Vailas Das Dhurve Gond @APPELLANT@Hash State of Rajasthan & Ors

Mohammad Rafiq, J

Application nos.20733/17 and 74995/18 under order 41 Rule 27 CPC for taking certain documents on record are allowed.

This appeal was originally filed by Vailas Das Dhurve Gond, who upon his death on 9.11.2017 was later substituted by his legal representatives against

the judgement of the single bench dated 30.11.2016, whereby the writ petition filed by Arjun Lal Sethi Nagar Vikas Samiti and Dwarkesh Bharadwaj

was allowed with direction to the respondents-State authorities to implement the decision dated 07.01.2005 taken in the meeting chaired by Principal

Secretary, Medical and Higher Education with regard to land lying behind Psychiatric Centre (Mental Hospital), Sethi Colony, Jaipur. According to the

aforesaid decision, all dwellers of the Chetan `kachchi basti’ residing on the said land were to be rehabilitated at Paldi Meena or Bagrana, Agra

Road so as to provide land to Psychiatric Centre (Mental Hospital), Jaipur for its expansion.

The present appeal has been filed filed with an application seeking leave to file such appeal on the premise that appellants who represent the interest

of Adivasi Gond Samaj, who were residing in that `kachchi basti’, are going to be adversely affected by implementation of the impugned

judgement. Leave to file appeal is granted. The appeal was entertained and heard on merits.

Shri Bhagwat Singh Choudhary, learned counsel for the appellants has submitted that most of the dwellers in the Chetan Kachchi Basti are members

of the Scheduled Tribe known as Gond Adivasi Samaj. They were originally residing in a `kabristan’ near `Ghat Ki Gooni’ wherefrom they

were removed to nearby `teela’ sometime in 1970 and later moved to the disputed land, which is a forest land. It is argued that the learned Single

Judge erred in law in directing their displacement without providing them an opportunity of hearing and under ignorance of the fact that a decision had

been taken at the level of the Chief Minister of the State to regularise their possession on the existing land itself.

Learned counsel for the appellant has invited attention of the Court towards letter dated 21.5.2008 sent by Technical Assistant, Conservator of Forest,

Aravali Plantation Project, whereby Deputy Conservator of Forest, Jaipur (Centre) was directed to examine the records and the possession on the

ground and submit a report within three days. Reference is also made to the letter dated 9.6.2008 sent by the Deputy Conservator of Forest, Jaipur

(Centre) to Secretary, Jaipur Development Authority, Jaipur with reference to order of the office of the Chief Minister dated 12.12.2007 that

possession of the dwellers of the Chetna `kachchi basti’ were to be regularised on the existing land, which is part of khasra no.4 of Revenue

Village Jamdoli and was entered as forest land in revenue records.

It is argued that District Collector, Jaipur vide letter dated 23.3.2015 also wrote to the Secretary, Jaipur Development Authority with reference to the

representation of Vailas Das Dhurve Gond, Adivasi, Chetan Basti, to take appropriate action under intimation to his office. Copy of the representation

made by Shri Vailas Das Dhurve Gond has also been annexed with that letter in which reference to certain order said to have been passed by the

Chief Minister for rehabilitating the said `kachchi’ basti at the existing place was made. It is argued that the Jaipur Development Authority

originally conducted the survey of the said `kachchi basti’ in 2004, according to the said survey report, they have shown 215 dwellers in the

`kachchi basti’, copy of the said list has been placed on record at Annexure-A/2 with the application no.20733/17 filed under Order 41 Rule 27

CPC.

Shri Bhagwat Singh Choudhary, learned counsel has also relied on the letter dated 8.2.2008 (Annexure-A/9) filed with affidavit of the appellants

written by Special Assistant to the Minister, Education, Higher Education, Technical Education, Rajasthan, Jaipur asking Commissioner, JDA, Jaipur to

regularise the `kachchi basti’ in question at the existing place and develop the basic infrastructure under intimation to the said Minister. Reliance

is also placed on yet another letter dated 26.4.2008 (Annexure-A/10) sent by the Special Assistant to the Minister of State, Department of Education,

Higher Education, Technical Education, Jaipur to the Commissioner, Jaipur Development Authority with which representation of the appellant dated

25th April, 2008 was forwarded, for appropriate action. Learned counsel while referring to Annexure-A/11 has submitted that application form of the

residents of the `kachchi basti’ were obtained on 9th March, 1988 for regularisation of their possession on the existing land. It is argued that when

residents of `kachchi basti’ appeared before the Chief Executive Officer, Nagar Nigam, Jaipur, he directed the concerned Zonal Commissioner

for issuance of the pattas. In this connection, they approached the Commissioner, Vidhyadhar Nagar Zone, Jaipur Nagar Nigam, Jaipur, who referred

them to the Commissioner, Moti Doongri Zone, Jaipur Nagar Nigam, Jaipur, who had the jurisdiction of the area in dispute, for the needful.

Learned counsel has relied on Section 3 (1)(a) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,

2006 (for short-`the Act’) and argued that the appellants and others whose interest they claim to espouse, being members of the Scheduled Tribes,

have a right to hold and live in the forest land under the individual or common occupation for habitation or for self cultivation for livelihood. Reliance is

also placed on clause (g) of Section 3(1) of the said Act, which inter alia provides for rights for conservation of Pattas or leases or grants issued by

any local authority or any State Government on forest lands to titles in favour of individual or community tenure or both, being members of Scheduled

Tribe living or occupying the forest land.

Shri Rajendra Prasad, learned Additional Advocate General for the State has submitted that the land in dispute has been earmarked for medical

purpose in the Master Plan of Jaipur City. This land was earmarked for use of medical facilities primarily because the Mental Hospital and Psychiatric

Centre situated in Sethi Colony, Jaipur, which is the premier Psychiatric Centre of the State of Rajasthan, has been facing acute scarcity of land.

Number of letters were received from the Superintendent, Psychiatric Centre and Mental Hospital, Jaipur for removing the encroachments in the land

lying nearby, which was meant for expansion of the Psychiatric Centre and Mental Hospital. It is argued that the `kachchi basti’ has been

developed due to neglect of the government officials at the relevant time. The residents of the `kachchi’ basti are trespassers and do not have any

right to continue on the said land.

Shri Rajendra Prasad, learned Additional Advocate General has referred to the decision taken in the meeting dated 07.01.2005 presided by Principal

Secretary, Medical Health to remove the `kachchi basti’ and rehabilitate the residents thereof to either Paldi Meena or Bagrana, Agra Road.

However, this could not happen at that time due to resistance posed by the residents of `kachchi basti’. It is argued that as per own showing of the

appellant, there are originally 200 persons, then that number has undergone increase from time to time as many new persons have encroached upon

the land, which is essentially the government land. However, a joint survey was conducted by Jaipur Nagar Nigam and Jaipur Development Authority

sometime in the year 2015 pursuant to order passed by this Court dated 26.2.2015 to verify as to how many hutments are existing in the `kachchi

basti’ situated on the land of Psychiatric Centre and Mental Hospital, Sethi Colony, Jaipur. The survey report had been placed on record in the

writ petition with affidavit dated 17.9.2016 at AnnexureRA/1 in writ petition, according to which there were in total about 467 persons with 366

hutments, some of which were found locked and some were rented out by the original dwellers in favour of certain individuals. Reference is also

made to the list of those presently in occupation of the hutments, which was prepared on 10.3.2017 and has been placed on record at Annexure RA/1

with an affidavit dated 3.5.2018, according to which there are total 394 persons residing in the `kachchi basti’.

Learned Additional Advocate General has argued that although technically the land being part of Jhalana Forest Area at one point of time, might have

been recorded as forest land, but now since this land lies within the heart of the city, it is the part of the Jaipur Municipal area for last several decades.

The appellants and other residents of the `kachchi basti’ whose interest they claim to represent, as per their own showing, were not original

habitants of this land. They claime that they were originally residing in some `kabristan’ near `Ghat Ki Gooni’ and thereafter moved to some

adjoining `teela’ in 1970 and then they came to the disputed land. It is argued that the State Government or any of its functionaries never took any

decision to regularise the `kachchi basti’ or the dwellers thereof on the disputed land itself. No such decision was taken at the level of the Chief

Minister of the State either. The representation of the appellant/residents of the `kachchi basti’ was merely referred to the competent authority,

which was duly examined and the decision that they could not be regularised on the land in dispute was conveyed.

Learned Additional Advocate General has referred to the letter dated 18.02.2018 sent by Secretary, Jaipur Development Authority to O.S.D. office of

the Chief Minister, Government of Rajasthan, Jaipur with reference to their similar letter dated 01.02.2011 in which it was clearly mentioned that the

land was though entered in the revenue record as the forest land, but in the Master Plan, the use of the land has been indicated to be for medical

purposes. The total number of dwellers was only 199 and it was not possible to allot them this land/regularise them on the disputed land. Earlier

decision was taken to rehabilitate them in Paldi Meena or Bagrana, but since residents of the Chetan Kachchi Basti opposed the move, it could not be

implemented. Reference is made to another letter dated 15.11.2011 sent to OSD, office of the Chief Minister, Government of Rajasthan, Jaipur

conveying the similar decision. Learned Additional Advocate General has placed on record the note sheets of relevant file of the Jaipur Development

Authority, in which representation of the appellant/residents of the said `kachchi basti’ received from the office of the Chief Minister was dealt

with.

It is argued that reliance on the provisions of Section 3(1)(a) and (g) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of

Forest Rights) Act, 2006 is wholly misconceived. The provisions of that Act are meant for the tribals, who live in the forest area and are dependent on

the forest produce for their livelihood. Such is not the position of the residents of `kachchi basti’ in question.

Learned Additional Advocate General invited attention of the Court towards the minutes of the meeting dated 04.07.2017 chaired by the Urban

Development and Housing Minister in which agenda no.6 was with regard to rehabilitation of the residents of `kachchi basti’ specially those who

are directed to be rehabilitated by orders of the Court, in BSUP Scheme by Jaipur Development Authority. It is argued that in course of time, the

availability of land in Paldi Meena or Bagrana became scarce and, therefore, now two out of three blocks of 2892 flats built under the BSUP scheme

of the Government of India by JDA in three blocks were transferred to Nagar Nigam Jaipur for rehabilitation of the residents of `kachchi bastis’.

The government by order dated 30.6.2017 sent approval to the Commissioner, Jaipur Development Authority, Jaipur in this behalf.  Â

Learned Additional Advocate General further submitted that the Nagar Nigam has placed on record with its affidavit dated 15.12.2017, the complete

scheme, which is prepared for rehabilitation of the residents of `kachchi basti’ in question, according to which the consent letters of the residents

of `kachchi basti’ were to be obtained in the camp to be held on 6.12.2017 and 7.12.2017 whereafter all the documents/applications/records were

to be forwarded to JDA on 13.12.2017. Thereafter allotment was to be made by draw of lots on or before 20.12.2017. The allotment letters were to

be distributed from 21st to 25th December, 2017 and thereafter the possession letters / pattas were to be distributed from 26th to 29th December,

2017. The entire schedule was frustrated only because the residents of the `kachchi basti’ were/are adamant on not moving elsewhere and are

insisting on their regularisation on the land in dispute itself.  Â

Having heard the learned counsel for the parties and gone through the material available on record, we have given our anxious consideration to the

rival submissions.

We find on record the letter dated 16.12.1999 (Annexure-1) sent by Superintendent, Psychiatric Hospital, Jaipur to District Collector, Jaipur for

removal of the encroachment followed by letter dated 12.5.2000 (Annexure-2) addressed to the Commissioner, JDA, Jaipur. Another letter dated

5.12.2001 was again sent by Superintendent, Psychiatric Centre, Jaipur to Administrator, Nagar Nigam, Jaipur. Superintendent, Psychiatric Centre,

Jaipur again wrote a D.O. letter to the District Collector on 14.12.2001. The District Collector in turn sent a letter to Chief Executive Officer, Jaipur

Nagar Nigam dated 14.2.2002 to get the land of the Psychiatric Centre vacated by removing the unauthorised occupants or relocating Chetan `kachchi

basti’ elsewhere. On record is also available the minutes of the meeting dated 20.5.2002 chaired by the Principal Secretary, Medical and Health

Department and attended, amongst others, by Commissioner, Jaipur Development Authority, Director (Engineering), Principal, SMS Medical College,

Jaipur, Superintendent, Psychiatric Centre, Jaipur, Professor, Psychiatric Centre, Jaipur, Zonal Engineer A2, JDA and Dy. Commissioner Zone A1,

JDA, in which decision to remove the aforesaid encroachments/`kachchi basti’ was reiterated. A meeting was again convened under the

Chairmanship of Principal Secretary, Medical & Higher Education on 07.01.2005, which was attended by Commissioner, Jaipur Development

Authority, Jaipur, Principal, SMS Medical College and the Superintendent, SMS Hospital, apart from others, in which it was decided that a joint

operation may be conducted by Nagar Nigam, Jaipur and JDA to re-locate the `kachchi basti’ / residents at Paldi Meena or Bagrana at Agra

Road for rehabilitation and that a formal request to Chief Executive Officer, Nagar Nigam, Jaipur in this respect be sent by Superintendent,

Psychiatric Centre, Sethi Colony, Jaipur. The Superintendent, Psychiatric Centre, Jaipur then wrote on 4.6.2005 to Commissioner, Moti Doongri Zone,

Nagar Nigam, Jaipur with reference to the aforesaid decision taken in the meeting for relocating the `kachchi basti’ elsewhere. There are

available on record, number of representations submitted by President and other residents of the Sethi Nagar Vistar Vikas Parishad, Jaipur for

removing the `kachchi basti’ alleging that their presence there was giving rise to number of thefts. District Collector, Jaipur then sent letter dated

01.07.2010 to Secretary, Jaipur Development Authority with reference to such representation to do the needful.

In the fact scenario that we have noticed above, especially the recent decision taken by the Government in the meeting presided by the Minister of

Urban Development and Housing Department dated 4th July, 2017, minutes of which are placed on record at Annexure-A/1, the attitude of the

residents of Chetan `kachchi basti’ in resisting their relocation and rehabilitation elsewhere for more than a decade cannot be appreciated.

Reliance placed on the provisions of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 by the

appellant is wholly misconceived. The Act of 2006 has been enacted with the object of ensuring survival of the tribal people who are traditionally and

customarily dwelling in the forest for a long time and are dependent on the forest land and produce for their survival. Section 2(c) of the Act of 2006

recognise the definition of “forest dwelling Scheduled Tribesâ€​ to mean the members or community of the Scheduled Tribes who primarily reside in

and who depend on the forests or forest lands for bona fide livelihood needs and includes the Scheduled Tribe pastoralist communities. It is in this

context that Section 3(1)(a) provides that right to hold and live in the forest land under the individual or common occupation for habitation or for self-

cultivation for livelihood shall be the vested right of a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers. It

is therefore that Section 3(1)(g) also refers to rights for conversion of Pattas or leases or grants issued by any local authority or any State Government

on forest lands to titles. These provisions, keeping in view the object of the Act, have to be construed in the right perspective. The provisions of the

Act of 2006, in our considered view, do not in any manner provide any assistance to the appellants.

It is not in dispute that the land in question is lying at the back of the existing Psychiatric Centre and Mental Hospital, Sethi Colony and has been

earmarked in the Master Plan for medical purpose, obviously for the purpose of expansion of the existing Psychiatric Center and Mental Hospital,

which is the premier and leading Psychiatric Centre of the State of Rajasthan. Appellants and the residents of the Chetan `kachchi basti’ cannot

insist on their regularisation on the said land only for the reason that they occupied this land as trespassers for quite some time, despite persistent

efforts of the State to rehabilitate them elsewhere.

The appellants claim to be members of the Scheduled Tribe, however, half of the residents of the Chetan `kachchi basti’ are not even members of

Scheduled Tribe. They do not have any right to occupy and insist on continuing with such occupation on this land, much less in the face of the

benevolent gesture of the State Government to rehabilitate them elsewhere. In our considered view, the learned Single Judge was perfectly justified in

issuing the directions to implement the decision dated 07.01.2005 taken in the meeting chaired by Principal Secretary, Medical and Higher Education,

Government of Rajasthan.

The appeal is therefore dismissed. However, the respondents are directed to implement the aforesaid scheme within four months from today with the

modification that it would be open for the respondents to now rehabilitate the appellants / residents of the Chetan Kachchi Basti  as per the last

survey / verification conducted on 10.3.2017 in the flats built by the Jaipur Development Authority in the BSUP Scheme of the Central Government.