Shri Karma Bhutia vs The State of Sikkim

P.D. Dinakaran, C.J.—The Petitioner is a bona fide holder of Certificate of Identification dated 25-07-2006 issued by the competent authority that the Petitioner belongs to the Scheduled Tribe Community. He seeks the benefit of Section 3 of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007), of course, based on long his possession and enjoyment of forest land of an extent of 24'' x 13'' and 22'' x 13'' bounded in the East by North Sikkim Highway, in the West five storied R.C.C. building of one Shri Sonam Pintso Bhutia, Ex Assistant Conservator of Forest, four storied R.C.C. building of one Shri Tashi Bhutia, four storied R.C.C. building of one Smt. Jemima Pradhan and her father Late D.N. Pradhan, in the North one godown of one Shri D.B. Pradhan alias Damber Sardar and in the South stairway of Shri Sonam Pintso Bhutia situated at Burtuk, East Sikkim. The structure, according to the Petitioner, was constructed by his grandfather in the year 1965. The Petitioner claims that he made repeated representations to the Respondents on 10-10-1991, 10-05-1994, 18-03-1996, 15-11-1996 and 27-01-2007 and 24-11-2007, seeking the benefit of Section 3 of the said Act; but he was made to run from pillar to post for getting allotment of the house site under the provisions of the said Act; and finally his request was turned down by the Range Officer, Gangtok Range by proceedings dated 11-01-2007, which is being impugned the writ petition. Of course, the Petitioner made further representations dated 13-08-2009 and 21-04-2010, 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 26-11-2007, which reads hereunder:

GOVERNMENT OF SIKKIM FOREST, ENV. & WILDLIFE MANAGEMENT DEPARTMENT DEORALI, GANGTOK-737102

No. 30/RTI/HQ/GoS/FEWMD

26th November, 2007

To,

Divisional Forest Officer, Territorial (East), P.S. Road, Gangtok.

Sub: Furnishing of Information under Right to Information Act, 2005.

Sir,

Enclosed herewith is an original application dated 24th November 2007 with Revenue Receipt No. 0708N-17049 dated 24.11.2007 amounting to Rs. 100 submitted by Shri Karma Bhutia, resident of Upper Burtuk, Gangtok, Sikkim seeking information under Right to Information Act, 2005.

The application has been accepted under ID No. 19/RTI/HQ/GoS/ FEWMD dated 26th November 2007 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.

Thanking you,

Yours faithfully, Sd/- (Mrs. M. Pradhan), Joint Director, (P & Statistics)/SPIO(HQ)

Copy for information to:

CCF (T),

CF (T),

Shri Karma Bhutia, Stenographer, Home Department, Govt. of Sikkim, Gangtok.

List of site allotment under East Division (T) --------------------------------------------------------------------- SL. NAME LOCATION ALLOTMENT ORDER No. DATE --------------------------------------------------------------------- 1 Harka Bdr. Tamang Martam 3-11-09 --------------------------------------------------------------------- 2 Passang Tamang Martam -do- --------------------------------------------------------------------- 3 Harka Bdr. Rai Martam -do- --------------------------------------------------------------------- 4 Jit Bdr. Subba Martam -do- --------------------------------------------------------------------- 5 Budha Singh Tamang Martam -do- --------------------------------------------------------------------- 6 Harka Bdr. Tamang Martam -do- --------------------------------------------------------------------- 7 Prava Rai Martam -do- --------------------------------------------------------------------- 8 B.P. Kharel, SMI Complex, 508/Ed/F dtd Mamring (S) Rangpo 8/11/93 --------------------------------------------------------------------- 9 S.K. Lepcha Pakyong Bazar During 1978 --------------------------------------------------------------------- 10 Jai Bdr. Gurung, 2nd Mile, JN Road 7.3.94 Driver Forest --------------------------------------------------------------------- 11 Navin Tamang, Dechiling 30'' x 40'' 5.3.94 Driver Forest --------------------------------------------------------------------- 12 Lakchung Bhutia, -do- 5.3.94 Driver, Forest --------------------------------------------------------------------- 13 Bhutia, Forest -do- -do- --------------------------------------------------------------------- 14 Tshering Dorjee -do- -do- Bhutia, Driver Forest --------------------------------------------------------------------- 15 Sitaram Bhujel, 2nd mile, JN road, 13.9.94 Driver Forest 30'' x 40'' --------------------------------------------------------------------- 16 Gopal Chettri, Driver Rongnek 13.9.94 Forest --------------------------------------------------------------------- 17 Phu Bhutia, Driver Dechiling 30'' x 20'' 5.3.94 Forest --------------------------------------------------------------------- 18 --------------------------------------------------------------------- 19 --------------------------------------------------------------------- 20 --------------------------------------------------------------------- 21 --------------------------------------------------------------------- 22 --------------------------------------------------------------------- 23 --------------------------------------------------------------------- 24 ---------------------------------------------------------------------

Details allotment of Forest site and unauthorised huts from ''0'' Point to Tashi View Point ------------------------------------------------------------------------- SL. Name Area Location Remarks No. allotted ------------------------------------------------------------------------- 1. Mrs. Laden Tsh. Bhutia 20'' x 30'' Ralling Copy enclosed Gaira ------------------------------------------------------------------------- 2 Lt. Mrs. Gita Gurung 20'' x 30'' Ralling Allotted copy Gaira not provided ------------------------------------------------------------------------- 3 Mrs. Phupu Doma 20'' x 32'' Ralling Allotted copy not Gaira provided ------------------------------------------------------------------------- 4 Shri Dazom Lachenpa Burtuk Allotted copy not provided ------------------------------------------------------------------------- 5 Shri Ringzing Gyatso Burtuk Allotted copy not provided ------------------------------------------------------------------------- 6 Ms. Katherine Sangay 100'' x 100'' Burtuk Allotted copy not Lepcha provided ------------------------------------------------------------------------- 7 Lt. D.P. Rai Burtuk Allotted copy not provided ------------------------------------------------------------------------- 8 Lt. M.B. Tamang C/o Burtuk Allotted copy not Kailash Tamamg provided ------------------------------------------------------------------------- 9 Lt. M.B. Tamang C/o Burtuk Allotted copy not Thama Tamang provided ------------------------------------------------------------------------- 10 Lt. M.B. Tamang C/o Burtuk Allotted copy not Bir Bdr. Tamang provided ------------------------------------------------------------------------- 11 Lt. M.B. Tamang C/o Burtuk Allotted copy not Sanju Tamang provided ------------------------------------------------------------------------- 12 Lt. N.K. Rai C/o Bikar Burtuk Allotted copy not Rai provided ------------------------------------------------------------------------- 13 Mrs. Bina Gurung Burtuk Allotted copy not provided ------------------------------------------------------------------------- 14 Lt Khim Narayan Burtuk Allotted copy not Pradhan C/o Madan provided Pradhan ------------------------------------------------------------------------- 15 Shri Mohanlall Rai Burtuk Allotted copy not provided ------------------------------------------------------------------------- 16 Shri Tek Bdr. Chettri Burtuk Allotted copy not provided ------------------------------------------------------------------------- 17 Mrs. Tshering Ongmu 20'' x 25'' Swastik Allotted copy not Bhutia provided ------------------------------------------------------------------------- 18 Shri Karma Bhutia Swastik Un-authorised ------------------------------------------------------------------------- 19 Lt. D.M. Pradhan Swastik Allotted copy not provided ------------------------------------------------------------------------- 20 Lt. D.M. Pradhan 10'' x 20'' Swastik Un-authorised ------------------------------------------------------------------------- 21 Shri K.B. Sunawar 15'' x 20'' 3rd Mile Un-authorised ------------------------------------------------------------------------- 22 Shri Millan Gajmer 20'' x 30'' 3rd Mile Allotted copy not provided ------------------------------------------------------------------------- 23 Shri Syam lall Rai 20'' x 30'' 3rd Mile Allotted copy not provided ------------------------------------------------------------------------- Sd/- Range Officer Gangtok Territorial Range Forest Department

The Petitioner, therefore, complaints that his legitimate right under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 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 Forest land under the Respondent No. 1 or under the proforma Respondent No. 2 (U.D & H.D) for the purpose of allotment;

(ii) to treat the Petitioner at par and equally with other allottees with regard to the allotment of the housing site in possession of the Petitioner since 1965;

(iii) to grant title of the land in possession of the Petitioner u/s 3 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006;

(iv) to vest upon the Petitioner the right over the land in question by regularization, grant or contract; and

(v) to rescind the stop order dated 11/01/2007 and allow the Petitioner to resume further construction.

Hence, the above Writ Petition.

According to the Mr. K.T. Bhutia, 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 11-01-2007 issued to the Petitioner to stop the unauthorised construction of the building, impugned in the writ petition, is discriminatory, arbitrary, mala fide and violative of Article 14 of the Constitution of India as well as contrary to the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

Per contra, Mr. Karma Thinlay, learned Government Advocate, 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 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 are not applicable and that the Petitioner is not a person falling within the definition of "forest dwelling Scheduled Tribe". The Petitioner does not satisfy the statutory requirements contemplated under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007 that he has ''bonafide livelihood needs'' as defined under Rule 2(b) of the said Rules, 2007. The learned Government Advocate further contends that the Government authorities are rightly empowered to initiate the action under the provisions of the Sikkim Forests, Water Course and Road Reserve Preservation and Protection Act, 1988, when the Petitioner proposed to violate the provisions of the same. However, the learned Government Advocate is not in a position to explain under what circumstances the similarly placed persons were granted dwelling right under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

We have given our careful consideration to the submissions of both sides.

The impugned proceedings dated 11-01-2007 reads as hereunder:

OFFICE OF THE RANGE OFFICER GANGTOK TERRITORIAL RANGE, FOREST COLONY, BALUAKHANI GANGTOK, EAST SIKKIM

No. 1068/GR(T)

Dated: 11/01/07

NOTICE

To,

Shri Karma Bhutia, Upper Burtuk East Sikkim.

Subject: Encroachment of forest land at Burtuk.

It has been observed that you have erected six numbers of RCC pillars for construction of house within forest land at Burtuk. Your application dated 20th of December, 2006 submitted by you cannot be entertained in the mean time.

Hence, you are hereby directed to stop the unauthorized construction of the said building within Road Reserve and Forest Land immediately, failing which a case will be registered against you as per Sikkim Forest Water Courses Road Reserve (Preservation & Protection), Act 1988.

Sd/- 10/1/07 J.S. LEPCHA Forest Range Officer Gangtok (T) Range

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition or Forest Rights) Act, 2006 [hereinafter referred to as the Scheduled Tribes (Recognition of Forest Rights) Act, 2006] was enacted by the Parliament to recognise and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded 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 Scheduled Tribes and other traditional forest dwellers include the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance and thereby strengthening the conservation regime of the forests while ensuring livelihood and food security of the forest dwelling Scheduled Tribes and other traditional forest dwellers;

(ii) the forest rights on ancestral lands and their habitat were not adequately recognized in the consolidation of State forests during the colonial period as well as in independent India resulting in historical injustice to the forest dwelling Scheduled Tribes 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 Scheduled Tribes and other traditional forest dwellers including those who were forced to relocate their dwelling due to State development interventions.

It is under such circumstances the Scheduled Tribes (Recognition of Forest Rights) Act, 2006, was enacted.

Section 3(1) of the Scheduled Tribes (Recognition of Forest Rights) Act, 2006 recognises the following rights of the Scheduled Tribes 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 Scheduled Tribe or other traditional forest dwellers;

(b) community rights such as nistar, by whatever name called, including those used in erstwhile Princely States, Zamindari or such intermediary regimes;

(c) right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries;

(d) other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities;

(e) rights including community tenures of habitat and habitation for primitive tribal groups and pre-agricultural communities;

(f) rights in or over disputed lands under any nomenclature in any State where claims are disputed;

(g) rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles;

(h) rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and other villages in forest, whether recorded, notified or not into revenue villages;

(i) right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protection and conserving for sustainable use;

(j) rights which are recognised under any State law or laws of any Autonomous District Council or Autonomous Regional Council or which are accepted as rights of tribals under any traditional or customary law of the concerned tribes of any State;

(k) right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity;

(l) any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers, as the case may be, which are not mentioned in 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 Scheduled Tribes and other traditional forest dwellers have been illegally evicted or displaced from forest land of any description without receiving their legal entitlement to rehabilitation prior to the 13th day of December, 2005.

Section 4 of the Scheduled Tribes (Recognition of Forest Rights) Act, 2006 deals with the recognition, restoration and vesting of forest rights in the forest dwelling Scheduled Tribes and other traditional forest dwellers.

Section 5 of the Scheduled Tribes (Recognition of Forest Rights) Act, 2006 prescribes duties of holders of forest rights, which reads as hereunder:

Duties of holders of forest rights.

The holders of any forest right, Gram Sabha and village level institutions in areas where there are holders of any forest right under this Act 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 Scheduled Tribes and other traditional forest dwellers is preserved from any from of destructive practices affecting their cultural and natural heritage;

(d) ensure that the decisions taken in the Gram Sabha to regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the biodiversity are complied with.

Section 6 of the Scheduled Tribes (Recognition of Forest Rights) Act, 2006 defines different authorities, viz. Gram Sabha, Sub-Divisional Level Committee and District Level Committee and also prescribes the procedure for determining such vesting of forest rights, which reads as hereunder:

Authorities to vest forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers and procedure thereof.

6.(1) The Gram Sabha 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 forest dwelling Scheduled Tribes and other traditional forest dwellers within the local limits of its jurisdiction under this Act by receiving claims, consolidation 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 Gram Sabha shall, then, pass a resolution to that effect and thereafter forward a copy of the same to the Sub-divisional Level Committee.

(2) Any person aggrieved by the resolution of the Gram Sabha may prefer a petition to the Sub-Divisional Level Committee constituted under Sub-section (3) and the Sub- Divisional Level Committee shall consider and dispose of such petition:

Provided that every such petition shall be preferred within sixty days from the date of passing of the resolution by the Gram Sabha;

Provided further that no such petition shall be disposed of against the aggrieved person, unless he has been given a reasonable opportunity to present his case.

(3) The State Government shall constitute a Sub-Divisional Level Committee to examine the resolution passed by the Gram Sabha and prepare the record of forest rights and forward it through the Sub-Divisional Officer to the District Level Committee for a final decision.

(4) Any person aggrieved by the decision of the Sub-Divisional Level Committee may prefer a petition to the District Level Committee within sixty days from the date of decision of the Sub- Divisional Level Committee and the District Level Committee shall consider and dispose of such petition:

Provided that no petition shall be preferred directly before the District Level Committee against the resolution of the Gram Sabha unless the same has been preferred before and considered by the Sub-Divisional Level Committee;

Provided further that no such petition shall be disposed of against the aggrieved person, unless he has been given a reasonable opportunity to present his case.

(5) The State Government shall constitute a District Level Committee to consider and finally approve the record of forest rights prepared by the Sub-Divisional Level Committee.

(6) The decision of the District Level Committee on the record of forest rights shall be final and binding.

(7) The State Government shall constitute a State Level Monitoring Committee to monitor the process of recognition and visiting of forest rights and to submit to the nodal agency such returns and reports as may be called for by that agency.

(8) The Sub-Divisional Level Committee, the District Level Committee and the State Level Monitoring Committee shall consist of officers of the departments of Revenue, Forest and Tribal Affairs of the State Government and three members of the Panchayati Raj Institutions at the appropriate level, appointed by the respective Panchayati Raj Institutions, of whom two shall be the Scheduled Tribe members and at least one shall be a woman as may be prescribed.

(9) The composition and functions of the Sub-Divisional Level Committee, the District Level Committee and the State Level Monitoring Committee and the procedure to be followed by them in the discharge of their functions shall be such as may be prescribed.

Section 14 of the Scheduled Tribes (Recognition of Forest Rights) Act, 2006 empowers the Central Government to make rules in this regards.

Accordingly, the Government of India, Ministry of Tribal Affairs by a notification dated 01-01-2008 in exercise of the powers conferred under Sections 14(1) and (2) of the Scheduled Tribes (Recognition of Forest Rights) Act, 2006 (2 of 2007) framed the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007.

12.2 Rules 3 defines the Gram Sabha, Rule 4 prescribes the functions of the Gram Sabha, Rule 5 deals with the constitution of the Sub-Divisional Level Committee, Rule 6 provides the functions of the Sub-Divisional Level Committee, Rule 7 deals with the District Level Committee, Rule 8 deals the functions of the District Level Committee, Rule 9 deals with the State Level Monitoring Committee, Rule 10 deals with the functions of the State Level Monitoring Committee, Rule 11 deals with the procedure for filing, determination and verification of claims by the Gram Sabha, Rule 12 deals with process of verifying claims by Forest Rights Committee and Rule 13 deals with evidence for determination of forest rights.

It is, therefore, clear that the Act and the Rules framed thereunder define the forest rights of the Scheduled Tribes and other traditional forest dwellers, residing in the forest and the procedure to be followed in determining such rights. If that be the case, the Petitioner''s representations made as early as in 1991 claiming his legitimate rights under the Scheduled Tribes (Recognition of Forest Rights) Act, 2006 ought to have been considered by the competent authorities in the manner provided under the Scheduled Tribes (Recognition of Forest Rights) Act, 2006 and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007. But without following such due process of law, the Range Officer, by proceeding dated 11-01-2007 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 Sikkim Forests, Water Courses and Road Reserve Preservation and Protection Act, 1988; which was enacted by the State of Sikkim as a consolidated enactment relating to the forests produce, water courses and road reserve and for the matters connected therewith or incidental thereto.

When the Act prescribes such a forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers, the authorities constituted under the Act and Rules framed thereunder, are expected to consider the rights of the Scheduled Tribes and forest dwellers following the procedure and in the manner known to law. Failure to follow such procedure not only violates the principles of natural justice, but also is contrary to the provisions of the Scheduled Tribes (Recognition of Forest Rights) Act, 2006 and the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007.

Therefore, without expressing any opinion as to the rights claimed by the Petitioner, suffice it to permit the Petitioner to make a representation to the competent authority within 2 weeks from the date of receipt of this order, seeking his entitlement under the provisions of the Scheduled Tribes (Recognition of Forest Rights) Act, 2006 and the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007 and direct the Respondents to consider the said representation of the Petitioner and pass appropriate orders following the procedure prescribes under the Scheduled Tribes (Recognition of Forest Rights) Act, 2006 and the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007 within 12 weeks from the date of receipt of the representation of the Petitioner. The Respondents are also directed to maintain status-quo till such final orders are passed by the competent authority.

The writ petition is disposed of accordingly with no order as to cost.