S DIRECTED BY THE 4RIBUNAL THE COUNSEL FOR THE 3TATE OF -ADHYA 0RADESH LED THE REPORT
OF THE %XPERT #OMMITTEE CONSTITUTED IN PURSUANCE OF THE DIRECTIONS OF THE (ONBLE
3UPREME #OURT IN THE CASE OF 4. 'ODAVARMAN VS 5NION OF )NDIA SUPRA COPY OF WHICH
HAS BEEN FURNISHED TO THE LEARNED COUNSEL FOR THE 2ESPONDENT .O AS WELL AS TO THE
!PPLICANT ! PERUSAL OF THE REPORT OF THE %XPERT #OMMITTEE INDICATES THAT 'OVERNMENT
LANDS MEASURING A TOTAL OF HECTARES ARE OUTSIDE THE CONTROL OF THE &OREST
$EPARTMENT BUT HAVING TREE GROWTH AND FALLING IN NOS OF +HASRAS LOCATED IN
VILLAGES IN *ABALPUR $ISTRICT AND THEY MEET THE AFORESAID CRITERIA AND QUALIED TO BE
DECLARED AS &OREST 4HUS THEY ARE ELIGIBLE TO BE BROUGHT UNDER THE DENITION OF &OREST
IRRESPECTIVE OF THEIR OWNERSHIP (OWEVER THE +HASRA NO WISE AND VILLAGE WISE DETAILS
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
WERE MISSING IN THE REPORT 4HEREFORE THE LEARNED COUNSEL FOR THE 3TATE OF -ADHYA
0RADESH WAS DIRECTED TO PRODUCE PARTICULARS OF VILLAGES AND +HASRA NUMBERS WHERE
SUCH &ORESTS WERE IDENTIED BY THE %XPERT #OMMITTEE TO KNOW WHETHER THIS PARTICULAR
+HASRA .O IN VILLAGE 0RATAPPUR NDS PLACE IN THE LIST OR NOT 4HE $ISTRICT #OLLECTOR
*ABALPUR IN HIS AFDAVIT DATED TH &EBRUARY STATED THAT VILLAGE 0RATAPPUR DOES
NOT ND PLACE WITHIN THE LIST OF VILLAGES WHERE &OREST WAS IDENTIED BY THE %XPERT
#OMMITTEE AND THEREFORE THE GOVT LAND IN +HASRA .O IS ONLY A REVENUE LAND AND
DOES NOT FALL UNDER THE DENITION OF &OREST AND THEREFORE &OREST #ONSERVATION !CT
IS NOT APPLICABLE IN THIS CASE 4HE #OLLECTOR FURTHER STATED THAT AS PER THE PROVISIONS
UNDER 3ECTION OF THE -ADHYA 0RADESH !DIM *ANJATIKA 3ANRANKSHAN 6RIKSHON KA
HITH !DHINIYAM WHICH LAYS DOWN THE LIST OF SPECIAL CATEGORY TREES INCLUDING
-AHUA TREE AT %NTRY .O AND 3ECTION OF THE -ADHYA 0RADESH ,AND 2EVENUE
#ODE CONFER POWERS TO THE $ISTRICT #OLLECTORS TO PERMIT CUTTING OF ANY STANDING
TREE INCLUDING THAT OF -AHUA TREE 4HE #OLLECTOR FURTHER STATED THAT THE -AHUA TREES
EXISTING IN +HASRA .O ARE NOT THE EXCLUSIVE SOURCE OF LIVELIHOOD FOR THE TRIBALS IN
THE AREA AND THE 0, FOR MINING WAS GRANTED BY THE 'OVERNMENT OF -ADHYA 0RADESH
TAKING INTO ACCOUNT OF THE ABOVE FACTS AND AS MINING OF MINERALS IS ESSENTIAL FOR THE
DEVELOPMENT OF THE 3TATE OF -ADHYA 0RADESH AND THE COUNTRY AS A WHOLE
4HE $IVISIONAL &OREST /FCER *ABALPUR WAS PRESENT BEFORE THE 4RIBUNAL AND LED AN
AFDAVIT DATED ST -ARCH STATING THAT THE LAND IN QUESTION IS A REVENUE LAND AND
NOT A FOREST LAND
4HE 2ESPONDENT .O IE -ADHYA 0RADESH 3TATE 0OLLUTION #ONTROL "OARD -00#" LED
THEIR REPLY STATING THAT NO APPLICATION HAS BEEN RECEIVED FROM THE 2ESPONDENT .O
FOR GRANTING ANY PERMISSION FOR MINING AND IF ANY SUCH APPLICATION IS REQUIRED FOR
GRANTING PERMISSION UNDER THE 7ATER 0REVENTION #ONTROL OF 0OLLUTION !CT AND
!IR 0REVENTION #ONTROL OF 0OLLUTION !CT IT WILL BE EXAMINED AFTER INSPECTION OF
THE SITE )T WAS FURTHER STATED BY THE -00#" THAT UNDER THE %)! .OTICATION DATED TH
3EPTEMBER UNDER THE SCHEDULE OF PROJECTS OR ACTIVITIES REQUIRING %NVIRONMENT
#LEARANCE %# THE ACTIVITY OF PROSPECTING OF MINERALS IS EXEMPTED AND THEREFORE NO
%# IS REQUIRED FOR GRANTING 0, IN THIS CASE (OWEVER THE /FCER
IN
#HARGE OF THE AREA
OF THE -00#" INSPECTED THE SITE AND OBSERVED THAT FEW PITSHOLES HAVE BEEN DUG UP
IN THE SITE AND NEITHER THERE IS ANY DAMAGE CAUSED TO THE ENVIRONMENT NOR IS ANY
ACTIVITY GOING ON THERE )T WAS FURTHER STATED THAT THE -00#" HAS SPECICALLY DIRECTED
THE 2ESPONDENT .O THAT WITHOUT OBTAINING WRITTEN CONSENT FROM THE 0#" NO MINING
ACTIVITY SHALL BE UNDERTAKEN IN THE AREA
4HE 2ESPONDENT .O IE #ENTRAL 0OLLUTION #ONTROL "OARD #0#" IN THEIR REPLY HAS
STATED THAT THEY DO NOT ISSUE ANY CONSENTLICENSE./#%#&# IN SUCH CASES AND 0RIOR
%# IS REQUIRED TO BE GIVEN BY THE -O%&3%)!! DEPENDING UPON THE CATEGORY OF PROJECT
AS SPECIED IN %)! .OTICATION DATED TH 3EPTEMBER AND #ONSENT TO /PERATE
AND #ONSENT TO %STABLISH IS GRANTED BY THE CONCERNED 3TATE 0OLLUTION #ONTROL "OARD
UNDER THE 7ATER 0REVENTION #ONTROL OF 0OLLUTION !CT AND !IR 0REVENTION
#ONTROL OF 0OLLUTION !CT AND THEREFORE THE #0#" HAS GOT NO ROLE TO PLAY IN THIS CASE
4HE 2ESPONDENT .O LED HIS REPLY DATED TH 3EPTEMBER STATING THAT THE
ADJUDICATION OF THE MATTER AS TO WHETHER THE 0, HAS BEEN RIGHTLY GRANTED OR NOT IS OUTSIDE
THE PURVIEW OF THIS 4RIBUNAL AS THE .ATIONAL 'REEN 4RIBUNAL !CT PROVIDES THAT
THIS 4RIBUNAL SHALL HAVE JURISDICTION OVER ALL THE CIVIL CASES WHERE SUBSTANTIAL QUESTION
RELATING TO ENVIRONMENT IS INVOLVED AND SUCH QUESTION ARISES OUT OF IMPLEMENTATION
OF THE ENACTMENTS SPECIED UNDER SCHEDULE
) OF THE .ATIONAL 'REEN 4RIBUNAL !CT
)N THIS PARTICULAR APPLICATION NO CIVIL CASE INVOLVING SUBSTANTIAL QUESTION RELATING TO
ENVIRONMENT HAS BEEN RAISED BY THE !PPLICANT )T WAS FURTHER STATED THAT THE !PPLICANT
4 / \
IS UNDER THE WRONG NOTION THAT BECAUSE THE LAND IN +HASRA .O IS HAVING -AHUA TREES
IT FALLS WITHIN THE DENITION OF &OREST AND 0, HAS BEEN GRANTED IN VIOLATION OF THE &OREST
#ONSERVATION !CT 4HE 2ESPONDENT .O AVERRED THAT THE LAND IN QUESTION IS NOT
A 2ESERVED &OREST AND AS PER THE RECOMMENDATIONS OF THE %XPERT #OMMITTEE CONSTITUTED
CONSEQUENT TO THE ORDERS OF THE (ONBLE 3UPREME #OURT IN THE CASE OF 4. 'ODAVARMAN
SUPRA THIS PARTICULAR PIECE OF LAND HAS NOT BEEN DECLARED TO COME UNDER THE DENITION
OF &OREST AND HENCE &OREST #ONSERVATION !CT IS NOT APPLICABLE )T WAS FURTHER
STATED IN THE REPLY THAT 0, WAS GRANTED ONLY OVER AN AREA OF HECTARES IN +HASRA .O
AND NOT FOR THE ENTIRE AREA OF HECTARES AND IT WAS ALSO DENIED THAT THE VILLAGERS
HAVE GOT ANY .ISTAR RIGHTS OVER THE LAND WHICH IS A REVENUE LAND AND NO -AHUA USUFRUCT
IS BEING COLLECTED BY THE TRIBALS FROM THE TREES OCCURRING IN THE SAID PIECE OF LAND )T WAS
FURTHER STATED BY THE 2ESPONDENT .O THAT PRESENTLY IT IS NOT SURE WHETHER THE LAND IN
QUESTION HAS GOT ANY IRON ORE DEPOSITS AND NO 0, WAS GRANTED IN FAVOUR OF -S !NAND
-INING #ORPORATION FOR IRON ORE MINING (OWEVER THE 'OVERNMENT OF -ADHYA 0RADESH
RECOMMENDED THE CASE OF )ND 3YNERGY ,IMITED TO THE 'OVERNMENT OF )NDIA FOR GRANTING
LEASE FOR YEARS FOR MINING OF IRON ORE IN +HASRA .O OVER AN EXTENT OF HECTARES
BUT THE SAID RECOMMENDATION WAS NOT CONRMED BY THE 'OVERNMENT OF )NDIA AS THE
'OVERNMENT OF )NDIA CAME TO THE CONCLUSION THAT THERE IS NO MATERIAL ON RECORD TO
SUGGEST THAT IRON ORE DEPOSITS OCCUR IN THE AREA AND NO PROSPECTING OF MINERAL HAS BEEN
DONE EARLIER FOR THE PURPOSE OF IRON ORE )T WAS MENTIONED AS VIRGIN AREA AND THEREAFTER
THE #ENTRAL 'OVERNMENT DIRECTED THE 3TATE 'OVERNMENT TO LOOK INTO THE MATTER AND TAKE
A FRESH DECISION /RDERS DATED TH .OVEMBER PASSED BY THE #ENTRAL 'OVERNMENT
UNDER 3ECTION OF THE -INES -INERALS $EVELOPMENT 2EGULATIONS !CT
ARE ANNEXED BY THE 2ESPONDENT AT !NNEXURE 2 AND 2 4HEREAFTER THE 3TATE
'OVERNMENT DULY CONSIDERING ALL THE RELEVANT FACTS DECIDED TO GRANT 0, TO 2ESPONDENT
.O )T WAS FURTHER STATED BY THE 2ESPONDENT .O THAT -S )ND 3YNERGY ,IMITED LED
7RIT 0ETITION .O AND BEFORE THE (ONBLE (IGH #OURT OF -ADHYA
0RADESH AT *ABALPUR CHALLENGING THE ORDER OF REMAND MADE BY THE #ENTRAL 'OVERNMENT
AND VIDE ORDER DATED TH -AY THE (ONBLE (IGH #OURT DISMISSED THE ABOVE
PETITIONS !NNEXURE 2 7ITH REGARD TO THE 0), LED BY 3RI !NANDILAL 3EN IT IS STATED
THAT THE 0), WAS LED IN THE YEAR AGAINST THE ORDER DATED TH /CTOBER OF THE
GOVT OF -ADHYA 0RADESH BY WHICH IT WAS RECOMMENDED FOR GRANTING -, FOR IRON ORE IN
FAVOUR OF )ND 3YNERGY ,TD (OWEVER THE (ONBLE (IGH #OURT HAS NOT GRANTED ANY STAY
AS AGREED BY THE !PPLICANT HERSELF 4HE 2ESPONDENT .O AVERRED THAT PERHAPS THE WRIT
PETITION MUST HAVE BEEN RENDERED INFRUCTUOUS AS THE #ENTRAL 'OVERNMENT REMANDED
THE MATTER BACK TO THE 3TATE 'OVERNMENT BY NOT ACCEPTING THE RECOMMENDATION OF THE
STATE 'OVERNMENT
4HE 2ESPONDENT .O FURTHER DENIED THAT THE VILLAGERS HAVE PLANTED TREES IN THE LAND
IN QUESTION UNDER .2%'3 AND NO SUCH PLANTATION IS EXISTING AT THE SITE 4HE ALLEGED
LING OF THE COMPLAINT BY THE !PPLICANT TO THE $ISTRICT #OLLECTOR IS ONLY A MOTIVATED
ONE AND THE ALLEGATIONS MADE THEREIN BY HER ARE INCORRECT )T WAS FURTHER STATED THAT
3$- 3IROHA ONLY WROTE A NOTE SHEET ON THE OBJECTIONS RAISED BY THE VILLAGERS AND NOT
RECOMMENDED TO THE #OLLECTOR THAT -, SHOULD NOT BE GRANTED .EVERTHELESS THE SAID
OBJECTIONS RAISED BY THE VILLAGERS WERE NOT ACCEPTED BY THE $ISTRICT #OLLECTOR 4HUS -,
WAS RECOMMENDED BY THE 3TATE 'OVERNMENT IN FAVOUR OF -S )ND 3YNERGY ,TD IN THE
YEAR AND THOUGH THE !PPLICANT IS AWARE OF IT SHE HAS DELIBERATELY HIDDEN THIS
FACT 2ESPONDENT .O FURTHER CONTENDED THAT WITHOUT PROSPECTING OF MINING BEING
TAKEN UP THE QUESTION OF CONCLUDING THAT THE SAID LAND IS HARBOURING IRON ORE DEPOSITS
DOES NOT ARISE AND ACCORDINGLY THE 'OVERNMENT OF )NDIA HAS MENTIONED IN ITS ORDER
THAT THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THE LAND IN QUESTION HAS GOT IRON ORE
DEPOSITS 4HEREFORE CONSIDERING ALL THE ASPECTS THE 3TATE 'OVERNMENT HAS GRANTED 0,
FOR LATERITE MINING TO THE 2ESPONDENT .O 4HEREFORE ONLY AFTER PROSPECTING IS DONE
IT CAN BE ASCERTAINED WHETHER THE LAND HAS GOT LATERITE DEPOSITS OR NOT 4HEREFORE IT IS
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
INCORRECT ON THE PART OF THE !PPLICANT TO SAY THAT THE LAND IN QUESTION DOES NOT CONSIST
LATERITE DEPOSITS 4HE 2ESPONDENT .O IN HIS APPLICATION FOR GRANTING 0, CLEARLY STATED
THAT IT IS FOR PROSPECTING LATERITE ONLY AND JUST BECAUSE THAT FEW TREES ARE EXISTING ON
SUCH PIECE OF LAND WHICH DOES NOT QUALIFY TO BE BROUGHT UNDER THE DENITION &OREST
SUCH ACTIVITY OF GRANTING 0, CANNOT BE DENIED !NY PIECE OF LAND LYING IDLE FOR A LONG
PERIOD WILL ALLOW TREE GROWTH TO COME UP AND SIMPLY BECAUSE FEW TREES HAVE COME
UP ON THE SITE IN QUESTION THE PLEA THAT NO PERMISSION SHALL BE GRANTED THERE FOR
MINING ACTIVITY IS NOT CORRECT -OREOVER PROSPECTING OF MINE DOES NOT REQUIRE CUTTING
OF TREES )T WAS ALSO STATED THAT THE &OREST $EPARTMENT HAS NOT RAISED ANY OBJECTION
AND BASED ON THE RECOMMENDATIONS OF THE $ISTRICT #OLLECTOR THE 0, WAS GRANTED BY
THE GOVERNMENT AND NO PUBLIC PLACES OF WORSHIP ARE LOCATED IN THE SAID PIECE OF LAND
AS REVEALED FROM THE REPORT OF THE $ISTRICT #OLLECTOR /NLY AFTER THE PROSPECTING IS
COMPLETED APPLICATION FOR GRANTING -, SHALL BE MADE AND 'OVERNMENT AT THAT TIME
WOULD EXAMINE ALL THE ASPECTS AND WOULD IMPOSE THE TERMS AND CONDITIONS INCLUDING
COMPENSATORY AFFORESTATION IF REQUIRED IN LIEU OF THE CUTTING OF TREES AND PRESENTLY IT IS
ONLY FOR THE PURPOSE OF PROSPECTING OF MINERAL AND NO TREE IS REQUIRED TO BE CUT AND AFTER
PROSPECTING IS DONE THE 'OVERNMENT WOULD TAKE A CONSCIOUS DECISION AS TO WHETHER
IT IS NECESSARY TO ALLOW MINING OF THE MINERAL IF FOUND LOCATED AND IF REQUIRED TAKE UP
COMPENSATORY AFFORESTATION ON ALTERNATE SITE TO COMPENSATE THE LOSS OF TREES EXISTING
ON THE LAND IN QUESTION )T WAS ALSO AVERRED THAT IT IS INCORRECT TO SAY THAT THE AFORESAID
-AHUA TREE ARE THE ONLY SOURCE OF LIVELIHOOD FOR THE VILLAGERS )N THE CIRCUMSTANCES THE
2ESPONDENT .O PRAYED FOR DISMISSAL OF THE /!
)N RESPONSE TO THE REPLY DATED TH 3EPTEMBER OF THE 2ESPONDENT .O THE
!PPLICANT LED REJOINDER DATED TH /CTOBER STATING THAT SHE IS CHALLENGING THE
GOVERNMENT ORDER ON THE GROUNDS OF DISTURBANCE OF ECOLOGICAL BALANCE WHICH MAY
OCCUR DUE TO FELLING OF SUCH LARGE NUMBER OF GROWN UP -AHUA TREES WHICH ARE MORE
THAN YEARS OLD AND IT INVOLVES A SUBSTANTIAL QUESTION RELATING TO ENVIRONMENT AND
IF THE PROSPECTING OF MINERAL IS PERMITTED IT MAY LEAD TO SUBSEQUENT GRANTING OF -, AND
THEREFORE IT MAY BE INEVITABLE TO FELL SUCH LARGE NUMBER OF TREES )T WAS WRONGLY STATED
BY THE 2ESPONDENTS THAT THE AREA DOES NOT QUALIFY TO BE DECLARED AS &OREST )T CONTAINS
ABOUT -AHUA TREES AND THE ORDERS OF THE (ONBLE 3UPREME #OURT IN THE CASE OF 4.
'ODAVARMAN SUPRA DATED TH $ECEMBER ARE APPLICABLE TO THIS PARTICULAR PIECE
OF LAND AND IT DOES QUALIFY TO BE RECORDED AS &OREST WHERE NO NON
FOREST ACTIVITY CAN BE
PERMITTED TO BE TAKEN UP 4HE !PPLICANT FURTHER STATED THAT TO FAVOUR THE 2ESPONDENT
.O THE AUTHORITIES DELIBERATELY BIFURCATED THE LAND IN +HASRA .O TO DEMONSTRATE
THAT THE TREES IN THAT PARTICULAR PORTION OF LAND WHERE 0, IS GRANTED IN +HASRA .O ARE LESS
IN NUMBER 0, FOR MINING WAS GRANTED OVER HECTARES THOUGH INITIALLY 2ESPONDENT
.O APPLIED THE 0, OVER THE ENTIRE HECTARES OF LAND IN +HASRA .O )T WAS FURTHER
STATED THAT THE CONTENTION OF THE 2ESPONDENT .O THAT THERE IS NO MATERIAL ON RECORD
TO SUGGEST OCCURRENCE OF IRON ORE DEPOSITS IN THE SAID LAND IS NOT CORRECT AND IN FACT THE
'OVERNMENT OF -ADHYA 0RADESH WHILE ADDRESSING THE 3ECRETARY $EPARTMENT OF -INES
'OVERNMENT OF )NDIA STATED THAT AS PER THE ESTIMATES MADE BY THE 'EOLOGICAL 3URVEY
OF )NDIA THE AVAILABILITY OF MINOR MINERAL LATERITE AND MAJOR MINERAL IRON ORE OVER THE
SAID PIECE OF LAND HAS BEEN ESTABLISHED AND THE EXPECTED QUANTITY OF IRON ORE DEPOSITS IS
APPROXIMATELY MILLION TONS AND THE #ENTRAL 'OVERNMENT HAS ONLY REMANDED BACK
THE MATTER TO THE 3TATE 'OVERNMENT TO COMPLY WITH THE NORMS OF PRINCIPLES OF NATURAL
JUSTICE WITHOUT COMMENTING UPON THE MINUTES OF THE CASE WHETHER EXISTENCE OF IRON
ORE DEPOSITS AS STATED BY THE 'OVERNMENT WAS PROVED OR NOT )T WAS FURTHER CONTENDED
BY THE !PPLICANT THAT IN CASE OF GRANTING 0, FOR A MINOR MINERAL -ADHYA 0RADESH -INOR
-INERALS 2ULES COME INTO PLAY AND AS PER 2ULE OF THE SAID RULES ON RECEIPT OF ANY
APPLICATION THE DETAILS SHALL BE RST CIRCULATED ON THE NOTICE BOARD OF :ILA 0ANCHAYAT
*ANPAD 0ANCHAYAT AND 'RAM 3ABHA BUT IN THIS CASE THIS MANDATORY PROVISION HAS BEEN
NOT FOLLOWED )T WAS ALSO STATED THAT IN -ADHYA 0RADESH -INOR -INERALS 2ULES IT IS
4 / \
PROVIDED THAT NO LEASE SHALL BE SANCTIONED WITHOUT OBTAINING OPINION OF THE CONCERNED
'RAM 3ABHA BUT IN THE INSTANT CASE NO SUCH EXERCISE HAS BEEN DONE
4HE COUNSEL FOR THE !PPLICANT IN HIS OBJECTIONS ON BEHALF OF THE !PPLICANT IN RESPONSE TO
THE -ISCELLANEOUS !PPLICATION .O LED BY THE 2ESPONDENT .O HAS CONTENDED
THAT -ADHYA 0RADESH 0ROHIBITION OR #UTTING OF 4REES 2ULES PROHIBIT CUTTING OF
TREES ON HILLY GROUNDS !S PER RULE CUTTING OF -AHUA TREES WITHOUT PERMISSION OF THE
$ISTRICT #OLLECTOR IN CONSULTATION WITH 'RAM 0ANCHAYAT IS PROHIBITED AND IN THE INSTANT
CASE THE TREES ARE STANDING ON HILLY TERRAIN )T WAS ALSO STATED THAT AS PER THE 3CHEDULED
4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
THE TRIBES CONSISTING ABOUT FAMILIES RESIDING IN THE VILLAGE COME UNDER THE CATEGORY
OF FOREST DWELLING TRIBES AND THE SAID -AHUA TREES ARE THE SOURCE OF THEIR LIVELIHOOD AND
THEREFORE NO PERMISSION SHALL BE GRANTED FOR MINING
$ ) 3 # 5 3 3 ) /.
(AVING GONE THROUGH THE AVERMENTS MADE BY THE !PPLICANT AND REPLIES SUBMITTED
BY THE 2ESPONDENTS AND HAVING HEARD THE LEARNED COUNSEL FOR THE PARTIES AT LENGTH
AND AFTER PERUSING THE RECORD PLACED BEFORE US IT IS REQUIRED TO EXAMINE THE FOLLOWING
QUESTIONS IN DETAIL
I 7HETHER THE 3TATE 'OVERNMENT IS COMPETENT TO GRANT 0, FOR MINING OF MINOR
MINERAL LATERITE IN THE 'OVERNMENT LAND WHERE IT HAS EARLIER RECOMMENDED TO THE
#ENTRAL 'OVERNMENT FOR GRANTING -, FOR IRON ORE WHICH IS A MAJOR MINERAL AND WHY
INITIAL GRANTING OF IRON ORE MINING OVER A PERIOD OF YEARS TO -S )ND 3YNERGY ,TD
WAS CANCELLED BY THE 'OVERNMENT
II 7HETHER THE LAND IN QUESTION IS QUALIED TO BE DENED AS &OREST AND DOES IT
ATTRACT THE PROVISIONS OF THE &OREST #ONSERVATION !CT
III 7HETHER THERE ARE ANY 2ULES/RDERS.OTICATIONS PROHIBITING CUTTING OF -AHUA
TREES AS THEY ARE ONE OF THE IMPORTANT SOURCES OF COLLECTION OF -&0 BY THE TRIBALS AND
OTHER TRADITIONAL FOREST DWELLERS IRRESPECTIVE OF THEIR LOCATION ON THE 'OVERNMENT
LANDS OTHER THAN NOTIED FORESTS OR PRIVATE LANDS AND OBJECTIONS RAISED BY THE
VILLAGERS FOR GRANTING 0, IN GOVERNMENT LAND HAS ANY LEGAL VALIDITY
7E MAY EXAMINE EACH OF THE ABOVE POINTS IN DETAIL AS FOLLOWS
0OINT .O I
)NITIALLY THE !PPLICANT LED THIS /! CHALLENGING THE IMPUGNED ORDER DATED TH -AY
GRANTING 0, FOR PROSPECTING OF LATERITE MINERAL OVER +HASRA .O IN 0RATAPPUR
VILLAGE OVER AN EXTENT OF HECTARES ,ATER ON IN THE -! AND REJOINDERS LED BY HER
THE !PPLICANT CONTENDED THAT AS THE ISSUE INVOLVES SUBSTANTIAL QUESTION RELATING TO
ENVIRONMENT SHE IS CHALLENGING THE ORDER AND SHE IS NOT JUST CHALLENGING THE ORDER
GRANTING 0, PER SE 4HIS 4RIBUNAL CAN GO INTO THE ISSUES CONCERNING THE ENVIRONMENT
AND IF ANY DECISION TAKEN OR ORDER ISSUED BY THE 'OVERNMENT OR ANY OTHER AUTHORITY
UNDER ANY OF THE EXISTING !CTS OR 2ULES THAT AFFECTS THE ENVIRONMENT IT CAN BE
EXAMINED AND IN THIS PARTICULAR CASE THE 0, IS GRANTED BY THE STATE GOVERNMENT
UNDER -0 -INOR -INERAL 2ULES (OWEVER THE FACT IS THAT INITIALLY THE 3TATE
'OVERNMENT RECOMMENDED TO THE 'OVERNMENT OF )NDIA FOR GRANTING OF -, FOR
IRON ORE MINING OVER THE SAME PIECE OF LAND IN +HASRA .O BUT THE PROPOSAL
WAS RETURNED BACK TO THE 3TATE 'OVERNMENT AND IT CLEARLY REVEALS THAT THE 3TATE
'OVERNMENT TOOK A DECISION TO GRANT THE 0, FOR LATERITE WHICH IS A MINOR MINERAL AND
COMES UNDER THE PURVIEW OF THE 3TATE 'OVERNMENT AND THE 2ESPONDENT'OVERNMENT
!UTHORITIES COULD NOT EXPLAIN CONVINCINGLY AS TO WHY IT WAS AGREED TO GRANT 0, FOR
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
LATERITE MINING WHEN INITIALLY -, WAS PROPOSED TO BE GRANTED FOR IRON ORE MINING
TO -S )ND 3YNERGY ,TD (OWEVER THIS ISSUE DOESNT COME UNDER THE PURVIEW OF THIS
4RIBUNAL 4HE MAIN ISSUE TO BE CONSIDERED HERE IS WHETHER THERE IS ANY VIOLATION OF
ENVIRONMENTAL LAWS IN GRANTING THE 0, 4HEREFORE THIS 4RIBUNAL NEED NOT GO INTO THE
CORRECTNESS OR OTHERWISE OF THE DECISION OF THE STATE GOVERNMENT IN GRANTING 0, FOR
LATERITE OVER THE SAME PIECE OF LAND WHERE INITIALLY IT RECOMMENDED GRANTING OF -,
FOR IRON ORE MINING WHICH IS A MAJOR MINERAL .EVERTHELESS THE CONCERN RAISED BY
THE !PPLICANT THAT MINING ACTIVITY OVER THE SAID PIECE OF LAND INVOLVES SUBSTANTIAL
QUESTION RELATING TO ENVIRONMENT WILL NOT GET ALTERED IRRESPECTIVE WHETHER IT IS
MINING OF IRON ORE OR LATERITE 4HEREFORE THIS 4RIBUNAL NEED NOT GO INTO THE MERITS OF
GRANTING 0, FOR LATERITE MINING OR -, FOR IRON ORE MINING 4HE !PPLICANT MAY RAISE
THIS ISSUE WITH THE APPROPRIATE AUTHORITY COURT OF LAW IF SHE NDS VIOLATION OF ANY
!CTRULES CONCERNING GRANTING OF MINING LEASES BY THE STATE GOVERNMENT
0OINT .O II
4HE RECORD PLACED BEFORE US REVEALS THAT THE LAND IN QUESTION IS NEITHER A NOTIED
FOREST NOR RECORDED AS &OREST IN REVENUEVILLAGE RECORDS )T IS A REVENUE LAND
CONSISTING TREE GROWTH !S PER THE RECOMMENDATION OF THE %XPERT #OMMITTEE
CONSTITUTED BY THE STATE GOVERNMENT IN CONSONANCE WITH THE (ONBLE 3UPREME
#OURT ORDERS IN THE CASE OF 4. 'ODAVARMAN SUPRA THE LAND IS NOT QUALIED TO
BE DENED AS &OREST SINCE IT DID NOT FULL THE CRITERIA RECOMMENDED BY THE %XPERT
#OMMITTEE CONSTITUTED IN TERMS OF THE ORDER DATED OF THE (ONBLE !PEX
#OURT 4HEREFORE IT CAN BE SAFELY CONCLUDED THAT THE &OREST #ONSERVATION !CT
IS NOT APPLICABLE TO THE LAND IN +HASRA .O 4HE CONTENTION OF THE !PPLICANT THAT
AS PER THE (ONBLE 3UPREME #OURT ORDER THE MEANING OF THE DENITION OF &OREST
SHALL IPSO FACTO BE APPLIED TO THIS PARTICULAR PIECE OF LAND IS NOT AGREED TO SINCE ON
THE BASIS OF THE ORDERS OF THE (ONBLE 3UPREME #OURT THE 3TATE 'OVERNMENT HAS
CONSTITUTED THE %XPERT #OMMITTEE WHICH IDENTIED AREAS OUTSIDE THE PURVIEW OF
THE &OREST $EPARTMENT AND WHICH ARE NOT RECORDED AS &OREST IN REVENUEVILLAGE
RECORDS BUT BEAR TREE GROWTH AND IT IS FOUND THAT THIS PARTICULAR +HASRA .O DOES NOT
FULL THE CRITERIA AND THEREFORE NOT INCLUDED IN THE RECOMMENDATION OF THE %XPERT
#OMMITTEE 4HUS THE QUESTION OF APPLICATION OF &OREST #ONSERVATION !CT DOES
NOT ARISE IN THIS CASE
0OINT .O III
)N EXERCISE OF THE POWERS CONFERRED BY 3UB
3ECTION AND #LAUSE ,8) OF SUB
SECTION OF 3ECTION READ WITH SUB
SECTION OF 3ECTION OF THE -ADHYA
0RADESH ,AND 2EVENUE #ODE THE 3TATE 'OVERNMENT ISSUED -ADHYA 0RADESH
0ROHIBITION OR 2EGULATION OF THE #UTTING OF 4REES 2ULES WHEREIN CERTAIN
RESTRICTIONS HAVE BEEN IMPOSED ON CUTTING OF TREES 4HE TREES SHALL NOT BE CUT
WITHOUT THE PERMISSION OF CONCERNED 4EHSILDAR ON THE RECOMMENDATION OF 'RAM
0ANCHAYAT LEVEL COMMITTEE (OWEVER THE RULES PRESCRIBE THAT THE TREES STANDING
ON UNOCCUPIED 'OVERNMENT LAND SHALL NOT BE CUT WITHOUT GRANTING PERMISSION IN
WRITING BY THE $ISTRICT #OLLECTOR AND THERE IS NO PROVISION OF COMPLETE BAN OF CUTTING
-AHUA TREES STANDING ON 'OVERNMENT LANDS AS PER THE ABOVE 2ULES 4HE $ISTRICT
#OLLECTOR IS HAVING POWERS TO ACCORD PERMISSION TO CUT THE -AHUA TREES UNDER THE
SAID 2UES !S PER THE -ADHYA 0RADESH ,OKVANIKI !DHINIYAM THERE IS A PROVISION
TO REGULATE AND FACILITATE MANAGEMENT OF TREE CLAD PRIVATE AND REVENUE LANDS IN THE
3TATE OF -ADHYA 0RADESH WHEREIN FELLING OF TREES SHALL BE PERMITTED IF MANAGEMENT
PLAN IS PREPARED AND APPROVED BY THE COMPETENT AUTHORITY AND THERE IS NO BAN ON
CUTTING OF -AHUA TREES 4HE !PPLICANT DID NOT PRODUCE ANY OTHER ORDERNOTICATION
OR RULE EITHER IN THE /! OR IN THE SUBSEQUENT ADDITIONAL APPLICATIONS OR REJOINDERS
LED DURING THE COURSE OF HEARING TO THE EFFECT THAT THERE IS A TOTAL BAN ON CUTTING OF
STANDING -AHUA TREES OR ANY RESTRICTIONS IMPOSED IN THE STATE OF -ADHYA 0RADESH
4 / \
.O DOCUMENT WAS PLACED BEFORE US TO THE EFFECT THAT RULES HAVE BEEN ENACTED BY THE
STATE OF -ADHYA 0RADESH DECLARING THE -AHUA TREES UNDER THE CATEGORY OF 2ESERVED
TREES AND THEY ARE PROHIBITED FROM BEING CUT 4HE RULES PLACED BEFORE US REVEAL THAT
THERE IS A PROVISION OF GRANTING PERMISSION FOR CUTTING -OHUA TREES (OWEVER IN
THIS PARTICULAR CASE ONLY 0, FOR MINING LATERITE WAS GRANTED AND NO PERMISSION WAS
SOUGHT OR GRANTED FOR CUTTING OF TREES EXISTING ON THE SAID PIECE OF LAND 0, INVOLVES
ONLY DIGGING HOLESSMALL PITS ON THE GROUND FOR EXTRACTING THE MINERAL SAMPLES TO
ARRIVE AT THE NATURE OF MINERAL DEPOSITS AND THEIR QUANTITY AND NO FELLING OF TREES IS
REQUIRED FOR THE PURPOSE
7ITH REGARD TO APPLICATION OF 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT IN THIS CASE IT IS FOUND THAT THIS !CT IS NOT
APPLICABLE HERE AS THE LAND IN QUESTION IS LOCATED NEITHER IN A NOTIED SCHEDULED AREA
NOR ANY INDIVIDUAL OR COMMUNITY RIGHTS ACCRUE TO THE VILLAGERS FOR GRANTING FOREST RIGHTS
OVER A PIECE OF LAND WHICH IS NOT NOTIED AS FOREST AND THE LAND IN QUESTION DOESNT
QUALIFY TO BE BROUGHT UNDER THE DENITION &OREST
4HEREFORE MERE SANCTIONING OF 0, IPSO FACTO DOES NOT ENTAIL THE LEASE HOLDER TO
UNDERTAKE REGULAR MINING BY CLEARING THE VEGETATION 4HE APPREHENSION OF THE
!PPLICANT IN THIS REGARD IS UNFOUNDED %VENTUALLY IF CUTTING OF TREES IS REQUIRED AT THE
TIME OF REGULAR MINING IF PERMITTED SUBSEQUENT TO PROSPECTING IT IS FOR THE AUTHORITIES
TO EXAMINE WHETHER IT IS REQUIRED TO SACRICE SUCH LARGE NUMBER OF -AHUA TREES AND
IF SO WHAT MEASURES CAN BE TAKEN TO COMPENSATE THE LOSS OF TREES 3O FAR NO EVIDENCE IS
PRODUCED BEFORE US THAT THE 2ESPONDENT
RESORTED TO CUTTING OF TREES AND INSPECTION
BY THE OFCIALS OF 0#" ALSO REVEALED THAT NO SUCH ACTIVITIES HAVE BEEN TAKEN UP 4HE
PHOTOGRAPHS PLACED BEFORE US ALSO REVEAL THAT THE SAID LAND IN +HASRA .O IS NOT LOCATED
ON A HILLY TERRAIN BUT IT IS MORE OR LESS PLAIN
)N CONCLUSION WE MAY OBSERVE THAT THOUGH IT IS FOR THE 3TATE 'OVERNMENT TO EXAMINE
THE ISSUES IN TOTALITY INCLUDING THE RESOLUTIONS PASSED BY THE 'RAM 3ABHA AND
OBJECTIONS RAISED BY THE VILLAGERS BEFORE GRANTING THE 0, IT IS LEFT TO THE AUTHORITIES TO
TAKE THE AFORESAID OBSERVATIONS INTO ACCOUNT IF SUBSEQUENTLY -, IS GRANTED BASED ON
THE RESULT OF THE PROSPECTING OF MINERAL "UT IN THE EXISTING CIRCUMSTANCES SINCE IT DOES
NOT COME UNDER THE CATEGORY OF &OREST THERE IS NO LAW PROHIBITING 0, IN THE SAID PIECE
OF LAND IN +HASRA .O &URTHER NO INFORMATION WAS PRODUCED BEFORE US AS TO HOW
MUCH QUANTITY OF USUFRUCT IS BEING OBTAINED FROM THE -AHUA TREES BY THE VILLAGERS AND
HOW MUCH DEPENDENCE THEY HAVE ON THESE TREES FOR THEIR LIVELIHOOD AND IT IS FOR THE
AUTHORITIES TO EXAMINE HOW TO COMPENSATE IN CASE THE VILLAGERS LIVELIHOOD IS GOING TO
BE AFFECTED IF IN FUTURE THESE TREES ARE PERMITTED TO BE CUT AT THE TIME OF GRANTING -,
IF GRANTED 4HE %)! .OTICATION REQUIRES THE !PPLICANT TO SEEK %NVIRONMENTAL
#LEARANCE %# FROM -O%&3%)!! AT THE TIME OF SEEKING GRANTING OF -, AND THEREFORE
%NVIRONMENT )MPACT !SSESSMENT %)! STUDY MAY BE REQUIRED TO BE CONDUCTED AND ALL
THE ASPECTS RELATED TO THE ENVIRONMENT AND ECOLOGY INCLUDING THE EXISTENCE OF -OHUA
TREES ON THE LAND IN QUESTION WILL HAVE TO BE EXAMINED BY THE CONCERNED AUTHORITIES
WHICH WILL TAKE CARE THE CONCERN OF THE !PPLICANT
7HILE THE OBJECTIVE OF GRANTING 0, FOR MINING IS FOR SYSTEMATIC DEVELOPMENT OF MINERALS
WHICH FORMS PART OF THE DEVELOPMENT PROCESS OF THE COUNTRY IT IS THE DUTY OF THE #ENTRAL
'OVERNMENT AND THE 3TATE 'OVERNMENT TO TAKE STEPS TO PROTECT THE ENVIRONMENT AND
MAINTAIN THE ECOLOGICAL BALANCE AND PREVENT DAMAGE THAT MAY BE CAUSED BY PROSPECTING
AND MINING OPERATIONS 4HE (ONBLE 3UPREME #OURT IN THE CASE OF -# -EHTA VS 5NION
OF )NDIA [ 3## ] WHILE STRESSING THE NEED FOR REGULATING THE MINING ACTIVITIES
IN A SUSTAINABLE WAY IN VIEW OF THE LARGE SCALE ENVIRONMENTAL CONCERNS RAISED ACROSS
THE COUNTY AND ALSO TO PREVENT FURTHER ENVIRONMENTAL DEGRADATION INTER ALIA HELD THAT
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
-INING WITHIN THE PRINCIPLES OF SUSTAINABLE DEVELOPMENT COMES WITHIN THE CONCEPT
OF BALANCING WHEREAS MINING BEYOND THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT COMES
WITHIN THE CONCEPT OF BANNING )T IS A MATTER OF DEGREE "ALANCING OF THE MINING
ACTIVITY WITH ENVIRONMENT PROTECTION AND BANNING SUCH ACTIVITY ARE TWO SIDES OF THE
SAME PRINCIPLE OF SUSTAINABLE DEVELOPMENT
4HUS IT IS MANDATORY ON THE PART OF THE AUTHORITIES TO APPLY THE PRINCIPLE OF 3USTAINABLE
$EVELOPMENT AND THEREFORE ANY PERSON APPLYING FOR UNDERTAKING MINING OPERATIONS
FOR BOTH MAJOR AND MINOR MINERALS IS REQUIRED TO TAKE PRIOR %# FROM THE AUTHORITY
CONCERNED IE -O%& AT THE CENTRAL LEVEL OR 3TATE %NVIRONMENT )MPACT !SSESSMENT
!UTHORITY 3%)!! AT THE 3TATE LEVEL (ENCE IN FUTURE IF -, IS GOING TO BE GRANTED OVER THE
LAND IN QUESTION AFTER THE PROSPECTING IS DONE THE AUTHORITIES SHALL TAKE INTO ACCOUNT OF
THE ISSUES RAISED BY THE !PPLICANT IN THIS /! ALONG WITH THE %)! REPORT
7ITH THE ABOVE OBSERVATIONS WE HAVE NO HESITATION TO DISMISS THE /! AND ACCORDINGLY
THE /! STANDS DISMISSED )N THE FACTS AND CIRCUMSTANCES OF THE CASE WE DIRECT NO ORDER
AS TO COSTS
(OWEVER THE !PPLICANT HAS GOT FULL LIBERTY TO APPROACH THE APPROPRIATE FORUM
AUTHORITYCOURT OF LAW IF -, IS GRANTED TO THE 2ESPONDENT .O BASED ON THE OUTCOME
OF THE PROSPECTING OF MINERAL IN VIOLATION OF ANY LAW
4 / \
3RI $IBAKAR "HOI VS $ISTRICT
-AGISTRATE #OLLECTOR -AYURBHANJ
/DISHA /RS
/2)').!, !00,)#!4)/. ./ /&
.!4)/.!, '2%%. 42)"5.!, 02).#)0!, "%.#(
#/2!- $2 0 *9/4()-!.) !.$ -3 .!-")!2 ** 7)4(
$2 '+ 0!.$%9 02/& $2 0# -)3(2! !.$ 2!.*!. #(!44%2*%%
#)4!4)/. 3## /.,).% .'4
3 5 - -!29
4HE PETITIONER FILED AN APPLICATION FOR RESTITUTION OF PUBLIC PROPERTY INCLUDING
GOCHAR LANDS AND FOREST LANDS IN *HATIADA 'RAM 0ANCHAYAT (E ALLEGED THAT THE
RESPONDENT 3TATE GOVERNMENT HAS ILLEGALLY TRANSFERRED THE FOREST LANDS TO NON
TRIBALS SOME OF WHOM ARE ALSO ARRAYED AS RESPONDENTS )T WAS ARGUED BY THE
APPLICANT THAT THE ALLOCATION OF FOREST LAND TO THE NON
TRIBALS LED TO MISUSE CAUSING
INJURY DANGER AND NUISANCE !CCORDINGLY HE SOUGHT DIRECTIONS TO THE $ISTRICT
!DMINISTRATION INCLUDING THE POLICE TO TAKE PREVENTIVE MEASURES FOR AVOIDING
PUBLIC NUISANCE UNDER THE )NDIAN 0ENAL #ODE
4HE PETITIONER ARGUED THAT THE INDISCRIMINATE ALLOTMENT OF FOREST LAND WAS NOT
ONLY RESULTING IN ENVIRONMENTAL DEGRADATION BUT ALSO IN GRABBING OF PROPERTIES BY
PERSONS WHO ARE NOT ENTITLED IN LAW
4HE $IVISIONAL &OREST /FFICER RESPONDENT NO ARGUED THAT THERE IS NO DESTRUCTION
OF PUBLIC PROPERTY IN FOREST LAND AND STANDING TREES AND THE 'RAM 3ABHA WHICH
IS EMPOWERED UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT &2! HAS BEEN TAKING LAWFUL DECISIONS
)N ADDITION THE 3UPERINTENDENT OF 0OLICE 6IGILANCE RESPONDENT NO SUBMITTED
AN AFFIDAVIT THAT REQUIRED ACTION WAS TAKEN UNDER THE /DISHA 0REVENTION OF ,AND
%NCROACHMENT !CT WHEREUPON IT WAS FOUND THAT PATTAS WERE ISSUED TO THE
SAID TRIBAL PERSONS UNDER THE &2! 4HEREFORE THERE IS NO ILLEGAL OCCUPATION OF LAND
4HE 4RIBUNAL EXAMINED THE PROVISIONS OF THE &2! TO THE EFFECT THAT THE RECOGNITION
OF FOREST RIGHTS IS NOT ONLY FOR TRIBALS BUT ALSO FOR OTHER TRADITIONAL FOREST DWELLERS
)T FOUND NO REASON NOT TO BELIEVE THE STATEMENTS MADE BY THE $&/ AND THE 30 ON
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
AFFIDAVIT )T WAS OF THE VIEW THAT ANY REMEDY AGAINST ALLOCATION OF FOREST RIGHTS TO
INELIGIBLE PERSONS MUST BE SOUGHT IN ACCORDANCE WITH THE &2! BY THE PETITIONER
!CCORDINGLY THE PETITION WAS DISMISSED
)T APPEARS THAT DURING THE COURSE OF THE PROCEEDINGS THE 4RIBUNAL HAD ISSUED BAILABLE
WARRANTS AGAINST SOME OF THE RIGHT
HOLDERS ON CONDITION THAT THEY BE RELEASED UPON
A SECURITY OF 2S 7ITH THIS JUDGMENT THE WARRANTS WERE CANCELLED AND THE
SECURITY AMOUNT WAS DIRECTED TO BE REFUNDED TO THE RIGHT
HOLDERS
% $ )4/23 . /4%
4HIS IS AN IMPORTANT JUDGMENT COMING FROM THE 0RINCIPAL "ENCH IN LIGHT OF PREVIOUS
ORDERS PASSED BY THE REGIONAL BENCHES THAT THE .ATIONAL 'REEN 4RIBUNAL DOES NOT
HAVE JURISDICTION ON MATTERS ARISING OUT OF THE &2! SINCE THE STATUTE IS NOT INCLUDED
IN THE 3CHEDULE TO THE .ATIONAL 'REEN 4RIBUNAL !CT 3OME OF THESE ORDERS ARE
EXTRACTED ELSEWHERE IN THIS COMPENDIUM
/2$ % 2
4HIS !PPLICATION HAS BEEN LED UNDER 3ECTION READ WITH 3ECTION E OF THE
.ATIONAL 'REEN 4RIBUNAL !CT BY THE APPLICANT PRAYING FOR SETTLEMENT OF DISPUTE
AND PASS APPROPRIATE ORDERS FOR RESTITUTION OF ALL PUBLIC PROPERTY INCLUDING 'OCHAR
LANDS AND &OREST LANDS AS WELL AS STANDING TREES AND CUTTING OF TREES FROM THE CONTROL OF
2ESPONDENT .O AND AND AGENTS AS WELL AS RESTITUTION OF GREEN ENVIRONMENT FOR
*HATIADA 'RAM 0ANCHAYAT FOR THE SURVIVAL OF ALL DOMESTIC ANIMALS AND ALSO FOR CHILDREN
OF *HATIADA !NGANWADI CENTRE 4HE CONTENTION OF THE!PPLICANT IS THAT THE FOREST LANDS
ARE BEING TRANSFERRED ILLEGALLYAND BY CORRUPT MANNER BY THE OFCERS OF THE 'OVERNMENT
NOT ONLYTO THE TRIBAL PEOPLE IN THE FOREST BUT ALSO OTHERS WHO ARE ACTUALLYNOT ENTITLED FOR
SUCH TRANSFER OF LANDS
4HE !PPLICANT HAS COME FORWARD WITH A CASE THAT IN THENAME OF -'.2%'3 THE PEOPLE
WHO HAVE BEEN ALLOTTED LANDS AREMISUSING AND CAUSING INJURY DANGER AND NUISANCE
TO THE CHILDRENTHEREBY CAUSING PUBLIC NUISANCE AS CONTEMPLATED UNDER 3ECTION OF
THE )NDIAN 0ENAL #ODE )T IS ALSO HIS CASE THAT THE $ISTRICT !DMINISTRATION -AYURBHANJ
INCLUDING THE POLICE ARE TO TAKEPREVENTIVE MEASURES UNDER THE PROVISIONS OF THE
#RIMINAL0ROCEDURE #ODE IN ORDER TO AVOID THIS PUBLIC NUISANCE 4O SUPPORTHIS CONTENTION
HE WOULD RELY UPON THE JUDGMENT OF THE (ONBLE 3UPREME #OURT REPORTED IN 3##
WHEREIN THE (ONBLE 3UPREME #OURT HAS HEAVILY COME DOWN AGAINST THE PUBLIC
AUTHORITIES IN ALLOWING THE NUISANCE TO BE PERPETUATED 4HEAPPLICANT HAS ULTIMATELY
STATED THAT BY VIRTUE OF THIS INDISCRIMINATE ALLOTMENT OF FOREST LAND IT IS NOT ONLY
RESULTING IN ENVIRONMENTAL DEGRADATION BUT ALSO RESULTING IN GRABBING OF THEPROPERTIES
BY THE PERSONS WHO ARE NOT ENTITLED IN LAW 7ITH THEABOVE SAID GROUNDS THE APPLICANT
HAS LED THE PRESENTAPPLICATION WITH THE PRAYER AS STATED ABOVE
)T IS ALSO RELEVANT TO POINT OUT THAT THE 2ESPONDENT .O $IVISIONAL &OREST /FCER IN HIS
AFDAVIT HAS ALSO CLEARLY STATEDTHAT THERE IS NO DESTRUCTION OF PUBLIC PROPERTY IN FOREST
LAND ANDDAMAGE SO FAR AND DESTRUCTION OF STANDING TREES ON THE AFORESAIDLAND
&ROM THE ENQUIRY IT REVEALED THAT ALL THE ABOVE PERSONSAGAINST WHOM ENCROACHMENT
CASES WERE BOOKED AND REST PERSONS OUT OF THE LIST OF SPECIC INSTANCES LED LATER BY
THESAID PETITIONER HIMSELF COPY ENCLOSED HAD BEEN GRANTED &OREST 2IGHT 0ATTAS UNDER
4 / \
&OREST 2IGHT !CT !S PER THE PROVISIONS OF THE &OREST 2IGHT !CT THE RIGHT OF THESE
TRIBAL PERSONS WHO HAD BEEN OCCUPYING THE &OREST LANDS AS ABOVE HAD BEEN ENQUIRED
AND RECOMMENDED BY THE 'RAM SABHA EMPOWERED UNDER THE !CT OF THE RESPECTIVE
VILLAGES TO THE $ISTRICT &OREST 2IGHT #OMMITTEE THROUGH THE 3UB $IVISIONAL &OREST
2IGHT #OMMITTEE FOR RECOGNITION OF THE TRADITIONAL FOREST RIGHT OF THESE TRIBAL PERSONS
!CCORDINGLY &OREST 2IGHT 0ATTAS 3HIRONAMA WERE ISSUED IN THEIR NAMESDURING THE
YEAR BY THE $ISTRICT &OREST 2IGHT #OMMITTEECONSTITUTED UNDER THE !CT
4HE RESPONDENT NO 3UPERINTENDENT OF 0OLICE 6IGILANCE WHO IS RESPONSIBLE FOR
PRESERVATION OF LANDS HAS LED A REPLY )NTHE REPLY HE HAS IN CATEGORIC TERMS STATED THAT
THE APPLICATION ISNOT ONLY WITHOUT ANY BASIS BUT IS ALSO WITH ULTERIOR INTENTION HEHAS
STATED AS FOLLOWS
4HERE IS NO DESTRUCTION OF PUBLIC PROPERTY INCLUDING 'OCHAR AND FOREST LANDS
4EN NUMBERS OF ENCROACHMENT CASES WERE BOOKED AGAINSTUNAUTHORIZED OCCUPIERS
OF FOREST LANDS !SSESSMENT AND PENALTY WERE IMPOSED WITH ORDER TO VACATE THE
LAND AS PER THE PROVISIONS OF THE /DISHA 0REVENTION OF ,AND %NCROACHMENT !CT
%NQUIRY REVEALS THAT ALL THE TEN PERSONS AGAINST WHOM THEENCROACHMENT CASES
WERE BOOKED HAD BEEN GRANTED &OREST 2IGHT 0ATTAS UNDER THE &OREST 2IGHT !CT
4HESE PERSONS WERE TRIBAL PERSONS WHO HAVE A RIGHTFUL CLAIM OVER THE FOREST
LANDS ANDWERE LEGALLY RECOGNIZED AS PER THE PROVISIONS OF THE &OREST 2IGHT!CT
.O 'OVERNMENT LAND CAN BE SOLD BY ANY PRIVATE PERSON IN THEREGISTRATION OFCE
AND NO SUCH INSTANCE HAS EVER COME TO THENOTICE OF THE OFCE OF THE 4EHSILDAR
7ITH REGARD TO THE QUESTION OF DESTROYING THE 'OCHAR LAND NEAR THE *HATIADA
!NGANWADI CENTRE THE SAME WAS ALSO ENQUIRED INTO BY THE 2EVENUE )NSPECTOR
AND IT REVEALS THAT IN THE 0ALLI 3ABHA A PROPOSAL WAS MOOTED BY THE VILLAGERS
TO EXCAVATE A TANK UNDER THE -'.2%'3 -AHATMA 'ANDHI .ATIONAL 2URAL
%MPLOYMENT 'UARANTEE 3CHEME 0ROGRAMME FOR EMPLOYMENT GENERATION OF THE
LOCAL UNEMPLOYED 4HE ENQUIRY REVEALS THAT THE 'RAM 0ANCHAYAT STATED THAT THE
PROPOSAL HAD BEEN DROPPED AND NO PERMISSION HASBEEN ISSUED BY THE 4EHSILDAR
FOR THE PURPOSE /N ENQUIRY IT WAS FOUND THAT NO PERMISSION TO CARRY ANY SUCH
PROJECT ON THE LAND WILL BE PERMITTED SINCE THE LAND WHERE THE PROPOSED TANK WAS
TO BE CONSTRUCTED IS ADJACENT TO THE )#$3 )NTEGRATED #HILD $EVELOPMENT 3CHEME
#ENTRE
.O GREEN TREES OR FOREST HAS BEEN CUT DOWNCLEARED FOR THISPURPOSE
4HE REPORTS FURTHER REVEALS THAT THE !PPLICANT IN THE TWO YEARS OFTENURE OF SERVICE
OF THE 4EHSILDAR AT 2ASGOBINDAPUR HAD NEVER APPROACHED THE 4EHSILDAR BRINGING
TO HIS NOTICE THE CONCERNSALLEGATIONS FOR REDRESSAL ! TRUE COPY OF THE LETTER OF THE
4EHSILDAR DATED IS ANNEXED HEREWITH AND MARKED AS !NNEXURE $
4HEREFORE A REFERENCE TO THE SAID CATEGORICAL REPLY LED BY THE RESPONSIBLE OFCERS
SHOW AND MEETS ALL THE ALLEGATIONS OF THEAPPLICANT 7E HAVE NO HESITATION TO COME TO A
CONCLUSION THAT THEPRIVATE PERSONS ARE NOT ALLOTTED ANY FOREST LAND AND THE TREES HAVENOT
BEEN DEGRADED APART FROM THE FACT THAT 'OCHAR LAND HAS NOT BEEN DESTROYED BY ANYONE
)N FACT THE OFCER HAS CLEARLY STATEDTHAT THE PUBLIC PROPERTY INCLUDING 'OCHAR AND FOREST
LAND HAS NOTBEEN DESTROYED AT ALL (E WOULD ALSO STATE THAT TEN NUMBER OF TRIBALS WERE
ISSUED PATTAS UNDER THE &OREST 2IGHTS !CT ANDTHESE PERSONS WERE THE TRIBAL PERSONS
WHO HAVE RIGHT OVER THEFOREST LAND ORIGINALLY CLAIMED AND LEGALLY RECOGNIZED UNDER THE
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
&OREST 2IGHTS !CT
)N THE LIGHT OF THE CATEGORICAL STAND TAKEN BY THERESPONSIBLE OFCERS THERE IS NO
REASON FOR THIS 4RIBUNAL TO SUSPECT THE CONDUCT EXCEPT TO OBSERVE THAT THE OFCERS SHALL
CONTINUE TOPRESERVE THE FOREST LAND AS IT IS IN ACCORDANCE WITH LAW
(OWEVER THE ,EARNED COUNSEL APPEARING FOR APPLICANTWOULD VEHEMENTLY CONTEND THAT
THE STATEMENT OF THE POLICE NAMELY THE RESPONDENT NO 3UPERINTENDENT OF 0OLICE
6IGILANCE AS STATED ABOVE IS FAR FROM THE TRUTH (E HAS STATED THAT AS IT IS SEEN IN THE
REPORT OF THE 4EHSILDAR DATED IT IS NOT ONLY TEN PERSONS WHO ARE STATED TO
HAVE ENCROACHED AGAINST WHOM CASES WERE BOOKED BUT ALSO PERSONS WERE ALSO GIVEN
FOREST LAND PATTAS AS PER THE &OREST 2IGHTS !CT 4HEREFORE ACCORDING TOHIM IN THE
LIGHT OF THE 4EHSILDARS STATEMENT THE REPLY OFRESPONDENT NO SHOULD BE IGNORED
(E WOULD ALSO RELY UPON THEPROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL
&OREST$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
/N REFERENCE TO THE SAID !CT WHICH IS RELIED UPON BY THELEARNED COUNSEL APPEARING FOR
THE APPLICANT ESPECIALLY UNDER3ECTION IT STATES AS FOLLOWS
4HE RECOGNITION AND VESTING RIGHTS UNDER THIS !CT TOTHE FOREST DWELLING
3CHEDULED 4RIBES AND TO OTHERTRADITIONAL FOREST DWELLERS IN RELATION TO ANY 3TATE
OR5NION TERRITORY IN RESPECT OF FOREST LAND AND THEIRHABITAT SHALL BE SUBJECT TO THE
CONDITION THAT SUCH3CHEDULED 4RIBES OR TRIBAL COMMUNITIES OR OTHERTRADITIONAL
FOREST DWELLERS HAD OCCUPIED FOREST LANDBEFORE THE TH DAY OF $ECEMBER
)T IS MADE VERY CLEAR THAT THE RECOGNITION OF THE FOREST RIGHTAND DWELLING RIGHTS IS NOT
ONLY FOR THE TRIBALS BUT ALSO FOR THE OTHERTRADITIONAL FOREST DWELLERS
)F REALLY THE OTHER PERSONS WHO ARE STATED IN THE REPORT OF THE 4EHSILDAR ARE
UNAUTHORISED PERSONS AND NOT FORMING PARTOF THE OTHER TRADITIONAL FOREST DWELLERS IT
IS FOR THE APPLICANT TOWORK OUT HIS REMEDY IN ACCORDANCE WITH THE 3CHEDULED 4RIBES
ANDOTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT 7ITHOUT
AVAILING ANY REMEDY AVAILABLE UNDER THIS !CT THE APPLICANT HAS CHOSEN TO APPROACH
THIS 4RIBUNAL WHICH IN OURCONSIDERED VIEW IS INAPPROPRIATE
"E THAT AS IT MAY NOW THAT THE RELIEF CLAIMED FOR BY THEAPPLICANT HAS BEEN CLEARLY
MET BY THE RESPONSIBLE OFCER OF THE'OVERNMENT RESPONDENT NO IN OUR VIEW
THERE IS ABSOLUTELYNO GRIEVANCE SUBSISTING FOR THE APPLICATION 4HE APPLICANT CANNOT BE
EXPECTED TO GO BEYOND HIS PLEADINGS !CCORDINGLY WE ARE OF THEVIEW THAT THE APPLICANT
HAS NO GRIEVANCE AS ON DATE AND THE APPLICATION IS LIABLE TO BE DISMISSED HOWEVER WITH
LIBERTY TO THE APPLICANT TO WORK OUT HIS REMEDY IN ACCORDANCE WITH THE3CHEDULED 4RIBES
AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT IN THE
EVENT OF GRANTING OF ANY FOREST PATTA TO THE PERSONS WHO ARE UNAUTHORISED AND ARENOT
ENTITLED 7ITH ABOVE OBSERVATIONS THE APPLICATION STANDS DISMISSED
$URING THE COURSE OF THE HEARING WE HAVE ISSUED "AILABLE 7ARRANTS AGAINST 2ESPONDENT
NO TO ON A CONDITION THATTHEY CAN BE RELEASED BY THE ARRESTING OFCER BASED ON
THE SECURITYGIVEN BY THEM TO THE EXTENT OF 2S
)T IS SEEN THAT THESAID THREE
RESPONDENTS HAVE BEEN RELEASED ON THE SECURITY OF 2S
)N VIEW OF THE DISPOSAL
OF THE MAIN APPLICATION THE BAILABLE WARRANTS ISSUED BY THIS 4RIBUNAL STAND RELEASED
)F ANY AMOUNT IS DEPOSITED BY 2ESPONDENT .O TO BYWAY OF SECURITY FOR RELEASING ON
THE BAIL THE SAID AMOUNT SHALL BEREFUNDED TO THE CONCERNED PERSONS FORTHWITH AND ON
PRODUCTIONOF THE COPY OF THIS ORDER
4 / \
)N SUCH VIEW OF THE MATTER NO FURTHER ORDERS ARE NECESSARYIN THIS APPLICATION AND THE
APPLICATION STANDS DISPOSED OF ACCORDINGLY
!LL THE MISCELLANEOUS APPLICATIONS LED IN THIS APPLICATIONARE CLOSED SINCE THE MAIN
APPLICATION IS DISPOSED OF
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
!JAY +UMAR .EGI /RS VS 5NION OF
)NDIA /RS
/2)').!, !00,)#!4)/. ./ 4(# /&
.!4)/.!, '2%%. 42)"5.!, 02).#)0!, "%.#( .%7 $%,()
#/2!- 37!4!.4%2 +5-!2 * #(!)20%23/. !.$ -3 .!-")!2 * *5$)#)!,
-%-"%23 7)4( !2 9/535& !.$ ")+2!- 3).'( 3!*7!.
3 5--!29
4HIS APPLICATION WAS ORIGINALLY FILED AS A WRIT PETITION BEFORE THE (IGH #OURT OF
(IMACHAL 0RADESH POINTING OUT A RANGE OF STATUTORY VIOLATIONS IN THE ONGOING
4IDONG
) (YDRO %LECTRIC 0OWER 0ROJECT -7 IN $ISTRICT +INNAUR OF (IMACHAL
0RADESH 7HILE CHALLENGING THE ENVIRONMENTAL CLEARANCE AND THE FOREST CLEARANCE
TO THE PROJECT THE PETITIONER ALSO POINTED OUT THAT THERE ARE NUMEROUS VIOLATIONS OF
THE 0ANCHAYATS %XTENSION TO 3CHEDULED !REAS !CT 0%3! AND THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2! 4HE PETITION DESCRIBED THE ENORMOUS DAMAGE TO THE ENVIRONMENT THE
RIVER AND THE FORESTS IN THE REGION BY THE PROJECT PROPONENT IN COMPLETE VIOLATION
OF THE CONDITIONS OF THE CLEARANCES INCLUDING EXTENSIVE DAMAGE TO THE ENDANGERED
CHILGOZA TREES WHICH ARE AN IMPORTANT SOURCE OF LIVELIHOOD FOR THE TRIBAL PEOPLE IN
THIS HIGH
ALTITUDE REGION )T WAS ALSO POINTED OUT THAT THE AFFECTED VILLAGES HAVE
NEVER CONSENTED EXCEPT ONE VILLAGE WHICH GAVE AN ./# WHICH IS CONTRARY TO LAW
AND EVEN SUBSEQUENTLY THE REPEATED COMPLAINTS AND REPRESENTATIONS OF THE VILLAGES
MADE THROUGH THEIR ELECTED REPRESENTATIVES HAVE BEEN IGNORED
4HE WRIT PETITION WAS TRANSFERRED TO THE .ATIONAL 'REEN 4RIBUNAL 4HE TRIBUNAL TOOK
A PRELIMINARY DECISION THAT IT WOULD ONLY CONSIDER THE PRAYERS OF THE APPLICANT
RELATING TO ENVIRONMENTAL DAMAGE THE VIOLATIONS UNDER 0%3! AND &2! BEING
OUTSIDE ITS SCOPE
)N THE DETAILED JUDGMENT BELOW THE 4RIBUNAL HAS EXAMINED THE EXTENSIVE EVIDENCE
OF ENVIRONMENTAL DAMAGE AND ALSO OBSERVED THAT IT IS NOT MERELY THE PROJECT
PROPONENT WHICH MUST TAKE THE RESPONSIBILITY BUT IT IS ALSO CLEAR THAT THE STATE
AUTHORITIES HAVE DEMONSTRATED A CASUAL SUPERVISORY APPROACH AND IT CANNOT BE
SAID THEY HAVE DISCHARGED THEIR DUTIES WITH UTMOST CARE AND CAUTION
4 / \
(OWEVER WITH REGARD TO THE ARGUMENT OF THE PETITIONERS THAT THE PUBLIC HEARING
AS PART OF THE %NVIRONMENTAL )MPACT !SSESSMENT %)! WAS NOT CONDUCTED IN
ACCORDANCE WITH LAW THE 4RIBUNAL FOUND NO MERIT IN THIS CONTENTION SEE PARA
4HE 4RIBUNAL SET UP AN %XPERT #OMMITTEE TO VISIT THE PROJECT SITE AND SUBMIT A
COMPREHENSIVE REPORT TO THE 4RIBUNAL SPECIFICALLY STATING WHETHER THE CONDITIONS
OF THE FOREST CLEARANCE AND THE ENVIRONMENTAL CLEARANCE ARE BEING COMPLIED WITH
AND RECOMMENDING AMELIORATIVE MEASURES 3PECIFICALLY THE #OMMITTEE WAS ASKED
TO MAKE RECOMMENDATIONS REGARDING THE ADVERSE ECONOMIC IMPACT OF THE PROJECT ON
THE AFFECTED VILLAGES )T ALSO DIRECTED THE PROJECT PROPONENT TO STOP ALL CONSTRUCTION
ACTIVITY UNTIL THE INSPECTION REPORT IS COMPLETE AND ALSO DIRECTED IT TO PAY 2S
CRORES TOWARDS ENVIRONMENTAL CONSERVATION AND COMPENSATION OF LOSSES RESULTING
FROM DAMAGE TO CHILGOZA TREES
% $ ) 4 /23 . /4%
!T THE TIME OF WRITING THE )NSPECTION REPORT OF THE %XPERT #OMMITTEE APPOINTED
BY THE 4RIBUNAL THROUGH THIS JUDGMENT HAD BEEN SUBMITTED AND OBJECTIONS TO THE
SAME HAD BEEN FILED BY THE !PPLICANT 4HE MATTER IS PENDING CONSIDERATION OF THE
4RIBUNAL AT THE PRESENT TIME
!LTHOUGH THE MATTER HAS NOT REACHED A FINAL CONCLUSION THERE ARE IMPORTANT
LEARNINGS WHICH EMERGE FROM THESE PROCEEDINGS 7E FIND THERE CONTINUES TO BE A
CERTAIN DIFFIDENCE IN THE .ATIONAL 'REEN 4RIBUNAL TO ENTER INTO ISSUES WHICH ARE
OUTSIDE THE PURVIEW OF ITS JURISDICTION AS LAID DOWN IN THE 3CHEDULE TO THE .ATIONAL
'REEN 4RIBUNAL !CT EVEN IN A CASE SUCH AS THIS WHERE THE WRIT PETITION HAS
BEEN TRANSFERRED TO THE .'4 BY ORDER OF THE (IGH #OURT
4HIS HAS FAR REACHING CONSEQUENCES IN CASES WHERE COMPLEX ENVIRONMENTAL SOCIAL
AND ECONOMIC ISSUES ARE INTERTWINED SINCE THE 4RIBUNAL FINDS ITSELF RESTRICTED TO
EXAMINING THE SITUATION BEFORE IT WITHIN THE FRAMEWORK OF A HANDFUL OF STATUTES
WHILE THE CONSTITUTIONAL FRAMEWORK AND OTHER STATUTORY LAWS SUCH AS THOSE
PROTECTING THE RIGHTS OF 3CHEDULED 4RIBES AND FOREST DWELLERS ARE NOT CONSIDERED
4HIS LEADS TO A FRAGMENTATION OF ISSUES AS WELL AS OF RIGHTS WHICH IS NOT CONDUCIVE
TO MEETING THE ENDS OF JUSTICE IN A HOLISTIC MANNER
)N THE PRESENT CASE WE FIND THAT WHILE APPROACHING THE (IGH #OURT THE APPLICANT
HAD RAISED A PLETHORA OF INTERCONNECTED ISSUES INCLUDING UNDER 0%3! AND &2! 4HIS
WOULD INCLUDE THE STRINGENT PROVISIONS UNDER BOTH LAWS REGARDING CONSULTATION AND
DECISION MAKING OF THE 'RAM 3ABHAS BEFORE ALLOWING SUCH DEVELOPMENT PROJECTS
TO PROCEED (OWEVER THE .'4 IN DECIDING AT AN EARLY STAGE NOT TO ENTER INTO THE
PROTECTIVE STATUTES WHICH DIRECTLY RELATE TO THIS ISSUE AT AN EARLY STAGE SUBSEQUENTLY
EXAMINED THE ISSUE OF PUBLIC HEARING WITHIN THE NARROW COMPASS OF THE %)!
NOTIFICATION (AVING RESTRICTED ITSELF IN THIS MANNER IT IS NOT SURPRISING THAT THE
4RIBUNAL THEN FOUND THE APPLICANTS ARGUMENT UNCONVINCING
)T MUST BE POINTED OUT THAT THE MATTER CONTINUES TO REMAIN PENDING AND THERE IS
NOTHING TO PREVENT THE .'4 FROM EXPANDING THE AMBIT OF ITS EXAMINATION AS IT HAS
!JAY +UMAR .EGI VS 5NION OF )NDIA /RS -! .OS OF IN /RIGINAL !PPLICATION .O
4(# OF .ATIONAL 'REEN 4RIBUNAL 0RINCIPAL "ENCH .EW $ELHI PENDING
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
DONE IN OTHER CASES PENDING BEFORE IT
* 5$ '-% . 4
THE *UDGMENT OF THE 4RIBUNAL WAS DELIVERED BY 3WATANTER +UMAR * #HAIRPERSON
! 7RIT 0ETITION #IVIL 7RIT 0ETITION .O OF WAS LED BEFORE THE (IGH #OURT OF
(IMACHAL 0RADESH AT 3HIMLA WITH THE FOLLOWING PRAYERS
I 4HAT THE RESPONDENT .O MAY BE DIRECTED TO PREPARE COMPREHENSIVE DAMAGE
REPORT CAUSED TO THE FOREST LAND TREES AND OTHER FOREST WEALTH
II 4HAT THE -EMORANDUM OF 5NDERSTANDING DATED 3EPTEMBER SIGNED
BETWEEN THE RESPONDENT STATE AND RESPONDENT .O MAY BE QUASHED AND SET ASIDE
III 4HAT THE %NVIRONMENTAL #LEARANCE DATED 3EPTEMBER MAY BE ORDERED TO
BE QUASHED AND SET ASIDE
IV 4HAT THE RESPONDENT .O MAY BE DIRECTED TO CANCEL THE 4IDONG
) (YDRO %LECTRIC
0ROJECT
V 4HAT AN INQUIRY MAY BE ORDERED AGAINST THE OFCIAL DEPARTMENT WHO FORWARDED
THE PROPOSAL FOR FOREST DIVERSION TO THE RESPONDENT .O IN VIOLATION OF THE PROVISIONS
0ANCHAYAT %XTENSION TO 3CHEDULED !REAS !CT 4HAT THE (ONBLE #OURT MAY BE
PLEASED TO MONITOR THE INQUIRY
VI 4HAT AN INQUIRY MAY BE ORDERED INTO THE ACTS OF OMISSION AND COMMISSION AGAINST
THE OFCER OF THE VARIOUS DEPARTMENT WHO FAILED TO INITIATE APPROPRIATE ACTION
AGAINST THE RESPONDENT .O FOR EXECUTING THE 4IDONG
) (%0 IN VIOLATION OF THE LAWS
VII 4HAT THE OFCIAL AND "OARD OF $IRECTORS OF THE #OMPANY RESPONDENT .O
RESPONSIBLE FOR EXECUTION OF THE 4IDONG
) (%0 IN +INNAUR IN GROSS VIOLATION OF THE
LAWS MAY BE ORDER TO BE PROSECUTED IN ACCORDANCE WITH LAW
VIII 4HAT APPLYING THE PRINCIPLE POLLUTER PAYS PETITIONERS AND OTHER WHO HAVE
SUFFERED A PERPETUAL LOSS OF LIVELIHOOD MAY BE ORDERED TO BE COMPENSATED BY THE
RESPONDENTS
IX 4HAT THE ENTIRE RECORD MAY BE CALLED FOR
X 4HAT THE PETITION MAY BE ALLOWED WITH EXEMPLARY COSTS AND FURTHER ANY OTHER
RELIEF DEEMED T AND PROPER MAY ALSO BE GRANTED IN FAVOUR OF THE PETITIONERS
7E MAY CONCISELY NOTICE THE FACTS AS AVERRED BY THE APPLICANT LIMITING TO THE ABOVE
PRAYERS ! -EMORANDUM OF 5NDERSTANDING FOR SHORT -O5 WAS SIGNED BETWEEN THE
3TATE OF (IMACHAL 0RADESH RESPONDENT .O AND -S .UZIVEEDU 3EEDS 0OWER 'ENERATION
0VT ,TD RESPONDENT .O ON RD 3EPTEMBER 4HE -O5 STATED THAT RESPONDENT
.O IS DESIROUS OF SETTING UP A 4IDONG
) (YDRO %LECTRIC 0OWER 0ROJECT -7 IN
$ISTRICT +INNAUR OF (IMACHAL 0RADESH ON 2IVER 4IDONG 4HIS PROPOSAL WAS ACCEPTED BY
RESPONDENT .O AND THEY WERE ALSO PERMITTED TO CONDUCT AN INVESTIGATION UNDER THE
-O5 4HE COMPANY WAS ALSO REQUIRED TO SUBMIT A $ETAILED 0ROJECT 2EPORT FOR ESTABLISHING
4ECHNO %CONOMIC 6IABILITY WITHIN A PERIOD OF EIGHTEEN MONTHS WHICH THE GOVERNMENT
WAS TO EXAMINE AND PROCESS WITHIN A MAXIMUM PERIOD OF DAYS FROM THE DATE OF ITS
4 / \
SUBMISSION 5PON ACCEPTANCE OF THE SAID 4ECHNO %CONOMIC 6IABILITY REPORT AND AFTER
BEING CONVINCED THAT ALL STATUTORY CLEARANCES COULD BE OBTAINED FROM THE #OMPETENT
!UTHORITIES AN )MPLEMENTATION !GREEMENT WAS TO BE SIGNED BETWEEN THE #OMPANY AND
THE 'OVERNMENT 4HEREAFTER THE COMPANY WAS TO COMMENCE ITS PROJECT AND IT WAS TO BE
ALLOTTED TO THE COMPANY FOR A PERIOD OF YEARS FROM THE DATE OF COMMERCIAL OPERATION
OF THE PROJECT 6ARIOUS STEPS WERE TAKEN BY RESPONDENT .O AND NALLY ON TH *ULY
)MPLEMENTATION !GREEMENT WAS SIGNED BETWEEN THE PARTIES /N TH -ARCH
THE PROPOSAL FOR GRANT OF %NVIRONMENTAL #LEARANCE WAS SENT FROM 3TATE 'OVERNMENT TO
THE -INISTRY OF %NVIRONMENT &OREST AND #LIMATE #HANGE FOR SHORT -O%& IN REFERENCE
TO WHICH %NVIRONMENTAL #LEARANCE WAS GRANTED IN FAVOUR OF RESPONDENT .O FOR THE
PROJECT IN QUESTION ON TH 3EPTEMBER %VEN &OREST #LEARANCE FOR THE PROJECT WAS
GRANTED ON TH *UNE 5NDATED REPRESENTATION OF PROTEST WAS ALSO SUBMITTED BY
THE PETITIONER AGAINST THE ILLEGAL EXECUTION OF THE 4IDONG
(%0 2ESPONDENT .O WROTE
A LETTER TO THE 0RESIDENT 'RAM 3ABHA WHEREIN THE SAID RESPONDENT ADMITTED THAT
THEY HAD NOT OBTAINED .O /BJECTION #ERTICATE FOR SHORT ./# FROM THE 'RAM 3ABHA
2ISPA 3TILL THE RESPONDENT .O CONSTRUCTED THE ROAD FROM 5P
MOHAL OF 2UWANG 'RAM
0ANCHAYAT -OORANG /N TH -ARCH THE 6ICE 0RESIDENT OF 'RAM 0ANCHAYAT 2ISPA
PASSED A RESOLUTION TO ISSUE THE ./# WITH THE CONCURRENCE OF THE 'RAM 3ABHA TO ALLOW
THE PROJECT /N TH *UNE THE $ISTRICT 0ANCHAYAT /FCER +INNAUR SUBMITTED AN
ENQUIRY REPORT WITH THE REMARKS THAT THE RESOLUTION PASSED BY THE 'RAM 3ABHA 2ISPA
WAS NULL VOID AND IS IN CONTRADICTION WITH THE PROVISIONS OF THE (IMACHAL 0RADESH
0ANCHAYATI 2AJ !CT /N TH -AY THE 2ANGE &OREST /FCER -ORANG AT !KPA
ISSUED A FRESH ENUMERATION OF TREES LIKELY TO BE DAMAGED DURING EXECUTION OF WORK
IN ADDITION TO THE ALREADY SANCTIONED TREES IN THE &OREST #LEARANCE !GAINST THIS THE
PETITIONER SUBMITTED A REPRESENTATION TO THE OFCIAL RESPONDENTS BRINGING TO THEIR NOTICE
THAT LARGE TRACTS OF FORESTS HAVE BEEN DAMAGED BY RESPONDENT .O WHILE CONSTRUCTING
THE ROAD TO THE SURGE SHAFT SITE 4HE REPRESENTATION ALSO STATED THAT RESPONDENT .O
HAS VIOLATED TERMS AND CONDITIONS OF THE %NVIRONMENTAL #LEARANCE &OREST #LEARANCE
GRANTED TO THE RESPONDENT 4HERE WAS HUGE DAMAGE CAUSED TO THE #HILGOZA TREES WHICH
IS AN ENDANGERED SPECIES /N ND $ECEMBER 2ANGE &OREST /FCER ISSUED A LETTER
TO RESPONDENT .O TO STOP THE CONSTRUCTION WORK IN THE COMPARTMENT .O AND
TILL THE NAL SPOT REPORT IS SENT BY THE COMMITTEE HEADED BY THE !DDITIONAL $ISTRICT
-AGISTRATE 0OOH FAILING WHICH LEGAL ACTION WAS CONTEMPLATED TO BE TAKEN AGAINST
RESPONDENT .O (OWEVER DESPITE SUCH A DIRECTION THE 0ROJECT 0ROPONENT CONTINUED
WITH THE CONSTRUCTION ACTIVITY !DDITIONAL $ISTRICT -AGISTRATE 0OOH SUBMITTED A REPORT
TO THE $EPUTY #OMMISSIONER +INNAUR INTIMATING HIM ABOUT THE GROSS VIOLATION OF
THE FOREST LAWS IN EXECUTION OF 4IDONG
) (%0 BY RESPONDENT .O (E WAS THEREAFTER
DIRECTED BY RESPONDENT .O TO ENSURE THAT RESPONDENT .O DOES NOT TAKE UP ANY
CONSTRUCTION ACTIVITY OR DEVELOPMENTAL WORK TILL THE TIME LAND IS NOT GIVEN ON LEASE TO
THE COMPANY ! DAMAGE REPORT WAS ISSUED QUANTIFYING THE DAMAGE CAUSED TO THE FOREST
AREA TO BE 2S
AND 2S
AS DAMAGE BILL FOR ILLEGAL DUMPING OF MUCK
/N RD !PRIL A REPRESENTATION WAS MOVED BY THE RESIDENTS TO THE #HIEF -INISTER
OF (IMACHAL 0RADESH PRAYING THAT THE CLEARANCES SHOULD BE REVOKED FOR THE EXECUTION
OF THE PROJECT AS IT IS CAUSING EXTENSIVE DAMAGE TO THE FOREST AND THE RESIDENTS OF THE
VILLAGE ARE BEING DEPRIVED OF THEIR RIGHT TO LIVELIHOOD /N TH -AY A MEETING WAS
HELD UNDER THE #HAIRMANSHIP OF THE !DDITIONAL $ISTRICT -AGISTRATE 0OOH BETWEEN THE
RESIDENTS OF THE VILLAGE 2ISPA AND RESPONDENT .O 4HE RESPONDENT .O THEREIN TOOK A
STAND THAT THE WORK WAS EXECUTED STRICTLY AS PER THE -O5 AND VARIOUS OTHER PERMISSIONS
GRANTED !T ONE POINT OF TIME RESPONDENT .O PARTIALLY COMPLIED WITH THE DIRECTIONS
BY STOPPING THE CONSTRUCTION WORK IN THE AREAS WHERE THE RESIDENTS OF 'RAM 0ANCHAYAT
2ISPA PROTESTED !GAIN IN *UNE THE 0ROJECT 0ROPONENT STARTED CONSTRUCTION WORK
AND CAUSED EXTENSIVE DAMAGE TO THE FOREST AREAS SITUATED IN THE 'RAM 0ANCHAYAT 2ISPA
4HE PRIMARY GRIEVANCE OF THE PETITIONER IN THEIR PETITION TO THE #HIEF -INISTER WAS
RELATED TO THE CONSTRUCTION OF THE PROJECT IN THAT AREA )T WAS FURTHER AVERRED THAT THE
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
CONSTRUCTION WORK WAS BEING CARRIED ON AND THE CONSTRUCTION DEBRIS WERE BEING DUMPED
IN VIOLATION OF THE PERMISSIONS AND WERE CAUSING SERIOUS DAMAGE TO THE ENVIRONMENT
AND ECOLOGY OF THE AREA 4HERE WAS HEAVY BLASTING AND THE CONSTRUCTION OF ROAD WAS
DONE IN AN UNSCIENTIC MANNER THE ENVIRONMENT WAS GETTING POLLUTED AND CAUSING LOSS
OF LIVELIHOOD TO THE APPLICANTS AS THE #HILGOZA TREES WHICH FETCH HIGH INCOME TO THE
RESIDENTS WERE BEING DAMAGED INDISCRIMINATELY 4HE APPLICANT HAD A SPECIC GRIEVANCE
AGAINST RESPONDENT .O THAT IT HAD BEEN CARRYING ON CONSTRUCTION ACTIVITY DESPITE
ORDERS FROM THE AUTHORITIES TO STOP THE CONSTRUCTION 6ARIOUS REPORTS HAD ALSO INDICATED
THAT CONSTRUCTION ACTIVITY WAS UNDERTAKEN WITHOUT ANY FORETHOUGHT ON THE PART OF THE
AUTHORITIES AND THE PROPOSAL FOR FOREST DIVERSION WAS PREPARED WITHOUT KEEPING THE
TOPOGRAPHY OF THE PROJECT AREA IN MIND AND THIS HAS RESULTED IN MASSIVE DAMAGE TO THE
FOREST AREA
4HE PETITIONER INTER ALIA PRIMARILY CHALLENGED THE PROJECT ON ACCOUNT THAT IT WAS IN
VIOLATION TO THE ENVIRONMENTAL LAWS AND WAS CAUSING SERIOUS DAMAGE TO THE FOREST
WEALTH 4HE 0ROJECT 0ROPONENT HAS VIOLATED THE CONDITIONS OF THE %NVIRONMENTAL
#LEARANCE AND &OREST #LEARANCE )T IS THE CASE OF THE APPLICANT THAT THE REGIONAL OFCE
OF RESPONDENT .O IS UNDER AN OBLIGATION TO MONITOR THE PROJECT ACTIVITY AND THAT THE
PROPOSAL FOR DIVERSION OF FOREST LAND WAS PREPARED WITHOUT PROPER APPLICATION OF MIND
4HERE WERE PROCEDURAL AND OTHER LEGAL INRMITY COMMITTED BY THE AUTHORITIES CONCERNED
BY GRANTING THE %NVIRONMENTAL #LEARANCE AND &OREST #LEARANCE 4HE APPLICANTS HAVE
MADE SPECIC REFERENCE TO THE DAMAGE BEING CAUSED TO THE #HILGOZA TREES &IRSTLY THE
TREES NOW BEING PROPOSED TO BE FELLED HAS GONE UP TO MORE THAN IN NUMBER WHILE
THE &OREST #LEARANCE GRANTED TO THE 0ROJECT 0ROPONENT WAS ONLY FOR FELLING A MAXIMUM
OF TREES &URTHERMORE IN ADDITION TO THE FELLING OF TREES BECAUSE OF IMPROPER AND
INDISCRIMINATE DUMPING OF CONSTRUCTION MATERIAL AND DEBRIS HUGE DAMAGE HAS BEEN
CAUSED TO THE #HILGOZA TREES IN ADJOINING FOREST LAND !CCORDING TO THE APPLICANT EVEN
THE %NVIRONMENTAL )MPACT !SSESSMENT 2EPORT HAD SPECICALLY STATED THAT OUT OF
SPECIES OF TREES PRESENT IN THE PROJECT AREA OF 4IDONG #HILGOZA IS A RARE SPECIES WHICH IS
ECONOMICALLY VERY IMPORTANT 4HEREFORE AN EFFORT SHOULD BE MADE TO CAUSE MINIMUM
DAMAGE TO THE #HILGOZA TREES 3CANNING OF THE STATUS OF SHRUBS PRESENT IN THE PROJECT
AREA IT HAS BEEN FOUND THAT ONE SHRUB SPECIES :ANTHOXYLUMALATUM IS OF THREATENED
CATEGORY AND EIGHT SPECIES "ERBERISARISTATA " LYCEUM $ESMODIUMDICHOTOMUM
(YPERICUMCHOISIANUM ( LYSIMACHIOIDESSYN ( DYERI /LEAFERRUGINEA 2OSA SERICEA AND
3ALIX HASTATE OF SHRUBS ARE RARE )T WAS FURTHER FELT THAT AN %NVIRONMENTAL -ANAGEMENT
0LAN FOR THE PROTECTION AND REHABILITATION OF THESE RARE AND THREATENED SPECIES SHOULD BE
PREPARED 4HE LOSS OF BIOMASS WAS EXPECTED TO AFFECT AN AREA OF HA AND THERE WOULD
BE WOOD LOSS ALSO &OR DEALING WITH MUCK GENERATION IT WAS STATED THAT NEARLY
CUM MUCK IS ESTIMATED TO BE GENERATED FROM THE PROJECT ACTIVITIES OUT OF WHICH PER
CENT SHALL BE USED FOR BACKLL AND OTHER CONSTRUCTION WORKS 4HE REMAINING QUANTITY
OF MUCK SHALL BE DISPOSED AT PRE
IDENTIED SITES 4HE %)! REPORT FURTHER PROVIDED THAT
THE DISPOSAL SITES IF NOT DESIGNED AND MANAGED PROPERLY MAY CAUSE MASS MOVEMENT
OF SOIL BLOCKING THE NATURAL DRAINAGE AND CAUSING OTHER SEQUENTIAL PROBLEMS 4HERE
SHOULD BE PROPER TRANSPORTATION OF MUCK AND CONSTRUCTION MATERIAL !CCORDING TO THE
PETITIONER THERE HAS BEEN VIOLATION OF THESE CONDITIONS THUS RESULTING IN GREAT DAMAGE
TO THE ENVIRONMENT AND ECOLOGY AND PARTICULARLY TO THE #HILGOZA TREES $IFFERENT SET OF
RESPONDENTS HAVE LED THEIR REPLIES TO THE 7RIT 0ETITION .O OF
2ESPONDENT .O IN ITS REPLY HAS TAKEN THE STAND THAT IT IS THE SOLE RESPONSIBILITY OF
THE 3TATE TO ENSURE COMPLIANCE TO THE CONDITIONS INCORPORATED IN THE &OREST #LEARANCE
ACCORDED BY THE -INISTRY )T IS STATED THAT DURING THE CONSIDERATION OF THE PROJECT ON
TH *ULY BY THE %XPERT !PPRAISAL #OMMITTEE IT WAS NOTED THAT ONLY ONE SEASON
DATA WAS COLLECTED WHILE CONDUCTING %NVIRONMENT )MPACT !SSESSMENT FOR SHORT
%)! STUDY AND THE 0ROJECT 0ROPONENT WAS ASKED TO SUBMIT THREE SEASON DATA 2EVISED
4 / \
INFORMATION WAS PROVIDED BY THE 0ROJECT 0ROPONENT ON TH !UGUST WHICH WAS
AGAIN CONSIDERED AND NALLY GRANT OF %NVIRONMENTAL #LEARANCE WAS RECOMMENDED BY
%!# ON TH !UGUST ! PROJECT PROPOSAL FOR DIVERSION OF HA OF THE FOREST
LAND IN FAVOUR OF THE 0ROJECT 0ROPONENT HAD BEEN APPROVED BY THE .ORTHERN 2EGIONAL
/FCE OF THE -O%& AT #HANDIGARH UNDER &OREST #ONSERVATION !CT AND ACCEPTED BY
THE -O%& VIDE ITS LETTER DATED TH *UNE 4HE PETITIONERS WERE GIVEN AN OPPORTUNITY
TO RAISE OBJECTIONS IN THE PUBLIC HEARING HELD ON ST *ULY NEAR DIVERSION WEIR IN
VILLAGE ,UMBER -OORANG AND NEAR POWERHOUSE SITE IN VILLAGE 2ISPA -OORANG 4HE GRANT
OF THE PERMISSION ACCORDING TO -O%& DOES NOT SUFFER FROM ANY INRMITY AND HENCE THE
APPLICATION SHOULD BE DISMISSED
! JOINT REPLY HAD BEEN LED ON BEHALF OF RESPONDENT .O 4HEY HAD TAKEN A
PRELIMINARY OBJECTION THAT .ATIONAL 'REEN 4RIBUNAL !CT HAVING BEEN COME INTO
FORCE AND .ATIONAL 'REEN 4RIBUNAL HAVING BEEN ESTABLISHED UNDER THIS !CT THE 7RIT
0ETITION IS NOT MAINTAINABLE AND DESERVES TO BE DISMISSED 4HE FOREST LAND IN QUESTION
BELONGS TO THE 3TATE AND FOR THAT REASON NO ACQUISITION PROCEEDINGS WERE UNDERTAKEN
AND THERE IS NO LAW WHICH PROVIDES FOR GRANT OF COMPENSATION TO RIGHT HOLDERS OF FOREST
IN LIEU OF THEIR RIGHTS HENCE THE PETITIONERS ARE NOT LIABLE TO BE COMPENSATED ON THAT
ACCOUNT
/N MERITS IT IS STATED THAT THE 'OVERNMENT OF )NDIA -O%& VIDE LETTER DATED TH *UNE
HAS ACCORDED ITS APPROVAL THAT MINIMUM NUMBER OF TREES AND IN ANY CASE NOT
MORE THAN TREES WILL BE REMOVED !S PER THE DIRECTIONS OF #ONSERVATOR OF &ORESTS
2AMPUR DATED ND $ECEMBER THE 2ANGE &OREST /FCER -OORANG HAD REPORTED
THAT TREES ARE LIKELY TO BE DAMAGED DURING THE CONSTRUCTION OF ROAD TO SURGE SHAFT
AND CONVEYED TO HIM ON TH *ULY AND THE #ONSERVATOR OF &ORESTS 2AMPUR HAD
STOPPED THE CONSTRUCTION OF ROAD IN COMPARTMENT .O AND /N TH $ECEMBER
THE $IVISIONAL &OREST /FCER &OREST 2ANGE AT !KPA REQUESTED THE 3(/ 0OLICE
3TATION -OORANG TO LODGE AN &)2 IN RELATION TO THE DAMAGE TO THE TREES BY AND AGAINST
THE ERRING COMPANY 4HE #ONSERVATOR OF &ORESTS 2AMPUR VIDE ITS ENDORSEMENT DATED
TH $ECEMBER REPORTED THE DETAILS OF DAMAGE CAUSED TO TREES ILLEGAL DUMPING AND
THAT DAMAGE REALIZATION FROM THE ERRING COMPANY HAS BEEN INITIATED (E REPORTED THAT
THE USER AGENCY HAS DAMAGED TOTAL NUMBER OF TREES DURING THE CONSTRUCTION OF ROAD
TO THE SURGE SHAFT AND A BILL FOR 2S HAS BEEN RAISED TO USER AGENCY AGAINST
WHICH AN AMOUNT OF 2S HAS BEEN REALIZED AND A DETAILED REPORT TO THIS EFFECT
WAS ALSO SUBMITTED )T HAS BEEN STATED THAT NO EXTRA TREES EXCEPT TREES HAS BEEN
REMOVED DURING SAID CONSTRUCTION OF THE ROAD 4HE TREES LIKELY TO BE DAMAGED ARE EXPECTED
TO BE OUT OF WHICH HAS ALREADY BEEN DAMAGED 4HE DEPARTMENT HAS TO TAKE AN
ACTION ON ILLEGAL DUMPING AND PENALIZE THE USER AGENCY )T WAS STATED THAT WHENEVER THE
USER AGENCY WAS FOUND VIOLATING THE CONDITIONS OF APPROVAL OF 'OVERNMENT OF )NDIA IT
WAS BEING PENALIZED 4HE COMPANY HAD BEEN PERMITTED TO REMOVE NOT MORE THAN
TREES BUT THE DAMAGE REPORT FOR TREES DAMAGED DURING THE CONSTRUCTION OF THE ROAD
HAS BEEN ISSUED OUT OF TOTAL TREES WHICH ARE LIKELY TO BE DAMAGED ,ATER 0ROJECT
0ROPONENT WAS PERMITTED TO RAISE THE CONSTRUCTION BY THE 0RINCIPAL #HIEF #ONSERVATOR OF
&ORESTS (IMACHAL 0RADESH VIDE ITS LETTER DATED RD $ECEMBER TO THE #ONSERVATOR OF
&ORESTS 2AMPUR AND IN COMPLIANCE OF WHICH A $Y 2ANGER WAS ALSO DEPUTED TO MONITOR
THE CONSTRUCTION OF THE PROJECT
! SEPARATE REPLY WAS LED ON BEHALF OF RESPONDENT .O AND WHO SUBMITTED THAT
LAND ACQUISITION PROCEEDINGS WERE INITIATED IN ACCORDANCE WITH THE PROVISIONS OF THE
,AND !CQUISITION !CT AND THERE IS NO VIOLATION OF THE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 0ROTECTION OF RIGHTS !CT THAT HAS COME TO THE NOTICE
OF SAID RESPONDENTS 4HE COMPLAINTS HAVE BEEN RECEIVED FROM THE 'RAM 0ANCHAYAT
2ISPA ON THE BASIS OF WHICH $ISTRICT 0ANCHAYAT /FCER +INNAUR INQUIRED THE MATTER
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
AND WHEREIN IT WAS REPORTED THAT THE COMPANY HAD AGREED TO COMPENSATE THE AFFECTED
VILLAGERS WITH 2S 4WO CRORES 2S 4HREE LAKHS FOR REPAIR AND MAINTENANCE OF 4EMPLE
AND INSTALLATION OF STREET LIGHTS THE DEMANDS FOR WHICH WERE PUT FORTH BY THE 'RAM
3ABHA IN RETURN FOR 'RAM 3ABHA TO WITHDRAW ALL OLD DEMANDS ./# HAD BEEN ISSUED
BY THE 'RAM 0ANCHAYAT -OORANG ON ST !PRIL FOR THE PROJECT IN QUESTION 4HEY
HAVE STATED THAT AS AND WHEN THE COMPLAINTS WERE RECEIVED AN ENQUIRY WAS CONDUCTED
AND REPORTS WERE SUBMITTED TO THE #OMPETENT !UTHORITY 7ITH THE APPROVAL OF THE
'OVERNMENT OF )NDIA LAND ADMEASURING
HA WAS RELEASED IN FAVOUR OF THE
COMPANY FOR CONSTRUCTION OF -7 4IDONG (YDRO %LECTRIC 0ROJECT VIDE LETTER DATED
TH /CTOBER
2ESPONDENT .O LED A DETAILED REPLY BEFORE THE (IGH #OURT )T WAS SUBMITTED THAT THE
PROJECT ENVISAGED THE CONSTRUCTION OF AN UN
GATED 3PILLWAY GATED 5NDER
SLUICE (EAD
2EGULATOR $ESILTING "ASINS 3TORAGE 2ESERVOIR AND A KM LONG (EAD 2ACE 4UNNEL
(24 CULMINATING IN A SURGE SHAFT ! PRESSURE SHAFT PARTLY INCLINED AND PARTLY HORIZONTAL
WILL CONVEY THE WATER TO THE 0ELTON 4URBINES TO GENERATE -7 OF POWER IN SURFACE
0OWER (OUSE .O DISPLACEMENT OF HUMAN POPULATION IS INVOLVED IN ACQUISITION OF
HA OF PRIVATE LAND AND DIVERSION OF HA OF FOREST LAND FOR CONSTRUCTION OF THE
PROJECT /UT OF KMSTOTAL LENGTH OF ROAD INVOLVED FOR VARIOUS PROJECT COMPONENTS
KMSHAD BEEN CONSTRUCTED LEAVING A BALANCE KMSROAD TO !DIT
OF (24 WHICH IS
AT PRESENT UNDER CONSTRUCTION 4HE CONSTRUCTION WORK OF THIS PROJECT IS PROGRESSING
VERY WELL 4HE EXCAVATION FOR DIVERSION CHANNEL IS COMPLETE AND PART OF CONCRETING HAS
BEEN DONE 4HE CONSTRUCTION OF TUNNEL WOULD START IN FULL SWING AS MAJOR EQUIPMENT FOR
EXCAVATION LIKE "OOMER 3CHAEFF ,OADER #RUSHING 0LANT AS WELL AS "ATCHING -IXING
0LANT AND !LIMAK 2AISE #LIMBER AMOUNTING TO 2S CRORES HAD ALREADY BEEN ORDERED
AND WOULD BE DELIVERED SHORTLY 3IMILARLY EQUIPMENT COSTING TO 2S CRORES HAS BEEN
DEPLOYED AT SITE AND 4IDONG
) WAS SCHEDULED FOR COMMISSIONING IN 3EPTEMBER 4HE
COST OF THE PROJECT WAS AS PER THE APPROVED $02 IN WAS ABOVE 2S CRORES AND
THE COMPANY HAD ALREADY INCURRED AN EXPENDITURE OF ABOUT 2S CRORES AND PAID TO THE
VARIOUS 'OVERNMENT $EPARTMENTS AMOUNTING TO 2S CRORES 4HIS AMOUNT HAD BEEN
PAID ON ACCOUNT OF COMPENSATION AFFORESTATION CATCHMENT OF AREA TREATMENT WORK COST
OF TREES TO VARIOUS 'OVERNMENT $EPARTMENTS FOR THE DEVELOPMENT OF DAMAGED SITES AND
PAYMENT TO VARIOUS 'RAM 0ANCHAYATS )T WAS ALSO STATED BY THE RESPONDENT .O THAT
FOREST AREA HAS BEEN DEMARCATED BY XING "OUNDARY 0ILLARS AND THE ENUMERATED TREES
STANDING THEREON HAVE BEEN CHECKED AND ENUMERATED BY THE DEPARTMENT 4HE PRIVATE
LAND MEASURING HA WAS ACQUIRED AND THE POSSESSION WAS TAKEN AFTER THE PAYMENT
OF COMPENSATION OF 2S ,AC TO THE INTEREST HOLDERS THROUGH THE 'OVERNMENT
HA OF FOREST LAND HAS BEEN DIVERTED BY -O%& VIDE ITS LETTER DATED TH *UNE
4HE CONSULTATIONS OF 'RAM 3ABHA AND 'RAM 0ANCHAYATS WERE COMPLIED WITH AND
CONSENT OF 'RAM 3ABHA FOR CONVERSION AND DIVERSION OF FOREST LAND HAVE BEEN OBTAINED
'RAM 0ANCHAYAT 2ISPA AND 4IDONG 6ALLEY %NVIRONMENT #ONSERVATION $EVELOPMENT
3AMITI IN ITS NOTE DATED TH *ANUARY HAD PUT FORTH EXORBITANTLY HIGH DEMANDS FOR
2S CRORES FOR ISSUANCE OF ./# AND THE RESPONDENT THEREIN ASKED FOR JUSTICATIONS OF
THE SAME VIDE LETTER DATED ST &EBRUARY TO WHICH THE 'RAM 0ANCHAYAT FAILED TO
FURNISH ANY DETAILS THERETO !FTER NUMEROUS MEETINGS AN AGREEMENT FOR ISSUANCE OF
./# WAS SIGNED WITH THE 'RAM 0ANCHAYAT ON TH -ARCH WHEREIN THE MAIN
DEMAND OF 2S CRORES WAS ACCEPTED AND ACCORDINGLY ./# WAS ISSUED BY THE 'RAM
0ANCHAYAT 2ISPA ON TH !PRIL ! 3OCIAL )MPACT !SSESSMENT STUDY WAS REQUIRED
TO BE CARRIED OUT IN THE PROJECT AFFECTED AREA WHICH INVOLVED INVOLUNTARY DISPLACEMENT
OF OR MORE FAMILY ENMASS IN PLAIN AREA OR MORE FAMILY ENMASS IN TRIBAL HILLY
AREA AS PER CLAUSE OF .ATIONAL 22 0OLICY BUT SINCE THE PRESENT PROJECT INVOLVED
ONLY PROJECT AFFECTED FAMILIES NONE OF THEM WERE DISPLACED OR ADVERSELY AFFECTED AND
THEREFORE THE 3OCIAL )MPACT !SSESSMENT STUDY WAS NOT APPLICABLE FOR THE PROJECT 4HE
22 0LAN WAS SUBMITTED TO THE 'OVERNMENT OF (IMACHAL 0RADESH ON TH -ARCH
4 / \
AND THE SAME WAS RECEIVED BACK WITH CERTAIN OBJECTIONS IN !UGUST 4HEY WERE
AGAIN REPORTED TO THE 'OVERNMENT ON ND -ARCH AND NALLY ON TH *UNE
THE APPROVAL OF WHICH IS STILL AWAITED 0UBLIC HEARING FOR THE PROJECT WAS XED ON ST
*ULY IN VILLAGE 2ISPA BUT THE 'RAM 0ANCHAYAT BOYCOTTED THE HEARING 4HE 0ROJECT
0ROPONENT MADE A PAYMENT OF 2S CRORES TOWARDS THE COST OF TREES TO THE &OREST
$EPARTMENT ON !UGUST 4HE COMPANY CLAIMS THAT IT WAS CONSTRAINED TO TAKE UP
THE CONSTRUCTION ON ST *UNE OF THE APPROACH ROAD TO SURGE SHAFT IN THE PORTIONS
WHERE THERE WERE NO TREES AND CONSEQUENTLY SOME UNAVOIDABLE DAMAGE TO ADJOINING
TREES OCCURRED DUE TO VERY TOUGH AND STEEP TERRAIN FOR WHICH THE 0ROJECT 0ROPONENT HAS
ALREADY DEPOSITED AN AMOUNT OF 2S ,AKHS AGAINST SIX DAMAGE BILLS SO FAR RAISED
BY THE &OREST $EPARTMENT !N &)2 WAS LED ON TH *ANUARY STATING DAMAGE TO
ANOTHER TREES MAINLY RELATING TO CONSTRUCTION OF TOP MOST ANK OF ROAD AFTER WHICH
0ROJECT 0ROPONENT STOPPED CONSTRUCTION ACTIVITY ON TH /CTOBER AND THE DAMAGE
REPORT THERETO HAS STILL NOT BEEN SUPPLIED TO THE ANSWERING RESPONDENT )T WAS FURTHER
AVERRED THAT A MASSIVE LANDSLIDE TOOK PLACE FROM THE REGION ABOVE TOP MOST ANK OF THE
ROAD ON TH 3EPTEMBER DAMAGING ABOUT M PORTION OF CONSTRUCTED ROAD AS WELL
AS THE TREES DOWN BELOW AND THE ROLLING BOULDERS HAD HIT THE OPPOSITE BANK OF 4IDONG
+HAD AND COMPLETELY CRUSHED A TRACTOR TROLLEY WITH NARROW ESCAPE FOR THREE LABORERS
SLEEPING INSIDE A HUTMENT !FTER A LOT OF PERSUASION OF 'OVERNMENT&OREST $EPARTMENT
LEVELS WORK GOT RESUMED ON TH $ECEMBER UNDER THE DIRECTIONS OF 0RINCIPAL #HIEF
#ONSERVATOR OF &ORESTS (IMACHAL 0RADESH VIDE HIS LETTER DATED RD $ECEMBER
4HE 0ROJECT 0ROPONENT HAS ALSO AVERRED THAT IT HAS UNDERTAKEN ALMOST ALL PRECAUTIONS
BY RESORTING TO WELL CONTROLLED BLASTING UNDER THE SUPERVISION OF THE $EPUTY 2ANGER
DEPUTED BY THE &OREST $EPARTMENT AND EXCAVATED MUCK IS BEING PROPERLY DISPOSED AT
THE DUMPING SITES LOCATED AT THE FOOTHILL BY MEANS OF EXCAVATOR AND TIPPERS !T BEST
TREES WILL BE DAMAGED WHICH IS EVEN LESS THAN PER CENT OF THE ESTIMATED GURE OF
TREES PROJECTED BY THE FOREST DEPARTMENT AS WELL AS WRONGLY CONTESTED BY THE PETITIONERS
WHICH ACCORDING TO THE 0ROJECT 0ROPONENT IS TOTALLY BASELESS 4HIS RESPONDENT DENIED THE
RECEIPT OF THE LETTER DATED RD !PRIL FROM THE %NVIRONMENT AND &OREST #ONSERVATION
3AMITI 2ISPA AND ALSO DENIED THAT IT HAD VIOLATED THE EXISTING LAWS OR THE CONDITIONS OF
%NVIRONMENTAL #LEARANCE &OREST #LEARANCE 4HE MUCK WAS BEING DUMPED PROPERLY AT
THE DESIGNATED DUMPING SITES MECHANICALLY &URTHER ACCORDING TO THE 0ROJECT 0ROPONENT
THE 'RAM 0ANCHAYAT HAD ALREADY BEEN GIVEN MORE THAN ADEQUATE BENETS IE DEMAND OF
2S CRORES EACH TO THE 'RAM 0ANCHAYAT 2ISPA AND 4HANGI AND ANOTHER SUM OF 2S #RORE
TO 'RAM 0ANCHAYAT -OORANG WHICH HAD ALREADY BEEN PAID BY THE 0ROJECT 0ROPONENT
IN THREE INSTALMENTS COMPENSATION FOR PRIVATE LAND ACQUIRED HAD BEEN PAID IN
PREFERENCE IN EMPLOYMENT WAS ALSO GIVEN TO THE PERSONS OF PROJECT AFFECTED 0ANCHAYATS
BY EMPLOYING PERSONS 0REFERENCE IN AWARDING WORKS INCLUDING 027S FOR MAIN WORK
WAS ALSO GIVEN TO THE LOCAL CONTRACTORS OF THE PROJECT AFFECTED 0ANCHAYATS AND PREFERENCE
TO LOCALS HAD ALREADY BEEN GIVEN IN VARIOUS ACTIVITIES
2ESPONDENT .O
(IMACHAL 0RADESH 3TATE 0OLLUTION #ONTROL "OARD (00#" HAS ALSO
LED A SEPARATE REPLY 4HE "OARD HAS NOT DEALT WITH THE MAJOR PART OF THE PETITION
BUT HAD PRIMARILY CONNED ITS REPLY TO THE AVERMENTS OF POLLUTION RESULTING FROM THE
MUCK STORAGE AND TRANSPORTATION AND THAT DUE PUBLIC HEARING WAS PROVIDED TO THE
APPLICANTS HEREIN TO ENABLE THEM TO RAISE THEIR OBJECTIONS !CCORDING TO THE "OARD
THE MUCK DISPOSAL IN PROPER PROTECTED DUMPING AREAS HAS TO BE ENSURED AND IN THIS
REGARD IT HAS DIRECTED ADEQUATE PROTECTION MEASURES AND THIS IS BEING MONITORED BY
THE "OARD 4HE MUCK DUMPING SITES HAVE BEEN IDENTIED AND EARMARKED BY THE &OREST
$EPARTMENT 4HE &OREST #LEARANCE IS ALSO SUBJECT TO STIPULATION FOR PROPER MUCK DISPOSAL
AT THE $ESIGNATED 3ITES 4HE CONCERNED 2EGIONAL /FCER OF THE 3TATE "OARD MONITORS
THAT ADEQUATE PROTECTION MEASURES ARE PROVIDED AND THE SAME IS BEING MONITORED
THROUGH PHYSICAL INSPECTION AND PICTORIAL POWER
POINT PRESENTATION BASED ON PHOTO
MONITORING AND WHENEVER ANY VIOLATION IS OBSERVED THE SAME IS COMMUNICATED TO THE
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
0ROJECT 0ROPONENT AND APPROPRIATE ACTION IS TAKEN 3O FAR AS PUBLIC HEARING IS CONCERNED
ACCORDING TO THE 3TATE "OARD IT HAD CONDUCTED PUBLIC HEARING ON ST *ULY AS PER
THE PROVISIONS OF THE .OTICATION OF -O%& 'OVT OF )NDIA .O 3/
% DATED TH !PRIL
AT ,UMBER VILLAGE 4EHSIL -OORANG $ISTRICT +INNAUR AND NEAR VILLAGE 2ISPA FOR THE
PROPOSEDUPCOMING RESPONDENT PROJECT )T WAS TO INTEGRATE THE PUBLIC SUGGESTIONS
VIEWS COMMENTS AND OBJECTIONS FROM THE INTERESTED PERSONS ON THE PROPOSAL WITH A
VIEW TO HAVE MAXIMUM PUBLIC PARTICIPATION 4HE NOTICES FOR PUBLIC HEARING WERE ALSO
PUBLISHED IN TWO (INDI AND TWO %NGLISH NEWSPAPERS )T IS DENIED THAT NO EFFORTS WERE
MADE TO BRING AFFECTED PEOPLE ON BOARD 4HE 2ISPA 0ANCHAYAT BESIDES OTHERS WAS
SPECICALLY INFORMED VIDE LETTER DATED TH *UNE ABOUT THE PUBLIC HEARING THAT
WAS BEING ORGANIZED ON ST *ULY 4HEREFORE ACCORDING TO THE "OARD THE PETITIONERS
HAD AMPLE OPPORTUNITY TO FORWARD THEIR OBJECTIONS AND VIEWS AT THE TIME OF PUBLIC
HEARING 6IDE LETTER DATED ST 3EPTEMBER THE PUBLIC SUGGESTIONS VIEWS COMMENTS
AND OBJECTIONS RECORDED DURING PUBLIC HEARING WERE SENT TO THE 3TATE 'OVERNMENT FOR
TAKING FURTHER ACTION 4HE RECOMMENDATIONS OF 3%)!! AND -ONITORING #OMMITTEE WERE
FORWARDED BY THE 3TATE 'OVERNMENT TO THE -O%& VIDE LETTER DATED TH -ARCH FOR
CONSIDERATION OF %NVIRONMENTAL #LEARANCE
)T HAS BEEN SPECICALLY DENIED THAT RESPONDENT "OARD HAS NOT CARRIED ITS RESPONSIBILITIES
AND DUTIES IN ACCORDANCE WITH THE PRESCRIBED PROCEDURE IN TERMS OF THE .OTICATION
OF IN SO FAR AS IT HAS DISCHARGED ITS OBLIGATION TO CONDUCT PUBLIC HEARING IN
ACCORDANCE TO THE .OTICATION ,ASTLY IT IS SUBMITTED THAT THE PROJECT SITES NEAR INTAKE
AND POWERHOUSE SITES WERE MONITORED AND DUST LEVEL AND 30- 3USPENDED 0ARTICULATE
-ATTER WERE FOUND WITHIN THE PRESCRIBED LIMIT 4HE ALLEGED DAMAGE TO THE AGRICULTURAL
AND HORTICULTURE PRODUCE WAS TO BE LOOKED INTO AND ASSESSED BY THE #OMMITTEE
CONSTITUTED BY $EPUTY #OMMISSIONER +INNAUR FOR PAYMENT OF COMPENSATION 4HE
0OLLUTION #ONTROL "OARD HAD ALSO LED CERTAIN PHOTOGRAPHS SHOWING THE DUMPING SITES
AND THE SITE OF THE PROJECT IN QUESTION
4HE APPLICANT HAS LED REJOINDER TO ALL THE REPLIES LED BY THE RESPECTIVE RESPONDENTS )N
THE REJOINDER THE APPLICANT INTER ALIA HAS RAISED THE SPECIC PLEA THAT THE EXECUTION OF
THE PROJECT IS ILLEGAL AND IN VIOLATION OF THE MANDATORY CONDITIONS &IRSTLY THE CONDITION
REQUIRES THAT THE DEBRIS WILL NOT BE ALLOWED TO ROLL DOWN THE SLOPES OF THE MOUNTAINS AND
SECONDLY THAT NO DAMAGE WOULD BE CAUSED TO THE ADJOINING FORESTS &ROM THE DOCUMENTS
ON RECORD AND EVEN PLEADINGS OF THE PARTIES IT IS CLEAR THAT BOTH THESE CONDITIONS HAVE
BEEN VIOLATED 2ESPONDENT .O HAS USED HEAVY AND UNSCIENTIC BLASTING AND HAS ROLLED
THE DEBRIS ALONG WITH BOULDERS DOWNHILL CAUSING EXTENSIVE DAMAGE TO THE TREES IN THE
SLOPE OF THE MOUNTAINS AND NO DETAILS HAVE BEEN SUPPLIED IN RELATION TO THE SETTLEMENT
OF COMMUNITY OR INDIVIDUAL CLAIMS REQUIRED TO BE SETTLED UNDER THE 3CHEDULED 4RIBES
AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 4RIBES !CT 4HE
RESPONDENTS HAVE NOT PROVIDED ADEQUATE MECHANISM TO PREVENT THE ECOLOGICAL DAMAGE
AND FOR COMPENSATION AND AFFORESTATION OF THE ANTICIPATED DAMAGE OF TREES IN
ADDITION TO THE TREES MENTIONED IN THE &OREST #LEARANCE )T IS ALSO AVERRED BY THE APPLICANT
THAT MAJORITY OF THE LAND REQUIRED FOR SURFACE ACTIVITY IS SITUATED IN THE PROTECTED FOREST
AND THAT FROM THE DOCUMENTS PLACED ON RECORD IT IS CLEAR THAT RESPONDENT .OS
WERE AWARE OF THE FACTS THAT THE TREES LIKELY TO BE DAMAGED IN EXECUTION WILL BE MUCH
MORE THAN THE NUMBER OF TREES ENUMERATED 9ET THEY STILL ALLOWED THE USER AGENCY TO
CONTINUE WITH THE ILLEGAL EXECUTION OF THE PROJECT 4HE FOREST WEALTH LOST OR DAMAGED
INCLUDES RARE AND ENDANGERED TREES OF 0INUSGERARDIANA ALSO KNOWN AS #HILGOZA PINE
WHICH IS A PINE NATIVE TO THE .ORTH 7ESTERN (IMALAYA AND GROWS AT ELEVATIONS BETWEEN
METERS !CCORDING TO THE APPLICANT THE %)! REPORT OF THE PROJECT PREPARED BY
2ITES ,TD STATES THAT HECTARES OF FOREST LAND IS REQUIRED BY THE 0ROJECT 0ROPONENT
AND THAT ON AN AVERAGE NEARLY TREES PER HECTARE OF THE LAND WILL BE AFFECTED )T WOULD
MEAN THAT TREES WOULD BE DAMAGED DURING THE EXECUTION OF THE ACTIVITIES OF THE
4 / \
PROJECT IN THE FOREST AREA 7HEREAS THE &OREST #LEARANCE ONLY REQUIRED TREES TO BE
FELLED AND THERE IS NO EXPLANATION AS TO THE DIFFERENCE IN THE PROJECT REQUIREMENT AND
THE CLEARANCE GRANTED WHICH ALSO EXPLAINS THE RESULTANT DAMAGE TO THE TREES DURING
THE EXECUTION AND CONSTRUCTION OF THE PROJECT TO THE TUNE OF TO TREES
3INCE ./# WAS NOT OBTAINED ACCORDING TO THE PROVISIONS OF THE LAW THEREFORE THEY
ARE INVALID AND THEREFORE THE AGREEMENT DATED TH *ANUARY BETWEEN THE 'RAM
0ANCHAYAT 2ISPA AND 0ROJECT 0ROPONENT IS ALSO INVALID !CCORDING TO THE APPLICANT THE
0ROJECT 0ROPONENT HAD EVEN SUBMITTED WRONG INFORMATION IN ORDER TO SECURE VARIOUS
CLEARANCES )T IS FURTHER AVERRED THAT DAMAGE TO TREES IN A KM STRETCH AS STATED
BY RESPONDENT .O IN HIS REPLY IS AN AMPLE PROOF OF LACK OF APPLICATION OF MIND AND
LIKELY DAMAGE TO ECOLOGY 4HERE WAS COMPLETE LACK OF COMPREHENSIVE PLANNING AND
FORESIGHT 4HE %)!%-0 WERE DEFECTIVE AND EVEN THE LAND OF THE SITE WAS HANDED OVER
BY THE 3TATE WITHOUT EXECUTING PROPER CONVEYANCE DEED )T IS FURTHER ALLEGED THAT
VARIOUS VIOLATIONS WHICH WERE COMMITTED BY THE 0ROJECT 0ROPONENT WERE ALSO NOTICED
BY THE /NE -AN #OMMITTEE IN FURTHERANCE TO THE DIRECTION PASSED IN #IVIL 7RIT 0ETITION
.O OF BEFORE THE (ONBLE (IGH #OURT OF (IMACHAL 0RADESH
7E MAY NOTICE HERE THAT THE 0ROJECT 0ROPONENT HAD LED AN -! .O OF FOR
PLACING ON RECORD BEFORE THE 4RIBUNAL SUBSEQUENT FACTS AND DEVELOPMENTS AS HAD
HAPPENED AFTER THE TRANSFER OF THE 7RIT 0ETITION .O OF TO THE 4RIBUNAL WHICH
WAS ALLOWED
7E MAY NOTICE HERE THAT -! .O OF WAS LED BY THE APPLICANTS BEFORE US FOR
APPOINTING A #OMMISSION TO CONDUCT LOCAL INVESTIGATION FOR THE PURPOSE OF ENUMERATION
ASSESSMENT OF THE LOSS OF THE FOREST WEALTH AS WELL AS IMPACTS OF THE LOSS AND DAMAGE
TO THE LIVELIHOOD OF THE LOCALS AND TO SUGGEST MEASURES FOR RESTORATION OF DAMAGE TO THE
ECOLOGY AND TO MITIGATE THE LOSSES SUFFERED BY THE LOCAL RESIDENTS
4O THIS THE 0ROJECT 0ROPONENT HAS LED A REPLY AFDAVIT ON TH !UGUST )N HIS
REPLY THE 0ROJECT 0ROPONENT HAS STATED THAT DURING THE CONSTRUCTION OF THE APPROACH
ROAD TO THE SURGE SHAFT AND !DIT
) A FEW TREES IN THE FOREST LAND ADJACENT TO THE ROAD
ALIGNMENT AND ON VALLEY SIDE GOT DAMAGED INADVERTENTLY DUE TO ROLLING DOWN OF THE
DEBRIS FROM THE CONSTRUCTION ACTIVITY 4HEN THE COMPANY HAD STOPPED CONSTRUCTION
ACTIVITY FOR A YEAR )T IS ONLY AFTER TAKING NECESSARY PRECAUTION TO MITIGATE LOSS OF
TREES AND ANY FURTHER DAMAGE TO ENVIRONMENT THAT IT HAD STARTED THE WORK AGAIN !
REPRESENTATION HAD BEEN MADE BY THE +ALYAN 3AMITHI TO THE $EPUTY #OMMISSIONER
+INNAUR ON TH *ULY AND A #OMMITTEE WAS CONSTITUTED THEREIN TO ASSESS AND
EVALUATE THE NUMBER OF DAMAGED TREES AND LOSS OF INCOME !FTER CONDUCTING EXTENSIVE
SURVEY AND INSPECTIONS ON TH ST *ULY AND TH !UGUST THE #OMMITTEE
SUBMITTED A NAL REPORT ON TH !UGUST !FTER DUE NEGOTIATIONS BETWEEN BOTH
THE PARTIES THE #OMPANY FORMALLY VIDE ITS LETTER DATED TH /CTOBER AGREED TO
COMPENSATE THE LOSS OF INCOME FOR YEARS AS PER THE ACCEPTED PRODUCTIVITY GURE FOR
FULLY DAMAGED TREES ON AN ANNUAL BASIS 4HIS AFDAVIT HAS A CLEAR ADMISSION FOR DAMAGE
TO THE TREES AND LOSS TO ECOLOGY BY THE 0ROJECT 0ROPONENT
!NOTHER -! BEING -! .O OF HAD ALSO BEEN LED BY THE APPLICANT FOR PLACING
ADDITIONAL DOCUMENTS ON RECORD WITH RESPECT TO 7RIT 0ETITION .O 0), OF WHICH
WAS TAKEN UP BY THE (ONBLE (IGH #OURT OF 3HIMLA SUO MOTO ACTING ON A NEWS ITEM
PUBLISHED IN )NDIAN %XPRESS .EWSPAPER IN !UGUST 4HE NEWS ITEM PERTAIN TO
DAMAGE TO LARGE TRACTS OF FORESTSTREES ATTRIBUTABLE TO THE CONSTRUCTION OF NUMBER OF
(YDRO %LECTRIC 0ROJECTS IN THE 3TATE OF (IMACHAL 0RADESH
7E MAY NOTICE HERE THAT -! .O AND -! .O WERE ALLOWED IN AS MUCH
AS THE ADDITIONAL DOCUMENTS WERE PERMITTED TO BE PLACED ON RECORD AND ARGUMENTS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
HEARD WITH REFERENCE TO SUCH DOCUMENTS )N FACT THE ORDER OF THE 4RIBUNAL DATED RD
$ECEMBER DEALT WITH THESE APPLICATIONS #ONSEQUENTLY BOTH -!S AND
OF STANDS ALLOWED (OWEVER -! .O OF APPLICATION FOR APPOINTING A
LOCAL #OMMISSIONER AND FOR CERTAIN OTHER DIRECTIONS DOES NOT SURVIVE FOR SEPARATE
CONSIDERATION IN VIEW OF THE OPERATIVE PART OF THIS JUDGMENT 2ESULTANTLY -! .O
OF IS DISPOSED OF AS HAVING BECOME INFRUCTUOUS
(AVING NOTICED THE CONTENTS OF THE CASE ADVANCED BY THE RESPECTIVE PARTIES BEFORE US
IN THEIR PLEADINGS AND BEFORE WE DELIBERATE UPON THE ISSUES INVOLVED ON MERITS WE
MAY NOTICE THAT THIS 4RIBUNAL STRICTO SENSU WOULD HAVE JURISDICTION TO GRANT OR REFUSE
THE PRAYER .OS I III AND VIII MADE BY THE APPLICANT 4HE OTHER PRAYERS WOULD FALL
BEYOND THE JURISDICTION OF THE 4RIBUNAL 7HEN THE PROCEEDINGS WERE PENDING IN 7RIT
0ETITION .O OF BEFORE THE (ONBLE (IGH #OURT THE PARTIES WERE DIRECTED TO
COMPLETE THEIR PLEADINGS 5PON COMPLETION OF SUCH PLEADINGS THIS 7RIT 0ETITION .O
OF CAME TO BE TRANSFERRED TO THIS 4RIBUNAL VIDE ORDER DATED TH *ULY AND
UPON TRANSFER WAS REGISTERED AS /RIGINAL !PPLICATION .O OF
&IRST AND FOREMOST WE SHOULD NOTICE ONE IMPORTANT FACT THAT THE (ONBLE (IGH #OURT
OF (IMACHAL 0RADESH TAKING NOTE OF THE NEWS ARTICLE TITLED ,EGALISED PLUNDER (YDEL
PROJECTS ERASE LAKH GREEN TREES IN (0 PUBLISHED IN )NDIAN %XPRESS ON TH .OVEMBER
SUO MOTO ISSUED NOTICE TO THE 3TATE OF (IMACHAL 0RADESH AND OTHER CONCERNED
AUTHORITIES )N THIS 7RIT 0ETITION IT WAS NOTICED THAT VARIOUS IMPORTANT ENVIRONMENTAL
ISSUES HAVE ARISEN AND ONE SUCH MAJOR ISSUE AMONGST THEM IS THAT MOST OF THE PROJECTS
HAVE NOT MADE ADEQUATE PROVISIONS FOR DISCHARGING OF OF THE MEAN ANNUAL OW AS
ENVIRONMENTAL OW INTO NATURAL BED OF THE RIVERSSTREAMS AND THEREFORE THE PENALTY
FOR DEVIATION FROM THIS REQUIREMENT SHOULD BE VERY HIGH 4HERE SHOULD BE COMPENSATORY
AFFORESTATION AT LEAST TIMES OF THE NUMBER OF TREES DAMAGED AND THE 0ROJECT 0ROPONENT
SHOULD BE DIRECTED TO PAY MAINTENANCE OF THIS NEW PLANTATION FOR AT LEAST VE YEARS
4HE #OURT ALSO NOTICED THE RECOMMENDATIONS OF THE #OMMITTEE APPOINTED BY IT IN
THE 7RIT 0ETITION .O THAT THE PRESENT PRACTICE OF INDISCRIMINATELY ALLOTTING
HYDEL PROJECTS ALL OVER THE 3TATE BY THE 3TATE 'OVERNMENT WITHOUT ANY CONSIDERATION
OF THEIR LARGER IMPACTS ON THE ENVIRONMENT
WHICH MERE %)!S%-0S CANNOT ADDRESS
IS
SHORT SIGHTED UNPLANNED AND COULD RESULT IN SERIOUS DEPLETION OF THE 3TATES NATURAL
RESOURCES IN THE LONG RUN !FTER NOTICING VARIOUS OBSERVATIONS OF THE #OMMITTEE THE
COURT ALSO OBSERVED THAT ON SOME RIVERS ONE PROJECT AFTER OTHER IS BEING SET UP WITHOUT
ANY LINEAR DISTANCE LEFT BETWEEN THE TAIL RACE OF ONE PROJECT AND INTAKE OF THE NEXT
7HILE ACCEPTING THE RECOMMENDATIONS OF THE #OMMITTEE THE #OURT FURTHER DIRECTED THE
LEARNED !DVOCATE 'ENERAL AND !SSISTANT 3OLICITOR 'ENERAL TO ENSURE THAT APPROPRIATE
STEPS ARE TAKEN BY THE CONCERNED AUTHORITIES AND IT ALSO ISSUED NOTICE TO THE NEWLY
ADDED RESPONDENTS VIZ #!-0! AND OTHER AUTHORITIES OF THE 3TATE 'OVERNMENT AND
-O%& )T IS WORTH MENTIONING HERE THAT THE PROJECT IN QUESTION WAS A SUBJECT MATTER OF
THAT 7RIT 0ETITION 6ARIOUS OTHER ORDERS WERE PASSED IN THIS 7RIT 0ETITION .O
ON DIFFERENT DATES AND THE (ONBLE (IGH #OURT VIDE ITS ORDER DATED ND *UNE
EVEN NOTICED THAT VERY LITTLE ATTENTION IS PAID TO THE NEGATIVE ECONOMIC IMPACTS OF THE
PROJECTS AS OPPOSED TO THE MINIMUM BENET OF THE PROJECT )T AGAIN EMPHASIZED THE
NEED FOR WIDER IMPACT STUDIES AND TO CONSIDER THE OTHER ADVERSE EFFECTS ON THE SOCIAL
LIFESTYLE OF THE PEOPLE OF THE PROJECT AFFECTED AREA /N TH -AY THE (ONBLE (IGH
#OURT DISPOSED OF THE 7RIT 0ETITION BY PASSING THE FOLLOWING ORDER
)N VIEW OF THE LATEST AFDAVIT LED BY THE #HIEF 3ECRETARY DATED ND !PRIL
COUPLED WITH THE ASSURANCE GIVEN BY THE LEARNED !DVOCATE 'ENERAL ACROSS THE
"AR THAT THE 3TATE 'OVERNMENT WOULD TAKE ALL NECESSARY MEASURES TO TAKE THE
RECOMMENDATION MADE BY THE ONE MAN #OMMITTEE FORWARD AFTER DUE EXAMINATION
BY THE BOARD BASED #OMMITTEE OF EXPERTS CONSTITUTED BY THE 3TATE 'OVERNMENT
NOTHING MORE REQUIRES TO BE DONE IN THIS PETITION 4HE ASSURANCE GIVEN BY THE 3TATE
4 / \
THROUGH THE LEARNED !DVOCATE 'ENERAL IS ACCEPTED 4HE PETITION IS DISPOSED OF 4HE
#OURT EXPRESSES A WORD OF GRATITUDE FOR THE ABLE ASSISTANCE GIVEN BY THE LEARNED
AMICUS CURIAE 4HE PENDING APPLICATIONS IF ANY ARE ALSO DISPOSED OF
!T THIS STAGE IT WILL BE RELEVANT TO REFER TO THE NDINGS RECORDED IN THE REPORT OF THE /NE
-AN #OMMITTEE WHICH WAS DIRECTED TO MONITOR ENVIRONMENTAL COMPLIANCE OF VARIOUS
HYDEL PROJECTS IN THE 3TATE OF (IMACHAL 0RADESH 4IDONG (YDROELECTRIC 0ROJECT BEING ONE
OF THE PROJECTS FOR CONSIDERATION OF THE (ONBLE (IGH #OURT /NE -AN #OMMITTEE HAD
SUBMITTED THE FOLLOWING OBSERVATIONS ABOUT THE PROJECT
4IDONG
) -7 +INNAUR
4HIS PROJECT SITUATED IN THE REMOTE #HARANG KHAD KMS "EYOND 4HANGI WAS
VISITED ON )TS ENVIRONMENT CLEARANCE WAS RECEIVED ON AND FOREST
CLEARANCE ON 4HE TOTAL FOREST LAND APPROVED FOR DIVERSION IS HA NOT
INCLUDING THE LAND FOR THE TRANSMISSION LINE WHICH CASE IS YET TO BE NALIZED 4HE
TOTAL NUMBER OF TREES TO BE FELLEDREMOVED IS OF WHICH AS MANY AS FALL IN
THE ALIGNMENT OF THE ROAD TO THE SURGE
SHAFT TREES BELONG TO THE #HILGOZA SPECIES
WHICH IS NOW ALMOST AN ENDANGERED SPECIES IN THIS DISTRICT THE ONLY AREA IN THE STATE
WHERE THIS TREE IS FOUND
4HE PROJECT IS COMPLIANT IN MAKING TIMELY AND FULL PAYMENT OF THE VARIOUS AMOUNTS
REQUIRED TO BE DEPOSITED UNDER VARIOUS CLEARANCES )T HAS DEPOSITED THE ENTIRE
AMOUNTS FOR #!4 0LANS #! .06 #OST OF TREES AND RECLAMATION OF DUMPING SITES
TOTALING 2S CRORE 3INCE THIS MONEY WAS DEPOSITED IN #!-0! IT WAS NOT ACTUALLY
AVAILABLE FOR SPENDING TILL LAST YEAR HENCE NO EXPENDITURE HAS BEEN INCURRED EITHER
UNDER #!4 PLAN OR #! HEADS 4HE FOREST DEPTT HAS MADE NO PROVISION FOR EXPENDITURE
IN THE CURRENT YEAR ALSO 4HIS IS SURPRISING AND NOT ACCEPTABLE AS FUNDS FROM #!-0!
HAVE NOW STARTED OWING TO THE STATE AND 2S CRORE HAS BEEN RELEASED TO THE
STATE FOREST DEPTT 4HE 0RINCIPAL ##& SHOULD REVIEW THIS MATTER AND PROVIDE AT LEAST
2S LAKHS FOR #! AND 2S LAKHS UNDER #!4 0LAN IN THE CURRENT YEAR KEEPING
IN VIEW THE FACT THAT THE PROJECT IS SLATED FOR COMPLETION IN
/UR PHYSICAL INSPECTION OF THE WHOLE PROJECT SITE STARTING FROM THE INTAKE TO THE
POWERHOUSE HAS REVEALED THAT THERE IS A MAJOR PROBLEM OF MUCK DUMPING IN THIS
PROJECT 4HE UNSCIENTIC MANNER IN WHICH EXCAVATION AND CUTTING IS BEING DONE ON
THE SURGE SHAFT ROAD AS WELL AS THE ROAD TO !DIT
) AND THE CALLOUS MANNER IN WHICH
THE RESULTANT DEBRIS IS BEING DUMPED IN THE FOREST AREAS IS TAKING A HUGE TOLL OF TREES
AND WILL ULTIMATELY LEAD TO SOIL EROSION ON A LARGE SCALE )T IS SURPRISING THAT THIS
HAS NOT BEEN NOTED LET ALONE ACTED UPON BY EITHER THE 2EGIONAL /FCE OF -O%& OR
THE 3TATE 0#" DURING THEIR INSPECTION !CCORDING TO THE PROJECT ESTIMATES THE TOTAL
QUANTITY OF MUCK TO BE GENERATED WILL BE LAKH CUM OF THIS LAKH CUM IS
EXPECTED TO BE UTILIZED AND LAKH CUM TO BE DUMPED IN $3S /F THIS $3S HAVE
BEEN DEVELOPED SO FAR AND ARE IN USE WHILE THE FOURTH $3 NEAR THE POWER HOUSE
SHALL BE DEVELOPED LATER /UR INSPECTION OF THE THREE $3S REVEALED THAT NONE OF THEM
HAVE ADEQUATE PROTECTION STRUCTURES
THEY ALL NEED TO HAVE PROPER 2#TOE WALLS OF
SUFCIENT HEIGHT AND ALSO HAVE TO BE DEVELOPED IN BENCHES WITH INTER MEDIATE
RETAINING WALLS 4HE DEBRIS FROM THE CUTTING OF ROAD FORM INTAKE TO !DIT
) HAS ALSO
BEEN ROLLED DOWN TO THE STREAM BED INDISCRIMINATELY AND EVEN WHERE A DUMPING
SITE HAS BEEN DEVELOPED $3
THE PROTECTION PROVIDED IS VERY SKELETAL AND TOTALLY
INCAPABLE OF PREVENTING SPILLAGE INTO THE STREAM
4HE MUCH BIGGER PROBLEM WHICH WE OBSERVED HOWEVER IS THE UNSCIENTIC
CONSTRUCTION OF THE TWO ROADS AND THE INDISCRIMINATE ROLLING DOWN OF THE HUGE
QUANTITIES OF DEBRIS LEADING TO DAMAGE TO UPROOTING OF HUNDREDS OF TREES OUTSIDE THE
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
DIVERTED AREAS 4HE ROAD TO !DIT ) HAS BEEN COMPLETED AND KM OF THE KM SURGE
SHAFT ROAD HAS BEEN CARVED OUT )N THE PROCESS ADDITIONAL TREES NOT APPROVED FOR
FELLING HAVE BEEN IRRETRIEVABLY DAMAGED 4HE $&/ +INNAUR HAS TAKEN COGNIZANCE OF
THIS GROSS VIOLATION AND HAS RAISED SIX DAMAGE REPORTS AGAINST THE COMPANY LEVYING
A PENALTY OF LAKHS WHICH HAS BEEN PAID AND HAS ALSO REGISTERED AN &)2 ON
AGAINST THE MANAGEMENT IN THE COURT OF THE #*- +INNAUR UNDER RELEVANT
PROVISIONS OF THE )NDIAN &OREST !CT (E HAS ALSO STOPPED ANY FURTHER CONSTRUCTION
OF THE SURGE SHAFT ROAD ON 4HIS LAST HAS BEEN DONE PRIMARILY BECAUSE AN
ASSESSMENT CARRIED OUT BY HIS STAFF HAS RESULTED IN THE ENUMERATION OF AN ADDITIONAL
TREES WHICH ARE LIKELY TO BE DAMAGED IF CONSTRUCTION OF THE SURGE SHAFT ROAD
CONTINUES /F THIS NUMBER AS MANY AS ARE #HILGOZA TREES WHICH AS ALREADY
NOTED ARE HIGHLY ENDANGERED
4HE ISSUE CONFRONTING THE PROJECT AND THE STATE GOVT HERE IS ONE OF MASSIVE
ENVIRONMENTAL IMPLICATIONS 4HE DAMAGE ALREADY CAUSED BY ROAD CUTTING AND
THE EVEN MORE DAMAGE LIKELY TO BE CAUSED IN THE FUTURE IS ENVIRONMENTALLY
UNSUSTAINABLE AND UNACCEPTABLE 4O RECAPITULATE THE PROJECT HAS APPROVAL TO FELL
TREES IN ITSELF A VERY LARGE NUMBER )T HAS ALREADY ILLEGALLY DESTROYED MORE
TREES AND IN THE ASSESSMENT OF THE DEPTT WILL INEVITABLY DESTROY ANOTHER TREES
IN OTHER WORDS IT SHALL DESTROY MORE TREES THAN WHAT HAS BEEN APPROVED
MORE THAN THE SANCTIONED NUMBER 4HIS MAKES A MOCKERY OF THE ORIGINAL $02 OF THE
PROJECT OR THE &#! APPLICATION )T ALSO RAISES THE QUESTION WHETHER THE DELIBERATELY
UNDERSTAND THE NUMBER OF TREES IN THEIR APPLICATION IN ORDER TO GET &#! APPROVAL
HAD THE GOVT OR THE FOREST DEPTT BEEN AWARE THAT THE NUMBER OF TEES INVOLVED WAS
RATHER THAN IT MAY NOT HAVE GIVEN APPROVAL FOR THE PROJECT AT ALL
) HAVE NOT SLIGHTEST DOUBT THAT THIS KIND OF TERRAIN
HARDLY ANY TOP SOIL LOOSE SOIL
COVER EXTREMELY STEEP SLOPES
CANNOT SUSTAIN THE LOSS OF TREE COVER ON SUCH A MASSIVE
SCALE %VEN IF THE ASSESSMENT OF THE FOREST DEPTT IS REDUCED BY FTY PERCENT IT IS STILL
SUSTAINABLE )N THE NORMAL COURSE THE COMMITTEE WOULD HAVE RECOMMENDED THAT THE
APPROVAL FOR THE PROJECT SHOULD BE REVIEWED WITH A VIEW TO CANCELLING IT HOWEVER
THIS MAY NOT BE PRACTICAL CONSIDERING THE WORK ALREADY DONE ON IT AND THE INVESTMENT
ALREADY MADE ABOUT 2S CRORE ACCORDING TO THE '- OF THE PROJECT 4HEREFORE
THE COMMITTEE INSTEAD RECOMMENDS THAT A APPROVAL FOR THE SURGE SHAFT ROAD AND
THE FOREST LAND AND TREES DIVERTED FOR IT SHOULD BE WITHDRAWN AS THE DAMAGE IT IS
CAUSING AND WILL CAUSE IS JUST TOO MASSIVE AND B THE COMPANY SHOULD BE DIRECTED
TO INSTALL A ROPE
WAY INSTEAD FOR ACCESSING THE SURGE SHAFT AND (24 4HIS IS ALREADY
BEING DONE BY SOME HYDEL PROJECTS IN THE STATE AND IS TECHNICALLY FEASIBLE )T WILL
PROBABLY DELAY THE PROJECT COMMISSIONING BY A FEW MONTHS AND PUSH UP COSTS BUT
THIS IS A SMALL PRICE TO PAY FOR PRESERVING WHAT REMAINS OF THIS PRISTINE AND FRAGILE
ENVIRONMENT !ND IN ANY CASE THE PROJECT DEVELOPERS ARE THEMSELVES RESPONSIBLE
FOR THIS SITUATION BY NOT PREPARING A PROPER $02 AND BY ADOPTING ENVIRONMENTALLY
HOSTILE ROAD CUTTING PRACTICES
)T APPEARS THAT DESPITE THE ABOVE RECOMMENDATIONS THE AUTHORITIES DID NOT CONSIDER
IT APPROPRIATE TO ENFORCE THE CONDITION OF ROPEWAY AS SUGGESTED BY THE #OMMITTEE
AND PERMITTED THE INDUSTRY TO CONSTRUCT THE ROAD FOR CARRIAGE OF MATERIAL OR MUCK
4HERE IS NOTHING ON RECORD BEFORE US TO SHOW THAT ANY OF THE RECOMMENDATIONS OF THE
#OMMITTEE HAD BEEN COMPLIED WITH "E THAT AS IT MAY THE FACT OF THE MATTER IS THAT
THIS 0ROJECT 0ROPONENT WAS PERMITTED TO CARRY ON ITS CONSTRUCTION AND ALLIED ACTIVITIES )T
NOW HAS PROGRESSED CONSIDERABLY 4HE REPLY AFDAVIT HAS BEEN LED BY THE RESPONDENT
.O IN AND NOW FURTHER PERIOD OF MORE THAN YEARS HAVE GONE BY DURING WHICH
THE CONSTRUCTION OF THE PROJECT HAS SUBSTANTIALLY PROGRESSED 2ESPONDENT .O CLAIMS
THAT THE RECOMMENDATIONS MADE BY THE /NE -AN #OMMITTEE HAVE BEEN TAKEN CARE
4 / \
OF 4HE 0ROJECT 0ROPONENT LED A FURTHER AFDAVIT BEING -! .O OF BEFORE THE
4RIBUNAL STATING THE SUBSEQUENT EVENTS 4HEY ARE AS FOLLOWS
4HE STATUS OF THE PROGRESS OF THE 4IDONG (YDROELECTRIC 0ROJECT -7 IS AS UNDER
A !T $IVERSION INTAKE SITE WHERE 3PILLWAY 5NDERSLUICES )NTAKE 3TRUCTURE $ESILTING
#HAMBER AND 2ESERVOIR ARE LOCATED EXCAVATION OF CUM HAS BEEN NISHED
AND CONCRETING OF CUM HAS BEEN DONE IN $IVERSION #HANNEL 3PILLWAY
5NDERSLUICES
B /UT OF THE TOTAL LENGTH OF KM OF (EAD 2ACE 4UNNEL KM HAS ALREADY BEEN
EXCAVATED
C IN OF 0RESSURE 3HAFT OUT OF THE TOTAL LENGTH OF IN HAS ALSO BEEN EXCAVATED
D )N 0OWER (OUSE COMPLEX EXCAVATION OF CUM HAS BEEN COMPLETED AND NOW
CONCRETING IS IN PROGRESS CUM OUT OF CUM OF CONCRETING HAS ALSO BEEN
DONE
E 4HE 4RANSMISSION LINE WORK IS IN PROGRESS AND DETAILED SURVEY HAS ALREADY BEEN
COMPLETED
F !GAINST THE APPROVED COST OF 2S CRORES AS PER THE DETAILED PROJECT REPORT THE
EXPENDITURE TILL THE END OF *UNE IS 2S CRORES
G 4HE COST OF THE 0ROJECT IS HOWEVER UNDER REVISION DUE TO THE DELAYS THAT HAVE
OCCURRED IN ITS EXECUTION
)N RELATION TO THE PRAYERS FOR SETTING ASIDE THE &OREST #LEARANCE AND %NVIRONMENT
#LEARANCE THE PLEA RAISED BY THE APPLICANT IS THAT THERE WAS NO PUBLIC HEARING DONE
NO APPLICATION OF MIND IN GRANTING CLEARANCE TO THE PROJECT AND INCORRECT INFORMATION
BEING FURNISHED BY THE 0ROJECT 0ROPONENT TO THE AUTHORITIES IN RELATION TO THE PROJECT 3O
FAR AS THE QUESTION OF PUBLIC HEARING IS CONCERNED IT IS THE MANDATE OF THE .OTICATION
OF !CCORDING TO THE 0OLLUTION #ONTROL "OARD IT HAD ISSUED DUE NOTICE FOR HOLDING
OF THE PUBLIC HEARING WHICH WAS PUBLISHED EVEN IN THE NEWSPAPERS !CCORDING TO THE
$ISTRICT !DMINISTRATION A LETTER IN THAT BEHALF HAD ALSO BEEN ISSUED REQUIRING THE
CONCERNED 'RAM 0ANCHAYAT TO PARTICIPATE IN THE PUBLIC CONSULTATION AND RAISE THEIR
VIEWS AND OBJECTIONS FOR ESTABLISHMENT OF THE PROJECT 4HIS HEARING WAS PROPOSED TO BE
HELD ON ST *ULY (OWEVER PARTICULARLY THE 'RAM 0ANCHAYAT 2ISPA HAD BOYCOTTED
THE PUBLIC HEARING 4HIS HAS ALSO BEEN SPECICALLY AVERRED BY THE RESPONDENTS IN THEIR
REPLY WHICH HAS BEEN ADMITTED IN THE REJOINDER LED BY THE APPLICANT 4HUS THERE IS
NO MERIT IN THIS CONTENTION OF THE APPLICANTS &URTHERMORE THE APPLICATION IS ENTIRELY
VAGUE IN RELATION TO HOW THE AUTHORITIES HAVE NOT APPLIED THEIR MIND WHILE GRANTING
%NVIRONMENTAL #LEARANCE AND &OREST #LEARANCE )T IS NOT DISPUTABLE AND AUTHORITIES
HAVE ALSO PLEADED THAT THE PROCEDURE CONTEMPLATED UNDER THE .OTICATION OF AS
ISSUED UNDER THE &OREST #ONSERVATION !CT HAS BEEN FOLLOWED AND APPROPRIATE
PERMISSION WITH DUE SAFEGUARDS HAS BEEN ISSUED 3IMILARLY NO PARTICULARS HAVE BEEN
STATED OR ALLEGED RELATING TO INCORRECT OR FALSE INFORMATION BEING FURNISHED BY THE
0ROJECT 0ROPONENT TO THE AUTHORITIES CONCERNED 4HERE APPEARS TO BE SOME AMBIGUITY IN
RELATION TO THE TREES LIKELY TO BE AFFECTED THE TREES WHICH ARE REQUIRED TO BE FELLED FOR THE
PURPOSES OF THE PROJECT IN THE FOREST LAND THEIR NUMBER BEING AND THE TREES WHICH
ARE LIKELY TO BE DAMAGED BECAUSE OF THE PROJECT ACTIVITY THEIR NUMBER BEING
!CCORDING TO THE 0ROJECT 0ROPONENT ONLY TREES HAVE BEEN DAMAGED 4HE $EPARTMENT
ANTICIPATED DAMAGE TO TREES WHILE ACCORDING TO THE 0ROJECT 0ROPONENT NOT MORE
THAN TREES ARE LIKELY TO BE DAMAGED BECAUSE OF THE CONSTRUCTION ACTIVITY OF THE
PROJECT 4HERE APPEARS TO BE SOME DRAWBACK ON THE PART OF THE CONCERNED AUTHORITIES
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
IN CLEARLY VISUALIZING THIS ASPECT AND PROVIDING DUE SAFEGUARDS AND CAUTIONS THAT
THE 0ROJECT 0ROPONENT IS REQUIRED TO TAKE AND WHAT REMEDIAL MEASURES ARE REQUIRED
TO BE TAKEN FOR REMEDYING AND RESTITUTING THE DAMAGE DONE TO THE ENVIRONMENT AND
ECOLOGY 3IMILARLY THERE SEEMS TO BE AN ERROR ON THE PART OF THE AUTHORITIES IN EXACTLY
CONTEMPLATING THE EXTENT OF MUCK THAT WOULD BE GENERATED FROM THE TUNNELLING MAKING
OF THE ROAD AND OTHER CONSTRUCTION ACTIVITIES AT THE SITE 4HEY HAVE ALSO NOT EXACTLY DEALT
WITH THE CARRIAGE OF THIS MUCKCONSTRUCTION DEBRIS ITS TRANSPORTATION DUMPING AND
MAINTENANCE THEREOF 0HOTOGRAPHS HAVE BEEN PLACED ON RECORD TO SHOW THAT THESE
DUMPING SITES ARE NOT BEING ADEQUATELY MAINTAINED BY THE 0ROJECT 0ROPONENT 4HESE
TWO DEFECTS WHICH ARE POST THE GRANT OF THE %NVIRONMENTAL #LEARANCE AND THE &OREST
#LEARANCE WOULD NOT VITIATE PER SE THE GRANT OF %NVIRONMENTAL #LEARANCE TO THE 0ROJECT
0ROPONENT PARTICULARLY IN LIGHT OF THE FACT THAT SUBSEQUENTLY WORK OF THE PROJECT HAS
ALREADY BEEN COMPLETED INCURRING HUGE COSTS AND LARGELY DUE TO THE FACT THAT DAMAGE TO
ENVIRONMENT AND ECOLOGY HAS ALREADY BEEN DONE 7HAT ACTUALLY IS REQUIRED AT THIS STAGE
ARE REMEDIAL AND RESTITUTION STEPS WHICH SHOULD BE TAKEN BY THE CONCERNED AUTHORITIES
THE 3TATE 'OVERNMENT AND THE 0ROJECT 0ROPONENT FOR COMPLETELY PREVENTING ANY FURTHER
DAMAGE TO THE ENVIRONMENT ECOLOGY AND FOREST AREA AND ALSO TO THE LIVES OF THE PEOPLE
AT THE PROJECT SITE 4HE 0ROJECT 0ROPONENT SHOULD BE CALLED UPON TO PAY ALL SUCH AMOUNT
THAT WOULD BE NEEDED FOR SUCH PURPOSE
.OW WE MUST EXAMINE THE WORSE ENVIRONMENTAL AND ECOLOGICAL IMPACTS THAT HAVE
APPEARED DURING THE PROGRESS OF THE PROJECT AND POST GRANT OF %NVIRONMENTAL #LEARANCE
)T APPEARS THAT THESE IMPACTS AND THERE EXTENT PROBABLY WAS OVERLOOKED BY CONCERNED
AUTHORITIES AT THE INITIAL STAGE %ITHER WAY THE DAMAGE TO THE ECOLOGY PARTICULARLY
UPON THE FOREST AREA COMPRISING OF RARE AND ENDANGERED SPECIES OF #HILGOZA TREES AND
ON THE LIVELIHOOD OF THE PEOPLE LIVING IN THE VICINITY OF THE PROJECT SITES CANNOT BE
DISPUTED AND IS QUITE SERIOUS &IRSTLY LOOKING INTO THE DAMAGE TO THE TREES IT CANNOT BE
DISPUTED THAT #HILGOZA PINE IS A RARE SPECIES AND IS FACING A THREAT TO ITS EXISTENCE EVEN
IN THAT AREA )T IS A PLANT WHICH COMES AT A HEIGHT OF
METERS AND TAKES YEARS
TO GROW 4HE &OREST $EPARTMENT HAD GIVEN &OREST #LEARANCE TO THE 0ROJECT 0ROPONENT
FOR FELLING TREES IN TOTAL AND THAT TOO WITH THE CONDITION OF AFFORESTATION OF TEN
TIMES THE FELLED TREES 4HERE IS NO EVIDENCE BEFORE US THAT THIS CONDITION HAS BEEN
COMPLIED WITH BY THE 0ROJECT 0ROPONENT 4HE $EPARTMENT SEEMS TO BE QUITE IGNORANT
OF COMPLIANCE TO THE CONDITIONS OF THE &OREST #LEARANCE AND TO ADD FUEL TO THE RE TO
THE INDISCRIMINATE DUMPING OF MUCK AND BOULDERS DOWN THE SLOPE AS A CONSEQUENCE
OF HEAVY BLASTING WHICH HAS DAMAGED LARGE NUMBER OF TREES OF THE ADJOINING FOREST
!CCORDING TO THE 0ROJECT 0ROPONENT IT HAS ONLY DAMAGED TREES 4HIS GURE DOES
NOT ND SUPPORT FROM THE OFCIAL RESPONDENTS !CCORDING TO THE OFCIAL RESPONDENTS
THE NUMBER OF TREES LIKELY TO FACE THE DAMAGE AS A RESULT OF CONSTRUCTION OF THE PROJECT
AND ITS ALLIED ACTIVITIES WOULD BE NEAR ABOUT WHICH IS CLEAR FROM THE ENUMERATION
DONE BY 2ANGE &OREST /FCER -OORANG !CCORDING TO THE APPLICANT MORE THAN
#HILGOZA TREES AND OTHER RARE SPECIES TREES ARE LIKELY TO BE DESTROYED ANDOR DAMAGED
AS IS ALSO EVIDENT FROM THE %)! REPORT OF THE PROJECT 4HE CASE OF THE APPLICANT TO SOME
EXTENT NDS SUPPORT FROM THE ADMISSION OF THE 0ROJECT 0ROPONENT AS WELL AS BY THE
OFCIAL RESPONDENTS )T IS ADMITTED ON RECORD THAT ON VARIOUS OCCASIONS PENALTY AND
REMEDIES HAVE BEEN IMPOSED UPON THE 0ROJECT 0ROPONENT FOR DAMAGING THE TREES AND
THE ECOLOGY OF THE AREA /N SOME OCCASIONS AMOUNTS WERE ALSO PAID FOR THE DAMAGE
BILLS RAISED BY THE CONCERNED AUTHORITIES !CCORDING TO THE 0ROJECT 0ROPONENT HE HAS
PAID A SUM OF 2S ,AKH ON THIS ACCOUNT /THER AUTHORITIES HAVE ALSO STATED THAT
DAMAGE HAS BEEN CAUSED DUE TO NON
MAINTENANCE OF PROPER DUMPING SITES AND ROLLING
DOWN OF THE BOULDERS WHICH OBVIOUSLY HAVE BEEN THROWN INTO THE OOD PLAIN AS WELL
AS IN THE 4IDONG RIVER
!NOTHER SERIOUS ASPECT IS WITH REGARD TO THE DAMAGE BEING DONE BY CONSTRUCTION OF THE
4 / \
ROAD AS ALREADY NOTICED BY THE /NE -AN #OMMITTEE WHICH RECOMMENDED BEFORE THE
(ONBLE (IGH #OURT THE CONSTRUCTION OF A ROPEWAY FOR THE REMAINING PART OF THE PROJECT
FOR REDUCING THE DAMAGE TO THE ECOLOGY AND ENVIRONMENT BY CONSTRUCTION OF ROADS
WHICH WOULD INCLUDE FELLING AND DAMAGING THE TREES 3ADLY IT FOUND NO FAVOUR FROM
THE 3TATE !UTHORITIES AND THE 0ROJECT 0ROPONENT CONTINUED WITH THE CONSTRUCTION OF THE
ROAD WITH THE CONSENT OF THE AUTHORITIES CONCERNED &IRSTLY WE FAIL TO UNDERSTAND WHY
THE CONCERNED AUTHORITIES DID NOT ALTER OR CHANGE THE CONDITIONS OF THE %NVIRONMENTAL
#LEARANCE AND EVEN OF THE &OREST #LEARANCE FOR THAT MATTER PARTICULARLY IN VIEW OF THE
CHANGED CIRCUMSTANCES
2EFERRING TO THE CONTENTS OF THE /NE -AN #OMMITTEE REPORT WHICH WE HAVE ALREADY
REPRODUCED ABOVE IT HAS BEEN CLEARLY POINTED OUT THAT OUT OF TREES THAT HAVE
BEEN PERMITTED TO BE FELLED NEARLY TREES BELONG TO THE #HILGOZA SPECIES WHICH ARE
ENDANGERED SPECIES OF TREES 4HE REPORT ALSO REFERS TO UNSCIENTIC MANNER IN WHICH THE
EXCAVATION WORK IS BEING DONE ON THE ROAD TO THE SURGE SHAFT AS WELL AS ROAD TO !DIT
) AND
THE CALLOUS MANNER IN WHICH THE RESULTANT DEBRIS IS BEING DUMPED IN THE FOREST AREAS
WHICH HAS TAKEN A HUGE TOLL ON TREES $EBRIS FROM CUTTING OF THE ROAD FROM THE INTAKE OF
!DIT
) HAS ALSO BEING ROLLED DOWN TO THE STREAM BED INDISCRIMINATELY AND EVEN AT $3
THE PROTECTION PROVIDED IS VERY SKELETAL AND TOTALLY INCAPABLE OF PREVENTING SPILLAGE INTO
THE STREAM 4HE 0ROJECT 0ROPONENT HAD BEEN ASKED TO STOP FURTHER CONSTRUCTION WORK OF
THE SURGE SHAFT ROAD ON ND $ECEMBER WHICH WAS FOR THE REASON THAT THERE WAS
ENUMERATION OF ADDITIONAL TREES WHICH WERE LIKELY TO BE DAMAGED OUT OF WHICH
TREES WERE #HILGOZA TREES IF THE CONSTRUCTIONS OF SURGE SHAFT ROAD CONTINUED !N
IMPORTANT FEATURE OF THE ECOLOGICAL DAMAGE THAT HAS BEEN REFERRED TO BY THE /NE -AN
#OMMITTEE IS THAT KEEPING IN VIEW THE KIND OF THE TERRAIN
HARDLY ANY TOP SOIL LOOSE SOIL
COVER EXTREMELY STEEP SLOPES
IT CANNOT SUSTAIN THE LOSS OF TREE COVER ON SUCH A MASSIVE
SCALE %VEN IF THE ASSESSMENT OF THE &OREST $EPARTMENT IS REDUCED BY FTY PERCENT IT
IS STILL UNSUSTAINABLE .ONE OF THE $3S HAVE ADEQUATE PROTECTION STRUCTURES
THEY ALL
NEED TO HAVE PROPER 2#TOE WALLS OF SUFCIENT HEIGHT AND ALSO HAVE TO BE DEVELOPED
IN BENCHES WITH INTERMEDIATE RETAINING WALLS 4HE #OMMITTEE BESIDES POINTING OUT
THE DEFECTS MADE GENERAL RECOMMENDATIONS PARTICULARLY MADE COMMENTS IN RELATION
TO BASIN
WIDE %)! STUDY FOR ALL RIVER BASINS WHERE HYDROELECTRIC PROJECTS WERE LIKELY
TO COME UP AND SOME MINIMUM RIPARIAN DISTANCE AT LEAST KM TO BE MAINTAINED
BETWEEN THE PROJECTS
4HE ABOVE DETAILS OF THE /NE -AN #OMMITTEE REPORT DEMONSTRATES BEYOND DOUBT
THAT THERE HAVE BEEN SERIOUS ADVERSE IMPACTS UPON THE ENVIRONMENT AND ECOLOGY
PARTICULARLY UPON THE #HILGOZA TREES WHICH ARE ENDANGERED SPECIES OF TREES )T CANNOT
BE DISPUTED THAT PLANTATION AND GROWING OF #HILGOZA TREES IS A DIFCULT AND TIME
CONSUMING PROCESS
4HE ABOVE STATE OF AFFAIRS IS LARGELY ATTRIBUTABLE TO THE 0ROJECT 0ROPONENT AND THE
CALLOUSNESS ADOPTED BY THE #OMPANY IN CARRYING ON ITS VARIOUS ACTIVITIES )T CAN ALSO NOT
BE SAID THAT THE REGULATORY AUTHORITY AND THE SUPERVISING AUTHORITY OVER THE PROJECT
INCLUDING THE VARIOUS DEPARTMENTS OF THE 'OVERNMENT OF (IMACHAL 0RADESH HAVE
DISCHARGED THEIR DUTIES AND RESPONSIBILITIES WITH UTMOST CARE CAUTION AND SINCERITY
4HE CASUAL SUPERVISORY APPROACH OF THE AUTHORITIES IS EVIDENT FROM THE RECORDS BEFORE
THE 4RIBUNAL )T WAS EXPECTED OF THE REGULATORY AUTHORITY TO IMPOSE MUCH MORE SEVERE
CONDITIONS IN THE INTEREST OF ENVIRONMENT AND ECOLOGY AND ENSURE THAT NO DAMAGE WAS
DONE PARTICULARLY FROM THE MANNER AND METHOD IN WHICH THE CONSTRUCTION ACTIVITY
OF THE PROJECT WAS GOING ON (AVING STOPPED THE WORK ON ND $ECEMBER THE
AUTHORITIES SHOULD HAVE ENSURED THAT ALL PRECAUTIONARY STEPS HAVE BEEN TAKEN BY THE
0ROJECT 0ROPONENT BEFORE PERMITTING IT TO RESTART ITS CONSTRUCTION ACTIVITY 7HEREVER
THE AUTHORITIES OPTED TO IMPOSE SOME CONDITIONS THEY WERE MORE ON PAPER RATHER THAN
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ON PRACTICE AT THE PROJECT SITE )T IS AN ECO
SENSITIVE AREA AT A QUITE HIGH ALTITUDE AND
THIS AREA REQUIRES GREATER ATTENTION OF THE AUTHORITIES CONCERNED AND MORE STRINGENT
SUPERVISORY ROLES ! ROAD IS NOT BUILT IN DAYS OR WEEKS )T IS UNQUESTIONABLE BEFORE US
THAT THE CUTTING OF HILLS FOR THE PURPOSE OF CONSTRUCTION OF ROAD CAUSED SERIOUS DAMAGE
TO THE ECOLOGY AND PARTICULARLY TO THE #HILGOZA TREES 7HERE TREES WERE REQUIRED
TO BE FELLED FOR THE ENTIRE PROJECT FOR WHICH THE &OREST #LEARANCE WAS GRANTED THERE
THE ANTICIPATED DAMAGE IN ADDITION TO SUCH TREES WAS IE NEARLY FOUR TIMES &OR
REPEATED FAULTS AND DAMAGE TO THE TREES AND TO THE ECOLOGY THE COMPANY HAS BEEN
DIRECTED TO PAY PENALTIES AND DAMAGES FROM TIME TO TIME /N MOST OF THE OCCASIONS
PAYMENTS HAD EVEN BEEN MADE BY THE #OMPANY 7E REALLY WONDER IF THE PENALTIES
IMPOSED BY THE AUTHORITIES UPON THE RESPONDENT COMPANY ARE SUFCIENT FOR THE
DAMAGE CAUSED AND FOR RESTORATION ! VERY SERIOUS QUESTION ARISES IS WHETHER THE
DAMAGE CAUSED IS AT ALL CAPABLE OF BEING RESTORED OR RESTITUTED 4HE TOP SOIL HAVING
BEEN WIDELY ERODED ALL OVER THE HILL WHETHER PLANTATION OF TREES PARTICULARLY #HILGOZA
PINE TREES IS AT ALL POSSIBLE NOW $ESTRUCTION OF NATURE AND ECOLOGY AT THIS LEVEL IS EASY
BUT RESTORATION THEREOF IS NOT ONLY DIFCULT BUT IN MOST CASES COULD EVEN BE IMPROBABLE
!S WE HAVE ALREADY NOTICED SUBSTANTIAL DAMAGE HAS ALREADY BEEN DONE HUGE AMOUNT
OF MONEY HAVE BEEN SPENT ON THE PROJECTS AND MAJOR CONSTRUCTION ACTIVITY INCLUDING
CONCRETIZATION AND CONSTRUCTION OF TUNNELS ARE MORE OR LESS COMPLETE )N THESE
CIRCUMSTANCES IT WOULD BE VERY DIFCULT FOR THE 4RIBUNAL TO ARRIVE AT THE CONCLUSION
THAT THE %NVIRONMENTAL #LEARANCE GRANTED TO THE PROJECT SHOULD BE RECALLED AND THE
PROJECT ACTIVITY BE CLOSED )T OBVIOUSLY WOULD LEAD TO TREMENDOUS WASTAGE OF PUBLIC
MONEY WHILE DAMAGE TO THE NATURE AND ECOLOGY WILL STILL PERSIST 4HUS APPLYING THE
0RINCIPLE OF 3USTAINABLE $EVELOPMENT AND 0RECAUTIONARY 0RINCIPLE WE HAVE TO ADOPT A
BALANCED APPROACH )N THE FACTS OF THE PRESENT CASE THE RELEVANCY OF THE 0RECAUTIONARY
0RINCIPLE HAS BEEN CONSIDERABLY REDUCED -AJOR PART OF THE PROJECT HAS ALREADY COME UP
AND SERIOUS ENVIRONMENTAL DAMAGE HAS ALREADY OCCURRED BUT EVEN AT THIS STAGE IT IS
AN APPROPRIATE CASE WHERE WE SHOULD BRING INTO SERVICE THE 0RECAUTIONARY 0RINCIPLE TO
GRANT COMPLETION OF THE REMAINING WORK OF THE PROJECT AS TO A LARGER EXTENT IT IS A CASE
OF FAIT ACCOMPLI 0RECAUTIONARY 0RINCIPLE IS A PRO
ACTIVE METHOD OF DEALING WITH THE
ENVIRONMENT BASED ON THE IDEA THAT IF COSTS OF THE CURRENT ACTIVITIES ARE UNCERTAIN BUT
ARE POTENTIALLY BOTH HIGH AND IRREVERSIBLE THEN SOCIETY SHOULD TAKE ACTION BEFORE THE
UNCERTAINTY IS RESOLVED 4HE INTENT IS TO AVERT MAJOR ENVIRONMENTAL PROBLEMS BEFORE
THE MOST SERIOUS CONSEQUENCES AND SIDE EFFECTS WOULD BECOME OBVIOUS )T WORKS AS DO
NO
HARM PRINCIPLE STRICTO SENSU )T IS DIFCULT FOR THE SOCIETY TO CARRY ON DEVELOPMENT
ACTIVITY WHICH IS ONE OF ITS ESSENTIAL NEEDS WITHOUT SOME KIND OF DAMAGE TO NATURE
ENVIRONMENT AND ECOLOGY 4HE 0RECAUTIONARY 0RINCIPLE IS A TOOL FOR MAKING BETTER
HEALTH AND ENVIRONMENTAL DECISIONS )T AIMS TO PREVENT HARM FROM THE OUTSET RATHER
THAN MANAGE IT AFTER THE FACT HAS OCCURRED )N COMMON LANGUAGE THIS MEANS BETTER
SAFE THAN SORRY 4HE 0RECAUTIONARY 0RINCIPLE DENOTES A DUTY TO PREVENT HARM WHEN IT
IS WITHIN OUR POWER TO DO SO %VEN THE 2IO
DECLARATION FROM THE 5NITED .ATIONS
#ONFERENCE ON %NVIRONMENT AND $EVELOPMENT IN ITS DECLARATION STATES
4HERE ARE TWO WIDELY REFERRED DENITIONS OF THE 0RECAUTIONARY 0RINCIPLE /NE OF
THE MOST IMPORTANT EXPRESSIONS OF THE 0RECAUTIONARY 0RINCIPLE INTERNATIONALLY IS IN
THE 2IO $ECLARATION FROM THE 5NITED .ATIONS #ONFERENCE ON %NVIRONMENT AND
$EVELOPMENT ALSO KNOWN AS !GENDA 4HE DECLARATION STATED )N ORDER TO PROTECT
THE ENVIRONMENT THE PRECAUTIONARY APPROACH SHALL BE WIDELY APPLIED BY 3TATES
ACCORDING TO THEIR CAPABILITIES 7HERE THERE ARE THREATS OF SERIOUS OR IRREVERSIBLE
DAMAGE LACK OF FULL SCIENTIC CERTAINTY SHALL NOT BE USED AS A REASON FOR POSTPONING
COST EFFECTIVE MEASURES TO PREVENT ENVIRONMENTAL DEGRADATION
0RECAUTIONARY 0RINCIPLE PLAYS A SIGNICANT ROLE IN DETERMINING WHETHER
DEVELOPMENTAL PROCESS IS SUSTAINABLE OR NOT 0RECAUTIONARY PRINCIPLE UNDERLIES
SUSTAINABLE DEVELOPMENT WHICH REQUIRES THAT THE DEVELOPMENTAL ACTIVITY MUST BE
4 / \
STOPPED AND PREVENTED IF IT CAUSES SERIOUS AND IRREVERSIBLE ENVIRONMENTAL DAMAGE
4HE EMERGENCE OF 0RECAUTIONARY 0RINCIPLE MARKS A SHIFT IN THE INTERNATIONAL
ENVIRONMENTAL JURISPRUDENCE A SHIFT FROM ASSIMILATIVE CAPACITY PRINCIPLE TO
0RECAUTIONARY 0RINCIPLE
!SSIMILATIVE #APACITY TO 0RECAUTIONARY 0RINCIPLE
! 3HIFT 4HE UNCERTAINTY OF SCIENTIC
PROOF AND ITS CHANGING FRONTIERS FROM TIME TO TIME HAVE LED TO GREAT CHANGES IN THE
ENVIRONMENTAL CONCEPTS DURING THE PERIOD BETWEEN THE 3TOCKHOLM #ONFERENCE OF
AND THE 2IO #ONFERENCE OF ! BASIC SHIFT TO THE APPROACH TO ENVIRONMENTAL
PROTECTION OCCURRED INITIALLY BETWEEN AND %ARLIER THE CONCEPT WAS BASED
ON THE ASSIMILATIVE CAPACITY RULE AS REVEALED FROM 0RINCIPLE OF THE 3TOCKHOLM
$ECLARATION 3O 0RECAUTIONARY 0RINCIPLE IS A PRINCIPLE WHICH ENSURES THAT A SUBSTANCE
OR ACTIVITY POSING THREAT TO THE ENVIRONMENT IS PREVENTED FROM ADVERSELY AFFECTING
IT EVEN IF THERE IS NO CONCLUSIVE SCIENTIC PROOF LINING THAT PARTICULAR SUBSTANCE OR
ACTIVITY TO THE ENVIRONMENTAL DAMAGE 4HE WORDS SUBSTANCE AND ACTIVITY IMPLY
SUBSTANCE OR ACTIVITY INTRODUCED AS A RESULT OF HUMAN INTERVENTION
5NDER ENVIRONMENTAL JURISPRUDENCE THE 0RECAUTIONARY 0RINCIPLE IS STATUTORILY
RECOGNIZED 3ECTION OF THE .ATIONAL 'REEN 4RIBUNAL !CT OBLIGES THE 4RIBUNAL
TO DECIDE CASES AND SETTLE DISPUTES WHILE APPLYING THE THREE WELL KNOWN PRINCIPLES OF
ENVIRONMENTAL JURISPRUDENCE IE 3USTAINABLE $EVELOPMENT 0RECAUTIONARY 0RINCIPLE
AND 0OLLUTER 0AYS 0RINCIPLE !S A RESULT THEREOF TO ALL ENVIRONMENTAL LAWS IN )NDIA THESE
PRINCIPLES WOULD HAVE TO BE UNAVOIDABLY APPLIED 2ESTITUTION AND RESTORATION AGAIN AS
PART OF THE ENVIRONMENTAL JURISPRUDENCE WOULD BE APPLIED IN AID TO THE 0RECAUTIONARY
0RINCIPLE WHERE THE CIRCUMSTANCES LIKE THE PRESENT CASE DEMANDS 2ESTITUTION IS
AN ACT OF MAKING GOOD OR GIVING THE EQUIVALENT FOR ANY LOSS DAMAGE OR INJURY WHILE
RESTORATION IS THE ACT OF RESTORING RENOVATING OR RE ESTABLISHING SOMETHING CLOSE TO ITS
ORIGINAL CONDITION LIKE RESTORING A DAMAGED HABITAT
)N THE RECENT TIMES A SERIOUS CHALLENGE THAT HAS APPEARED BEFORE THE COURTS MORE OFTEN
THAN NOT IS THE BASIS ON WHICH THE 0RECAUTIONARY 0RINCIPLE IS TO BE APPLIED 7HILE
MAKING SUCH DECISIONS BEST POSSIBLE SCIENTIC INFORMATION ANALYSIS OF RISK ECOLOGICAL
IMPACTS AND INDICATION OF COSTS ARE THE FACTORS TO BE CONSIDERED ! PERSON WHO DOES NOT
TAKE PRECAUTION TO PROTECT THE ENVIRONMENT CAN BE CALLED UPON TO PAY FOR RESTITUTION
!LL THESE INGREDIENTS ARE CONSPICUOUS BY THEIR VERY ABSENCE ON THE RECORDS BEFORE US
PARTICULARLY IN RELATION TO THE POINT OF TIME WHEN THE CLEARANCES FOR THE PROJECT WERE
GRANTED
4HE LIABILITY OF A 0ROJECT 0ROPONENT TO MAKE GOOD THE LOSS IS NOT A MATTER RES INTEGRA
ANY LONGER 6ARIOUS JUDGMENTS OF THE (ONBLE 3UPREME #OURT OF )NDIA AS WELL AS OF THIS
4RIBUNAL HAS NOT ONLY DECLARED BUT APPLIED THE 0OLLUTER 0AYS 0RINCIPLE 4HE 0OLLUTER 0AYS
0RINCIPLE TAKES WITHIN ITS AMBIT THE COST OF RESTITUTION AND RESTORATION OF ENVIRONMENT
AND ECOLOGY AS WELL )N THE CASE OF -# -EHTA VS +AMAL .ATH AND /RS 3##
THE (ONBLE 3UPREME #OURT HELD AS UNDER
0/,,54%2 0!93 02).#)0,% HAS ALSO BEEN APPLIED BY THIS #OURT IN VARIOUS
DECISIONS )N )NDIAN #OUNCIL FOR %NVIRO ,EGAL !CTION VS 5NION OF )NDIA ;= 3#2
IT WAS HELD THAT ONCE THE ACTIVITY CARRIED ON WAS HAZARDOUS OR INHERENTLY DANGEROUS
THE PERSON CARRYING ON THAT ACTIVITY WAS LIABLE TO MAKE GOOD THE LOSS CAUSED TO ANY
OTHER PERSON BY THAT ACTIVITY 4HIS PRINCIPLE WAS ALSO FOLLOWED IN 6ELLORE #ITIZENS
7ELFARE &ORUM VS 5NION OF )NDIA AND /RS !)2 3# WHICH HAS ALSO BEEN
DISCUSSED IN THE PRESENT CASE IN THE MAIN JUDGMENT )T WAS FOR THIS REASON THAT THE
-OTEL WAS DIRECTED TO PAY COMPENSATION BY WAY OF COST FOR THE RESTITUTION OF THE
ENVIRONMENT ECOLOGY OF THE AREA "UT IT IS THE FURTHER DIRECTION WHY POLLUTION NE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
IN ADDITION BE NOT IMPOSED WHICH IS THE SUBJECT MATTER OF THE PRESENT DISCUSSION
0OLLUTION IS A CIVIL WRONG "Y ITS VERY NATURE IT IS A 4ORT COMMITTED AGAINST THE
COMMUNITY AS A WHOLE ! PERSON THEREFORE WHO IS GUILTY OF CAUSING POLLUTION HAS
TO PAY DAMAGES COMPENSATION FOR RESTORATION OF THE ENVIRONMENT AND ECOLOGY (E
HAS ALSO TO PAY DAMAGES TO THOSE WHO HAVE SUFFERED LOSS ON ACCOUNT OF THE ACT OF
THE OFFENDER 4HE POWERS OF THIS #OURT UNDER !RTICLE ARE NOT RESTRICTED AND IT CAN
AWARD DAMAGES IN A 0), OR A 7RIT 0ETITION AS HAS BEEN HELD IN A SERIES OF DECISIONS
)N ADDITION TO DAMAGES AFORESAID THE PERSON GUILTY OF CAUSING POLLUTION CAN ALSO BE
HELD LIABLE TO PAY EXEMPLARY DAMAGES SO THAT IT MAY ACT AS A DETERRENT FOR OTHERS
NOT TO CAUSE POLLUTION IN ANY MANNER 5NFORTUNATELY NOTICE FOR EXEMPLARY DAMAGES
WAS NOT ISSUED TO -S 3PAN -OTEL ALTHOUGH IT OUGHT TO HAVE BEEN ISSUED 4HE
CONSIDERATIONS FOR WHICH NE CAN BE IMPOSED UPON A PERSON GUILTY OF COMMITTING
AN OFFENCE ARE DIFFERENT FROM THOSE ON THE BASIS OF WHICH EXEMPLARY DAMAGES
CAN BE AWARDED 7HILE WITHDRAWING THE NOTICE FOR PAYMENT OF POLLUTION NE WE
DIRECT A FRESH NOTICE BE ISSUED TO -S 3PAN -OTEL TO SHOW CAUSE WHY IN ADDITION TO
DAMAGES EXEMPLARY DAMAGES BE NOT AWARDED FOR HAVING COMMITTED THE ACTS SET
OUT AND DETAILED IN THE MAIN JUDGMENT 4HIS NOTICE SHALL BE RETURNABLE WITHIN SIX
WEEKS 4HIS QUESTION SHALL BE HEARD AT THE TIME OF QUANTICATION OF DAMAGES UNDER
THE MAIN JUDGMENT
7E MAY ALSO REFER TO THE JUDGMENT OF THE 4RIBUNAL IN THE CASE OF +RISHAN +ANT 3INGH VS
.ATIONAL 'ANGA 2IVER "ASIN !UTHORITY !,, ) .'4 2EPORTER $ELHI WHERE THE
4RIBUNAL TOOK A VIEW THAT BESIDES PENAL LIABILITY OF THE POLLUTER SOME CIVIL CONSEQUENCES
ARE BOUND TO OW PARTICULARLY IN RELATION TO RESTITUTION RESTORATION AND REMEDYING THE
DAMAGE CAUSED BY THE POLLUTION 4HE 4RIBUNAL HELD AS UNDER
)T IS NOT POSSIBLE TO ASSESS EXACT ENVIRONMENTAL DAMAGE AND THE COST OF
RESTORATION THEREOF IN VIEW OF THE LONG PERIOD INVOLVED IN THE PRESENT CASE AND THE
FACT THAT THE STATUTORY "OARDS EMPOWERED TO PREVENT AND CONTROL POLLUTION HAVE
NOT PERFORMED THEIR STATUTORY DUTIES IN ACCORDANCE WITH THE SPIRIT AND OBJECT OF THE
ENVIRONMENTAL !CTS AND JURISPRUDENCE 4HIS UNIT IS RESPONSIBLE FOR CAUSING GREAT
ENVIRONMENTAL POLLUTION OF DIFFERENT WATER BODIES INCLUDING 0HULDERA DRAIN THE
3YANA %SCAPE CANAL THE 2IVER 'ANGA AND EVEN THE GROUNDWATER IN AND AROUND THE
AREA OF THIS INDUSTRIAL UNIT "ESIDES SCIENTIC DATA OF INSPECTION BY THE %XPERT TEAMS
OFCERS OF THE 0OLLUTION #ONTROL "OARD ANALYSIS REPORT AND THE FACT THAT THE WATER
IN THE 0HULDERA DRAIN HAD TURNED BROWN EVEN TO THE NAKED EYE DEMONSTRATES THE
EXTENT OF POLLUTION CAUSED BY THIS UNIT #ONSIDERING THE MAGNITUDE OF THE POLLUTION
CAUSED BY THE UNIT ITS CAPACITY AND PROSPERITY RESPONSIBILITY OF THE UNIT TO PAY
COMPENSATION CANNOT BE DISPUTED ON ANY PLAUSIBLE CAUSE OR GROUND 4HE 3UPREME
#OURT IN THE CASE OF 3TERLITE )NDUSTRIES )NDIA ,TD VS 5NION OF )NDIA /RS
3## ENUNCIATED THE PRINCIPLE THAT A COMPANY WHICH HAS CAUSED THE DAMAGED TO
THE ENVIRONMENT AND FOR OPERATING THE PLANT WITHOUT VALID RENEWAL OF CONSENT FOR
A FAIRLY LONG PERIOD WOULD OBVIOUSLY BE LIABLE TO COMPENSATE BY PAYING DAMAGES
7HILE RELYING UPON THE JUDGMENT OF THE #ONSTITUTION "ENCH OF THE 3UPREME #OURT IN
THE CASE OF -# -EHTA VS 5NION OF )NDIA 3## THE #OURT FURTHER STATED THAT
THE PLEA OF REASONABLE CARE AND THAT THE DAMAGE TO ENVIRONMENT OCCURRED WITHOUT
SPECIC NEGLIGENCE ON THE PART OF THE UNIT IS NOT A SUSTAINABLE DEFENCE TO A DIRECTION
FOR PAYMENT OF COMPENSATION FOR CAUSING ENVIRONMENTAL DAMAGE 4HE COURT
FURTHER HELD THAT MAGNITUDE CAPACITY AND PROSPERITY OF THE UNIT ARE THE RELEVANT
CONSIDERATIONS FOR DETERMINING THE EXTENT OF THE LIABILITY IN SUCH CASE !PPLYING
THESE PRINCIPLES TO THE FACTS OF THE PRESENT CASE THERE CAN HARDLY BE ANY DISPUTE
THAT IT IS A POLLUTING UNIT )T IS ALSO BEYOND CONTROVERSY THAT THIS UNIT HAS OPERATED
WITHOUT CONSENT OF THE "OARDS FROM TILL THE YEAR THEREAFTER IT COMMITTED
4 / \
DEFAULT IN COMPLIANCE OF THE CONDITIONS OF THE CONSENT RIGHT UP TO THE YEAR
%VEN THEREAFTER IT DID NOT STRICTLY COMPLY WITH THE CONDITIONS AND DIRECTIONS ISSUED
BY THE RESPECTIVE "OARDS 4HIS UNIT IS A DIRECT SOURCE OF POLLUTING 2IVER 'ANGA
4HE UNIT IS A PROT MAKING UNIT .O RECORD HAS BEEN PRODUCED BEFORE THE 4RIBUNAL
TO ESTABLISH ANYTHING TO THE CONTRARY 4HOUGH IT MAY NOT BE POSSIBLE TO DETERMINE
WITH EXACTITUDE THE EXACT AMOUNT OF COMPENSATION PAYABLE ON ACCOUNT OF DAMAGE
TO ENVIRONMENT BECAUSE OF THE LONG PERIOD INVOLVED AND ALSO FOR THE REASON THAT
EVEN SCIENTICALLY THE EXTENT OF DAMAGE AND AMOUNTS REQUIRED FOR RESTORATION AND
RESTITUTION THEREOF CANNOT BE DETERMINED AT THIS STAGE NOW #LEANING AND REMOVAL OF
SLUDGE FROM 0HULDERA DRAIN TREATMENT OF OTHER POLLUTANTS OWING IN THE SAID DRAIN
PREVENTING ANY DISCHARGE INTO THE 3YANA %SCAPE #ANAL AND MAKING 2IVER 'ANGA
POLLUTION FREE ARE THE BASIC NEEDS WHICH REQUIRE ATTENTION OF THE %XPERT BODIES
PARTICULARLY IN THE FACTS AND CIRCUMSTANCES OF THIS CASE 7E X A COMPENSATION OF 2S
CRORES WHICH SHALL BE DEPOSITED WITH THE 500#" AND SHALL BE SPENT FOR THAT PURPOSE
ALONE BY AND JOINT TEAM OF #0#" 500#" -O%& INCLUDING FOR REMOVAL OF SLUDGE AND
ALL POLLUTANTS IN THE 3YANA %SCAPE #ANAL TILL IT JOINS RIVER 'ANGA 4HIS AMOUNT SHALL
ALSO BE USED FOR PREVENTING GROUND WATER POLLUTION
4HE UNIT HAS CAUSED SERIOUS POLLUTION PERSISTENTLY 4HERE IS SUFCIENT MATERIAL BEFORE
THE 4RIBUNAL TO ESTABLISH BOTH DIRECT AND INDIRECT POLLUTION BEING CAUSED BY THIS UNIT
4HE UNIT HAS EVEN INTENTIONALLY FAILED TO COMPLY WITH THE DIRECTIONS AND CONDITIONS
OF THE CONSENT ORDER PASSED BY THE RESPECTIVE "OARDS .OT EVEN SUBMITTING AN
APPLICATION TO THE "OARD FOR OBTAINING CONSENT TO OPERATE SHOWS COMPLETE DISREGARD
TOWARDS LAW AND ITS STATUTORY OBLIGATIONS BY THE UNIT )T IS NOT A ONLY CASE WHERE IT
IS A THREAT TO CAUSE ENVIRONMENTAL POLLUTION BUT IS A CASE OF CAUSING ENVIRONMENTAL
POLLUTION IN FACT 2IGHT TO CARRY ON BUSINESS CANNOT BE PERMITTED TO BE MISUSED OR TO
POLLUTE THE ENVIRONMENT SO AS TO REDUCE THE QUALITY OF LIFE OF OTHERS 2ISK TO HARM TO
ENVIRONMENT OR TO HUMAN HEALTH IS TO BE DECIDED IN THE PUBLIC INTEREST ACCORDING TO
A REASONABLE PERSONS TEST 4HE MANS PERCEPTION WITH REFERENCE TO THE FACTS OF THIS
CASE CANNOT RETURN A NDING ANY DIFFERENT THAN THE ONE RECORDED BY US
2EFERENCE CAN ALSO BE MADE TO ANOTHER JUDGMENT OF 2AYONS
%NLIGHTING (UMANITY
!NR VS -INISTRY OF %NVIRONMENT &ORESTS !,, ) !LL )NDIA .'4 2EPORTER $ELHI
HELD AS UNDER
4HUS WE HAVE NO HESITATION IN HOLDING THAT BOTH THE 2ESPONDENTS .O AND
HAVE VIOLATED THE ORDERS OF THE 4RIBUNAL AND THUS HAVE COMMITTED OFFENCE WHICH
WOULD INVITE THE RIGOURS OF 3ECTION OF THE .'4 !CT READ WITH /RDER 888)8
2ULE
! OF THE #0# 4HE VIOLATION OF THE ORDERS OF THE 4RIBUNAL HAS RESULTED IN
ENVIRONMENTAL DEGRADATION HEALTH HAZARDS AND PREJUDICE TO THE PUBLIC HEALTH AT
LARGE !NOTHER VERY IMPORTANT ASPECT OF THIS CASE IS THE RESTITUTION OF ENVIRONMENT
AT THE SITE IN QUESTION AND ITS SURROUNDINGS !DVERSE IMPACTS OF THIS MUNICIPAL SOLID
WASTE HAVE BEEN DEALT WITH BY US IN GREAT DETAIL IN THE JUDGMENT DATED TH *ULY
AS WELL AS IN THIS ORDER "EFORE IT RESULTS IN IRRETRIEVABLE DAMAGE TO ENVIRONMENT
AND PUBLIC HEALTH WE MUST ALSO TAKE RECOURSE TO PASSING CERTAIN DIRECTIONS WITH
REFERENCE TO THE PRECAUTIONARY PRINCIPLE ASPECT )N OTHER WORDS THE 4RIBUNAL MUST
NOT ONLY PUNISH THE PERSON VIOLATING THE ORDERS BUT ALSO SHOULD DIRECT TAKING ALL
MEASURES WHICH ARE NECESSARY FOR THE PURPOSE OF RESTORATION OF ENVIRONMENT AND
PRECAUTIONS WHICH WOULD HELP IN PREVENTING FURTHER DEGRADATION OF ENVIRONMENT
AND DAMAGE TO PUBLIC HEALTH 3TILL ANOTHER ASPECT OF THE CASE IS THAT THE POLLUTER
SHOULD PAY FOR THE POLLUTION CAUSED BY HIM AND FOR THE PERIOD DURING WHICH SUCH
POLLUTION WAS CAUSED #ONTAMINATION OF WATER POLLUTION OF AMBIENT AIR RELEASE OF
PUNGENT SMELL AND BREEDING OF IES AND OTHER VECTORS RESULTING IN VARIOUS DISEASES
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
ARE THE INEVITABLE AFTER
EFFECTS OF VIOLATION OF THE ORDERS OF THE 4RIBUNAL BY THE
RESPONDENTS
AUTHORITIES AS WELL AS THEIR ACTIONS WHICH WERE INDIRECT CONICT WITH
THE ORDERS OF THE 4RIBUNAL 4HESE INCLUDED DUMPING OF MUNICIPAL SOLID WASTE ON THE
NATIONAL HIGHWAY
AND DIGGING OF PITS IN A MOST UNSCIENTIC WAY AS AFORE
STATED
#ONSEQUENTLY THE RESPONDENTS MUST INCUR THE LIABILITY FOR VIOLATION NON THEIR PART
IN RELATION TO THESE THREE ASPECTS 4HIS IS THE VERY PREMISE AND SCHEME OF SECTIONS
AND READ WITH SECTION TO THE .'4 !CT
%NVIRONMENTAL 0OLLUTION HAS BEEN CAUSED IS AN UNDISPUTABLE FACT (OWEVER
ITS EXTENT MAY LOSE ITS SIGNICANCE IN VIEW OF THE ADMITTED POSITION ON RECORD !
POLLUTER MUST PAY FOR ITS ACTS AND DEEDS RESULTING IN POLLUTION !S ALREADY HELD
ABOVE THE PERMISSION AS REQUIRED UNDER LAW WAS NOT OBTAINED BY THE 2ESPONDENT
.IGAM CONSEQUENTLY BY THE RESPONDENT .OS AND 4HE DUMPING OF MUNICIPAL
WASTE WAS BEING DONE IN A MOST UNSCIENTIC MANNER AND HAD COMMENCED THE
CONSTRUCTION OF THE PLANT AND DUMPING OF MUNICIPAL WASTE WITHOUT PRIOR PERMISSION
EVEN OF THE 0OLLUTION #ONTROL "OARD 7E HAVE ALSO FOUND THAT GRANT OF PERMISSION
BY THE "OARD AT A SUBSEQUENT STAGE WAS AN ARBITRARY EXERCISE OF POWERS 4HUS FOR
CAUSING POLLUTION OVER THE LONG PERIOD AND PARTICULARLY WHEN IT WAS IN VIOLATION
TO THE ORDERS OF THE 4RIBUNAL WE MUST HOLD THE .IGAM LIABLE TO PAY COMPENSATION
FOR RESTITUTION AND RESTORATION OF THE ENVIRONMENT 4HE AMOUNT SO DIRECTED SHOULD
BE USED FOR REMEDYING THE WRONG AS WELL AS TO PREVENT FUTURE DAMAGE 4HE REPORT
OF THE LOCAL COMMISSIONER ALSO CLEARLY ESTABLISHES THE POLLUTION RESULTING FROM THE
ACTIVITY CARRIED OUT BY THE RESPONDENT .OS AND TO CONTAMINATION OF GROUND
WATER AND OTHER ENVIRONMENTAL POLLUTION !T THIS STAGE IT MAY BE APPROPRIATE FOR US
TO REFER TO A RECENT JUDGMENT OF THE (ONBLE 3UPREME #OURT IN THE CASE OF -S 3TERLITE
)NDUSTRIES )NDIA ,TD VS 5NION OF )NDIA /RS !LL )NDIA .'4 2EPORT PAGE
7HERE THE (ONBLE 3UPREME #OURT HAVING FOUND THAT THE 3TERLITE HAD OPERATED
WITHOUT RENEWAL OF THE CONSENT OF THE 4AMIL .ADU 0OLLUTION #ONTROL "OARD FOR A
FAIRLY LONG PERIOD AND HAVING POLLUTED THE ENVIRONMENT HELD THE 3TERLITE )NDUSTRIES
LIABLE FOR PAYMENT OF COMPENSATION TO THE EXTENT OF 2S CRORES 7E FOLLOW THIS
PRINCIPLE AND APPLY IT TO THE PRESENT CASE WITHOUT ANY LEGAL IMPEDIMENT &OLLOWING
THIS PRINCIPLE WE ARE OF THE CONSIDERED VIEW THAT A SUM OF 2S ,AKH PER DAY WOULD
BE AN APPROPRIATE DIRECTION FOR RESTORATION OF THE SITE TO ITS ORIGINAL CONDITION AS WELL
AS ON ACCOUNT OF PREVENTING FURTHER DAMAGE TO THE ENVIRONMENT &OR THIS PURPOSE
WE WOULD ALSO APPOINT A #OMMITTEE WHICH SHALL ENSURE COMPLIANCE AND PROPER
SPENDING OF THE AMOUNT SO DEPOSITED
)N THE PRESENT CASE IT IS NOT ONLY THE CASE OF THE APPLICANT BUT EVEN THE 0ROJECT 0ROPONENT
HAS ADMITTED TO THE DAMAGE TO THE ENVIRONMENT AND ECOLOGY !CCORDING TO THE 0ROJECT
0ROPONENT IT WAS UNINTENTIONAL AND BONA DE AND HE EVEN DOES NOT DISPUTE THAT A
NUMBER OF TREES HAVE BEEN DAMAGED AS A RESULT OF CONSTRUCTION OF THE ROAD WHICH ARE
BEYOND TREES IN THE FOREST AREA FOR WHICH HE HAD OBTAINED PERMISSION TO FELL !S
ALREADY DISCUSSED ABOVE THE 0RECAUTIONARY 0RINCIPLE MAY LOSE ITS MATERIAL RELEVANCY
WHERE THE PROJECTS HAVE BEEN SUBSTANTIALLY COMPLETED AND EVEN IRREVERSIBLE DAMAGE
TO ENVIRONMENT AND ECOLOGY HAS ALREADY BEEN CAUSED 4HE SITUATION MAY BE DIFFERENT
WHEN INVOKING THIS PRINCIPLE IN CASES OF PARTIALLY COMPLETED PROJECTS WHERE IT WOULD
BECOME NECESSARY TO TAKE IMMEDIATE REMEDIAL STEPS FOR THE PROTECTION OF ENVIRONMENT
WITHOUT ANY FURTHER DELAY
)N THE PRESENT CASE IT MAY STILL BE POSSIBLE TO TAKE STEPS AT THIS STAGE WHILE ANY FURTHER
DELAY WOULD RENDER THEM ABSOLUTELY IMPRACTICABLE 4HE 0RECAUTIONARY 0RINCIPLE IS
A PROACTIVE METHOD OF DEALING WITH THE LIKELY ENVIRONMENTAL DAMAGE 4HE PURPOSE
ALWAYS SHOULD BE TO AVERT MAJOR ENVIRONMENTAL PROBLEMS BEFORE THE MOST SERIOUS
CONSEQUENCES AND SIDE EFFECTS WOULD BECOME OBVIOUS )N SOME CASES THIS PRINCIPLE
4 / \
MAY HAVE TO BE APPLIED WITH GREATER RIGOR PARTICULARLY WHEN THE FAULTS OR ACTS OF
OMISSION ANDOR COMMISSION ARE ATTRIBUTABLE TO THE 0ROJECT 0ROPONENT 4HE 0RINCIPLE
OF 3USTAINABLE $EVELOPMENT BY NECESSARY IMPLICATION REQUIRES DUE COMPLIANCE TO
THIS PRECAUTIONARY PRINCIPLE AS WELL AS TO THE DOCTRINE OF BALANCING )T IS ONLY SUCH AN
APPROACH THAT COULD REALLY PROTECT THE INTEREST OF ENVIRONMENT AND ECOLOGY
!S A CUMULATIVE RESULT OF THE ABOVE DISCUSSION WHILE DECLINING TO QUASH THE
-EMORANDUM OF 5NDERSTANDING DATED RD 3EPTEMBER AND THE %NVIRONMENTAL
#LEARANCE DATED TH 3EPTEMBER WE ARE STILL OF THE CONSIDERED VIEW THAT IT IS
NECESSARY FOR THE 4RIBUNAL TO ISSUE CERTAIN DIRECTIONS TO PROTECT THE ENVIRONMENT AND
ECOLOGY OF THE CONCERNED AREA PARTICULARLY IN REGARD TO ITS RESTORATION AND RESTITUTION
AS WELL AS COLLECTION OF RELEVANT DATA AND MATERIAL BEFORE 0ROJECT 0ROPONENT COULD CARRY
ITS ACTIVITY ANY FURTHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE 7E THEREFORE PASS
THE FOLLOWING ORDERS AND DIRECTIONS
7E HEREBY CONSTITUTE AN %XPERT #OMMITTEE OF
A !DDITIONAL #HIEF 3ECRETARY %NVIRONMENT &OREST 3TATE OF (IMACHAL 0RADESH
B -EMBER 3ECRETARY (IMACHAL 0RADESH 3TATE 0OLLUTION #ONTROL "OARD
C !N /FCER NOT BELOW THE RANK OF $IRECTOR IN THE RELEVANT ELD AS NOMINATED
BY THE -O%&
D ! REPRESENTATIVE OF (IMALAYAN &OREST 2ESEARCH )NSTITUTE 3HIMLA
E $IRECTOR ANDOR HIS NOMINEE FROM THE CONCERNED ELD FROM THE 0UNJAB
%NGINEERING #OLLEGE #HANDIGARH
F 0RINCIPLE #HIEF #ONSERVATOR OF &OREST OR HIS NOMINEE NOT BELOW THE RANK OF
#HIEF #ONSERVATOR OF &OREST 3TATE OF (IMACHAL 0RADESH
4HE ABOVE #OMMITTEE SHALL VISIT THE PROJECT SITE AND SUBMIT A COMPREHENSIVE
REPORT TO THE 4RIBUNAL WITHIN DAYS FROM THE DATE OF PASSING OF THIS JUDGMENT
4HE #OMMITTEE SHALL SPECICALLY COMMENT ON THE ADEQUACY OR OTHERWISE OF
MAINTAINING OW OF THE RIVER AS ENVIRONMENTAL OW AND IF THERE IS NEED FOR ANY
VARIATION IN THAT REGARD
4HE #OMMITTEE IN ITS REPORT SHALL BRING OUT CLEARLY WHETHER THE CONDITIONS STATED
IN THE &OREST #LEARANCE AND IN %NVIRONMENTAL #LEARANCE HAVE BEEN STRICTLY COMPLIED
WITH OR NOT BY THE 0ROJECT 0ROPONENT 0ROGRESS IN THAT BEHALF AND PARTICULARLY
WITH REGARD TO BIODIVERSITY CONSERVATION AND MANAGEMENT PLAN COMPENSATORY
AFFORESTATION SETTING UP A -USK $EER &ARM AND IMPLEMENTATION OF THE #!4 0LAN
SHALL ALSO BE REPORTED
(OW MANY TREES HAVE BEEN FELLEDCUT BY THE 0ROJECT 0ROPONENT FROM THE FOREST
AREA 4HE NUMBER OF TREES THAT HAVE BEEN OTHERWISE DAMAGED BY THE CONSTRUCTION
ACTIVITY OF THE PROJECT AND IF THE GURE OF TREES LIKELY TO BE DAMAGED FROM
CONSTRUCTION ACTIVITIES AS GIVEN BY THE &OREST $EPARTMENT IS CORRECT OR NOT IN THAT
REGARD
7HAT ARE THE DAMAGES SPECICALLY TO ENVIRONMENT ECOLOGY AND OTHER DAMAGE
CAUSED BY THE CONSTRUCTION ACTIVITY OF THE PROJECT 7HAT PART OF SUCH DAMAGE IS
CAPABLE OF BEING RESTORED AND HOW MUCH DAMAGE IS IRREVERSIBLE
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
)TS RECOMMENDATIONS WITH REGARD TO RESTORATION RESTITUTION OF THE DAMAGE ALREADY
DONE
)T WILL ALSO MAKE RECOMMENDATIONS ON WHAT ARE THE ADVERSE ECONOMICAL IMPACTS
ON THE LIFE AND LIVELIHOOD OF THE PEOPLE AROUND THE SITE AREA AND ALSO HAS THERE BEEN
COMPLIANCE OF THE 22 0OLICY
4HE 0ROJECT 0ROPONENT SHALL DEPOSIT A SUM OF 2UPEES &IVE CRORES WITH THE
&OREST $EPARTMENT 'OVERNMENT OF (IMACHAL 0RADESH AS AN INITIAL DEPOSIT FOR
ENVIRONMENT CONSERVATION SUBJECT TO NAL ADJUSTMENTS 7E ALSO MAKE IT CLEAR THAT
THE 0ROJECT 0ROPONENT SHALL ALSO BE ENTITLED TO THE ADJUSTMENT OF THE AMOUNTS PAID
FOR DESTRUCTION OF TREES SO FAR UPON NAL SETTLEMENT OF ACCOUNTS AS PER ORDERS OF THE
4RIBUNAL 4HESE AMOUNTS SHALL BE UTILIZED EXCLUSIVELY FOR RESTITUTION AND RESTORATION
OF ENVIRONMENT AND ECOLOGY AND FOR SUCH OTHER PURPOSES AS MAY BE DIRECTED BY THE
4RIBUNAL 4HIS AMOUNT SHALL ALSO BE UTILIZED FOR THE PURPOSES OF PAYMENTS TO PEOPLE
WHO HAVE LOST INCOME BECAUSE OF DIVESTMENT OF THE #HILGOZA 4REES BECAUSE OF ROAD
CONSTRUCTION OR OTHER PROJECT ACTIVITIES FURTHER DIRECTIONS WOULD DEPEND UPON THE
SUBMISSION OF THE REPORT BY THE COMMITTEE
4HIS AMOUNT SHOULD BE DEPOSITED WITHIN FOUR WEEKS FROM THE DATE OF PRONOUNCEMENT
OF THE *UDGMENT
4HE 0ROJECT 0ROPONENT SHALL NOT CARRY OUT ANY CONSTRUCTION ACTIVITY FOR A PERIOD
OF DAYS OR TILL THE INSPECTION IS COMPLETED BY THE %XPERT #OMMITTEE WHICHEVER IS
EARLIER
!FTER THE EXPIRY OF THE DAYS THE 0ROJECT 0ROPONENT CAN CARRY OUT CONSTRUCTION
ACTIVITY IN ACCORDANCE WITH LAW UNLESS OTHERWISE DIRECTED TO STOP SUCH ACTIVITY BY
THE 4RIBUNAL
4HE 0ROJECT 0ROPONENT SHALL CARRY ON ITS ACTIVITY AFTER THE EXPIRY OF DAYS ONLY IN
ACCORDANCE WITH AND UPON TAKING SUCH REMEDIAL MEASURES AS ARE SUGGESTED BY THE
#OMMITTEE AFORE
STATED AND THE ORDERS OF THE 4RIBUNAL AS MAY BE PASSED IN FUTURE
)T IS UNDISPUTED THAT THE 0ROJECT 0ROPONENT IS OBLIGED TO PLANT AT OR AROUND THE
PROJECT SITE AT LEAST TEN
TIMES OF THE UPROOTEDDAMAGED TREES 4HE FOREST DEPARTMENT
ALONG WITH THE 0ROJECT 0ROPONENT AND A REPRESENTATIVE FROM THE (IMALAYAN &OREST
2ESEARCH )NSTITUTE 3HIMLA SHALL ENSURE AND BE RESPONSIBLE OF THE AFFORESTATION OF
THE TREES AND THE PLANTS OF LOCAL SPECIES OR OTHER RECOMMENDED SPECIES PARTICULARLY
#HILGOZA 4RESS 4HEY SHALL BE RESPONSIBLE TO MAINTAIN AND PROTECT THE PLANTS SO
PLANTED 4HE TIME
BOUND ACTION PLAN SHALL BE PREPARED BY THESE PERSONS AND
SUBMITTED TO THE 4RIBUNAL WITHIN DAYS FROM PASSING OF THIS *UDGMENT
4HE !DDITIONAL #HIEF 3ECRETARY 3TATE OF (IMACHAL 0RADESH SHALL BE THE .ODAL
/FCER FOR COMPLIANCE OF THIS ORDER 7E DIRECT THE /FCER TO TAKE IMMEDIATE STEPS
FOR COMPLIANCE OF THIS ORDER
4HE -O%& WITHIN THREE DAYS FROM TODAY SHALL INFORM ITS NOMINEE TO THE !DDITIONAL
#HIEF 3ECRETARY 3TATE OF (IMACHAL 0RADESH !LL EXPENSES OF THE #OMMITTEE SHALL BE
BORNE BY THE 0ROJECT 0ROPONENT
4HE #OMMITTEE SHALL SUBMIT ITS REPORT TO THE REGISTRY OF THE 4RIBUNAL WITHIN
DAYS FROM TODAY WHICH THEN SHALL BE PLACED BEFORE THE 4RIBUNAL BY THE REGISTRY FOR
ISSUANCE OF SUCH FURTHER DIRECTIONS AS THE 4RIBUNAL MAY DEEM T AND PROPER IN THE
4 / \
CIRCUMSTANCES OF THE CASE
7ITH THE ABOVE DIRECTIONS THE /RIGINAL !PPLICATION .O AND -! .O OF
STAND PARTLY ALLOWED AND -! .OS OF OF STAND ALLOWED WITHOUT
ANY ORDERS AS TO COSTS
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
$)342)#4 !.$
-!')342!4%3
#/5243
4!",% /& *5$'-%.43 !.$ /2$%23
3
TATE VS 0ABITRA 2AVA /RS
!DDITIONAL #HIEF *UDICIAL -AGISTRATE !LIPURDUAR \ '2 .O OF &)2 NO
0OLICE 3TATION +ALCHINI \
&
OREST 2ANGE /FCERS VS 5NKNOWN
*UDICIAL -AGISTRATE &IRST #LASS \ &/# .O
\
-
R 2# 2OHMINGTHANGA VS 3TATE OF -IZORAM /RS
3ENIOR #IVIL *UDGE
BEFORE (4 ,ALRINCHANNA !IZWAL $IST !IZWAL -IZORAM \
$ECLARATORY 3UIT .O OF UNREPORTED \
4 / \
3TATE VS 0ABITRA 2AVA /RS
'2 ./ /& &)2 ./ 0/,)#% 34!4)/. +!,#().)
!$$)4)/.!, #()%& *5$)#)!, -!')342!4% !,)052$5!2
#/2!- !3 -5+(!0!$(9!9 !#*- ). #(!2'% !,)052$5!2
3 5 - -!29
4HE ACCUSED PERSONS ARE FOREST DWELLERS WHO HAD GATHERED TOGETHER TO DRAW
ATTENTION TO CERTAIN WRONGDOINGS OF THE LOCAL FOREST OFFICIALS FOR WHICH PURPOSE
THEY HAD ALSO INVITED MEDIA PERSONS TO BE PRESENT
4HE FOREST DEPARTMENT REGISTERED AN &)2 AGAINST THEM BEING &)2 .O
FOR VARIOUS CRIMES UNDER THE )NDIAN 0ENAL #ODE INCLUDING 3ECTION WRONGFUL
RESTRAINT 3ECTION ASSAULT OR CRIMINAL FORCE TO DETER PUBLIC SERVANT FROM
DISCHARGE OF HIS DUTY 3ECTION CRIMINAL INTIMIDATION READ WITH 3ECTION
ACTS DONE IN FURTHERANCE OF COMMON INTENTION
4HE ACCUSED WHO VOLUNTARILY SURRENDERED IN #OURT FILED APPLICATION FOR GRANT OF
BAIL BEING '2 .O WHICH WAS DISPOSED OF BY THE PRESENT ORDER
4HE ACCUSEDAPPLICANTS ARGUED THAT THEY ARE MEMBERS OF THE 'RAM 3ABHA IN TERMS
OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 2IGHTS !CT &2! AND ARE ENTITLED TO POINT OUT THE WRONGDOING OF THE
FOREST OFFICIALS 4HEY ARGUED THAT INSTEAD OF RECOGNISING THE LEGAL POSITION THE
FOREST OFFICIALS HAVE REGISTERED A CRIMINAL CASE AGAINST THEM
4HE !DDITIONAL 0UBLIC 0ROSECUTOR ON THE OTHER HAND ARGUED THAT THIS IS AN IRRELEVANT
CONTENTION WITH REGARD TO THE COMMISSION OF THE CRIMES
4HE #OURT TOOK INTO ACCOUNT THE ARGUMENT OF THE ACCUSED APPLICANTS AND ALSO
THE FACT THAT THEY HAD VOLUNTARILY SURRENDERED BEFORE THE #OURT AND ACCORDINGLY
DECIDED TO GRANT THEM BAIL ON THE SUBMISSION OF BAIL BOND AND SURETY FOR THE SUM
OF 2S RUPEES FIVE HUNDRED EACH 4HE BAIL BONDS WERE SUBMITTED ON THE SAME
DAY AND THE ACCUSED WERE IMMEDIATELY RELEASED FROM CUSTODY
$ISCUSSION WITH COUNSEL FOR THE ACCUSED REVEALED THAT THE WRONGDOING OF THE FOREST OFCIALS RELATED TO
FELLING OF TREES WITHIN THE COMMUNITY FOREST RESOURCE WHICH WAS OPPOSED BY THE 'RAM 3ABHA
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
% $ )4/23 . /4%
"EING AN ORDER PASSED BY A -AGISTRATES #OURT THIS ORDER DOES NOT HAVE PRECEDENT
VALUE )T IS SIGNIFICANT HOWEVER FOR THE REASON THAT IT REFLECTS THE CONTESTED NATURE
OF LEGALITY AND ILLEGALITY AND THE CONSEQUENT ALTERATION IN THE BALANCE OF POWER
BETWEEN THE VILLAGE COMMUNITY AND THE 3TATE 4HEREFORE ACTS SUCH AS FELLING OF
TREES ACCORDING TO THE WORKING PLAN WHICH WERE PAR FOR THE COURSE BEFORE COULD
FALL FOUL OF THE 'RAM 3ABHAS PLANS TO CONSERVE AND MANAGE THEIR COMMUNITY FOREST
RESOURCES IN TERMS OF 3ECTION AND 3ECTION M OF &2! /N THE OTHER HAND
ACTIONS WHICH WERE DEFINED AS FOREST OFFENCES UNDER THE PRE
EXISTING FOREST LAW
REGIME SUCH AS THE )NDIAN &OREST !CT AND THE 7ILDLIFE 0ROTECTION !CT
MAY NOW FALL WITHIN THE FRAMEWORK OF FOREST RIGHTS PROTECTED AND RECOGNISED UNDER
THE &2! 4HAT THE FOREST DWELLERS AND RIGHTS HOLDERS HAVE STARTED USING THE &2! IN
ORDER TO ASSERT THEIR LACK OF CULPABILITY UNDER THE PRE
EXISTING FOREST LAW REGIME
WHILE ASSERTING THEIR POWERS UNDER &2! IS A VERY SIGNIFICANT DEVELOPMENT
/2$ % 2 3 (% % 4
$ISTRICT
*ALPAIGURI
)N THE #OURT OF THE !DDL #HIEF *UDICIAL -AGISTRATE !LIPURDUAR
'2 .O
2EF +ALCHINI 03 #ASE .O DT
US )0#
3TATE
6ERSUS
0ABITRA 2AVA AND OTHERS
$ATED
2ECORD IS PUT UP BY PETITION !CCD 3AMPU -INZ "IR 2AVA !RUN "ASUMATA AND
3UBASH 2AVA ARE SURRENDERED BY PETITION 3EEN THE ACCD PERSONS AND TAKEN INTO CUSTODY
4O FOR PRODUCTION "AIL PETITION LED FOR THE ACCUSED PERSONS
(EARD #ONSIDERED
)T HAS BEEN SUBMITTED BY ,D LAWYER FOR THE ACCUSED PERSONS THAT THE ACCUSED PERSONS
ARE MEMBERS OF 'RAM 3ABHA IN TERMS OF 3CHEDULED 4RIBES AND /THER TRADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT AND THEY ONLY PRAYED BEFORE THE
FOREST OFCIALS TO ACT IN CONFORMITY WITH THE PROVISIONS OF SAID !CT BUT EVEN TAKING INTO
CONSIDERATION THEIR PRAYER THE PRESENT COMPLAINT WAS LODGED AGAINST THEM )T HAS ALSO
BEEN SUBMITTED BY HIM THAT FORWARDING REPORT ITSELF REVEALS THAT MEDIA PERSONS WERE
CALLED BY THE ACCUSED PERSONS WHICH SHOWS THAT THEY DID NOT INTEND TO COMMIT OFFENCE
BUT ONLY WANTED TO EXPOSES THE WRONG DOING OF THE FOREST OFCIALS
,D !00 SUBMITTED THAT SUCH CONTENTION IS NOT RELEVANT FOR THE PURPOSE OF THE PRESENT
CASE AND NECESSARY ORDER MAY BE PASSED IN THIS RESPECT
#ONSIDERED THE SUBMISSION
!FTER CONSIDERING THE SUBMISSION OF BOTH SIDES AND TAKING INTO ACCOUNT NATURE OF THE
ALLEGED OFFENCE AND THE FACT THAT ALL THE ACCUSED PERSONS VOLUNTARILY SURRENDERED BEFORE
THE #OURT PRAYER FOR BAIL IS ALLOWED !CCUSED PERSON MAY ND BAIL FOR BOND OF 2S
EACH WITH ONE SURETY OF LIKE AMOUNT IE TO *# TO DATE
4 / \
3D
,ATER "AIL "ONDS ARE FURNISHED BY THE !DVOCATE SURETY +ALLOL .AG FOR THE ACCD NAMELY
!RUN "ASUMATA "IR 2AVA 3UBASH 2AVA AND 3AMPU -INZ
"AIL "ONDS ARE FOUND T AND ACCEPTED 4O RELEASE THEM FROM CUSTODY
3D
!3 -UKHAPADHYAY
!#*- IN CHARGE
*- ST #OURT !LIPURDUAR
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
&OREST 2ANGE /FCERS VS 5NKNOWN
!00,)#!.4 3%#9 (/3!0/$5 '2!-! 3!"(!
&/# ./
*5$)#)!, -!')342!4% &)234 #,!33 #(!-!2!*!.!'!2 +!2.!4!+!
).4%2)- /2$%2
3 5--!29
4HE &OREST $EPARTMENT HAD SEIZED HONEY COLLECTED FROM THE FOREST BY UNKNOWN
FOREST DWELLERS AND REGISTERED A FOREST OFFENCE BEING &/# .O
WHICH
CAME UP FOR FURTHER PROCEEDINGS BEFORE THE *-&#
!N APPLICATION WAS MOVED UNDER 3ECTION THE #RIMINAL 0ROCEDURE #ODE BY THE
3ECRETARY (OSAPODU 'RAMA 3ABHA SEEKING THE RELEASE OF KGS OF HONEY SEIZED
INTO HIS PERSONAL INTERIM CUSTODY UNTIL DISPOSAL OF THE CRIMINAL CASE
4HE APPLICANT STATED THAT THE MEMBERS OF THE (OSAPODU 'RAM 3ABHA HAVE BEEN
COLLECTING HONEY AS PER THE LAW AND ALSO UNDER CUSTOMARY RIGHT )T RELIED UPON THE
HAKKU PATRA ISSUED TO THEM AS WELL AS THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL
&OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT &2! THE BILLS OF 6ALUE
!DDITION #ENTRE AND THE JUDGMENT OF THE 3UPREME #OURT IN THE .IYAMGIRI CASE
4HE PROSECUTOR REPRESENTING THE 3TATE &OREST $EPARTMENT OBJECTED TO THIS APPLICATION
ARGUING THAT IF THE HONEY IS RELEASED THE NATURE OF THE HONEY CAN BE ALTERED OR THE
APPLICANT MAY EVEN DISPOSE OF IT WHICH WOULD ADVERSELY AFFECT THE TRIAL
4HE #OURT REVIEWED THE (AKKU 0ATRA ISSUED BY THE $EPUTY #OMMISSIONER TO
MEMBERS OF (OSAPODU 'RAM 3ABHA AND ALSO THE EVIDENCE THAT MEMBERS OF THE
(OSAPODU VILLAGE HAVE FORMED A 3AMPIGE 6ALUE !DDITION #ENTRE WHICH HAS BEEN
COLLECTING HONEY FROM ITS MEMBERS AS WELL AS ISSUING THE BILLS OF THE PAYMENTS
MADE AT THE TIME OF COLLECTING HONEY 4HE #OURT ARRIVED AT THE CONCLUSION THAT THE
TRIBAL PEOPLE ARE EMPOWERED TO COLLECT MINOR FOREST PRODUCE FOR THEIR LIVELIHOOD
INCLUDING HONEY AS PER LAW AND CUSTOMARY RIGHTS !CCORDINGLY THE #OURT HELD THAT
THE APPLICANTS ARE AUTHORIZED TO COLLECT THE HONEY AND THEREFORE THE OBJECTIONS OF
THE &OREST $EPARTMENT DO NOT STAND
/RISSA -INING #ORPORATION VS -INISTRY OF %NVIRONMENT AND &ORESTS /RS 3##
4 / \
4HEREFORE THE #OURT DIRECTED THE RELEASE OF THE HONEY TO THE INTERIM CUSTODY OF THE
APPLICANT (OSAPODU 'RAM 3ABHA 4HIS ORDER WAS MADE SUBJECT TO EXECUTION OF AN
INDEMNITY BOND OF 2S 4HE 2ANGE &OREST /FFICER WAS DIRECTED TO CONDUCT
PROPER PANCHANAMA FOR HANDING OVER THE HONEY TO APPLICANT TO TAKE COLOUR
PHOTOGRAPHS OF ALL ARTICLES FROM ALL ANGLES FOR IDENTIFICATION AS WELL AS DRAW A
MAHAZAR TO THAT EFFECT AND PRODUCE PHOTOS OF HONEY ALONG WITH MAHAZAR AND FINAL
REPORT
% $ ) 4 /23 . /4%
/NE OF THE FEW JUDGMENTS AVAILABLE FROM CRIMINAL COURTS AT THE $ISTRICT LEVEL THIS
CASE PROVIDES A RARE INSIGHT INTO HOW THE USE OF &2! IN A CRIMINAL PROCEEDING
INITIATED UNDER PRE
EXISTING FOREST LEGISLATIONS CAN SHIFT THE BALANCE OF POWER
BETWEEN THE 3TATE AND THE FOREST DWELLERS ALBEIT ONE STEP AT A TIME )T IS ALSO
ADMIRABLE HOW WELL PREPARED THE COUNSEL FOR THE APPLICANTS WAS SUBMITTING FOR
THE EXAMINATION OF THE #OURT NOT ONLY A COPY OF THE &2! BUT ALSO THE NOTIFICATION DT
BRINGING IT INTO FORCE AS ALSO AS THE .IYAMGIRI CASE SUPRA JUDGMENT WHICH
HAD BEEN PRONOUNCED ONLY A FEW WEEKS PREVIOUSLY BY THE 3UPREME #OURT
& / # . /
/ 2 $ %2 3 / . ! 0 0 ,)#! 4)/ . & ),% $ "9 4 ( % !00,)#!.4 53 /& #2 0 #
4HIS APPLICATION IS LED BY THE APPLICANT BY NAME 3RI -ADESHA " WHO IS THE SECRETARY OF
(OSAPODU 'RAMA 3ABHA FOR RELEASE OF (ONEY SEIZED IN &/# .O
TO HIS INTERIM
CUSTODY TILL THE DISPOSAL OF THE CASE
4HE ,EARNED !00 HAS LED OBJECTS TO THE APPLICATION
(EARD THE ARGUMENT PERUSED THE MATERIALS PLACED ON RECORD 4HE APPLICANT HAS PRODUCED
THE XEROX COPY OF THE (AKKU PATHRA ISSUED BY THE (ONBLE $EPUTY #OMMISSIONER TO
THE MEMBERS OF THE (OSAPODU 'RAMA 3ABHA THE 'AZETTE OF )NDIA DATED 4HE
3CHEDULE 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
NOTICATION DATED *UDGMENT IN 70 .O OF (ONBLE 3UPREME
#OURT OF )NDIA 8EROX COPIES OF THE HILLS OF 3AMPIGE 6ALUE !DDITION #ENTER
!FTER PERUSAL OF THE MATERIALS ON RECORD IT APPEARS TO THIS #OURT THAT THE MEMBERS OF
THE (OSAPODU VILLAGE 0UNAJANURU POST #HAMARAJANAGAR 4Q HAVE FORMED A 3AMPIGE
6ALUE !DDITION #ENTER AND COLLECTING THE HONEY FROM ITS MEMBERS AND ISSUING THE BILLS
REGARDING PAYMENT MADE AT THE TIME OF COLLECTING THE HONEY !FTER PERUSAL OF (AKKU
PATHRA ISSUED BY THE (ONBLE $EPUTY #OMMISSIONER TO THE MEMBERS OF THE (OSAPODU
'RAMA 3ABHA IT APPEARS TO THIS #OURT THAT THE 4RIBAL PEOPLES ARE EMPOWERED TO
COLLECT THE MINOR &OREST PRODUCE FOR THEIR LIVELIHOOD )N THE 'AZETTE DATED
4HE 'OVERNMENT OF )NDIA HAS AUTHORISED THE 4RIBAL PEOPLE TO COLLECT THE MINOR &OREST
PRODUCE INCLUDING THE HONEY )N THE INSTANT CASE THE APPLICANT HAS CLEARLY STATED THAT THE
MEMBERS OF THE (OSAPODU 'RAMA 3ABHA HAVE COLLECTED THE HONEY AS PER THE LAW AND
ALSO UNDER CUSTOMARY RIGHT 4HE MATERIALS ON RECORDS REVEALS THAT THE 2&/ OF 0UNAJANURU
HAS SEIZED THE SAID HONEY 4HOUGH IT IS NOT THE STAGE TO DISCUSS IN MERITS OF THE CASE IT
APPEARS THAT THE APPLICANT AND OTHERS HAVE COLLECTED THE HONEY IN ACCORDANCE WITH LAW
)N THE INTEREST OF THE 4RIBAL PEOPLES THIS #OURT IS OF THE OPINION THAT THE HONEY SEIZED
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
IN THE SAID &/# .O
HAS TO RELEASE TO THE APPLICANT FOR THE LIVELIHOOD OF THE
MEMBERS OF THE SAID (OSAPODU
4HE ,D !00 HAS LED OBJECTIONS AND THEREBY OBJECTED ON THE GROUND THAT IF THE SAID
HONEY IS RELEASED TO INTERIM CUSTODY OF THE APPLICANT THEN HE MAY ALTER THE NATURE OF THE
HONEY AND ALSO DISPOSE THE SAME WHICH IN TURN AFFECT THE TRIAL 7HEN THE APPLICANT HAS
PRODUCED THE MATERIALS TO SHOW THAT THEY ARE AUTHORISED TO COLLECT THE HONEY AND ALSO
TO USE THE SAME AS THEIR LIVELIHOOD THE OBJECTIONS OF THE ,D !00 CANNOT BE CONSIDERED
)F THE HONEY IS ALLOWED TO STAND FOR A LONG TIME IN THE CUSTODY OF THE &OREST OFCIALS THEN
IT BECOMES UNWORTHY AND ALSO LOST ITS ORIGINAL CHARACTER +EEPING THE SEIZED HONEY IN
THE CUSTODY OF THE &OREST OFCIALS NO PURPOSE WILL BE SERVED
)T IS RELEVANT TO REFER THE RATIO LAID DOWN BY THE (ONBLE !PEX #OURT OF )NDIA WHICH IS
REPORTED IN !)2 3502%-% #/524 3UNDERBAHI !MBALAL $ESAI VS 3TATE OF 'UJARAT
AND #- -UDALIAR VS 3TATE OF 'UJARAT WHEREIN IT HAS HELD AS UNDER
#RIMINAL 0# OF 3
$ISPOSAL OF PROPERTY PENDING TRIAL
0OWERS OF COURT
0OWERS UNDER 3 SHOULD BE EXERCISED EXPEDITIOUSLY AND JUDICIOUSLY
#OURT TO
PASS APPROPRIATE ORDERS IMMEDIATELY AND ARTICLES ARE NOT TO BE KEPT FOR A LONG TIME
AT POLICE STATION IN ANY CASE FOR NOT MORE THAN DAYS TO ONE MONTH
0ROCEDURE FOR
DISPOSAL OF SEIZED VALUABLE ARTICLES AND CURRENCY NOTES VEHICLES SEIZED LIQUOR AND
.ARCOTIC DRUGS SUGGESTED
4HIS COURT HAS CAREFULLY PERUSED THE RATIO LAID DOWN IN THE ABOVE SAID CASE "Y APPLYING
THE RATIO TO THE FACTS ON HAND THIS #OURT IS OF THE OPINION THAT BEFORE HANDING OVER THE
POSSESSION OF THE ABOVE SAID HONEY A DIRECTION CAN BE ISSUED TO THE 2&/ 0UNAJANURU FOR
CONDUCTING PROPER PANCHANAMA FOR HANDING OVER THE SAID HONEY TO THE APPLICANT "Y
ISSUING THIS DIRECTION TO THE 2&/ THE APPREHENSION OF THE 0ROSECUTION MAY BE MET OUT
(ENCE ) PROCEED TO PASS THE FOLLOWING
/ 2 $ %2
4HE (ONEY SEIZED BY THE 2&/ 0UNAJANURU IN &/# .O IS ORDERED TO BE RELEASE TO
THE INTERIM CUSTODY OF THE APPLICANT SUBJECT TO FOLLOWING
#/ . $)4)/ . 3
4HE APPLICANT SHALL EXECUTE AN INDEMNITY BOND FOR 2S
4HE 2&/ 0UNAJANURU SHALL TAKE COLOUR PHOTOGRAPHS OF THE (ONEY AND OTHER ARTICLES FROM
ALL ANGELS SO AS TO IDENTIFY THE SAME
4HE 2&/ 0UNAJANURU SHALL DRAW THE -AHAZAR TO THAT EFFECT AND SHALL PRODUCE THE
PHOTOGRAPHS OF THE HONEY SO TAKEN BEFORE THE #OURT ALONG WITH -AHAZAR AND NAL REPORT
3D
)# !DD #IVIL *UDGE *-&#
#HAMARAJANAGAR
4 / \
-R 2# 2OHMINGTHANGA VS 3TATE OF
-IZORAM /RS
$%#,!2!4/29 35)4 ./ /& 5.2%0/24%$
3%.)/2 #)6), *5$'%
!):!7, $)342)#4 !):!7, -):/2!-
#/2!- $2 (4# ,!,2).#((!.! *
3 5 - -!29
4HE PLAINTIFF FILED A CIVIL SUIT FOR DECLARATION AS OWNER OF THE LAND IN QUESTION
SEEKING FURTHER DIRECTIONS TO EVICT THE DEFENDANTS WHO ARE THE 3TATE &OREST
$EPARTMENT OFFICIALS AS WELL AS MAKE THEM PAY RENT FOR THE PERIOD OF OCCUPATION
AND DAMAGES FOR THE INCONVENIENCE CAUSED TO THE PLAINTIFF
4HE PLAINTIFF ARGUED THAT DEFENDANTS WERE WRONGLY TRYING TO DISPOSSESS HIM ON THE
GROUND THAT LAND WAS WITHIN THE 4UIRIAL 2IVERINE 2ESERVE &OREST 4HE PLAINTIFF ARGUED
THAT THE LAND REVENUE DEPARTMENT OF THE 3TATE WHICH IS THE COMPETENT AUTHORITY
HAD ISSUED A VALID LAND DOCUMENT TO THE PLAINTIFF WHICH INVESTED OWNERSHIP RIGHTS
IN HIM (E ALSO ARGUED THAT THE CONCEPT OF 2IVERINE 2ESERVE &OREST WAS IRRELEVANT
IN -IZO CULTURE AND CUSTOM WHERE MOST OF THE PEOPLE DWELT WITHIN HALF A MILE ON
EITHER SIDE OF THE MAIN RIVERS RUNNING 6ILLAGE #OUNCIL ADMINISTRATIONS LIKE IN THE
4UIRIAL VILLAGE 4HEREFORE THE NOTIFICATION DECLARING THE 4UIRIAL 2IVERINE 2ESERVE
&OREST WAS ULTRA VIRES AND NOT IN CONSONANCE WITH THE TRADITIONAL LIFESTYLE AND
LIVELIHOOD OF THE -IZOS
4HE #OURT EXAMINED AT LENGTH THE LAW RELATING TO FORESTS FOREST CONSERVATION
AND SUSTAINABLE DEVELOPMENT AS LAID DOWN IN VARIOUS JUDGMENTS OF THE 3UPREME
#OURT AND ALSO STATUTORY LAW 4HE #OURT DETERMINED A PRELIMINARY ISSUE BEFORE
COMMENCING THE SUIT PROCEEDINGS NAMELY WHETHER THIS #OURT IS THE APPROPRIATE
PROPER FORUM FOR THE ADJUDICATION OF THIS SUIT IN LIGHT OF THE ENACTMENT OF THE
3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT &2!
4HE #OURT HELD THAT INSTEAD OF ADJUDICATION OF THE DISPUTE IN THIS #OURT THE
PROPER FORUM UNDER THE AEGIS OF THE &2! IS THE 6ILLAGE ,EVEL #OMMITTEE AND
3UB
DIVISION AND $ISTRICT LEVEL COMMITTEES THEREAFTER 4HE #OURT NOTED THAT THE
-IZORAM ,EGISLATIVE !SSEMBLY HAS ADOPTED THE &2! IN TERMS OF !RTICLE
' OF THE
#ONSTITUTION OF )NDIA AND SPECIFIC NOTIFICATIONS ESTABLISHING THE #OMMITTEES UNDER
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
&2! AT THE 6ILLAGE 3UB
DIVISION $ISTRICT AND 3TATE LEVEL HAVE BEEN ISSUED BY THE
3TATE GOVERNMENT OF -IZORAM 4HUS THE HIERARCHY OF AUTHORITIES UNDER THE SAID !CT
WHICH ARE THE PROPER FORUM FOR EXAMINING THIS CLAIM ARE IN PLACE
!CCORDINGLY THE PLAINTIFFS WERE ADVISED TO APPROACH THE &OREST 2IGHTS #OMMITTEE
UNDER 2ULE OF THE &2 2ULES )N ADDITION THE DEFENDANTS WERE DIRECTED NOT TO
TAKE ANY STEPS TO THE DETRIMENT OF THE PLAINTIFF IN ANY FORM TO EVICT OR DIMINISH
THE POSSESSION OF THE SUIT LAND BY THE PLAINTIFF EXCEPT STATUS QUO 4HE EXECUTIVE
MACHINERY WAS DIRECTED TO ENFORCE AND IMPLEMENT LAWS PARTICULARLY SOCIAL
LEGISLATIONS LIKE THE &2! BEARING IN MIND THE MAXIM CAUSA PROXIMA NON REMOTA
SPECTATOR THAT IS THE PROXIMATE AND NOT THE REMOTE CAUSE MUST BE LOOKED INTO
% $ )4/23 . /4%
! REMARKABLY ERUDITE JUDGMENT EMERGING FROM THE #OURT OF A #IVIL *UDGE THIS
DECISION APPROACHES THE ISSUE OF A CAUSE OF ACTION UNDER THE &2! WITHIN THE TECHNICAL
RIGOUR OF THE #IVIL 0ROCEDURE #ODE WHILE LAYING THE CONTEXT OF THE CONSTITUTIONAL
FRAMEWORK WITHIN WHICH THE SUIT NEEDS TO BE EXAMINED 4HIS IS MORE THAN MANY
CONSTITUTIONAL COURTS HAVE DONE AS IS EVIDENT FROM MANY OF THE PRECEDING DECISIONS
)T IS ALSO A RARE ABILITY IN A *UDGE TO BE ABLE TO RENDER A TECHNICALLY SOUND DECISION
WITHOUT ALLOWING TECHNICALITIES TO STAND IN THE WAY OF RENDERING JUSTICE
* 5$ '-% . 4
02 % 3 % 2 6!4) /. /& &/2%34 !. $ %#/, /')#!, "!, !. #% . %%$ /& 4(% (/5 2
* 5$) #)! , ) .4% 2 6% .4) /.
!MONGST A SERIES OF OBSERVATIONS AND JUDGMENTS LET US TAKE ONLY FEW CASE DEALING
THE NECESSITY OF ENVIRONMENTAL PROTECTION AND ITS IMPORTANCE TO OUR ECO
SYSTEM 6ERY
RECENTLY IN THE CASE OF 3ANSAR #HAND VS 3TATE OF 2AJASTHAN DECIDED ON /CTOBER
IN CONNECTION WITH #RIMINAL !PPEAL .O OF !RISING OUT OF 3PECIAL ,EAVE
0ETITION #RL .O OF THEIR ,ORDSHIP OF (ONBLE 3UPREME #OURT HAS APPRISED
PRESERVATION OF ECOLOGICAL BALANCE THAT
0RESERVATION OF WILDLIFE IS IMPORTANT FOR MAINTAINING THE ECOLOGICAL BALANCE IN
THE ENVIRONMENT AND SUSTAINING THE ECOLOGICAL CHAIN )T MUST BE UNDERSTOOD THAT
THERE IS INTER LINKING IN NATURE 4O GIVE AN EXAMPLE SNAKES EAT FROGS FROGS EAT INSECTS
AND INSECTS EAT OTHER INSECTS AND VEGETATION )F WE KILL ALL THE SNAKES THE RESULT WILL
BE THAT NUMBER OF FROGS WILL INCREASE AND THIS WILL RESULT IN THE FROGS EATING MORE
OF THE INSECTS AND WHEN MORE INSECTS ARE EATEN THEN THE INSECTS WHICH ARE THE
PREY OF OTHER INSECTS WILL INCREASE IN NUMBER TO A DISPROPORTIONATE EXTENT OR THE
VEGETATION WILL INCREASE TO A DISPROPORTIONATE EXTENT 4HIS WILL UPSET THE DELICATE
ECOLOGICAL BALANCE IN NATURE )F WE KILL THE FROGS THE INSECTS WILL INCREASE AND THIS WILL
REQUIRE MORE INSECTICIDES 5SE OF MUCH INSECTICIDE MAY CREATE HEALTH PROBLEMS 4O
GIVE ANOTHER EXAMPLE DESTRUCTION OF DHOLES WILD DOGS IN "HUTAN WAS INTENDED TO
PROTECT LIVESTOCK BUT THIS LED TO GREATER NUMBER OF WILD BOAR AND TO RESULTANT CROP
DEVASTATION CAUSING SEVERAL CASES OF ABANDONMENT BY HUMANS OF AGRICULTURAL ELDS
$ESTRUCTION OF CARNIVOROUS ANIMALS WILL RESULT IN INCREASE OF HERBIVOROUS ANIMALS
AND THIS CAN RESULT IN SERIOUS LOSS OF AGRICULTURAL CROPS AND OTHER VEGETATION
4 / \
)T MUST BE REALIZED THAT OUR SCIENTIC UNDERSTANDING OF NATURE AND IN PARTICULAR
OF THE ECOLOGICAL CHAIN AND THE LINKAGES THEREIN IS STILL VERY PRIMITIVE INCOMPLETE
AND FRAGMENTARY (ENCE IT IS ALL THE MORE IMPORTANT TODAY THAT WE PRESERVE THE
ECOLOGICAL BALANCE BECAUSE DISTURBING IT MAY CAUSE SERIOUS REPERCUSSIONS OF WHICH
WE MAY HAVE NO IDEA TODAY
!S READY STATED ABOVE THE WILD LIFE IN )NDIA HAS ALREADY BEEN CONSIDERABLY
DESTROYED !T ONE TIME THERE WERE HUNDREDS OF THOUSANDS OF TIGERS LEOPARDS AND
OTHER WILD ANIMALS BUT TODAY THERE ARE ONLY ABOUT TIGERS LEFT ACCORDING TO THE
7ILDLIFE INSTITUTE
5NTIL RECENTLY HABITAT LOSS WAS THOUGHT TO BE LARGEST THREAT TO THE FUTURE OF TIGERS
LEOPARDS ETC (OWEVER IT HAS NOW BEEN ESTABLISHED THAT ILLEGAL TRADE AND COMMERCE
IN SKINS AND OTHER BODY PARTS OF TIGERS LEOPARDS ETC HAS DONE EVEN MUCH GREATER
DECIMATION 0OACHING OF TIGERS FOR TRADITIONAL #HINESE MEDICINE INDUSTRY HAS BEEN
GOING ON IN )NDIA FOR SEVERAL DECADES 4IGERS AND LEOPARDS ARE POACHED FOR THEIR
SKINS BONES AND OTHER CONSTITUENT PARTS AS THESE FETCH HIGH PRICES IN COUNTRIES SUCH
AS #HINA WHERE THEY ARE VALUED AS SYMBOLS OF POWER APHRODISIACS AND INGREDIENTS
OF DUBIOUS TRADITIONAL MEDICINES 4HIS ILLEGAL TRADE IS ORGANISED WIDESPREAD AND
IS IN THE HANDS OF RUTHLESS SOPHISTICATED OPERATORS SOME OF WHOM HAVE TOP LEVEL
PATRONAGE 4HE ACTUAL POACHERS ARE PAID ONLY A PITTANCE WHILE HUGE PROTS ARE
MADE BY THE LEADERS OF THE ORGANIZED GANGS WHO HAVE INTERNATIONAL CONNECTION IN
FOREIGN COUNTRIES 0OACHING OF WILD LIFE IS AN ORGANIZED INTERNATIONAL ILLEGAL ACTIVITY
WHICH GENERATES MASSIVE AMOUNT OF MONEY FOR THE CRIMINALS
)NTERPOL SAYS THAT TRADE IN ILLEGAL WILD LIFE PRODUCTS IS WORTH ABOUT 53 BILLION
A YEAR AND )NDIA IS NOW A MAJOR SOURCE MARKET FOR THIS TRADE -OST OF THE DEMAND
FOR WILDLIFE PRODUCTS COMES FROM OUTSIDE THE COUNTRY 7HILE AT ONE TIME THERE WERE
HUNDREDS OF THOUSANDS OF TIGERS IN )NDIA TODAY ACCORDING TO THE SURVEY MADE BY THE
7ILDLIFE )NSTITUTE OF )NDIA AN AUTONOMOUS BODY UNDER THE -INISTRY OF %NVIRONMENT
AND &ORESTS THERE WERE ONLY TIGERS LEFT IN )NDIA IN 4HERE ARE NO RELIABLE
ESTIMATES OF LEOPARDS AS NO PROPER CENSUS HAS BEEN CARRIED OUT BUT THE ROUGH
ESTIMATES SHOW THAT THE LEOPARD TOO IS A CRITICALLY ENDANGERED SPECIES
4HERE IS VIRTUALLY NO MARKET FOR THE SKINS OR BONES OF TIGERS AND LEOPARDS WITHIN
)NDIA 4HE EVIDENCE AVAILABLE POINTS OUT THAT TIGERS AND LEOPARDS POACHED IN THE
)NDIAN WILDERNESS ARE THEN SMUGGLED ACROSS THE BORDER TO MEET THE DEMAND FOR
THEIR PRODUCTS IN NEIGHBOURING COUNTRIES SUCH AS #HINA 7HEN DEALING WITH TIGER
AND LEOPARD POACHERS AND TRADERS IT IS THEREFORE IMPORTANT TO BEAR IN MIND THAT ONE
IS DEALING WITH TRANSNATIONAL ORGANIZED CRIME 4HE ACCUSED IN THESE CASES REPRESENTS
A LINK IN A LARGER CRIMINAL NETWORK THAT STRETCHES ACROSS BORDERS 4HIS NETWORK STARTS
WITH A POACHER WHO IS MOST CASES IS A POOR TRIBAL AND A SKILLED HUNTER 0OACHERS
KILL TIGERS AND LEOPARDS SO AS TO SUPPLY THE ORDERS PLACED BY A TRADER IN A LARGER CITY
CENTRE SUCH AS $ELHI 4HESE TRADERS ARE VERY WEALTHY AND INUENTIAL MEN /NCE THE
GOODS REACH THE TRADER HE THEN ARRANGES FOR THEM TO BE SMUGGLED ACROSS THE BORDER
TO HIS COUNTERPART IN ANOTHER COUNTRY AND SO ON TILL IT REACHES THE END CONSUMER )T IS
IMPOSSIBLE FOR SUCH A NETWORK TO SUSTAIN ITSELF WITHOUT LARGE PROTS AND INTELLIGENT
MANAGEMENT
)N THE CASE OF -# -EHTA VS 5NION OF )NDIA /RS DECIDED ON REPORTED IN
3#!,% THE 3UPREME #OURT HAS FURTHER HELD THAT
4HE 0RECAUTIONARY 0RINCIPLE HAS BEEN ACCEPTED AS A PART OF THE LAW OF THE LAND
!RTICLES ! AND ! G OF THE #ONSTITUTION OF )NDIA GIVE A CLEAR MANDATE TO
THE 3TATE TO PROTECT AND IMPROVE THE ENVIRONMENT AND TO SAFEGUARD THE FORESTS
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
AND WILD LIFE OF THE COUNTRY )T IS THE DUTY OF EVERY CITIZEN OF )NDIA TO PROTECT AND
IMPROVE THE NATURAL ENVIRONMENT INCLUDING FORESTS LAKES RIVERS AND WILD LIFE AND
TO HAVE COMPASSION FOR LIVING CREATURES 4HE PRECAUTIONARY 0RINCIPLE MAKES IT
MANDATORY FOR THE 3TATE 'OVERNMENT TO ANTICIPATE PREVENT AND ATTACK THE CAUSES
OF ENVIRONMENT DEGRADATION 7E HAVE NO HESITATION IN HOLDING THAT IN ORDER TO
PROTECT THE TWO TAKES FROM ENVIRONMENT DEGRADATION IT IS NECESSARY TO LIMIT THE
CONSTRUCTION ACTIVITY IN THE CLOSE VICINITY OF THE LAKES
)N THE CASE OF 4. 'ODAVARMAN 4HIRUMULPAD VS 5NION OF )NDIA /RS IN CONNECTION WITH
7RIT 0ETITION CIVIL OF DECIDED ON AND REPORTED IN !)2
3UPPL 3#2 3## 3#!,% *4 THE 3UPREME
#OURT HAS OBSERVED THAT
&ORESTS ARE A VITAL COMPONENT TO SUSTAIN THE LIFE SUPPORT SYSTEM ON THE EARTH
&ORESTS IN )NDIA HAVE BEEN DWINDLING OVER THE YEARS FOR A NUMBER OF REASONS ONE OF
IT BEING THE NEED TO USE FOREST AREA FOR DEVELOPMENT ACTIVITIES INCLUDING ECONOMIC
DEVELOPMENT 5NDOUBTEDLY IN ANY NATION DEVELOPMENT IS ALSO NECESSARY BUT IT HAS
TO BE CONSISTENT WITH PROTECTION OF ENVIRONMENTS AND NOT AT THE COST OF DEGRADATION
OF ENVIRONMENTS !NY PROGRAMME POLICY OR VISION FOR OVERALL DEVELOPMENT
HAS TO EVOLVE A SYSTEMIC APPROACH SO AS TO BALANCE ECONOMIC DEVELOPMENT AND
ENVIRONMENTAL PROTECTION "OTH HAVE TO GO HAND IN HAND
)N ULTIMATE ANALYSIS ECONOMIC DEVELOPMENT AT THE COST OF DEGRADATION OF
ENVIRONMENTS AND DEPLETION OF FOREST COVER WOULD NOT BE LONG LASTING 3UCH
DEVELOPMENT WOULD BE COUNTERPRODUCTIVE 4HEREFORE THERE IS AN ABSOLUTE NEED TO
TAKE ALL PRECAUTIONARY MEASURES WHEN FOREST LANDS ARE SOUGHT TO BE DIRECTED FOR
NON
FOREST USE
4HE (ONBLE 3UPREME #OURT IN 6ELLORE #ITIZENS 7ELFARE &ORUM VS 5NION OF )NDIA /RS *4
3# ELABORATELY DISCUSSED THE CONCEPT OF SUSTAINABLE DEVELOPMENT WHICH
HAS BEEN ACCEPTED AS PART OF THE LAW OF THE LAND )T WOULD BE USEFUL TO QUOTE THE RELEVANT
PART
4HE TRADITIONAL CONCEPT THAT DEVELOPMENT AND ECOLOGY ARE OPPOSED TO EACH OTHER IS
NO LONGER ACCEPTABLE 3USTAINABLE $EVELOPMENT IS THE ANSWERS )N THE )NTERNATIONAL
SPHERE SUSTAINABLE $EVELOPMENT AS A CONCEPT CAME TO BE KNOWN FOR THE RST TIME
IN THE 3TOCKHOLM $ECLARATION OF
$URING THE TWO DECADES FROM 3TOCKHOLM TO 2IO 3USTAINABLE $EVELOPMENT HAS
COME TO BE ACCEPTED AS A VIABLE CONCEPT TO ERADICATE POVERTY AND IMPROVE THE
QUALITY OF HUMAN LIFE WHILE LIVING WITHIN THE CARRYING CAPACITY OF THE SUPPORTING
ECO
SYSTEMS 3USTAINABLE $EVELOPMENT AS DENED BY THE "RUNDTLAND 2EPORT
MEANS $EVELOPMENT THAT MEETS THE NEEDS OF THE PRESENT WITHOUT COMPROMISING
THE ABILITY OF THE FUTURE GENERATIONS TO MEET THEIR OWN NEEDS 7E ARE HOWEVER OF
THE VIEW THAT 4HE 0RECAUTIONARY 0RINCIPLE AND 4HE 0OLLUTER 0AYS PRINCIPLE ARE
ESSENTIAL FEATURES OF 3USTAINABLE $EVELOPMENT 4HE 0RECAUTIONARY 0RINCIPLE IN
THE CONTEXT OF THE MUNICIPAL LAW
MEANS
I %NVIRONMENTAL MEASURES BY THE 3TATE 'OVERNMENT AND THE STATUTORY
AUTHORITIES MUST ANTICIPATED PREVENT AND ATTACK THE CAUSES OF ENVIRONMENTAL
DEGRADATION
II 7HERE THERE ARE THREATS OF SERIOUS AND IRREVERSIBLE DAMAGE LACK OF SCIENTIC
CERTAINTY SHOULD NOT BE USED AS A 3EASON FOR POSTPONING MEASURES TO PREVENT
ENVIRONMENTAL DEGRADATION
III 4HE /NUS OF PROOF IS ON THE ACTOR OR THE DEVELOPER INDUSTRIALIST TO SHOW
4 / \
THAT HIS ACTION IS ENVIRONMENTALLY BENIGN
)N THE VIEW OF THE ABOVE MENTIONED CONSTITUTIONAL AND STATUARY PROVISIONS WE
HAVE NO HESITATION IN HOLDING THAT THE PRECAUTIONARY PRINCIPLE AND THE POLLUTER
PAYS PRINCIPLE ARE PART OF THE ENVIRONMENTAL LAW OF THE COUNTRY EVEN OTHERWISE
ONCE THESE PRINCIPLES ARE ACCEPTED AS PART OF THE #USTOMARY )NTERNATIONAL ,AW THERE
WOULD BE NO DIFCULTY IN ACCEPTING THEM AS PART OF THE DOMESTIC LAW )T IS ALMOST
ACCEPTED PROPOSITION OF LAW THAT THE RULE OF #USTOMARY )NTERNATIONAL ,AW WHICH ARE
NOT CONTRARY TO THE MUNICIPAL LAW SHALL BE DEEMED TO HAVE BEEN INCORPORATED IN THE
DOMESTIC LAW AND SHALL BE FOLLOWED BY THE #OURTS OF ,AW 4O SUPPORT WE MAY REFER TO
*USTICE (2 +HANNAS OPINION IN !DDL $ISTT -AGISTRATE *ABALPUR VS 3HIVAKANT 3HUKLA
!)2 3# *OLLY 'EORGE 6ARGHESES CASE !)2 3# AND 'RAMOPHONE
#OMPANYS CASE !)2 3#
4HE MOST POWERFUL JUDICIAL COURT IN THIS GLOBE VIZ 3UPREME #OURT OF )NDIA ALSO CONSTITUTED
&OREST "ENCH DEALING THE MATTERS CONNECTED WITH OUR ECO SYSTEM BY INVOKING JUDICIAL
DISCRETIONARY POWER OR JUDICIAL GOVERNANCE JUDICIAL ACTIVISM WHICH IS OVERBURDENED ON
TODAY TO MEET THE GLOBAL CHALLENGED
) . 4 % 2 .! 4) /.!, 3 #% .! 2 ) /
4HE WELL
KNOWN #OPENHAGEN !CCORD IS RESOLUTE IN THE #ONFERENCE HELD ON
$ECEMBER +YOTO 0ROTOCOL TO THE 5NITED .ATIONS &RAMEWORK #ONVENTION ON
#LIMATE #HANGE +YOTO 0ROTOCOL WAS ALSO REACHED IN THE YEAR 4HE 5NITED .ATIONS
&RAMEWORK #ONVENTION ON #LIMATE #HANGE WAS ADOPTED IN .EW 9ORK ON -AY
5NITED .ATIONS #ONFERENCE ON %NVIRONMENT AND $EVELOPMENT 3TOCKHOLM #ONFERENCE
HELD AT 2IO $E *ANEIRO "RAZIL ON *UNE
)NTERGOVERNMENTAL 0ANEL ON #LIMATE
#HANGE WAS ESTABLISHED IN JOINTLY BY THE 7ORLD -ETEOROLOGICAL /RGANIZATION
AND THE 5NITED .ATIONS %NVIRONMENT 0ROGRAMME -ONTREAL 0ROTOCOL ON 3UBSTANCES
THAT $EPLETE THE /ZONE ,AYER ;-ONTREAL 0ROTOCOL= WAS ALSO ADOPTED IN -ONTREAL ON
3EPTEMBER 5NITED .ATIONS #ONFERENCE ON THE (UMAN %NVIRONMENT ;%ARTH
3UMMIT= HELD AT 3TOCKHOLM 3WEDEN ON *UNE
4HOSE WERE FEW MILESTONES
WHICH THIS 0LANET HAD UNDERGONE AMONGST OTHERS TO MITIGATE THE UGLY /ZONE DEPLETION
'REEN (OUSE 'ASES 'LOBAL ,OCAL 7ARMING ETC INVITING A COLLECTIVE WORK IN THIS HIGH
TIME
) . $ ) !. % 8 0% 2 ) % .#%
4HE LEGENDARY 3ILENT 6ALLEY -OVEMENT IN RESPECT OF 3ILENT 6ALLEY (YDRO %LECTRIC
0ROJECT 36(%0 ORGANISED BY THE +ERALA 3ASTHRA 3AHITHYA PARISHAD +330 AND #HIPKO
-OVEMENT OUTBURST ON -ARCH 4HE 2OAD TO #OPENHAGEN DT PUBLISHED
BY THE 0UBLIC $IPLOMACY $IVISION -INISTRY OF %XTERNAL !FFAIRS 'OVT OF )NDIA WERE SOME
AMONGST OTHERS
4HE ABOVE HOLISTIC VIEWS IS EXPECTED TO ENRICH THE HORIZON IN THE INSTANT CASE TO DEAL THE
CRUX PRUDENTLY AND CAUTIOUSLY WITNESSED THAT ECOLOGICAL BALANCE AND ENVIRONMENTAL
PROTECTION IS OUR COMMON PROBLEMS AND VERY ALARMING TASK IN THE GLOBAL REGIONAL AND
MUNICIPAL AREAS
2 % 3 0 /.3 % ) . - ) : /2 !-
"Y MAKING ENACTMENTS AND PROMULGATING RULES REGULATIONS ETC THIS ISOLATED LAND LOCK
HILLY TERRAIN ALSO GEARING UP THROUGH THE FOLLOWING
4HE -IZORAM &OREST !CT
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4HE ,USHAI (ILLS $ISTRICT *HUMMING 2EGULATION
4HE -IZORAM -INOR -INERALS #ONCESSION 2ULES
6ILLAGE &OREST $EVELOPMENT #OMMITTEE 6&$# $T TH .OVEMBER &OR THE
RST TIME
&OREST $EVELOPMENT !GENCIES &$3 $T TH .OVEMBER &OR THE RST TIME
4HE -IZORAM 0REVENTION #ONTROL OF &IRE IN THE 6ILLAGE 2AM 2ULES
4HE -IZORAM !IR 0REVENTION #ONTROL OF 0OLLUTION 2ULES
4HE -IZORAM 7ATER 0REVENTION #ONTROL OF 0OLLUTION 2ULES
-IZORAM 3ALE OF 0RODUCE -AHALS 2ULES
'UIDELINES OF FELLING OF 4YRES FROM .ON
&OREST !REAS $T TH &EBRUARY
!UTHORITY OF $&/$#& AND ABOVE TO EVICT ANY PERSON FROM 'OVT 2ESERVE &OREST
ETC $T TH *ANUARY
'UIDELINES FOR ISSUE OF ARMS LICENSE $T TH *ULY ETC ETC
' % .% 3 ) 3 /& 4( % #! 3 %
4HE PLAINTIFF NAMELY
-R 2# 2OHMINGTHANGA 3O #HUHTHANGA AS SUBMITTED IN THE
PLAINT IS THE HOLDER OF 0ERIODIC 0ATTA .O OF ISSUED US OF THE
-IZO $ISTRICT !GRICULTURAL ,AND !CT UNDER -EMO .O +
2%6 DT
LOCATED THE SAID !GRICULTURAL LAND AT 4URIIRALKAWNGHNUAI :EMABAWK AND
ITS VALIDITY AS PER .O 3
,3#$4% 2%6 DT IS EXTENDED UPTO
UNDER 3URVEY .O AND THE BOUNDARY IN THE .ORTH IS +AWRTE IN THE 3OUTH
IS +AWRTE IN THE EAST IS ,ALHMINGLIANI AND IN THE 7EST IN .(
! WITH AN AREA
OF (A 4HE PLAINTIFF IS A FARMER RUNNING !GRO BASED INDUSTRY HAVING REGISTRATION
UNDER .O AND IN THE OFCE OF )NDUSTRIES $EPARTMENT
'OVT OF -IZORAM RESIDING NEARBY THE SUIT LAND 7ITH THE CONSENT OF THE PLAINTIFF THE
DEFENDANTS HAD CONSTRUCTED 7ORKERS 3HED IN !SSAM TYPE IN THE YEAR MEANT
FOR STOP GAP ARRANGEMENT WITHIN THE SUIT LAND ,ATER ON THE DEFENDANTS HAD
CONSTRUCTED ANOTHER "AMBOO 7ORKERS 3HED WITHIN THE SUIT LAND DISPOSSESSING ABOUT
SIX HUNDRED SQUARE FEET BY THE PLAINTIFF (ENCE PRAYED TO DECLARE THAT I THE
PLAINTIFF AS THE OWNER OF THE SUIT LAND II TO EVICT THE DEFENDANTS FROM THE SUIT LAND
III TO DECLARE THAT THE DEFENDANTS ARE LIABLE TO PAY RENTAL CHARGES AT 2S
PER 3Q FOOT
DURING THE PERIOD OF OCCUPATION IV THE DEFENDANTS ARE LIABLE TO PAY 2S RUPEES
ONE LAKH FOR INCONVENIENCE MENTAL ANXIETY AND DISTRESS V COSTS OF THE SUIT )NDEED
THE PLAINTIFF USED TO OCCUPY THE SUIT LAND SINCE WHEN TRANSFERRED TO HIM BY
3MT :ATHIANGI 4UIRIAL !INAWAN 6ENG IN CONSIDERATION OF 2S
PUT IN A WRITTEN
FORM AS ANNEXED IN THE PLAINT
4HE DEFENDANTS IN THEIR WRITTEN STATEMENTS CONTENDED THAT THE SUIT LAID IS WITHIN THE
4UIRIAL 2IVERINE 2ESERVED &OREST AS NOTIED UNDER .O $# 8)6 !
DT TH !PRIL
6IDE THE !SSAM 'AZETTE .O 3HILLONG -AY TH 6AISAKHA 3% AND ISSUED
THE SAID 0ERIODIC 0ATTA IN CONTRAVENTION OF THE PROVISIONS OF THE &OREST #ONSERVATION
!CT
02 % ,) - ) .! 2 9 )3 3 5% 3
!FTER LING OF DOCUMENTS DISCOVERY AND ADMISSIONS ARE ALREADY CONDUCTED PARTIES
APPEARED THE COURT THROUGH #OUNSELS ON "ASED IN -AJOR 33 +HANNA VS "RIG
&* $ILLON DECIDED ON REPORTED IN !)2 3#2 IT WAS HELD
THAT
5NDER /R R WHERE ISSUES BOTH OF LAW AND FACT ARISE IN THE SAME SUIT AND THE
COURT IS OF THE OPINION THAT THE CASE OR PART THEREOF COULD BE DISPOSED OF ON THE
ISSUES OF LAW ONLY IT SHALL TRY THOSE ISSUES RST AND FOR THAT PURPOSE MAY IF IT THINKS
T POSTPONE SETTLEMENT OF THE ISSUES OF FACT UNTIL AFTER THE ISSUES OF LAW HAVE BEEN
4 / \
DETERMINED 4HE JURISDICTION TO TRY ISSUES OF LAW APART FROM THE ISSUES OF FACT MAY
BE EXERCISED ONLY WHERE IN THE OPINION OF THE #OURT THE WHOLE SUIT MAY BE DISPOSED
OF ON THE ISSUES OF LAW ALONE BUT THE #ODE OF #IVIL 0ROCEDURE CONFERS NO JURISDICTION
UPON THE COURT TO TRY A SUIT ON MIXED ISSUES OF LAW AND FACT AS PRELIMINARY ISSUES
.ORMALLY ALL ISSUES IN THE SUIT SHOULD BE TRIED BY THE #OURT NOT TO DO SO ESPECIALLY
WHEN THE DECISION ON ISSUES EVEN OF LAW DEPENDS UPON THE DECISION OF ISSUES OF FACT
WOULD RESULT IN A LOP SIDED TRIAL OF THE SUIT
5PON HEARING OF BOTH PARTIES AND ON PERUSAL OF CASE RECORDS PRELIMINARY ISSUE IS FRAMED
THAT
7HETHER THE SUIT IS APPROPRIATE PROPER TO ADJUDICATE IN THIS COURT IN THE LIGHT
OF THE PROVISIONS OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST $WELLERS
2ECOGNITION OF &OREST 2IGHTS !CT OR NOT
0 / ) . 4 3 /& 2 ) 6! ,2 9
0ER CONTRA -R 2 ,ALREMRUATA ,D !'! APPEARED FOR THE DEFENDANTS HAD SUBMITTED
THAT THE SUIT LAND IS WITHIN THE 4UIRIAL 2IVERINE 2ESERVED &OREST AS NOTIED UNDER .O
$# 8)6 ! DT TH !PRIL VIDE THE !SSAM 'AZETTE .O 3HILLONG -AY
TH 6AISAKHA 3% AND ISSUED THE SAID 0ERIODIC 0ATTA IN CONTRAVENTION OF THE
PROVISIONS OF THE &OREST #ONSERVATION !CT AND NO LOCUS STANDI IN FAVOUR OF THE
PLAINTIFF IS AROSE 4HE DEFENDANTS FURTHER RELIED IN THE JUDGMENTS OF (ONBLE 3UPREME
#OURT IN THE CASE OF 4. 'ODAVARMAN 4HIRUMULKPAD VS 5NION OF )NDIA /RS DECIDED
ON IN CONNECTION WITH 70 # .O !LSO ILLUMINATED UNDER LETTER .O
&.O
2/(1 DT TH -AY ISSUED BY THE 'O) -INISTRY OF %NVIRONMENT
&ORESTS STATING THAT NO ,AND 3ETTLEMENT #ERTICATE 0ASSES SHALL BE VALID ON ANY FOREST
AREA PLUS FELLING OF PLANTATIONS ON FOREST SHALL BE IN TERMS OF THE APPROVED WORKING
PLAN WORKING SCHEME PRESCRIPTIONS ONLY 4HE ISSUANCE OF 0ERIOD OF 0ATTA IN THE SUIT
LAND IS VIOLATIVE OF 3 OF THE &OREST #ONSERVATION !CT
-R ( ,ALREMSANGA ,D #OUNSEL FOR THE PLAINTIFF ARGUED THAT THE DEFENSE GROUND OF THE
DEFENDANTS IS BASELESS AS THE COMPETENT AUTHORITY IN LAND REVENUE ADMINISTRATION IN
THE STATE ISSUED A VALID LANDED DOCUMENTS TO THE PLAINTIFF WHICH INVESTED OWNERSHIP
AND RIGHTS OF THE PLAINTIFF &URTHERMORE RIVERINE RESERVE IS IRRELEVANT IN THE -IZO
LIVELIHOOD WHERE MOST OF THE PEOPLES DWELLED WITHIN HALF A MILE ON EITHER SIDE OF THE
MAIN RIVERS RUNNING 6ILLAGE #OUNCIL ADMINISTRATIONS LIKE IN THE 4UIRIAL VILLAGE (E
CONCLUDED THAT THE NOTICATIONS OF 2IVERINE 2ESERVED IS ULTRA VIRUS NOT IN CONSONANCE
WITH THE TRADITIONAL LIFESTYLE AND LIVELIHOOD OF THE -IZO
5PON HEARING OF BOTH PARTIES AND ON PERUSAL OF CASE RECORDS THE ADMITTED POSITION OF
THE SUIT EVEN AT THIS STAGE CAN BE SUMMARIZED THAT
I 4HE SUIT LAND IS LOCATED WITHIN HALF A MILE OF THE 4UIRIAL RIVER WHICH IS RIVERINE
RESERVED AREA
II 4HE PLAINTIFF IS THE HOLDER OF 0ERIODIC 0ATTA .O OF ISSUED US
OF THE -IZO $ISTRICT !GRICULTURAL ,AND !CT VALID UPTO BUT TRADITIONALLY
OCCUPIED THE SUIT LAND SINCE
III 4HE DEFENDANTS ALSO CONSTRUCTED A SHED WITHIN THE SUIT LAND WITHOUT THE CONSENT
OF THE PLAINTIFF
& ) . $ ).' 3 !.$ 2 % ! 3 /.3
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
!DMITTEDLY NOTICATION UNDER .O$# 8)6 !
$T TH !PRIL 6IDE THE !SSAM
'AZETTE .O 3HILLONG -AY TH 6AISAKHA 3% IN RESPECT OF RIVERINE
RESERVED IS REMAINING VALID IN RESPECT OF
A 4LAWNG $ALESWARI
B 4UT 'UTUR
C
D
E
F
G
H
I
J 4UIRIAL
K
L
M
N
O
P
3O IS THE FACTUAL MATRIX ) COULD NOT AVOID TO VIGIL ON THE LAWS WHICH GOVERNS THE SUIT
LAND )N 4. 'ODAVARMAN 4HIRUMULKPAD VS 5NION OF )NDIA /RS DECIDED ON
AND REPORTED IN !)2 3PPL 3#2 3## 3#!,%
*4 IT WAS HELD THUS
)T HAS EMERGED AT THE HEARING THAT THERE IS A MISCONCEPTION IN CERTAIN QUARTERS
ABOUT THE TRUE SCOPE OF THE &OREST #ONSERVATION !CT FOR SHORT THE !CT AND THE
MEANING OF THE WORD FOREST USED THEREIN 4HERE IS ALSO A RESULTING MISCONCEPTION
ABOUT THE NEED OF PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT AS REQUIRED BY 3ECTION
OF THE !CT IN RESPECT OF CERTAIN ACTIVITIES IN THE FOREST AREA WHICH ARE MORE OFTEN OF
A COMMERCIAL NATURE )T IS NECESSARY TO CLARIFY THAT POSITION
4HE &OREST #ONSERVATION !CT WAS ENACTED WITH A VIEW TO CHECK FURTHER
DEFORESTATION WHICH ULTIMATELY RESULTS IN ECOLOGICAL IMBALANCE AND THEREFORE THE
PROVISIONS MADE THEREIN FOR THE CONSERVATION OF FORESTS AND FORE MATTERS CONNECTED
THEREWITH MUST APPLY TO ALL FORESTS IRRESPECTIVE OF THE NATURE OF OWNERSHIP OR
CLASSICATION THEREOF 4HE WORD FOREST MUST BE UNDERSTOOD ACCORDING TO ITS
DICTIONARY MEANING 4HIS DESCRIPTION COVER ALL STATUTORILY RECOGNISED FORESTS WHETHER
DESIGNATED AS RESERVED PROTECTED OR OTHERWISE FOR THE PURPOSE OF 3ECTION I OF THE
&OREST #ONSERVATION !CT 4HE TERM FOREST LAND OCCURRING IN 3ECTION WILL NOT ONLY
INCLUDE FOREST AS UNDERSTOOD IN THE DICTIONARY SENSE BUT ALSO ANY AREA RECORDED
AS FOREST IN THE 'OVERNMENT RECORD IRRESPECTIVE OF THE OWNERSHIP 4HIS IS HOW IT HAS
TO BE UNDERSTOOD FOR THE PURPOSE OF 3ECTION OF THE !CT 4HE PROVISIONS ENACTED IN
THE &OREST #ONSERVATION !CT FOR THE CONSERVATION OF FORESTS AND THE MATTERS
CONNECTED THEREWITH MUST APPLY CLEARLY TO ALL FORESTS SO UNDERSTOOD IRRESPECTIVE OF
THE OWNERSHIP OR CLASSICATION THEREOF 4HIS ASPECT HAS BEEN MADE ABUNDANTLY CLEAR
IN THE DECISIONS OF THIS #OURT IN !MBICA 1UARRY 7ORKS AND ORS VERSUS 3TATE OF 'UJARAT
AND ORS 3## 2URAL ,ITIGATION AND %NTITLEMENT +ENDRA VERSUS 3TATE OF
50 3UPPL 3## AND RECENTLY IN THE ORDER DATED TH .OVEMBER IN
70 # .O 3UPREME #OURT -ONITORING #OMMITTEE VS -USSORIE $EHRADUN
$EVELOPMENT !UTHORITY AND ORS 4HE EARLIER DECISION OF THIS #OURT IN 3TATE OF "IHAR
VS "ANSHI 2AM -ODI AND ORS 3## HAS THEREFORE TO BE UNDERSTOOD
IN THE LIGHT OF THESE SUBSEQUENT DECISIONS 7E CONSIDER IT NECESSARY TO REITERATE
THIS SETTLED POSITION EMERGING FROM THE DECISIONS OF THIS COURT TO DISPEL THE DOUBT
IF ANY IN THE PERCEPTION OF ANY 3TATE 'OVERNMENT OR AUTHORITY 4HIS HAS BECOME
4 / \
NECESSARY ALSO BECAUSE OF THE STAND TAKEN ON BEHALF OF THE 3TATE OF 2AJASTHAN EVEN
AT THIS LATE STAGE RELATING TO PERMISSIONS GRANTED FOR MINING IN SUCH AREA WHICH IS
CLEARLY CONTRARY TO THE DECISIONS OF THIS COURT )T IS REASONABLE TO ASSUME THAT ANY
3TATE 'OVERNMENT WHICH HAS FAILED TO APPRECIATE THE CORRECT POSITION IN LAW SO FAR
WILL FORTHWITH CORRECT ITS STANCE AND TAKE THE NECESSARY REMEDIAL MEASURE WITH ANY
FURTHER DELAY
7E FURTHER DIRECT AS UNDER
) 'ENERAL
)N VIEW OF THE MEANING OF THE WORD FOREST IN THE !CT IT IS OBVIOUS THAT PRIOR
APPROVAL OF THE #ENTRAL 'OVERNMENT IS REQUIRED FOR ANY NON FOREST ACTIVITY WITHIN
THE AREA OF ANY FOREST )N ACCORDANCE WITH 3ECTION OF THE !CT ALL ON GOING ACTIVITY
WITHIN ANY FOREST IN ANY 3TATE THROUGHOUT THE COUNTRY WITHOUT THE PRIOR APPROVAL
OF THE #ENTRAL 'OVERNMENT MUST CEASE FORTHWITH )T IS THEREFORE CLEAR THAT THE
RUNNING OF SAW MILLS OF ANY KIND INCLUDING VENEER OR PLY WOOD MILLS AND MINING
OF ANY MINERAL ARE NON FOREST PURPOSES AND ARE THEREFORE NOT PERMISSIBLE WITHOUT
PRIOR APPROVAL OF THE #ENTRAL 'OVERNMENT !CCORDINGLY ANY SUCH ACTIVITY IS PRIMA
FACIE VIOLATION OF THE PROVISIONS OF THE &OREST #ONSERVATION !CT %VERY 3TATE
'OVERNMENT MUST PROMPTLY ENSURE TOTAL CESSION OF ALL SUCH ACTIVITIES FORTHWITH
)N ADDITION TO THE ABOVE IN THE TROPICAL WET EVERGREEN FOREST OF 4IRAP AND #HANGLANG
IN THE 3TATE OF !RUNACHAL 0RADESH THERE WOULD BE A COMPLETE BAN ON FELLING OF ANY
KIND OF TREES THEREIN BECAUSE OF THEIR PARTICULAR SIGNICANCE TO MAINTAIN ECOLOGICAL
BALANCE NEEDED TO PRESERVE BIO DIVERSITY !LL SAW MILLS 6ENEER MILLS AND PLYWOOD
MILLS IN 4IRAP AND #HANGLANG IN !RUNACHAL 0RADESH AND WITHIN A DISTANCE OF
KMS FROM ITS BORDER IN !SSAM SHOULD ALSO BE CLOSED IMMEDIATELY 4HE 3TATE
'OVERNMENTS OF !RUNACHAL 0RADESH AND !SSAM MUST ENSURE COMPLIANCE OF THIS
DIRECTION
4HE FELLING OF TREES IN ALL FORESTS IS TO REMAIN SUSPENDED EXCEPT IN ACCORDANCE
WITH THE 7ORKING 0LANS OF THE 3TATE 'OVERNMENTS AS APPROVED BY THE #ENTRAL
'OVERNMENT )N THE ABSENCE OF ANY 7ORKING 0LAN IN ANY PARTICULAR 3TATE SUCH AS
!RUNACHAL 0RADESH WHERE THE PERMIT SYSTEM EXISTS THE FELLING UNDER THE PERMITS
CAN BE DONE ONLY BY THE &OREST $EPARTMENT OF THE 3TATE 'OVERNMENT OR THE 3TATE
&OREST #ORPORATION
4HERE SHALL BE A COMPLETE BAN ON THE MOVEMENT OF CUT TREES AND TIMBER FROM ANY
OF THE SEVEN .ORTH EASTERN 3TATES TO ANY OTHER 3TATE OF THE #OUNTRY EITHER BY RAIL
ROAD OR WATER
WAYS 4HE )NDIAN 2AILWAYS AND THE 3TATE 'OVERNMENTS ARE DIRECTED
TO TAKE ALL MEASURES NECESSARY TO ENSURE STRICT COMPLIANCE OF THIS DIRECTION 4HIS
BAN WILL NOT APPLY TO THE MOVEMENT OF CERTIED TIMBER REQUIRED FOR DEFENCE OR
OTHER 'OVERNMENT PURPOSE 4HIS BAN WILL ALSO NOT AFFECT FELLING IN ANY PRIVATE
PLANTATION COMPRISING OF TREES PLANTED IN ANY AREA WHICH IS NOT A FOREST
%ACH 3TATE 'OVERNMENT SHOULD CONSTITUTE WITHIN ONE MONTH AN %XPERT #OMMITTEE
TO
I )DENTIFY AREAS WHICH ARE FORESTS IRRESPECTIVE OF WHETHER THEY ARE SO NOTIED
RECOGNISED OR CLASSIED UNDER ANY LAW AND IRRESPECTIVE OF THE OWNERSHIP OF THE
LAND OF SUCH FOREST
II )DENTIFY AREAS WHICH WERE EARLIER FORESTS BUT STAND DEGRADED DENUDED OR
CLEARED AND
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
IV )DENTIFY AREAS COVERED BY PLANTATION TREES BELONGING TO THE 'OVERNMENT AND
THOSE BELONGING TO PRIVATE PERSONS
%ACH 3TATE 'OVERNMENT SHOULD WITHIN TWO MONTHS LE A REPORT REGARDING
I THE NUMBER OF SAW MILLS VENEER AND PLYWOOD MILLS ACTUALLY OPERATING WITHIN
THE 3TATE WITH PARTICULARS OF THEIR REAL OWNERSHIPS
II THE LICENSED AND ACTUAL CAPACITY OF THESE MILLS FOR STOCK AND SAWING
III THEIR PROXIMITY TO THE NEAREST FOREST
IV THEIR SOURCE OF TIMBER
%ACH 3TATE 'OVERNMENT SHOULD CONSTITUTE WITHIN ONE MONTH AN %XPERT #OMMITTEE
TO ASSESS
I THE SUSTAINABLE CAPACITY OF THE FORESTS OF THE 3TATE QUA SAW MILLS AND TIMBER
BASED INDUSTRY
II THE NUMBER OF EXISTING SAW MILLS WHICH CAN SAFELY BE SUSTAINED IN THE 3TATE
III THE OPTIMUM DISTANCE FROM THE FOREST QUA THAT 3TATE AT WHICH THE SAW MILL
SHOULD BE LOCATED
4HE %XPERT #OMMITTEES SO CONSTITUTED SHOULD BE REQUESTED TO GIVE ITS REPORT
WITHIN ONE MONTH OF BEING CONSTITUTED
%ACH 3TATE 'OVERNMENT WOULD CONSTITUTE A #OMMITTEE COMPRISING OF THE 0RINCIPAL
#HIEF #ONSERVATOR OF &ORESTS AND ANOTHER 3ENIOR /FCER TO OVERSEE THE COMPLIANCE OF
THIS ORDER AND LE STATUS REPORTS
!S ALSO SUBMITTED BY THE DEFENDANTS BY VIRTUE OF SECTION % OF THE -IZORAM &OREST
!CT !CT .O )6 OF THE 'OVERNOR OF -IZORAM AUTHORIZED ALL &OREST /FCERS
NOT BELOW THE RANK OF $&/$#& UNDER %NVIRONMENT &OREST $EPARTMENT 'OVT
OF -IZORAM TO EVICT ANY PERSON FROM A 'OVERNMENT 2ESERVE &OREST AND ALSO TO SELL
CONSCATE OR DESTROY ANY CROP RAISED OR ANY BUILDING OR OTHER CONSTRUCTION ERECTED BY
SUCH PERSON WITHOUT AUTHORITY WITH IMMEDIATE EFFECT UNLESS SUCH PERSON HAS BEEN
LAWFULLY AUTHORIZED TO SETTLE IN SUCH 'OVERNMENT 2ESERVE &OREST SINCE A TIME PRIOR TO
THE DATE OF COMMENCEMENT OF THE &OREST #ONSERVATION !CT OR ALLOWED TO REMAIN
IN POSSESSION OF SUCH LAND UNDER ANY ORDER OF A COMPETENT COURT OF LAW AS NOTIED
UNDER .O $ &34 THE TH *ANUARY 6IDE THE -IZORAM 'AZETTE %XTRA
/RDINARY 6OL 8886)
)SSUE .O =
(OWEVER AS PER !$# SUPPLE TO THE !SSAM 'AZETTE -AY &OREST RESERVE IN
THE 4UIRIAL RIVERINE UNDER !IZAWL &OREST DIVISION IS KM LENGTH 3Q KM )
MUST THEREFORE TAKE ANOTHER RESORT IN THE CASE OF 2URAL ,ITIGATION %NTITLEMENT +ENDRA
VS 3TATE OF 50 DECIDED ON REPORTED IN !IR 3## 3UPL
THEIR LORDSHIP OF (ONBLE 3UPREME #OURT WENT ON THAT
3CIENTISTS CAME TO REALISE THAT FORESTS PLAY A VITAL ROLE IN MAINTAINING THE BALANCE OF
THE ECOLOGICAL SYSTEM 4HEY CAME TO KNOW THAT FORESTS PRESERVE THE SOIL AND HEAVY
HUMUS ACTS AS POROUS RESERVOIR FOR RETAINING WATER AND GRADUALLY RELEASING IT IN
A SUSTAINED OW 4HE TREES IN THE FORESTS DRAW WATER FROM THE BOWLS OF THE EARTH
AND RELEASE THE SAME INTO THE ATMOSPHERE BY THE PROCESS OF TRANSPIRATION AND THE
SAME IS RECEIVED BACK BY WAY OF RAIN AS A RESULT OF CONDENSATION OF CLOUDS FORMED
OUT OF THE ATMOSPHERIC MOISTURE &ORESTS THUS HELP THE CYCLE TO BE COMPLETED 4REES
4 / \
ARE RESPONSIBLE TO PURIFY THE AIR BY RELEASING OXYGEN INTO THE ATMOSPHERE THROUGH
THE PROCESS OF PHOTOSYNTHESIS )T HAS THEREFORE BEEN RIGHTLY SAID THAT THERE IS A
BALANCE ON EARTH BETWEEN AIR WATER SOIL AND PLANT &ORESTS HOLD UP THE MOUNTAINS
CUSHION THE RAINS AND THEY DISCIPLINE THE RIVERS AND CONTROL THE OODS 4HE SUSTAIN
THE SPINNING THEY BREAK THE WINDS THEY FOSTER THE BULKS THEY KEEP THE AIR COOL AND
CLEAN &OREST ALSO PREVENT EROSION BY WIND AND WATER AND PRESERVE THE CARPET OF THE
SOIL )N THE SECOND HALF OF THE TH #ENTURY FELLING OF TREES CAME TO BE REGULATED )N
THE $EPARTMENT OF &ORESTRY WAS SET UP AND IN THE RST )NSPECTOR 'ENERAL
OF &ORESTS WAS APPOINTED )N THE FOLLOWING YEAR THE RST )NDIAN &OREST !CT CAME INTO
THE 3TATUE BOOK TO BE FOLLOWED BY ANOTHER !CT IN AND YET ANOTHER IN WHICH
IS STILL IN FORCE PROVIDING MEASURES OF REGULATION 4HIS !CT HAS BEEN AMENDED IN THE
VARIOUS 3TATES AND PRESENTLY REFERENCE SHALL BE MADE TO THE RELEVANT AMENDMENTS
IN 5TTAR 0RADESH
)N THIS DIRECTION 2IVERINE FOREST RESERVED WILL ALSO BE FOR THE SOLE PURPOSE OF MAINTENANCE
AND PRESERVATION OF RIVER STREAMS WHICH IS VERY ESSENTIAL FOR ALL LIVING CREATURES
,IKEWISE THE RIGHTS OF FORESTS DWELLERS IS NOT ALSO OBLIVIOUS AS HELD IN THE CASE OF 0RADEEP
+RISHEN VS 5NION OF )NDIA /RS DECIDED ON AND REPORTED IN !)2
3UPPL 3#2 3## 3#!,% *4 THE (ONBLE
!PEX #OURT HAS HELD THE RIGHTS OF VILLAGERS TRIBALS THAT
4HE PETITIONER CONTENDS THAT THE FOREST COVER IN THE 3TATE OF -ADHYA 0RADESH IS
GRADUALLY SHRINKING !S POINTED OUT EARLIER THERE IS A SHRINKAGE TO THE EXTENT OF
SW KMS BETWEEN AND )N OUR COUNTRY THE TOTAL FOREST COVER IS FAR LESS THAN
THE IDEAL MINIMUM OF ONE THIRD OF THE TOTAL LAND 7E CANNOT THEREFORE AFFORD ANY
FURTHER SHRINKAGE IN THE FOREST COVER IN OUR COUNTRY )F ONE OF THE REASONS FOR THIS
SHRINKAGE IS THE ENTRY OF VILLAGERS AND TRIBALS LIVING IN AND AROUND THE 3ANCTUARIES
AND THE .ATIONAL PARKS THERE CAN BE NO DOUBT THAT URGENT STEPS MUST BE TAKEN TO
PREVENT ANY DESTRUCTION OR DAMAGE TO THE ENVIRONMENT THE ORA AND FAUNA AND
WILDLIFE IN THOSE AREA )F THE ONLY REASON WHICH COMPELS THE 3TATE 'OVERNMENT TO
PERMIT ENTRY AND COLLECTION OF TENDU LEAVES IS IT NOT HAVING ACQUIRED THE RIGHTS OF
VILLAGES TRIBALS AND HAVING FAILED TO LOCATE ANY AREA FOR THEIR REHABILITATION WE
THINK THAT INTER ALIA IN THIS BEHALF CANNOT BE TOLERATED
)N THE CASE OF 9AMKHOMANG (AOKIP VS 3TATE OF -ANIPUR AND /RS DECIDED ON *ULY
REPORTED IN ',2 (ONBLE 'AUHATI (IGH #OURT HAS OBSERVED THAT
)N VIEW OF THE EXITING FACTS AND CIRCUMSTANCES OF THE CASE THIS #OURT REQUIRE THE
3TATE RESPONDENTS TO EXAMINE THE PRESENT MATTER BY GIVING PREFERENCE TO IT AS
THE MATTER INVOLVES THE RIGHT TO LIFE AND THIS #OURT HOPE AND TRUST THAT THE 3TATE
RESPONDENTS SHALL PROTECT THE PETITIONER AND HIS CO
VILLAGERS BY PROVIDING THEM
THEIR ACCOMMODATION AT THE PRESENT PLACE OR TO PROVIDE ALTERNATIVE ACCOMMODATION
AT A SUITABLE SITE SO AS TO ENABLE THESE POOR VILLAGES TO EARN THEIR LIVELIHOOD AND THAT
THEIR PRESENT OCCUPATION AND POSSESSION OVER THE LAND SHALL NOT BE DISTURBED UNTIL
THE MATTER IS SETTLED BY THE COMPONENT AUTHORITY SO THAT A COMMON MAN MAY THINK
THAT A HUMAN PROBLEM HAS BEEN SOLVED BY THE 3TATE RESPONDENTS 4HIS #OURT FURTHER
REQUIRES THE 3TATE RESPONDENTS TO KEEP IN THEIR MIND THE DIFFERENCES BETWEEN THE NEED
OF AN ANIMAL AND HUMAN BEING FOR SHELTER AS FOR THE ANIMAL IT IS THE BARE PROTECTION
OF THE BODY AND FOR GOOD FOOD AND FOR A HUMAN BEING A SUITABLE ACCOMMODATION
OR SHELTER WHICH WOULD ALLOW HIM TO GO IN OTHER ASPECTS
PHYSICALLY MENTALLY AND
INTELLECTUALLY WITH GOOD FOOD CLOTHING FOR SURVIVAL ON THIS EARTH
!GAIN IN .ARMADA "ACHAO !NDOLAN V 5NION OF )NDIA AND /RS 3##
DISPOSED OF THE SAID WRIT PETITION UPON ISSUING VARIOUS DIRECTIONS 4HE #OURT INTER ALIA
OPINED THAT
I DISPLACEMENT OF THE TRIBALS AND OTHER PERSONS WOULD NOT PER SE RESULT IN VIOLATION
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
OF THEIR FUNDAMENTAL OR OTHER RIGHTS
II ON THEIR REHABILITATION AT NEW LOCATIONS THEY WOULD BE BETTER OFF THAN WHAT THEY
WERE
III AT THE REHABILITATION SITES THEY WILL HAVE MORE AND BETTER AMENITIES THAN THOSE
THEY ENJOYED IN THEIR TRIBAL HAMLETS AND
IV THE GRADUAL ASSIMILATION IN THE MAINSTREAM OF THE SOCIETY WOULD LEAD TO
BETTERMENT AND PROGRESS
)N THE CASE OF 2URAL ,ITIGATION %NTITLEMENT +ENDRA VS 3TATE OF 50 DECIDED ON
!UGUST REPORTED IN !)2 3## 3UPL IT WAS HELD THAT
4HE PROBLEM OF FOREST PRESERVATION AND PROTECTION WAS NO MORE TO BE SEPARATED
FROM THE LIFE STYLE OF TRIBALS 4HE APPROACH REQUIRED A SHIFT FROM THE DEPENDENCE
ON LAW AND EXECUTIVE IMPLEMENTATION TO DEPENDENCE ON THE CONSCIOUS AND
VOLUNTARY PARTICIPATION OF THE MASSES 4HIS REQUIRED EDUCATING THE MASSES AS WELL
AS APPROPRIATE EDUCATION OF THE DEPARTMENTAL EMPLOYEES
4HERE WAS SOME CONTROVERSY AS TO WHETHER SOME OF THE MINES WERE LOCATED IN
THE RESERVED FORESTS 7E HAVE NOT MADE ANY ATTEMPT TO RESOLVE THAT CONTROVERSY
HERE AS IN OUR OPINION WHETHER THE MINES ARE WITHIN THE RESERVED FORESTS OR IN
OTHER FOREST AREA THE PROVISIONS OF THE #ONSERVATION !CT APPLY
4HERE IS NO DISPUTE THAT CONTINUANCE OF MINING OPERATIONS AFFECTS ENVIRONMENT
AND ECOLOGY ADVERSELY AND AT THE SAME TIME CREATES A PREJUDICIAL SITUATION AGAINST
CONSERVATION OF FORESTS )T IS THEREFORE NECESSARY THAT EACH OF THESE WORKING MINES
SHALL HAVE TO WORK WITH AN UNDERTAKING GIVEN TO THE -ONITORING #OMMITTEE THAT
ALL CARE AND ATTENTION SHALL BE BESTOWED TO PRESERVE ECOLOGICAL AND ENVIRONMENTAL
BALANCE WHILE CARRYING ON MINING OPERATIONS
)NDISPUTABLY DISPLACEMENT HAS BEEN SUFFERED BY THESE LESSEES AND THE SUDDEN
DISPLACEMENT MUST HAVE UPSET THEIR ACTIVITIES AND BROUGHT ABOUT SUBSTANTIAL
INCONVENIENCE TO THEM 4HE #OURT HAS NO OTHER OPTION BUT TO CLOSE DOWN THE MINING
ACTIVITY IN THE BROAD INTERESTS OF THE COMMUNITY 4HIS HOWEVER DOES NOT MEAN THAT
THE DISPLACED MINE OWNERS SHOULD NOT BE PROVIDED WITH ALTERNATIVE OCCUPATION
0IOUS OBSERVATION OR EVEN A DIRECTION IN THAT REGARD MAY NOT BE ADEQUATE WHAT IS
NECESSARY IS A TIME FRAME FUNCTIONING IF REHABILITATION IS TO BE MADE EFFECTIVE )T IS
THEREFORE NECESSARY THAT A #OMMITTEE SHOULD BE SET UP TO OVERSEE THE REHABILITATION
OF THE DISPLACED MINE OWNERS
!S THE ABOVE WERE THE LEGAL POSITION OF THE SUIT IT IS NOW IMPEL TO TURN INTO THE ENTITY
OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT HEREINAFTER REFERRED TO AS &OREST 2IGHTS !CT !CT .O OF $T
TH $ECEMBER IS PUBLISHED IN THE 'AZETTE OF )NDIA %XTRA /RDINARY 0ART )) 3ECTION
.O *ANUARY 0!53! AND ST $ECEMBER IS APPOINTED AS THE
DATE OF THE PROVISION OF THE !CT SHALL COME INTO FORCE UNDER .OTICATION .O 3/
% .EW $ELHI THE ST $ECEMBER 6IDE THE 'AZETTE OF )NDIA %XTRA /RDINARY 0ART
)I 3ECTION 3UB 3ECTION II .O $ECEMBER 0!53! 4HE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS 2ULES
IS ALSO AGAIN CHALKED OUT &IRSTLY LOOK INTO THE PROVISIONS OF !RTICLE ' OF THE
#ONSTITUTION OF )NDIA IT READS THUS
'
3PECIAL PROVISION WITH RESPECT TO THE 3TATE OF -IZORAM
4 / \
.OTWITHSTANDING ANYTHING IN THIS #ONSTITUTION
A NO !CT OF 0ARLIAMENT IN RESPECT OF
I RELIGIOUS OR SOCIAL PRACTICES OF THE -IZOS
II -IZO CUSTOMARY LAW AND PROCEDURE
III !DMINISTRATION OF CIVIL AND CRIMINAL JUSTICE INVOLVING DECISIONS ACCORDING TO
-IZO CUSTOMARY LAW
IV OWNERSHIP AND TRANSFER OF LAND SHALL APPLY TO THE 3TATE OF -IZORAM UNLESS
THE ,EGISLATIVE !SSEMBLY OF THE 3TATE OF -IZORAM BY A RESOLUTION SO DECIDES
0ROVIDED THAT NOTHING IN THE CLAUSE SHALL APPLY TO ANY #ENTRAL !CT IN FORCE IN THE 5NION
TERRITORY OF -IZORAM IMMEDIATELY BEFORE THE COMMENCEMENT OF THE #ONSTITUTION &IFTH
THIRD !MENDMENT !CT
B THE ,EGISLATIVE !SSEMBLY OF THE 3TATE OF -IZORAM SHALL CONSIST OF NOT LESS THAN
FORTY MEMBERS
)N THIS DOMAIN THE ENTITY OF THE &OREST #ONSERVATION !CT AND THE &OREST 2IGHTS
!CT SHALL REMAIN PRECEDENCE OVER TO STATE LAND AND REVENUE LAWS AS &OREST
IS APPENDED UNDER ENTRY ! OF ,IST ))) #ONCURRENT ,IST OF THE #ONSTITUTION OF )NDIA
INSERTED BY THE #ONSTITUTION &ORTY SECOND !MENDMENT !CT
!S WELL KNOWN NEEDLESS TO SAY IS THAT SINCE SOME TOWNS AND VILLAGES IN THE STATE
TERRAIN IS WITHIN RIVERINE RESERVED FOREST AREA AND OTHER FOREST RESERVED AREAS MOST
OF THE OCCUPANTS DWELLERS HOLDS VALID LANDED DOCUMENTS FROM THE 'OVT OF -IZORAM
ITSELF LIKE ,3# ETC IT ENTHRALLED ME TO PAY STRENUOUS EFFORTS AND JUDICIOUSLY VIGIL ON THE
DISPUTES
)N -IZORAM PERSPECTIVE CONSEQUENT UPON THE /FCIAL 2ESOLUTION PASSED BY THE
-IZORAM ,EGISLATIVE !SSEMBLY IN ITS SESSION HELD ON TH /CTOBER AS REQUIRED
UNDER !RTICLE ' OF THE #ONSTITUTION OF )NDIA THE 'OVERNMENT OF -IZORAM HAS BEEN
APPOINTED AS THE DATE ON WHICH THE PROVISIONS OF THE 3CHEDULED 4RIBES AND
OTHER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT AND ITS 2ULES
OF CAME INTO FORCE IN THE STATE OF -IZORAM AS NOTIED UNDER .O !
37$ THE RD -ARCH 6IDE THE -IZORAM 'AZETTE %XTRA /RDINARY 6OL 888)8
DATED )SSUE .O )T IS THEREFORE OBVIOUSLY REQUIRE TO EXAMINE THE EFCACY
OF THE SAID &OREST 2IGHTS !CT
#LAUSE C OF SECTION OF THE &OREST 2IGHTS !CT DENES &OREST DWELLING 3CHEDULED 4RIBES
THAT
C FOREST DWELLING 3CHEDULED 4RIBES MEANS THE MEMBERS OR COMMUNITY OF THE
3CHEDULED 4RIBES WHO PRIMARILY RESIDES IN AND WHO DEPEND ON THE FORESTS OR FOREST
LANDS FOR BONA DE LIVELIHOOD NEEDS AND INCLUDES THE 3CHEDULED 4RIBE PASTORALIST
COMMUNITIES
#ONSTRUING SUB SECTION OF SECTION OF THE &OREST 2IGHTS !CT IT READS THAT
4HE RECOGNITION AND VESTING OF FOREST RIGHTS UNDER THIS !CT TO THE FOREST DWELLING
3CHEDULED 4RIBES AND TO OTHER TRADITIONAL FOREST DWELLERS IN RELATION TO ANY 3TATE
OR 5NION TERRITORY IN RESPECT OF FOREST LAND AND THEIR HABITAT SHALL BE SUBJECT TO THE
CONDITION THAT SUCH 3CHEDULED 4RIBES OR TRIBAL COMMUNITIES OR OTHER TRADITIONAL
FOREST DWELLERS HAD OCCUPIED FOREST LAND BEFORE THE TH DAY OF $ECEMBER
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
#OGENTLY THE %NACTMENT OF &OREST 2IGHTS !CT IS NEITHER MEANT TO DEGRADATION OF
ENVIRONMENT NOR TO DEVASTATE FOREST AND ITS ECOLOGY BUT MERELY CONSOLIDATED THE
SIMPLE TRADITIONAL MEANS OF LIVELIHOOD AND LIFESTYLE OF FOREST DWELLERS AND PRESERVATION
OF FORESTS WERE NO OTHER ALTERNATIVE MODE IS AVAILABLE IN THE OVER POPULATION OF THE
COUNTRY 6ARIOUS STRATA OF AUTHORITIES UNDER THE &OREST 2IGHTS !CT MAY BE SUM UP IN
REFERENCE TO THE STATE OF -IZORAM AS FOLLOWS
&OREST 2 I GHTS #OMMI TTEE 'R A M 3A BH A A T 6 ILLA G E LE VE L
/RGAN I SATI ON
4HE 'OVERNMENT OF -IZORAM UNDER .OTICATION .O !
37$ $ATED !IZAWL
THE TH -ARCH CONSTITUTED 'RAM 3ABHA TO BE CONVENED BY THE 0RESIDENT OF EACH
6ILLAGE #OUNCILS AND AUTHORIZED TO ELECT SELECT AMONGST ITS MEMBERS FOR &OREST 2IGHTS
#OMMITTEE
)N SUPPRESSION OF THE ABOVE THE 'OVERNMENT OF -IZORAM UNDER .OTICATION .O !
37$ DATED !IZAWL THE TH -AY CONSTITUTED 'RAM 3ABHA TO BE
CONVENED BY THE 0RESIDENT OF EACH 6ILLAGE #OUNCILS AND AUTHORIZED TO ELECT SELECT
AMONGST ITS MEMBERS FOR &OREST 2IGHTS #OMMITTEE 6IDE THE -IZORAM 'AZETTE %XTRA
/RDINARY 6OL 888)8 )SSUE .O
&U N C TI ON S ;2 OF &O R E ST 2IG H TS 2ULE S=
4HE 'RAM 3ABHA SHALL
A INITIATE THE PROCESS OF DETERMINING THE NATURE AND EXTENT OF FOREST RIGHTS RECEIVE
AND HEAR THE CLAIMS RELATING THERETO
B PREPARE A LIST OF CLAIMANTS OF FORESTS RIGHTS AND MAINTAIN A REGISTER CONTAINING
SUCH DETAILS OF CLAIMANTS AND THEIR CLAIMS AS THE #ENTRAL 'OVERNMENT MAY BY ORDER
DETERMINE
C PASS A RESOLUTION ON CLAIMS ON FOREST RIGHTS AFTER GIVING REASONABLE OPPORTUNITY
TO INTERESTED PERSONS AND AUTHORITIES CONCERNED AND FORWARD THE SAME TO THE 3UB
$IVISIONAL ,EVEL #OMMITTEE
D CONSIDER RESETTLEMENT PACKAGES UNDER CLAUSE E OF SUB SECTION OF SECTION OF
THE !CT AND PASS APPROPRIATE RESOLUTIONS AND
E CONSTITUTE #OMMITTEES FOR THE PROTECTION OF WILDLIFE FOREST AND BIODIVERSITY FROM
AMONGST ITS MEMBERS IN ORDER TO CARRY OUT THE PROVISIONS OF SECTION OF THE !CT
3 U B $I VI SI ON AL L EVEL #O MMITTE E
/RGAN I SATI ON
4HE 'OVERNMENT OF -IZORAM UNDER .OTICATION .O ! I
37$ DATED
!IZAWL THE TH -ARCH CONSTITUTED 3UB
$IVISIONAL ,EVEL #OMMITTEE CHAIRED BY
3$/ # WITH OTHER THREE MEMBERS INCLUDING MEMBER SECRETARY AS THE #$0/ OR ANY
/FCER OF 3OCIAL 7ELFARE $EPARTMENT POSTED IN THE 3UB
$IVISION OR NEAREST PLACE OF
POSTING
&U N C TI ON S ;2 OF &OREST 2IG H TS 2ULE S=
4 / \
4HE 3UB
$IVISIONAL ,EVEL #OMMITTEE 3$,# SHALL
A PROVIDE INFORMATION TO EACH 'RAM 3ABHA ABOUT THEIR DUTIES AND DUTIES OF
HOLDER OF FOREST RIGHTS AND OTHERS TOWARDS PROTECTION OF WILDLIFE FOREST AND
BIODIVERSITY WITH REFERENCE TO CRITICAL ORA AND FAUNA WHICH NEED TO BE CONSERVED
AND PROTECTED
B PROVIDE FOREST AND REVENUE MAPS AND ELECTORAL ROLLS TO THE 'RAM 3ABHA OR THE
&OREST 2IGHTS #OMMITTEE
C COLLATE ALL THE RESOLUTIONS OF THE CONCERNED 'RAM 3ABHAS
D CONSOLIDATE MAPS AND DETAILS PROVIDED BY THE 'RAM 3ABHAS
E EXAMINE THE RESOLUTIONS AND THE MAPS OF THE 'RAM 3ABHAS TO ASCERTAIN THE
VERACITY OF THE CLAIMS
F HEAR AND ADJUDICATE DISPUTES BETWEEN 'RAM 3ABHAS ON THE NATURE AND EXTENT
OF ANY FOREST RIGHTS
G HEAR PETITIONS FROM PERSONS INCLUDING 3TATE AGENCIES AGGRIEVED BY THE
RESOLUTIONS OF THE 'RAM 3ABHAS
H CO
ORDINATE WITH OTHER 3UB
$IVISIONAL ,EVEL #OMMITTEE FOR INTER SUB
DIVISIONAL CLAIMS
I PREPARE BLOCK OR TEHSIL WISE DRAFT RECORD OF PROPOSED FOREST RIGHTS AFTER
RECONCILIATION OF GOVERNMENT RECORDS
J FORWARD THE CLAIMS WITH THE DRAFT RECORD OF PROPOSED FOREST RIGHTS THROUGH THE
3UB
$IVISIONAL /FCER TO THE $ISTRICT ,EVEL #OMMITTEE FOR NAL DECISION
K RAISE AWARENESS AMONG FOREST DWELLERS ABOUT THE OBJECTIVES AND PROCEDURES
LAID DOWN UNDER THE !CT AND IN THE RULES
L ENSURE EASY AND FREE AVAILABILITY OF PROFORMA OF CLAIMS TO THE CLAIMANTS AS
PROVIDED IN !NNEXURE
&ORMS ! " OF THESE RULES
M ENSURE THAT THE 'RAM 3ABHA MEETINGS ARE CONDUCTED IN FREE OPEN AND FAIR
MANNER WITH REQUISITE QUORUM
$ I S T R I C T ,EVEL #OMMI TTEE
/ R G A N I SATI ON
4HE 'OVERNMENT OF -IZORAM UNDER .OTICATION .O ! II 37$ DATED
!IZAWL THE TH -ARCH CONSTITUTED $ISTRICT ,EVEL #OMMITTEE CHAIRED BY THE
$EPUTY #OMMISSIONER WITH OTHER THREE MEMBERS INCLUDING $37/ OR #$0/ OF 37$
POSTED IN THE DISTRICT HEADQUARTERS OR NEAREST PLACE OF POSTING
& U NC T I ON S ;2 OF &OREST 2 I GHTS 2ULE S=
4HE $ISTRICT ,EVEL #OMMITTEE SHALL
A ENSURE THAT THE REQUISITE INFORMATION UNDER CLAUSE B OF RULE HAS BEEN PROVIDED
TO 'RAM 3ABHA OR &OREST 2IGHTS #OMMITTEE
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
B EXAMINE WHETHER ALL CLAIMS ESPECIALLY THOSE OF PRIMITIVE TRIBAL GROUPS
PASTORALISTS AND NOMADIC TRIBES HAVE BEEN ADDRESSED KEEPING IN MIND THE OBJECTIVES
OF THE !CT
C CONSIDER AND NALLY APPROVE THE CLAIMS AND RECORD OF FOREST RIGHTS PREPARED BY
THE 3UB
$IVISIONAL ,EVEL #OMMITTEE
D HEAR PETITIONS FROM PERSONS AGGRIEVED BY THE ORDERS OF THE 3UB
$IVISIONAL ,EVEL
#OMMITTEE
E CO ORDINATE WITH OTHER DISTRICTS REGARDING INTER DISTRICT CLAIMS
F ISSUE DIRECTIONS FOR INCORPORATION OF THE FOREST RIGHTS IN THE RELEVANT GOVERNMENT
RECORDS INCLUDING RECORD OF RIGHTS
G ENSURE PUBLICATION OF THE RECORD OF FOREST RIGHTS AS MAY BE NALIZED AND
H ENSURE THAT A CERTIED COPY OF THE RECORD OF FOREST RIGHTS AND TITLE UNDER THE !CT AS
SPECIED IN !NNEXURES )) ))) TO THESE RULES IS PROVIDED TO THE CONCERNED CLAIMANT
AND THE 'RAM 3ABHA RESPECTIVELY
3 TATE ,EVEL -ON I TORI N G #O MMITTE E
/RGAN I SATI ON
4HE 'OVERNMENT OF -IZORAM UNDER .OTICATION .O ! III 37$ $ATED
!IZAWL THE TH -ARCH CONSTITUTED 3TATE ,EVEL -ONITORING #OMMITTEE CHAIRED
BY #HIEF 3ECRETARY AND OTHER MEMBERS INCLUDING #OMMISSIONER 37$ AS THE -EMBER
3ECRETARY )N SUPPRESSION OF THE ABOVE THE 'OVERNMENT OF -IZORAM UNDER .OTICATION
.O ! III 37$ DATED !IZAWL THE TH -AY CONSTITUTED 3TATE
,EVEL -ONITORING #OMMITTEE CHAIRED BY #HIEF 3ECRETARY AND OTHER MEMBERS INCLUDING
#OMMISSIONER 3ECRETARY 37$ AS THE -EMBER 3ECRETARY 6IDE THE -IZORAM 'AZETTE
%XTRA /RDINARY 6OL 888)8 )SSUE .O
&U N C TI ON S ;R OF &OREST 2IG H TS 2ULE S=
4HE 3TATE ,EVEL -ONITORING #OMMITTEE SHALL
A DEVISE CRITERIA AND INDICATORS FOR MONITORING THE PROCESS OF RECOGNITION AND
VESTING OF FOREST RIGHTS
B MONITOR THE PROCESS OF RECOGNITION VERICATION AND VESTING OF FOREST RIGHTS IN THE
3TATE
C FURNISH A SIX MONTHLY REPORT ON THE PROCESS OF RECOGNITION VERICATION AND
VESTING OF FOREST RIGHTS AND SUBMIT TO THE NODAL AGENCY SUCH RETURNS AND REPORTS AS
MAY BE CALLED FOR BY THE NODAL AGENCY
D ON RECEIPT OF A NOTICE AS MENTIONED IN SECTION OF THE !CT TAKE APPROPRIATE
ACTIONS AGAINST THE CONCERNED AUTHORITIES UNDER THE !CT
E MONITOR RESETTLEMENT UNDER SUB SECTION OF SECTION OF THE !CT
4 / \
# / . # ,53 )/.
4HE ABOVE DETAIL DISCUSSIONS AND ANALYSIS CLEARLY ENUMERATED THAT INSTEAD OF
ADJUDICATION OF THE DISPUTE IN THIS COURT THE PROPER FORUM LIES IN THE AEGIS OF THE
&OREST 2IGHTS !CT TO BE INITIATED BY THE VILLAGE LEVEL AUTHORITIES AS INITIATED BY THE GIANT
0ARLIAMENT AND ITS ADAPTATION OF -IZORAM ,EGISLATIVE !SSEMBLY WITH EFFORTS MADE BY
THE 3TATE 'OVT OF -IZORAM THROUGH VARIOUS NOTICATIONS TO CONSTITUTE THE HIERARCHY OF
AUTHORITIES UNDER THE SAID !CT AND ALSO AS HELD IN THE CASE OF .OOR -OHD +HAN 'HOUSE
+HAN 3OUDAGAR !NR VS &AKIRAPPA "HARMAPPA -ACHENA (ALLI /RS DECIDED ON
!PRIL REPORTED IN !)2 3#2 IT WAS OBSERVED THAT
)T IS SETTLED LAW THAT THE EXCLUSION OF THE JURISDICTION OF THE #IVIL #OURT IS NOT TO
BE LIGHTLY INFERRED 3UCH EXCLUSION MUST EITHER BE EXPLICITLY EXPRESSED OR CLEARLY
IMPLIED 4HE LAW WAS LAID DOWN BY THE 0RIVY #OUNCIL IN )NDIAN !PPEALS PAGE
AND HAS BEEN SINCE AFRMED BY THIS #OURT IN SEVERAL DECISIONS )N $HULABHAI VS 3TATE
OF -0 THIS #OURT HELD THAT EXCLUSION OF JURISDICTION OF THE #IVIL #OURT IS NOT TO BE
READILY INFERRED 4HIS VIEW WAS FOLLOWED IN THE 3TATE OF 7EST "ENGAL VS 4HE )NDIAN
)RON 3TEEL #O ,TD ;= ) 3#2 AND AFRMED IN THE 5NION OF )NDIA VS 4ARA
#HAND 'UPTA "ROS ;= 3#2 4HE 0RIVY #OUNCIL IN )! APPROVING OF
THE PRINCIPLES LAID DOWN IN THE WELL KNOWN JUDGMENT OF 7ILLES * IN 7OLVERHAMPTON
.EW 7ATER 7ORKS #O VS (AWKESFORD WHICH WAS APPROVED OF IN THE (OUSE OF ,ORDS OF
.EVILLE VS ,ONDON %XPRESS .EWSPAPER STATED THE LAW THUS
7HERE A LIABILITY NOT EXISTING AT COMMON LAW IS CREATED BY A STATUTE WHICH AT THE
SAME TIME GIVES A SPECIAL AND PARTICULAR REMEDY FOR ENFORCING IT WITH RESPECT TO THAT
CLASS IT HAS ALWAYS BEEN HELD THAT THE PARTY MUST ADOPT THE FORM OF REMEDY GIVEN
BY THE STATUTE
)N ORDER TO DETERMINE WHETHER THE JURISDICTION OF THE #IVIL #OURT WAS EXPRESSLY OR BY
NECESSARY IMPLICATION EXCLUDED THE PROVISIONS OF THE RELEVANT ENACTMENTS WILL HAVE TO
BE CONSIDERED
!ND IN THE CASE OF !BDUL 'AFUR VS 3TATE OF 5TTARAKHAND REPORTED IN 3## IT
WAS HELD THAT
3ECTION OF THE #ODE PROVIDES THAT THE CIVIL COURT SHALL HAVE JURISDICTION TO TRY
ALL SUITS OF A CIVIL NATURE EXCEPTING THE SUITS OF WHICH THEIR COGNIZANCE IS EITHER
EXPRESSLY OR IMPLIEDLY BARRED 4O PUT IT DIFFERENTLY AS PER 3ECTION OF THE #ODE IN
ALL TYPES OF CIVIL DISPUTES THE CIVIL COURTS HAVE INHERENT JURISDICTION UNLESS A PART
OF THAT JURISDICTION IS CARVED OUT FROM SUCH JURISDICTION EXPRESSLY OR BY NECESSARY
IMPLICATION BY ANY STATUTORY PROVISION AND CONFERRED ON OTHER TRIBUNAL OR AUTHORITY
4HUS THE LAW CONFERS ON EVERY PERSON AN INHERENT RIGHT TO BRING A SUIT OF CIVIL NATURE
OF ONES CHOICE AT ONES PERIL HOWEVER FRIVOLOUS THE CLAIM MAY BE UNLESS IT IS BARRED
BY A STATUTE
4O EPITOMIZE AND FOUND AXIOMATIC AS LESSONED FROM THE MAGNA CARTA INTRODUCED IN THE
DISCUSSIONS IT IS EXPECTED TO MEET JUSTICE BY LEAVING THE SUIT DISPUTE TO PLACATE WITHIN
THE AMBIT OF THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION
OF &OREST 2IGHTS !CT AND THE RULES MADE THEREUNDER AS THE PLAINTIFF APPEARS
TRADITIONALLY OCCUPIED THE SUIT LAND SINCE BY TAKING EVIDENCE AS IMPOSED
UNDER SUB RULE OF RULE OF THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST 2IGHTS 2ULES /THERWISE MENACE OF COMPLEXITY
CHAOS WHICH WILL LEADS INIMICAL TO EXISTING LAWS
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
/2$ % 2
5PON HEARING OF BOTH PARTIES BY GIVING AN AMPLE TIME AND AS PER THE NDINGS AND
OBSERVATIONS OF THE ABOVE BY VIRTUE OF / 6)) 2 RW /6)) RR ! D OF THE
#ODE OF #IVIL 0ROCEDURE THE PLAINT LED IN THE COURT ON WITH ITS
!NNEXURE SHALL BE RETURNED TO THE PLAINTIFF BUT SHALL BE KEPT 8EROX COPY OF PLAINT WITH
ITS !NNEXURE IN THE CASE RECORD 4HE PLAINTIFF IS THEREFORE ADVISED TO APPROACH &OREST
2IGHTS #OMMITTEE AT 4UIRIAL VILLAGE CHAIRED BY THE 0RESIDENT 6ILLAGE #OUNCIL #OURT
4UIRIAL BY A PRESCRIBED #LAIM &ORM FOR RIGHTS TO &OREST ,AND UNDER RULE A OF &OREST
2IGHTS 2ULES 6IZ &/2-
! IN THE !NNEXURE
-EANWHILE BEFORE DISPOSAL OF THE CLAIM AND ITS PROCESS TO BE PREFERRED BY THE PLAINTIFF
FROM 6ILLAGE LEVEL TO A $ISTRICT ,EVEL #OMMITTEE IN ACCORDANCE WITH THE PROVISIONS OF
THE &OREST 2IGHTS !CT THE DEFENDANTS ARE DIRECTED NOT TO DETRIMENT OF THE PLAINTIFF IN
ANY FORM TO EVICT OR TO DIMINISH THE POSSESSION OF THE SUIT LAND BY THE PLAINTIFF EXCEPT
STATUS QUO
"Y TAKING ADVANTAGE OF THIS ONEROUS TASK TOWARDS 2ULE OF LAW WHICH IS THE BASIC
ELEMENTS OF THE CHARMING GOOD GOVERNANCE THE POLITICAL EXECUTIVES AS IT IS )NDIAN
DEMOCRATIC POLITY BUREAUCRATS AND OTHER EXECUTIVE MACHINERIES EVEN IN THE STATE
OF -IZORAM MAY KINDLY REMIND THEMSELVES TO ENFORCE AND IMPLEMENT THE LAWS
PARTICULARLY SOCIAL LEGISLATIONS LIKE THE 3CHEDULED 4RIBES AND OTHER 4RADITIONAL &OREST
$WELLERS 2ECOGNITION OF &OREST RIGHTS !CT BEARING MIND THE RECOGNIZED ,ATIN
MAXIM NAMELY
#AUSA PROXIMA NON REMOTA SPECTATOR 4HE IMMEDIATE AND NOT THE
REMOTE CAUSE IS TO BE CONSIDERED AS URGED IN THE CASE OF -# -EHTA VS 5NION OF )NDIA
/RS IN CONNECTION WITH 7RIT 0ETITION CIVIL OF DECIDED ON REPORTED
IN !)2 3#2 3## 3#!,% *4
THE 3UPREME #OURT HAS DIRECTED TO ENFORCE EXISTING LAWS STATING THAT
$ESPITE PASSING OF THE LAWS AND REPEATED ORDERS OF THE (IGH #OURT AND THIS #OURT THE
ENFORCEMENT OF THE LAWS AND THE IMPLEMENTATION OF THE ORDERS ARE UTTERLY LACKING
)F THE LAWS ARE NOT ENFORCED AND THE ORDERS OF THE COURTS TO ENFORCE AND IMPLEMENT
THE LAWS ARE IGNORED THE RESULT CAN ONLY BE TOTAL LAWLESSNESS )T IS THEREFORE
NECESSARY TO ALSO IDENTIFY AND TAKE APPROPRIATE ACTION AGAINST OFCERS RESPONSIBLE
FOR THIS STATE OF AFFAIRS 3UCH BLATANT MISUSE OF PROPERTIES AT LARGE SCALES CANNOT TAKE
PLACE WITHOUT CONNIVANCE OF THE CONCERNED OFCERS )T IS ALSO A SOURCE OF CORRUPTION
4HEREFORE ACTION IS ALSO NECESSARY TO CHECK CORRUPTION NEPOTISM AND TOTAL APART
APATHY TOWARDS THE RIGHTS OF THE CITIZENS 4HOSE WHO OWN THE PROPERTIES THAT ARE
MISUSED HAVE ALSO IMPLIED RESPONSIBILITY TOWARDS THE HARDSHIP INCONVENIENCE
SUFFERING CAUSED TO THE RESIDENTS OF THE LOCALITY AND INJURIES TO THIRD PARTIES )T IS
THEREFORE NOT ONLY THE QUESTION OF STOPPING THE MISUSER BUT ALSO MAKING THE
OWNERS AT DEFAULT ACCOUNTABLE FOR THE INJURIES CAUSED TO OTHERS 3IMILAR WOULD ALSO
BE THE ACCOUNTABILITY OF ERRANT OFCERS AS WELL SINCE PRIMA FACIE SUCH LARGE SCALE
MISUSER IN VIOLATION OF LAWS CANNOT TAKE PLACE WITHOUT THE ACTIVE CONNIVANCE OF
THE OFCERS )T WOULD BE FOR THE OFCERS TO SHOW WHAT EFFECTIVE STEPS WERE TAKEN TO
STOP THE MISUSER
2ULE OF LAW IS THE ESSENCE OF $EMOCRACY )T HAS TO BE PRESERVED ,AWS HAVE TO BE
ENFORCED )N THE CASE IN HAND THE IMPLEMENTATION AND ENFORCEMENT OF LAW TO STOP
BLATANT MISUSE CANNOT BE DELAYED FURTHER SO AS TO AWAIT THE SO CALLED PROPOSED
SURVEY BY -#$ 4HE SUGGESTIONS WOULD ONLY RESULT IN FURTHER POSTPONEMENT OF
ACTION AGAINST ILLEGALITIES
3INCE THE PLAINTIFF HAS PAID IN FULL OF REQUISITE COURT FEES AT 2S
WHILE PRESENTING THE
PLAINT AND ENGAGED WITH LAWYERS SHOULD BE WITH FEES NO ORDER AS TO COSTS OF THE SUIT
4 / \
4HE CASE INCLUDING #IVIL -ISC !PPLN .O OF SHALL STAND DISPOSED OF
'IVE THIS ORDER COPY TO BOTH PARTIES AND ALL CONCERNED
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
#%.42!,
).&/2-!4)/.
#/--)33)/.
4!",% /& *5$'-%.43 !.$ /2$%23
-R $ 3URESH +UMAR VS 0)/ -INISTRY OF %NVIRONMENT &ORESTS #LIMATE #HANGE
3## /N,INE #)# \
$ 3URESH +UMAR VS 0)/ -INISTRY OF %NVIRONMENT &ORESTS #LIMATE #HANGE
3## /N,INE #)# \
4 / \
$ 3URESH +UMAR VS 0)/ -INISTRY
OF %NVIRONMENT &ORESTS #LIMATE
#HANGE
#)#3!!
#%.42!, ).&/2-!4)/. #/--)33)/.
#/2!- 02/& - 32)$(!2 !#(!295,5 -!$!"(53() 32)$(!2
#)4!4)/. 3## /.,).% #)#
3 5 - -!29
4HE APPLICANT FILED AN APPLICATION DATED UNDER THE 2IGHT TO )NFORMATION
!CT 24) !CT BEFORE THE &OREST #ONSERVATION $IVISION -INISTRY OF %NVIRONMENT
AND &ORESTS -O%& SEEKING INFORMATION ABOUT THE IMPLEMENTATION OF THE 3CHEDULED
4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
&2! IN THE VILLAGES IN THE SUBMERGENCE AREA OF THE )NDIRA 3AGAR 0OLAVARAM
0ROJECT )300 4HE 0UBLIC )NFORMATION /FFICER SENT A REPLY THAT THE INFORMATION WAS
ALREADY SENT TO THE APPLICANT THROUGH A REPLY TO A PREVIOUS APPLICATION !N APPEAL
FILED BEFORE THE &IRST !PPELLATE !UTHORITY RECEIVED NO RESPONSE AND ACCORDINGLY THE
APPLICANT APPROACHED THE #ENTRAL )NFORMATION #OMMISSION #)#
4HE APPLICANT HAD SOUGHT DETAILED INFORMATION RELATING TO #IRCULAR DATED
BEARING &.O
&# PT ISSUED BY THE -O%& IN RELATION TO FOREST CLEARANCE
GRANTED TO THE )300 3EEKING A CLAUSE
BY
CLAUSE REPORT ON COMPLIANCE THE APPLICANT
SOUGHT CERTIFIED COPIES OF LETTERS SUBMITTED BY CONCERNED 'RAM 3ABHAS STATING THAT
ALL PROCESSES AND FORMALITIES UNDER THE &2! HAVE BEEN CARRIED OUT AND CERTIFYING
THAT THEY HAVE AGREED TO THE PROPOSED DIVERSION CERTIFIED COPY OF THE LETTER
SUBMITTED BY 3TATE GOVERNMENT OF !NDHRA 0RADESH CERTIFYING THAT THE DIVERSION OF
FOREST LAND UNDER 3ECTION OF &2! HAVE BEEN COMPLETED AND THE CONCERNED 'RAM
3ABHAS HAVE CONSENTED TO IT THAT RIGHTS OF THE 0RIMITIVE 4RIBAL 'ROUPS AND PRE
AGRICULTURAL COMMUNITIES HAVE BEEN SPECIFICALLY SAFEGUARDED AND SO ON
!FTER CAREFUL STUDY OF ALL RECORDS THE #)# FOUND THAT THE INFORMATION SOUGHT HAD
NOT IN FACT BEEN PROVIDED TO THE APPLICANT IN HIS PREVIOUS APPLICATION 4HEREFORE
THE #)# DIRECTED THE &OREST #ONSERVATION $IVISION OF -O%& TO GIVE POINT
WISE REPLY
TO ALL POINTS SOUGHT IN THE 24) APPLICATION AND PROVIDE NECESSARY INFORMATION
WITHIN TWO MONTHS
\ # / - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
% $ )4/23 . /4%
7HILE THIS DECISION DOES NOT EXPLICATE ANY SUBSTANTIVE QUESTION OF LAW IT ILLUSTRATES
THE DIFFICULTY IN OBTAINING THE NECESSARY PRELIMINARY INFORMATION REQUIRED BEFORE
COMMENCEMENT OF A LEGAL CHALLENGE REGARDING NON
IMPLEMENTATION OF THE &2!
PARTICULARLY IN A HIGH PROFILE PROJECT SUCH AS THE 0OLAVARAM DAM OR )300
/2$ % 2
0! 2 4) % 3 02 % 3 % .4
"OTH THE PARTIES WERE PHYSICALLY PRESENT BEFORE THE COMMISSION
&!#43
4HE !PPELLANT -R $ 3URESH +UMAR LED A 24) APPLICATION TO &OREST #ONSERVATION
$IVISION -INISTRY OF %NVIRONMENT AND &ORESTS ON SEEKING INFORMATION ABOUT
&OREST 2IGHTS !CT IN SUBMERGENCE VILLAGES OF )NDIRA 3AGAR 0OLAVARAM 0ROJECT )300 4HE
REPLY WAS RECEIVED FROM 0UBLIC )NFORMATION /FCER ON STATING THE REQUESTED
INFORMATION WAS SENT TO APPELLANT FOR HIS PREVIOUS 24) APPLICATION LED ON
!GGRIEVED BY THE DECISION THE APPELLANT LED &IRST !PPEAL ON AND SINCE NO REPLY
FROM &!! WAS RECEIVED HE LED SECOND APPEAL ON
$ETAILS OF )NFORMATION SOUGHT
!TTACHED SUPPORTING DOCUMENT OFCE MEMORANDUM CIRCULAR &.O&#
PT WAS ISSUED BY THIS DIVISION 0LEASE PROVIDE FOLLOWING INFORMATION RELATING TO
IMPLEMENTATION OF SAID OFCE MEMORANDUMCIRCULAR IN RELATION TO &OREST #LEARANCE
GRANTED TO )NDIRA 3AGAR 0OLAVARAM PROJECT COMING UP IN !NDHRA 0RADESH 3TATE
I #ERTIED COPY OF LETTER SUBMITTED BY 3TATE GOVERNMENT OF !NDHRA 0RADESH THE
THEN UNITED GOVERNMENT ALONG WITH CERTIED COPY OF RECORD OF ALL CONSULTATIONS
AND MEETING HELD AS SPECIED IN POINT ! OF THE SAID OFCE MEMORANDUM
CIRCULARII #ERTIED COPY OF LETTER SUBMITTED BY 'OVERNMENT OF !NDHRA 0RADESH
STATING THAT PROPOSAL FOR DIVERSION OF FOREST WAS PLACED BEFORE THE EACH CONCERNED
GRAM SABHA WHICH IS ELIGIBLE FOR RIGHTS ENSHRINED UNDER &OREST 2IGHTS !CT &2!
AS SPECIED IN POINT " OF THE SAID OFCE MEMORANDUM CIRCULAR
III #ERTIED COPIES OF LETTER SUBMITTED BY CONCERNED 'RAM 3ABHAS STATING THAT
ALL PROCESSES AND FORMALITIES UNDER THE &2! HAVE BEEN CARRIED OUT AND THEY
HAVE AGREED FOR THE PROPOSED DIVERSION AS SPECIED IN POINT # OF THE SAID OFCE
MEMORANDUMCIRCULAR
IV #ERTIED COPY OF THE LETTER SUBMITTED BY STATE GOVERNMENT OF !NDHRA 0RADESH
CERTIFYING THAT THE DIVERSION OF FOREST LAND FOR FACILITIES MANAGED BY 'OVERNMENT
AS REQUIRED UNDER SECTION OF &OREST 2IGHTS !CT HAVE BEEN COMPLETED AND THE
CONCERNED GRAM SABHAS HAVE CONSENTED TO IT AS SPECIED IN POINT $ OF THE SAID
OFCE MEMORANDUM CIRCULAR
V #ERTIED COPY OF THE LETTER SUBMITTED BY 3TATE 'OVERNMENT OF !NDHRA 0RADESH
CERTIFYING THAT THE DISCUSSIONS AND DECISIONS RELATING TO FOREST DIVERSION FOR
0OLAVARAM PROJECT HAVE TAKEN PLACE ONLY WHEN THERE WAS QUORUM OF MINIMUM
OF MEMBERS OF THE 'RAM 3ABHA PRESENT AS SPECIED IN POINT % OF SAID OFCE
4 / \
MEMORANDUMCIRCULAR
VI #ERTIED COPIES OF ALL THE WRITTEN CONSENTS OR REJECTIONS OF CONCERNED GRAM
SABHAS SUBMITTED BY STATE GOVERNMENT OF !NDHRA 0RADESH AS SPECIED IN POINT
& OF THE SAID OFCE MEMORANDUMCIRCULAR
VII #ERTIED COPY OF THE LETTER SUBMITTED BY 3TATE 'OVERNMENT OF !NDHRA
0RADESH CERTIFYING THAT THE RIGHTS OF 0RIMITIVE 4RIBAL 'ROUPS AND 0RE
!GRICULTURAL
COMMUNITIES HAVE BEEN SPECICALLY SAFEGUARDED AS PER ! OF &OREST 2IGHTS
!CT AS SPECIED IN POINT G OF SAID OFCE MEMORANDUMCIRCULAR
VIII !NY OTHER INFORMATION SUBMITTED BY 3TATE 'OVERNMENT OF !NDHRA 0RADESH
WHICH HAS BEARING ON OPERATION OF &OREST 2IGHTS !CT IN RELATION TO )NDIRA 3AGAR
0OLAVARAM 0ROJECT AS SPECIED IN POINT ( OF SAID OFCE MEMORANDUMCIRCULAR
-INISTRY OF %NVIRONMENT AND &ORESTS .EW $ELHIS /FCE ,ETTER .O &.O &#PT
DATED ADDRESSED TO #HIEF 3ECRETARY!DMINISTRATOR !LL 3TATE54 'OVERNMENTS
EXCEPT *+ REGARDING $IVERSION OF FOREST LAND FOR NON FOREST PURPOSES UNDER THE
&OREST #ONVERSATION !CT ENSURING COMPLIANCE OF THE 3CHEDULED 4RIBES AND /THER
4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS !CT
!CCORDINGLY TO FORMULATE UNCONDITIONAL PROPOSALS UNDER THE &OREST #ONVERSATION
!CT THE 3TATE54 'OVERNMENTS ARE WHEREVER THE PROCESS OF SETTLEMENT OF 2IGHTS
UNDER THE &2! HAS BEEN COMPLETED OR CURRENTLY UNDER PROCESS REQUIRED TO ENCLOSE
EVIDENCES FOR HAVING INITIATED AND COMPLETED THE ABOVE PROCESS ESPECIALLY AMONG
OTHER SECTIONS 3ECTIONS I E AND 4HESE ENCLOSURES OF EVIDENCE SHALL BE IN
THE FORM OF FOLLOWING
A ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT THE COMPLETE PROCESS FOR
IDENTICATION AND SETTLEMENT OF RIGHTS UNDER THE &2! HAS BEEN CARRIED OUT FOR THE
ENTIRE FOREST AREA PROPOSED FOR DIVERSION WITH A RECORD OF ALL CONSULTATIONS AND
MEETINGS HELD B ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT PROPOSALS FOR
SUCH DIVERSION WITH FULL DETAILS OF THE PROJECT AND ITS IMPLICATIONS IN VERNACULAR
LOCAL LANGUAGES HAVE BEEN PLACED BEFORE EACH CONCERNED 'RAM 3ABHA OF FOREST
DWELLERS WHO ARE ELIGIBLE UNDER THE &2!
C ! LETTER FROM EACH OF THE CONCERNED 'RAM 3ABHAS INDICATING THAT ALL FORMALITIES
PROCESSES UNDER THE &2! HAVE BEEN CARRIED OUT AND THAT THEY HAVE GIVEN THEIR
CONSENT TO THE PROPOSED DIVERSION AND THE COMPENSATORY AND AMELIORATIVE MEASURES
IF ANY HAVING UNDERSTOOD THE PURPOSES AND DETAILS OF PROPOSED DIVERSION D ! LETTER
FROM THE 3TATE 'OVERNMENT CERTIFYING THAT THE DIVERSION OF FOREST LAND FOR FACILITIES
MANAGED BY THE 'OVERNMENT AS REQUIRED UNDER SECTION OF THE &2! HAVE BEEN
COMPLETED AND THAT THE 'RAM 3ABHA HAVE CONSENTED TO IT
E ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT DISCUSSIONS AND DECISIONS ON
SUCH PROPOSALS HAD TAKEN PLACE ONLY WHEN THERE WAS A QUORUM OF MINIMUM OF
MEMBERS OF THE 'RAM 3ABHA PRESENT
F /BTAINING THE WRITTEN CONSENT OR REJECTION OF THE 'RAM 3ABHA TO THE PROPOSAL
G ! LETTER FROM THE 3TATE 'OVERNMENT CERTIFYING THAT THE RIGHTS OF 0RIMITIVE 4RIBAL
'ROUPS AND 0RE
!GRICULTURAL #OMMUNITIES WHERE APPLICABLE HAVE BEEN SPECICALLY
SAFEGUARDED AS PER SECTION E OF THE &2!
H !NY OTHER ASPECT HAVING NEARING ON OPERATIONALISATION OF THE &2! 4HE 3TATE54
'OVERNMENTS WHERE PROCESS OF SETTLEMENT OF 2IGHTS UNDER THE &2! IS YET TO BEGIN
ARE REQUIRED TO ENCLOSE EVIDENCES SUPPORTING THAT SETTLEMENT OF RIGHTS UNDER &2!
\ # / - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
WILL BE INITIATED AND COMPLETED BEFORE THE NAL APPROVAL FOR PROPOSALS
4HIS IS ISSUED WITH THE APPROVAL OF -INISTER OF %NVIRONMENT AND &OREST
02 /#% % $ ) .' 3 "% &/2 % 4(% #/--)33)/.
4HE APPELLANT SUBMITTED THAT HE HAS NOT RECEIVED ANY INFORMATION TILL DATE 4HE
RESPONDENT AUTHORITY SUBMITTED THAT WHATEVER INFORMATION THAT THEY HAD IN RELATION TO
&OREST #LEARANCE GRANTED TO 0OLAVARAM 0ROJECT WAS SENT TO HIM AS A REPLY TO PREVIOUSLY
LED 24) ON
4HE APPELLANT CONTENDED THAT THE INFORMATION SOUGHT BY HIM FOR HIS PREVIOUS
APPLICATION DATED IS DIFFERENT FROM INFORMATION SOUGHT IN PRESENT APPLICATION
(E STATED THAT HE ASKED FOR THE INFORMATION PERTAINING TO A CIRCULAR NO & .O
&# PT ISSUED BY &OREST #ONSERVATION $IVISION OF -INISTRY OF %NVIRONMENT AND &ORESTS
!PPELLANT FURTHER SUBMITTED THAT THIS CIRCULAR PRESCRIBED DOCUMENTS WHICH NEED TO
PRODUCE BY THE COMPANIES AS EVIDENCE TO SHOW THAT &OREST 2IGHTS !CT IS IMPLEMENTED IN
THE &OREST AREA WHICH IS PROPOSED FOR DIVERSION FOR THEIR PROJECTS "UT IN THE INFORMATION
PROVIDED TO HIM AS REPLY TO HIS PREVIOUS 24) APPLICATION DATED NONE OF THE
ABOVE RECORDS WERE SENT TO HIM (E THEREFORE PLEADED THE #OMMISSION TO DIRECT THE
RESPONDENT AUTHORITY TO PROVIDE HIM THE DOCUMENTS LISTED IN THE ABOVE CIRCULAR IN
RELATION TO &OREST DIVERTED FOR 0OLAVARAM 0ROJECT
4HE #OMMISSION AFTER CAREFUL PERUSAL OF ALL THE RECORDS NDS THAT THE INFORMATION
PROVIDED BY THE -INISTRY OF %NVIRONMENT AND &ORESTS FOR HIS PREVIOUS APPLICATION DATED
DID NOT CONTAIN ANY INFORMATION SOUGHT BY THE APPELLANT IN HIS PRESENT
APPLICATION
4HE #OMMISSION THEREFORE ORDERS THE &OREST #ONSERVATION $IVISION OF -INISTRY OF
%NVIRONMENT AND &ORESTS TO GIVE POINTWISE REPLY TO ALL THE POINTS OF INFORMATION
SOUGHT BY THE APPELLANT AND PROVIDE NECESSARY INFORMATION WITHIN A PERIOD OF MONTHS
FROM THE DATE OF RECEIPT OF THIS ORDER
4 / \
$ 3URESH +UMAR VS 0)/ -INISTRY
OF %NVIRONMENT &ORESTS #LIMATE
#HANGE
#)#3!!
#%.42!, ).&/2-!4)/. #/--)33)/.
#/2!- - 32)$(!2 !#(!295,5
#)4!4)/. 3## /.,).% #)#
3 5 - -!29
4HE APPLICANT FILED AN 24) APPLICATION DATED IN THE &OREST #ONSERVATION
$IVISION -INISTRY OF %NVIRONMENT AND &OREST -O%& SEEKING INFORMATION REGARDING
ACTION TAKEN BY IT ON THE NUMEROUS COMPLAINTS REPRESENTATIONS SENT BY AFFECTED
VILLAGES PROTESTING GRANT OF 3TAGE
)) FOREST CLEARANCE TO THE )NDIRA 3AGAR 0OLAVARAM
0ROJECT )300 )N PARTICULAR THESE REPRESENTATIONS RELATE TO FAILURE TO VEST RIGHTS
UNDER THE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF
&OREST 2IGHTS !CT &2! IN THE VILLAGES EARMARKED FOR SUBMERGENCE
(OWEVER THE APPLICANT DID NOT GET ANY REPLY TO THE APPLICATION OR TO THE FIRST APPEAL
4HE APPLICANT THUS APPROACHED THE #ENTRAL )NFORMATION #OMMISSION #)# BY WAY
OF A STATUTORY SECOND APPEAL !S IN THE PREVIOUS CASE THE 0)/ -O%& ARGUED THAT
THIS INFORMATION HAD ALREADY BEEN SUPPLIED TO THE APPELLANT A FACT THE APPELLANT
REFUTED CATEGORICALLY
4HE #OMMISSION DISCUSSED THE DIFFERENCE BETWEEN THE PRE
)NDEPENDENCE )NDIAN
&OREST !CT AND THE &2! OF WHICH WAS ENACTED TO RECOGNISE THE RIGHTS OF
FOREST DWELLERS AND TO CORRECT HISTORICAL INJUSTICE 4HE #OMMISSION OBSERVED THAT IN
ORDER TO COMPENSATE OR REHABILITATE THE DISPLACED TRIBALS CONFERRING FOREST RIGHTS
AS PER THE &2! IS ESSENTIAL BEFORE THE FOREST CLEARANCE IS GIVEN TO THE )300 &URTHER
THE #OMMISSION ALSO DISCUSSED VARIOUS OTHER PROTECTIVE LEGISLATIONS SUCH AS THE
%NVIRONMENTAL 0ROTECTION !CT THE 0ANCHAYATS %XTENSION TO 3CHEDULED !REAS
!CT AND SO ON %MPHASIZING THE URGENT NEED FOR THE KIND OF INFORMATION
SOUGHT BY THE APPELLANT THE #OMMISSION OBSERVED
)T IS SURPRISING THAT SOME 0)/S AND OTHER OFFICERS OF THE -INISTRY OF &ORESTS
%NVIRONMENT ARE NOT IMPLEMENTING THE RIGHT TO INFORMATION OF THE TRIBALS AND
OTHERS IN FORESTS GUARANTEED BY LEGISLATIONS AND CONTINUING THEIR FUNCTIONING
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
UNDER PRE )NDEPENDENCE LAWS WHICH DID NOT SERVE INTERESTS OF FOREST DWELLERS
AND THUS DENYING THEIR RIGHTS BOTH UNDER &OREST RELATED LAWS AND 24) 4HEY HAVE
A DUTY TO INFORM UNDER ALL LEGISLATIONS REGULATIONS NOTIFICATIONS AND CIRCULARS
AS EXPLAINED ABOVE TO INFORM THE TRIBALS AND OTHER FOREST DWELLERS %SPECIALLY
WHEN THERE IS A THREAT OF DISPLACEMENT THE VICTIMS OF SO CALLED DEVELOPMENT
ARE ENTITLED TO RECOGNITION AND CERTIFICATION OF THEIR RIGHTS UNDER THE &2! AND
INFORMATION ABOUT WHICH CANNOT BE DENIED OR DELAYED )F THIS INFORMATION IS
DELAYED BEYOND THE REPLACEMENT IT AMOUNTS TO DENIAL OF INFORMATION AND THEIR
RIGHT TO LIVE IN FOREST ETC ALSO
4HE #OMMISSION ACCORDINGLY DIRECTED THE 0)/ -O%& TO GIVE POINT WISE REPLY TO THE
APPLICANT AS SOUGHT BY HIM WITHIN ONE MONTH AND ALSO INFORM THE CURRENT STATUS
OF THE PROJECT
4HE #OMMISSION OBSERVED THAT THE STATE HAS A DUTY TO INFORM ALL THE VILLAGERS IN THE
VILLAGES WHO ARE GOING TO BE DEPRIVED OF RIGHTS ACCRUED UNDER THE &2! WHICH
THEY MUST DO IMMEDIATELY 3IMILAR DIRECTIONS WERE ALSO ISSUED TO THE 'OVERNMENT
OF !NDHRA 0RADESH
-AKING ITS DISPLEASURE APPARENT THE #OMMISSION DIRECTED THAT DELAY IN PROVIDING
INFORMATION TO THE APPLICANT BEYOND THE PERIOD OF ONE MONTH WOULD ATTRACT THE
PENALTY PROVISION OF 2S
PER DAY WHICH MAY EXTEND TO THE MAXIMUM PENALTY
)T FURTHER ISSUED SHOW CAUSE NOTICE TO THE 0)/ -O%& TO RESPOND WITHIN DAYS
WHY PENALTY SHOULD NOT BE IMPOSED UPON HIM AND COMPENSATION BE GIVEN TO THE
APPLICANT
% $ )4/23 . /4%
4HE #OMMISSION ACKNOWLEDGED THAT FOR THE IMPLEMENTATION OF THE &2! INFORMATION
MUST REACH THE ELIGIBLE PERSON OR COMMUNITY 4HIS BECOMES IMPERATIVE WHEN A
DEVELOPMENT PROJECT IS GOING TO DEPRIVE THE TRIBALS AND OTHER TRADITIONAL FOREST
DWELLERS OF THEIR RIGHTS UNDER &2!
!LTHOUGH THE DECISION OF THE #)# HAS LITTLE PRECEDENT VALUE AND LIMITED PERSUASIVE
VALUE FOR ITS COGNATE BENCHES THE EXPLICATION OF THE NATURE OF RIGHTS UNDER &2! AND
THE CONSEQUENCES OF DENIAL OF INFORMATION UPON THE MOST MARGINALIZED SECTIONS
OF SOCIETY IS EXTREMELY VALUABLE )T ALSO DEMONSTRATES HOW THE #OMMISSION WAS
ANGUISHED TO THE EXTENT OF INVOKING THE PENALTY CLAUSE UNDER 3ECTION OF THE 24)
!CT SOMETHING WHICH THE #)# DOES VERY RARELY
$ % #)3 )/.
4HE !PPELLANT -R $ 3URESH +UMAR AND CONCERNED 0)/ -R (# #HOUDHURY WERE PRESENT
BEFORE THE #OMMISSION IN .EW $ELHI
&!#43
4HE !PPELLANT -R $ 3URESH +UMAR LED A 24) APPLICATION TO &OREST #ONSERVATION $IVISION
-INISTRY OF %NVIRONMENT AND &ORESTS ON SEEKING DETAILED INFORMATION ABOUT
&OREST #LEARANCE GRANTED TO )NDIRA 3AGAR 0OLAVARAM 0ROJECT )300 2ELEVANT PORTION OF
4 / \
THE INFORMATION SOUGHT BY HIM IS AS FOLLOWS
0URSUANT TO GRANT OF 3TAGE
)) &OREST #LEARANCE FOR )NDIRA 3AGAR 0OLAVARAM PROJECT THE
-O%& HAS RECEIVED VARIOUS REPRESENTATIONS FROM THE AFFECTED VILLAGES OF 0OLAVARAM
PROJECT COMPLAINING ABOUT THE NON
IMPLEMENTATION OF &OREST 2IGHT !CT /N THIS
THE MINISTRY AFTER VARIOUS COMMUNICATIONS WITH STAGE GOVERNMENT OF !0 ABOUT
THE NON
IMPLEMENTATION OF &2! ON ND &EBRUARY SENT A LETTER ANNEXURE
TO !0 GOVERNMENT STATING THAT THE $IRECTOR 'ENERAL OF &OREST 3ECRETARY $'&33
WILL SHORTLY VISIT THE AREAVILLAGES AFFECTED BY THE SAID PROJECT TO HAVE ON THE
SPOT ASSESSMENT OF THE MATTER )N THIS REGARD PLEASE PROVIDE ME THE FOLLOWING
INFORMATION
A #ERTIED COPY OF THE REPORT SUBMITTED BY THE OFCIAL WHO VISITED THE AREA
AFFECTED VILLAGES
B #ERTIED COPY OF ACTION TAKEN REPORT OF THIS -INISTRY BASED ON THE REPORT OF THE
OFCIAL WHO VISITED THE AFFECTED VILLAGES
C #ERTIED COPIES OF ALL THE COMMUNICATIONS BETWEEN THIS MINISTRY AND STATE
GOVERNMENT OF !0 ON THE ABOVE SUBJECT UNTIL THE MATTER HAS BEEN NALLY DECIDED
BY THE -INISTRY
D #ERTIED COPIES OF ALL THE NOTE SHEETS AND LE NOTINGS ON THE ABOVE SUBJECT
E #ERTIED COPY OF THE ACTION TAKEN REPORT SUBMITTED BY THE GOVERNMENT OF !0
ON THE SUBJECT MENTIONED ABOVE
F #ERTIED COPIES OF ALL THE COMMUNICATIONS FROM THE MINISTRY TO ALL THE AFFECTED
VILLAGES WHICH HAVE WRITTEN TO IT ABOUT THE NON
IMPLEMENTATION OF &OREST 2IGHTS
!CT
#ERTIED COPY OF THE ACTION TAKEN REPORT BASED ON -R 3WARUP "HATTACHARYAS LETTER
DATED ND 3EPTEMBER !NNEXURE
AND COPIES OF ALL THE COMMUNICATIONS FROM
THE MINISTRY TO -R 3WARUP "HATTACHARYA RELATING TO HIS LETTER DATED ND 3EPTEMBER
0LEASE PROVIDE ME COPY OF ALL THE &OREST #LEARANCE RELATED DOCUMENTSLES OF )NDIRA
3AGAR 0OLAVARAM 0ROJECT FROM TH !PRIL TO TILL DATE
3INCE NO REPLY WAS RECEIVED FROM 0UBLIC )NFORMATION /FCER HE LED &IRST !PPEAL ON
REQUESTING TO PROVIDE INFORMATION /N THE NON
RECEIPT OF INFORMATION EVEN
AFTER THAT 3ECOND !PPEAL WAS LED ON
0 2 / # % % $ ) .' 3 "% &/2 % 4( % #/--)33)/.
4HE APPELLANT SUBMITTED THAT HE HAS NOT RECEIVED ANY INFORMATION TILL DATE 4HE
RESPONDENT AUTHORITY SUBMITTED THAT WHATEVER THE INFORMATION THAT THEY HAVE IN
RELATION TO &OREST #LEARANCE GRANTED TO 0OLAVARAM 0ROJECT THE SAME HAS BEEN SENT TO
HIM AS A REPLY TO THE 24) PREVIOUSLY LED BY HIM ON
4HE APPELLANT CONTENDED THAT THE INFORMATION SOUGHT BY HIM FOR HIS PREVIOUS APPLICATION
DATED DOES NOT CORRESPOND TO ANY INFORMATION THAT HE SOUGHT IN THIS APPLICATION
)T IS IN FACT A FOLLOW
UP 24) BASED ON THE INFORMATION RECEIVED IN PREVIOUS 24) LED ON
(E HAS FURTHER EXPLAINED THAT AFTER THE &OREST #LEARANCE FOR 0OLAVARAM 0ROJECT
WAS GRANTED THE MINISTRY RECEIVED MANY COMPLAINTS FROM LOCAL VILLAGES ABOUT NON
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
COMPLIANCE OF &OREST 2IGHTS !CT WHOSE COMPLIANCE IS MANDATORY BEFORE GRANTING &OREST
#LEARANCE "ASED ON THESE COMPLAINTS THE -INISTRY OF %NVIRONMENT AND &ORESTS ON
ND &EBRUARY SENT A COMMUNICATION TO !NDHRA 0RADESH GOVERNMENT STATING THAT
$IRECTOR 'ENERAL OF &ORESTS 3ECRETARY $'&33 WOULD SHORTLY VISIT THE AREA TO HAVE
ON
THE
SPOT ASSESSMENT OF THE MATTER (E CONTENDED THAT THE INFORMATION PERTAINING TO
WHAT HAPPENED FURTHER AFTER THE VISIT OF THE SAID OFCIAL IS NEITHER IN THE INFORMATION
RECEIVED BY HIM FOR HIS PREVIOUS 24) APPLICATION NOR IS IN PUBLIC DOMAIN ANYWHERE
INCLUDING THE WEBSITE OF -INISTRY OF %NVIRONMENT AND &ORESTS 4HEREFORE HE HAD TO
RESORT TO THE USAGE OF 24) WHICH UNFORTUNATELY HAS NOT BEEN DISPOSED OF EVEN AFTER
MONTHS NOW (E PRAYED THE #OMMISSION TO DIRECT THE 0UBLIC !UTHORITY TO PROVIDE HIM
INFORMATION AS SOON AS POSSIBLE
4HE RESPONDING AUTHORITY PERUSED THROUGH THE RECORDS SENT TO THE APPELLANT FOR HIS
PREVIOUS APPLICATION 4HE AUTHORITY THEN SUBMITTED THAT THEY WILL RELOOK INTO THE MATTER
AND PROVIDE THE NECESSARY INFORMATION WITHIN MONTHS
0RIOR TO &OREST 2IGHTS LAW IN PRE
)NDEPENDENCE ERA THE )NDIAN &OREST !CT
MAIN FOREST LAW WAS MADE TO SERVE THE "RITISH NEED FOR TIMBER )T SOUGHT TO OVERRIDE
CUSTOMARY RIGHTS AND FOREST MANAGEMENT SYSTEMS BY DECLARING FORESTS STATE PROPERTY
AND EXPLOITING THEIR TIMBER 4HE LAW SAYS THAT AT THE TIME A FOREST IS DECLARED A SINGLE
OFCIAL THE &OREST 3ETTLEMENT /FCER IS TO ENQUIRE INTO AND SETTLE THE LAND AND FOREST
RIGHTS PEOPLE HAD IN THAT AREA 4HEY ARE THE SUPREME JUDGES TO DECIDE THE RIGHTS OF THE
FOREST DWELLERS WHO DO NOT KNOW HOW TO APPROACH COURTS AND LAWYERS AND NEVER TRIED
TO ENFORCE THEIR RIGHT TO POSSESSION AND LIVE IN AREAS WHICH ARE DECLARED AS FORESTS BY
THE 'OVERNMENTS 4HERE IS A STRONG CRITICISM THAT THE )NDEPENDENT )NDIAN 'OVERNMENTS
HAVE CONTINUED TO EXPLOIT THIS DRACONIAN LAW WHICH WAS NEVER A WILL OF THE NATIVE
)NDIANS THOUGH THIS LAW DENIES ALL THE RIGHTS OF ALL THE TRIBALS WITH ONE STROKE AND THAT
THIS LAW WAS NOT MADE AND USED TO PROTECT THE FOREST BUT TO CONVERT IT INTO COLONIES AFTER
DRIVING OUT THE ABORIGINAL FAMILIES WHO DWELLED THERE SINCE CENTURIES
4HE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST 2IGHTS
!CT SHORTLY KNOWN AS &OREST 2IGHTS !CT &2! IS HAILED AS A STEP TOWARDS RECOGNISING
THE RIGHTS OF FOREST DWELLERS AND WAS MADE TO CORRECT HISTORICDYNAMIC INJUSTICE DONE
TO TRIBALS AS CRORES OF PEOPLE LIVE IN FOREST LANDS FOR SEVERAL GENERATIONS WITHOUT HAVING
ANY LEGAL RIGHTS TO THEIR HOMES OR LANDS OR TO FOREST PRODUCE 4HE 'OVERNMENT CLAIMS
ALL POWERS OVER FORESTS AGAINST THE PEOPLE LIVING IN IT 5NDER DIFFERENT DEVELOPMENT
SCHEMESPROJECTS SEVERAL LAKHS OF TRIBAL FOREST DWELLERS WERE DRIVEN OUT OF FORESTS 4HE
THEN #OMMISSIONER FOR 3CHEDULED #ASTES AND 3CHEDULED 4RIBES IN HIS TH 2EPORT SAID
THAT 4HE CRIMINALISATION OF THE ENTIRE COMMUNITIES IN THE TRIBAL AREAS IS THE DARKEST
BLOT ON THE LIBERAL TRADITION OF OUR COUNTRY 4HIS &OREST 2IGHTS !CT FOR THE RST TIME
RECOGNISED FOREST DWELLERS RIGHTS AND MADE CONSERVATORS MORE ACCOUNTABLE
4HE 3CHEDULED 4RIBES AND /THER 4RADITIONAL &OREST $WELLERS 2ECOGNITION OF &OREST
2IGHTS !CT IS EXPECTED TO PERFORM FOLLOWING ESSENTIAL FUNCTIONS
'RANTING LEGAL RECOGNITION TO THE RIGHTS OF TRADITIONAL FOREST DWELLING COMMUNITIES
PARTIALLY CORRECTING THE INJUSTICE
'IVING TRIBAL COMMUNITIES AND THE PUBLIC STATUTORY SPACE AND VOICE IN CONSERVATION
OF FOREST AND WILDLIFE IN THEIR VICINITY
.O ONE GETS RIGHTS TO ANY LAND THAT THEY HAVE NOT BEEN CULTIVATING PRIOR TO $ECEMBER
SECTION AND THAT THEY ARE NOT CULTIVATING RIGHT NOW 4HOSE WHO ARE
CULTIVATING LAND BUT DONT HAVE DOCUMENT CAN CLAIM UP TO HECTARES AS LONG AS THEY
ARE CULTIVATING THE LAND THEMSELVES FOR A LIVELIHOOD SECTION A AND 4HOSE
4 / \
WHO HAVE A PATTA OR A GOVERNMENT LEASE BUT WHOSE LAND HAS BEEN ILLEGALLY TAKEN BY
THE &OREST $EPARTMENT OR WHOSE LAND IS THE SUBJECT OF A DISPUTE BETWEEN &OREST AND
2EVENUE $EPARTMENTS CAN CLAIM THOSE LANDS SECTION F AND G 4HE LAND CANNOT
BE SOLD OR TRANSFERRED TO ANYONE EXCEPT BY INHERITANCE SECTION
5 3 % 2 ) ' ( 43
4HIS HISTORIC TRULY )NDEPENDENT )NDIAN LAW PROVIDES FOR RIGHTS TO USE ANDOR COLLECT
THE FOLLOWING A -INOR FOREST PRODUCE THINGS LIKE TENDU PATTA HERBS MEDICINAL PLANTS
ETC THAT HAS BEEN TRADITIONALLY COLLECTED SECTION C 4HIS DOES NOT INCLUDE TIMBER
B 'RAZING GROUNDS AND WATER BODIES SECTIONS C 4RADITIONAL AREAS OF USE BY NOMADIC
OR PASTORALIST COMMUNITIES IE COMMUNITIES THAT MOVE WITH THEIR HERDS AS OPPOSED TO
PRACTICING SETTLED AGRICULTURE
3ECTION OF THE &2 !CT PROVIDES A TRANSPARENT THREE STEP PROCEDURE FOR DECIDING ON
WHO GETS RIGHTS &IRST THE GRAM SABHA FULL VILLAGE ASSEMBLY ./4 THE GRAM PANCHAYAT
MAKES A RECOMMENDATION
IE WHO HAS BEEN CULTIVATING LAND FOR HOW LONG WHICH
MINOR FOREST PRODUCE IS COLLECTED ETC 4HE GRAM SABHA PLAYS THIS ROLE BECAUSE IT IS A
PUBLIC BODY WHERE ALL PEOPLE PARTICIPATE AND HENCE IS FULLY DEMOCRATIC AND TRANSPARENT
4HE GRAM SABHAS RECOMMENDATION GOES THROUGH TWO STAGES OF SCREENING COMMITTEES
AT THE TALUKA AND DISTRICT LEVELS 4HE DISTRICT LEVEL COMMITTEE MAKES THE NAL DECISION
SECTION 4HE #OMMITTEES HAVE SIX MEMBERS
THREE GOVERNMENT OFCERS AND THREE
ELECTED PERSONS !T BOTH THE TALUKA AND THE DISTRICT LEVELS ANY PERSON WHO BELIEVES A
CLAIM IS FALSE CAN APPEAL TO THE #OMMITTEES AND IF THEY PROVE THEIR CASE THE RIGHT IS
DENIED SECTIONS AND &INALLY LAND RECOGNISED UNDER THIS !CT CANNOT BE SOLD OR
TRANSFERRED
)F THESE RIGHTS ARE NOT RECOGNIZED AND GIVEN AS PER ABOVE REFERRED PROCEDURE BEFORE
THE TRIBALS ARE DISPLACED FROM VILLAGES THREATENED TO BE SUBMERGED FOR )300 THERE IS
NO POSSIBILITY OF COMPENSATING OR REHABILITATING THEM BY PROVIDING SIMILAR RIGHTS AT
RELOCATED PLACES (ENCE THE CONFERRING &OREST 2IGHTS AS PER THIS LAW IS ESSENTIAL BEFORE
THE FOREST CLEARANCE IS GIVEN TO )300 AS PER LAW )T IS APPREHENDED THAT ANY ATTEMPT TO
DRIVE THEM OUT WITHOUT CONFERRING THESE RIGHTS WILL PLACE THE )NDEPENDENT DEMOCRATIC
)NDIAN 'OVERNMENT IN THE SAME SHOES OF "RITISH #OLONIAL 'OVERNMENT
4HE #OMMISSION AFTER PERUSAL OF ALL THE RECORDS NDS THAT THE INFORMATION PROVIDED
BY THE -INISTRY OF %NVIRONMENT AND &ORESTS FOR APPELLANTS PREVIOUS APPLICATION DATED
DID NOT CONTAIN COMPLETE INFORMATION SOUGHT UNDER PRESENT 24) APPLICATION
!S CONTENDED BY THE APPELLANT HIS PRESENT APPLICATION IS A FOLLOW
UP OF ANOTHER
APPLICATION LED BY HIM SEEKING FURTHER INFORMATION PERTAINING TO THE SUBJECT OF &OREST
2IGHTS !CT IMPLEMENTATION AND &OREST #LEARANCE GRANTED FOR 0OLAVARAM 0ROJECT
3EVERAL LEGISLATIONS AND RULES HAVE PROVIDED RIGHT TO INFORMATION BESIDES 24) !CT
4HE %)! NOTICATION WHICH WAS GIVEN UNDER %NVIRONMENTAL 0ROTECTION !CT IN
3ECTION DEALS WITH 0UBLIC (EARING WHICH SAYS 7HENEVER ANY DEVELOPMENTAL PROJECT
IS PROPOSED IN A GIVEN AREA THE PROJECT HAVE TO RST PLACE ALL THE PROJECT INFORMATION
AND ENVIRONMENTAL AND SOCIAL IMPACT OF THE PROJECT BEFORE THE LOCAL COMMUNITY WHICH
WILL BE AFFECTED /NLY AFTER THIS INFORMATION IS PLACED BEFORE THEM AND THEIR VIEWS AND
CONCERNS OF THE PROJECT HAVE BEEN TAKEN THE PROJECT WILL BE APPRAISED BY THE CONCERNED
AUTHORITIES 5NDER THIS %)! NOTICATION ))) 3TAGE
0UBLIC #ONSULTATION IS
PRESCRIBED )T SAYS I 0UBLIC #ONSULTATION REFERS TO THE PROCESS BY WHICH THE CONCERNS
OF LOCAL AFFECTED PERSONS AND OTHERS WHO HAVE PLAUSIBLE STAKE IN THE ENVIRONMENTAL
IMPACTS OF THE PROJECT OR ACTIVITY ARE ASCERTAINED WITH A VIEW TO TAKING INTO ACCOUNT ALL
THE MATERIAL CONCERNS IN THE PROJECT OR ACTIVITY DESIGN AS APPROPRIATE
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 ! # 4
!S PER 0ANCHAYAT 2AJ ACT WHENEVER REVENUE LANDS ARE MARKED FOR OTHER PURPOSES LIKE
COMPENSATORY AFFORESTATION LEASING TO AN INDUSTRY ETC THE 0ANCHAYAT CONSULTATION IS
DESIRABLE BUT NOT MANDATORY WHICH MEANS THAT 0ANCHAYAT HAS TO BE PROVIDED WITH
INFORMATION ABOUT PROPOSED DIVERSION
&OR ALL THE PROPOSALS FOR DIVERSION WHERE THE &2! COMPLIANCE REQUIRED THE CONSULTATION
WITH FULL INFORMATION OF THE PROPOSED PROJECT AND THE THEIR WRITTEN CONSENT IS REQUIRED
AS PER THE CIRCULAR & .O
&# PT 'OVERNMENT OF )NDIA -INISTRY OF %NVIRONMENT
AND &ORESTS &# $IVISION DATED
0ROVISIONS OF THE 0ANCHAYATS %XTENSION TO THE 3CHEDULED !REAS 0%3! !CT FROM
SECTION E TO M EVERY PROVISION NEED TO BE UNDERSTOOD FROM THE REQUIREMENT OF
2IGHT TO )NFORMATION %VERY 'RAM 3ABHA SHALL APPROVE OF THE PLANS AND PROJECTS FOR
SOCIAL AND ECONOMIC DEVELOPMENT BEFORE IMPLEMENTATION OF SUCH PROJECTS IT SHALL
BE RESPONSIBLE FOR THE IDENTICATION OR SELECTION OF PERSONS AS BENECIARIES UNDER
THE POVERTY ALLEVIATION AND OTHER PROGRAMS 4HE 'RAM 3ABHA OR 0ANCHAYAT SHALL BE
CONSULTED BEFORE MAKING THE ACQUISITION OF LAND IN THE 3CHEDULED !REAS FOR DEVELOPMENT
PROJECTS
&2! !CT 3ECTION E SAYS THE FREE INFORMED CONSENT OF THE 'RAM 3ABHAS IN THE
AREAS CONCERNED TO THE PROPOSED RESETTLEMENT AND TO THE PACKAGE HAS BEEN OBTAINED
IN WRITING
)T IS SURPRISING THAT SOME 0)/S AND OTHER OFCERS OF THE -INISTRY OF &ORESTS
%NVIRONMENT ARE NOT IMPLEMENTING THE RIGHT TO INFORMATION OF THE TRIBALS AND OTHERS
IN FORESTS GUARANTEED BY LEGISLATIONS AND CONTINUING THEIR FUNCTIONING UNDER PRE
)NDEPENDENCE LAWS WHICH DID NOT SERVE INTERESTS OF FOREST DWELLERS AND THUS DENYING
THEIR RIGHTS BOTH UNDER &OREST RELATED LAWS AND 24) 4HEY HAVE A DUTY TO INFORM UNDER ALL
LEGISLATIONS REGULATIONS NOTICATIONS AND CIRCULARS AS EXPLAINED ABOVE TO INFORM THE
TRIBALS AND OTHER FOREST DWELLERS %SPECIALLY WHEN THERE IS A THREAT OF DISPLACEMENT THE
VICTIMS OF SO CALLED DEVELOPMENT ARE ENTITLED TO RECOGNITION AND CERTICATION OF THEIR
RIGHTS UNDER THE &2! AND INFORMATION ABOUT WHICH CANNOT BE DENIED OR DELAYED )F THIS
INFORMATION IS DELAYED BEYOND THE REPLACEMENT IT AMOUNTS TO DENIAL OF INFORMATION
AND THEIR RIGHT TO LIVE IN FOREST ETC ALSO 4HE #OMMISSION THEREFORE ORDERS THE &OREST
#ONSERVATION $IVISION OF -INISTRY OF %NVIRONMENT AND &ORESTS TO GIVE POINT
WISE
REPLY TO THE APPELLANT AND INFORM HIM CURRENT STATUS OF ACTION TAKEN UNDER &2! WITHIN
A PERIOD OF ONE MONTH FROM THE DATE OF RECEIPT OF THIS ORDER )N FACT THE STATE HAS A
DUTY TO INFORM ALL THE VILLAGERS IN VILLAGES GOING TO BE DEPRIVED OF RIGHTS ACCRUED
UNDER &OREST 2IGHTS !CT EVEN BEFORE THEY HAVE BEEN ACCRUED AND ACCREDITED (ENCE
THE -INISTRY HAS TO TAKE NECESSARY STEPS IMMEDIATELY TO INFORM THE AFFECTED VILLAGERS
ABOUT THEIR RECOGNIZED RIGHTS UNDER THIS LAW BEFORE THEY ARE DISPLACED
4HE #OMMISSION ALSO DIRECTS RESPONDENT !UTHORITY AND 'OVERNMENT OF !NDHRA
0RADESH TO PROVIDE INFORMATION ABOUT THE ACTION TAKEN ON VARIOUS REPRESENTATIONS
FROM THE PEOPLE OF AFFECTED VILLAGES OF 0OLAVARAM PROJECT COMPLAINING ABOUT NON
IMPLEMENTATION OF &OREST 2IGHTS !CT COPY OF REPORT SUBMITTED BY ANY OFCER VISITING
THE AFFECTED AREASVILLAGES IN PURSUANCE OF ORDER DATED ND &EBRUARY AND ACTION
TAKEN THEREON COMMUNICATION ABOUT THIS BETWEEN -INISTRY AND 'OVERNMENT OF !0
WITH CERTIED COPIES COPIES OF ALL CORRESPONDENCE RELATING TO &OREST #LEARANCE ETC TO
THE APPLICANT WITHIN ONE MONTH FROM THE DATE OF RECEIPT OF THIS ORDER $ELAY BEYOND
A MONTH WILL ATTRACT PENALTY PROVISION OF 2S
PER DAY WHICH MIGHT EXTEND TO THE
MAXIMUM PENALTY
4HE #OMMISSION DIRECTS THE 0)/ TO SHOW CAUSE WHY PENALTY SHOULD NOT BE IMPOSED
4 / \
AGAINST HIM FOR NOT FURNISHING INFORMATION DESPITE THE ORDER OF &IRST !PPELLATE
!UTHORITY AND COMPENSATION BE GIVEN TO APPELLANT WITHIN DAYS FROM THE DATE OF
RECEIPT OF THIS ORDER 7ITH THESE OBSERVATIONS AND DIRECTIONS THE APPEAL IS DISPOSED OF
\ #/ - 0 %. $ ) 5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
4 / \
\ #/ - 0 %. $ )5- / & *5$ '- %. 43 /. 4 ( % & /2% 3 4 2) ' ( 4 3 !# 4
!CKNOWLEDGEMENTS
,AWYERS IN PARTICULAR AND LEGAL PROFESSIONALS IN GENERAL ARE HOARDERS BY NATURE 7E STORE
INFORMATION AND IDEAS AND ARGUMENTS AND JUDGMENTS SQUIRRELING THEM AWAY IN OUR
VARIED LING SYSTEMS FOR FUTURE USE AND BENET 4HIS COMPENDIUM BEGAN AS JUST SUCH A
HOARDING EXERCISE BUT WITHIN A FEW SHORT WEEKS IT WAS PAINFULLY APPARENT THAT THIS WAS
VALUABLE INFORMATION WHICH NEEDED TO BE SHARED WIDELY AND USED WIDELY !S A PERUSAL
OF THE JUDGMENTS IN THIS COMPENDIUM WILL REVEAL WHERE LAWYERS AND JUDICIAL OFCERS
HAVE HAD READY ACCESS TO DECISIONS OF OTHER CONSTITUTIONAL COURTS THEY HAVE BEEN GREATLY
BENETTED AND ENABLED TO ARRIVE AT JUST DECISIONS 7HERE SUCH MATERIAL WAS NOT READILY
AVAILABLE THE PROCESS WAS ARDUOUS AND COMPLICATED
)T IS WITH GREAT HUMILITY THEREFORE THAT ) ACKNOWLEDGE THE EFFORTS OF THOSE LEGAL
PROFESSIONALS WHO HAVE STEPPED INTO THE UNKNOWN AND TAKEN THE PLUNGE BY BRINGING
CASES TO COURT WHICH HAVE RESULTED IN THE JUDGMENTS COMPRISING THIS COMPENDIUM 4O
THESE INTREPID EXPLORERS ) AM TRULY THANKFUL
4HE GUIDANCE AND LEADERSHIP OF -R !SHOK 0AI *OINT 3ECRETARY -INISTRY OF 4RIBAL !FFAIRS
AND .ATIONAL 0ROJECT $IRECTOR OF THE 5.$0
-O4! *OINT 0ROJECT ON &OREST 2IGHTS !CT CANNOT
BE ARTICULATED IN WORDS )T HAS BEEN A PRIVILEGE TO BE CHALLENGED AND ENCOURAGED AT THE
SAME TIME BY HIM
-ANY THANKS ARE ALSO DUE TO THE OFCERS IN THE &2! DIVISION OF -O4! WHO HAVE SUFFERED
STOICALLY AS ) PULLED OUT LE AFTER DUSTY LE TO CREATE THIS COMPILATION
) MUST ALSO ACKNOWLEDGE THE VISION AND ENCOURAGEMENT OF !LKA .ARANG 3USHIL #HAUDHARY
AND 3REETAMA 'UPTABHAYA OF THE 5.$0 WHO HAVE NEVER LOST FAITH IN THIS PROJECT EVEN AT
TIMES WHEN ) WAS READY TO DO SO -Y SINCERE THANKS TO 3UDEEP #HAUDHURI FOR THE BEAUTIFUL
COVER AND THE PAINSTAKING ATTENTION TO DETAIL WITH THE DESIGN AND LAYOUT WHICH IS USER
FRIENDLY AND AESTHETIC AT THE SAME TIME
&INALLY ) MUST THANK MY 2ESEARCH !SSOCIATE 4USHARIKA -ATTOO FOR HER UNAPPABLE
EQUANIMITY AND UNAGGING ENTHUSIASM FOR THIS PROJECT WHICH AT ONE TIME HAD US
OVERWHELMED WITH ITS ENORMITY 4HIS COMPENDIUM WOULD NOT HAVE BEEN POSSIBLE
WITHOUT HER
)F THERE ARE ERRORS AND MISTAKES THE BURDEN FOR THESE IS ENTIRELY MINE
. % 7 $% , () 3(/-/. ! +(! ..!
!$6/#!4%
4 / \
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