- 1 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE22D DAY OF APRIL, 2022 R BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION No.102683 OF2021(GM-FOR) C/W. WRIT PETITION NOS.138914/2020 & 146578/2020 (GM-FOR) IN WP NO.102683/2021 BETWEEN: MR.MALLIKARJUN S/O. SIDDARAI SULDHAL AGE:
21. YEARS, OCC: AGRICULTURE R/O SIDDANAHALLI VILLAGE POST-TUMMARAGUDDI TQ AND DIST- BELAGAVI-591227 …PETITIONER (BY SRI. VITTHAL S TELI, ADVOCATE) AND:
1. THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT OF KARNATAKA M.S. BUILDING, BENGALURU-560001 2. THE PRINCIPAL SECRETARY DEPARTMENT OF MAJOR IRRIGATION GOVERNMENT OF KARNATAKA, M.S. BUILDING, BENGALURU-560001 3. THE DISTRICT LEVEL COMMITTEE THE SCHEDULED TRIBES AND TRADITIONAL DWELLER FOREST RIGHTS COMMITTEE AND DEPUTY COMMISSIONER, BELAGAVI COURT COMPOUND, BELAGAVI-590001 REPRESENTED BY ITS PRESIDENT/DEPUTY COMMISSIONER, BELAGAVI - 2 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 4. THE DEPUTY CONSERVATOR OF FOREST OFFICER BELAGAVI DIVISION, BELAGAVI NEAR CENTRAL BUS STAND, FOREST DEPARTMENT COMPOUND BELAGAVI-590001 5. THE SUB-DIVISIONAL (TALUKA) LEVEL COMMITTEE THE SCHEDULED TRIBES AND TRADITIONAL FOREST RIGHTS COMMITTEE AND ASSISTANT COMMISSIONER, BELAGAVI. REPRESENTED BY ITS PRESIDENT ASSISTANT COMMISSIONER SUB-DIVISION, BELAGAVI.
6. THE DISTRICT BACKWARD CLASS AND WELFARE OFFICER BACKWARD CLASS AND WELFARE DEPARTMENT BELAGAVI, NEHRU NAGAR, BELAGAVI.
7. THE DEPUTY COMMISSIONER COURT COMPOUND, BELAGAVI-590001 8. THE SPECIAL DEPUTY COMMISSIONER (LAQ, R AND R), MAJOR IRRIGATION PROJECT CLUB ROAD, BELAGAVI-590001 …RESPONDENTS (BY SMT K. VIDYAVATHI, ADDL. AAG FOR R1 TO R8) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER WRIT OR
ORDERQUASHING THE PROCEEDING/MEETING DATED2905.2019 HELD BY THE RESPONDENT NO.3 UNDER THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006 AND ALLIED RULES2008AND AMENDED RULES2012IN SO FAR REVIEWING/RECONSIDERING THE PETITIONER CLAIM/CASE AND THEREBY DIRECTING THE RESPONDENT NO.4 SUB-DIVISIONAL COMMITTED RECONSIDER BEARING NO.f¥ÀªÀPÀ/VGAiÉÆ/CgÀtåºÀPÄÀÌ/«ªÀ;63/2007-08 DATED3005.2019 VIDE ANNEXURE-X AND ETC.-. 3 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 IN WP NO.138914/2020 BETWEEN: MR. MALLIKARJUN S/O. SIDDARAI SULDHAL AGE:
21. YEARS, OCC: AGRICULTURE, R/O: SIDDANAHALLI VILLAGE, POST: TIMARGUDDI, TAL: and DIST: BELAGAVI-591227 …PETITIONER (BY SRI. VITTHAL S TELI, ADVOCATE) AND:
1. THE PRINCIPAL SECRETARY DEPARTMENT OF REVENUE, GOVERNMENT OF KARNATAKA, M. S. BUILDING, BENGALURU-560001 2. THE PRESIDENT DISTRICT LEVEL COMMITTEE, THE SCHEDULED TRIBES AND facing_sheet_stamp.jpg TRADITIONAL DWELLER FOREST RIGHTS COMMITTEE AND DEPUTY COMMISSIONER, BELAGAVI, COURT COMPOUND, BELAGAVI-590001 3. THE DEPUTY CONSERVATOR OF FOREST OFFICER BELAGAVI DIVISION, BELAGAVI, NEAR CENTRAL BUS STAND, FOREST DEPARTMENT COMPOUND, BELAGAVI-590001.
4. THE PRESIDENT SUB-DIVISIONAL (TALUKA) LEVEL COMMITTEE, THE SCHEDULED TRIBES AND TRADITIONAL FOREST RIGHTS COMMITTEE AND ASSISTANT COMMISSIONER, BELAGAVI.-. 4 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 5. THE DISTRICT BACKWARD CLASS AND WELFARE OFFICER, BACKWARD CLASS AND WELFARE DEPARTMENT, BELAGAVI, NEHRU NAGAR, BELAGAVI. …RESPONDENTS (BY SMT. K. VIDYAVATHI, AAG FOR R1 TO R5) --- THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF MANDAMUS OR DIRECTION, DIRECTING THE RESPONDENTS TO ISSUE CERTIFICATE OF TITLE FOR FOREST LAND UNDER OCCUPATION (HAKU PATRA) ANNEXURE II IN RESPECT OF RS NO154MEASURING5ACRES10GUNTHAS IN SIDDHANAHALLI VILLAGE OF BELAGAVI TALUKA AND DISTRICT AS PER THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) RULES2008AND AMENDED RULES2012IN SO FAR AS PETITIONER IS CONCERNED AS PER ANNEXURE "C" AND ETC. IN W.P.NO.146578/2020 BETWEEN: MR.MALLIKARJUN S/O SIDDARAI SULDHAL AGE:
25. YEARS, OCC: AGRICULTURE, R/O: SIDDANAHALLI VILLAGE, POST: TIMARGUDDI, TQ and DIST: BELAGAVI-591227. …PETITIONER (BY SRI. VITTHAL S TELI, ADVOCATE) AND:
1. THE SPECIAL DEPUTY COMMISSIONER BELAGAVI and LAND ACQUISITION AND REHABILITATION and RESETTLEMENT (R and R), MAJOR IRRIGATION PROJECT CLUB ROAD, BELAGAVI-590001.-. 5 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 2. THE MANAGING DIRECTOR KARNATAKA NIRAVARI NIGAM LTD., NO.1, 4TH FLOOR, COFFEE BOARD BUILDING, DR.B.R. AMBEDKAR VEEDHI, BENGALURU-560001.
3. THE CHIEF ADMINISTRATIVE OFFICER KARNATAKA NIRAVARI NIGAM LTD., THE CENTRAL OFFICE, VIJAYA COMPLEX, SRINAGAR CROSS, HALIYAL ROAD, DHARWAD-580003.
4. THE EXECUTIVE ENGINEER KARNATAKA NIRAVARI NIGAM LTD., GRBCC DIVISION NO.2, HIDKAL DAM, TQ: HUKKERI, DIST: BELAGAVI59003 …RESPONDENTS (BY SMT. K. VIDYAVATHI, AAG FOR R1; SRI. RAMESH N. MISALE, ADVOCATE FOR R2, R3 & R4) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY
ORDERQUASHING THE
ORDERDATED2402/2020 PASSED BY THE RESPONDENT NO.1 VIDE ANNEXURE "F" AND ETC. THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON0404.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: COMMON
ORDER1 The petitioner is before this Court seeking for the following reliefs: - 6 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 In W.P.NO.102683/2021 i) Issue writ of certiorari or any other writ or order quashing the proceeding/meeting dated 29.05.2019 held by the respondent No.3 under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and allied Rules 2008 and Amended Rules 2012 in so far reviewing/reconsidering the petitioner claim/case and thereby directing the respondent No.4 Sub-Divisional committee reconsider bearing No.f¥ÀªÀPÀ/VGAiÆÉ /CgÀtåºÀPÀÄÌ/«ªÀ;63/2007-08 dated 30.05.2019 vide Annexure-X. ii) Issue writ of certiorari or any other writ or order quashing the order bearing No.f¥ÀªÀPÀ/VGAiÆÉ /CgÀtåºÀPÀÄÌ/«ªÀ;63/2007-08/118 dated 15/07/2021 vide Annexure-AJ passed by the respondent No.3 in special proceeding/meeting held under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and allied Rules 2008 and amended Rules 2012 is without authority of law etc. iii) And consequentially quash the proceedings/ meeting dated 30.06.2021 rejecting the claim of the petitioner by the respondent No.4 communicated through Panchayat Development Officer, Gram Panchayat Office, Tummarguddi dated 06.07.2021 bearing No.UÁæ¥À/vÄÀ/«ªÀ/2021-22 vide Annexures-AG and AH. iv) Issue any other writ or directions to meet the ends of justice. In W.P.NO.138914/2020 i) Issue writ of certiorari or direction directing the respondents to issue certificate of title for Forest Land under occupation (Haku Patra) Annexure-II in respect of RS No.154 measuring 5 Acres 10 - 7 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 Gunthas in Siddhanahalli village of Belagavi taluka and district as per the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules 2008 and amended rules 2012 insofar petitioner is concerned as per Annexure-C. ii) Issue any other writ or directions to meet the ends of justice. iii) Issue a writ of certiorari or any other writ or order quashing the endorsement bearing No.r1/¨sÀÆ«Ä/J¥sïDgÉ/C¥ÀºÀ/¹Dgï/2017-18 dated 26.03.2018 issued by Forest Range Officer, Nesargi subordinate to the respondent No.3. In W.P.NO.146578/2020 i) Issue writ of certiorari or any order quashing the order dated 24.02.2020 bearing No.¨sÀƸÁé/»qÀPÀ¯ï/¢£ÀZÀj/19/2019-2020/1407 passed by the respondent No.1 vide Annexure-F. ii) Issue writ of mandamus or direction directing the respondents to pay a compensation as per proposal for acquisition as per Section 11(1) of the Land Acquisition Act sent by the respondent No.4 bearing No.PÀ¤Ã¤¤/WÀ§PÁ¤«- 2/EJ¸ïJ/¨ÆsÀ ¸Áé/§.£Á/2019-20/409 dated 24.05.2019 vide Annexure-E. iii) Issue any other writ or directions to meet the ends of justice.
2. The petitioner claims that his ancestors were occupiers in possession of RS.No.154 since long ago and they had planted mango trees, laid a pipeline, built a stone compound wall, planted sandalwood - 8 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 trees, teak wood trees, put up a water tank, etc., in the said land situated in Tummurguddi Village of Taluk and District Belagavi.
3. The petitioner belonging to a Scheduled Tribe, sought for the land to be allocated to the petitioner under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (for short ‘the Act’).. This application was made post the land having been acquired for the Karnataka Neeravari Nigam Limited (for short ‘KNNL’) by the State by respondents No.7 and 8 having issued notification under Section 4(1) of the Land Acquisition Act, 1894 (for short ‘the LA Act’).
4. The contention of the petitioner is that the Additional Deputy Commissioner, Belagavi had directed the committee constituted for the grant of lands to Scheduled Tribes to consider applications. The Gram Sabha, Sulebhavi, being the committee constituted under the Act received the applications submitted by - 9 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 the petitioner and various beneficiaries and held that those beneficiaries were cultivating the land and were in possession of the land vide Annexure-K dated 17.04.2015. In pursuance thereof, a list of beneficiaries was prepared and approved by the Taluka Level Committee headed by the Assistant Commissioner, Belagavi and forwarded to the respondent No.3 District Level Committee for approval which came to be approved by the respondent No.3 District committee on 31.10.2015 vide Annexure-M.
5. The grievance of the petitioner is that despite such approval and the Belagavi Taluka Backward Class and Welfare Officer having issued an endorsement containing the list of beneficiaries to whom the Hakku Patra (Certificate of Title) was to be issued which contained the name of the petitioner and despite it being shown that the Hakku Patra had been issued to the petitioner, respondent No.3 - 10 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 District level committee vide its order at Annexure-X dated 30.05.2019 reviewed its earlier order at Annexure-M and held that the petitioner did not satisfy the requirements of the Act and The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest rights) Rules, 2007 (for Short ‘Rules”) and therefore denied the issuance of Hakku Patra in terms of the Act and Rules.
6. Sri. Vitthal Teli, learned counsel for the petitioner submits that such a review of the order is not permissible in as much as the order passed earlier at Annexure-M dated 20.11.2015 had granted the rights to the petitioner which could not be taken away by respondent No.3 vide Annexure-X dated 30.05.2019. He submits that the authorities have come to a conclusion that the petitioner and his ancestors where in possession and occupation, enjoyment and cultivation of the said land. They were thus entitled to the benefits under the Act and - 11 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 Rules and also compensation on account of the acquisition of land on behalf of KNNL.
7. The petitioners would be entitled to compensation not only for the land but also for the trees planted on the said land and improvements made thereon. He relies upon the decision of the Hon’ble Apex Court in the case of Naresh Kumar and others 2019 9 SCC416to contend that once an order attains finality, the order cannot be reviewed. In the present case Annexure-M having attained finality, he submits that the same could not be reviewed vide Annexure-X. On this ground, he submits that the reliefs sought for are required to be granted.
8. Smt. K. Vidyavathi learned Additional Advocate General appearing for respondents No.1 to 8 submits that the order at Annexure-M is not a final order. In as much as the Annexure-M recommended for issuance of the Hakku Patra which would be issued only after the petitioner made available all the - 12 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 requisite documents under the Act and Rules more particularly Rule 13 of the Rules and in terms of Sub Rule 3 of Rule 13 atleast two of the documents enumerated under Rule 13(1) were required to be made available for the committee to consider the application for determining the forest rights.
9. Further by relying upon sub-Section 3 of Section 4 of the Act, she submits that the said documents would require them to establish that the forest dwellers had occupied the forest land before 13.12.2005. She submits that the petitioner not having submitted at least two documents, the petitioner’s application could not have been considered and as such Annexure-M being the preliminary order after verification of the documents vide Annexure-X, the grant of forest rights to the petitioner had been refused.
10. Sri. Vitthal S. Teli, in rejoinder submits that the authority having already approved the grant of - 13 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 forest-dwelling rights in favour of the petitioner, there is no further verification that is required to be made and in fact, there is no verification that has been made and therefore the order at Annexure-F suffers from legal mala fides and therefore he submits that the petition requires to be allowed.
11. He submits that once earlier, the petitioner had been constrained to approach this Court seeking for quashing of an endorsement dated 17.10.2014 issued by the KNNL beneficiary where under the compensation had been denied to the petitioner and this Court taking into consideration the order dated 31.10.2015 at Annexure-M had directed the respondent therein to consider the representation made by the petitioner therein within a period of three months after hearing all the stakeholders and left it open to the respondents to seek for any information or documents from the side of the - 14 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 petitioner as are required for due consideration of the representation.
12. He particularly refers to the findings at para 7 of the said order which is reproduced hereunder for easy reference.: “The learned counsel for the petitioner is justified in submitting that certain rights to and some limited interest in the subject land are created in favour of the traditional Forest Dwellers like the petitioner herein who allegedly belongs to Scheduled Tribe and if that land is taken away, some compensation needs to be granted. This aspect having not been considered by the answering at Annexure-‘P’, there is an error apparent on the face of the record warranting indulgence of this Court.
13. In reply thereto, learned Additional Advocate General submits that in the said writ petition the petitioner had misled this Court, inasmuch as it is contended that Hakku Patra had already been granted to the petitioner, when in fact no such Hakku Patra had been granted and the matter was still pending consideration before the District level committee.-. 15 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 14. Sri. Ramesh Misale, learned counsel appearing for the beneficiary also wanted to address his arguments on the merits of the matter.
15. The beneficiary for whose benefit the land is acquired only has a role to play as regards the compensation amount to be paid to the beneficiary, in my considered opinion a beneficiary will not have any role to play as regards the exercise of powers of eminent domain by the State. The beneficiary cannot seek to assist or argue on behalf of the State, or reply on its behalf in a challenge to acquisition. A beneficiary will not be entitled to argue in a matter relating to challenge to acquisition.
16. He sought to address arguments on the right of the petitioner, the trees grown by the petitioner in the land, etc., at that stage this Court pointed out to the said counsel that KNNL being only a beneficiary has a limited role to play, he can only support the State in - 16 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 the exercise of powers of the eminent domain, the beneficiary cannot contest the matter on merits relating to the rights of the party contesting acquisition and claiming rights over the property and hence, requests for arguments on merits of the matter was rejected, reserving a right to make a submission as regards compensation liable to be paid. The present set of matters is only relating to whether the petitioner’s rights can be recognized under the Act and not as regards compensation, it is only if the petitioner’s rights under the Act are recognized that the Special Land acquisition officer would have to pass an award. It is at that time that the beneficiary would have a right to make its submissions as regards the compensation to be awarded.
17. Heard Shri. Vitthal S. Teli, learned counsel for the petitioner, Smt. K. Vidyavathi, learned Additional - 17 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 Advocate General for the respondent-State and perused papers.
18. In the present matter, the question is as regards the right of the petitioner’s fore-father's dwelling right under the Act and the petitioner’s right to oppose the acquisition of land where he has a dwelling and/or seek compensation for loss caused to him on account of such right being taken away.
19. For the purpose of seeking such compensation, it is required for the forest-dweller to obtain the necessary order of vesting of forest rights in his name.
20. “Forest dwelling Scheduled Tribes” has been defined under sub-clause (c) of Section 2 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (‘the Act’ for short), which reads as under: (c) “Forest dwelling Scheduled Tribes” means the members or community of the Scheduled - 18 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 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.
21. “forest villages” has been defined under Sub-Clause (f) of Section 2 as under: (f) “forest villages” means the settlements which have been established inside the forests by the forest department of any State Government for forestry operations or which were converted into forest villages through the forest reservation process and includes forest settlement villages, fixed demand holdings, all types of taungya settlements, by whatever name called, for such villages and includes lands for cultivation and other uses permitted by the Government.
22. “other traditional forest dweller” has been defined under sub-clause (o) of Section 2 as under: (o) “other traditional forest dweller” means any member or community who has for at least three generations prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs 23. Forest rights are recognised under Section 3 in terms of sub-clause (e) of Section 2. Section 3 reads as under: - 19 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 3. Forest rights of Forest-dwelling Scheduled Tribes and other traditional forest dwellers.– (1) For the purposes of this Act, the following rights, which secure individual or community tenure or both, shall be the forest rights of forest dwelling Scheduled Tribes 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 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; - 20 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 (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 forests, 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 protecting 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 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 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.-. 21 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 (2) Notwithstanding anything contained in the Forest (Conservation) Act, 1980 (69 of 1980), the Central Government shall provide for diversion of forest land for the following facilities managed by the Government which involve felling of trees not exceeding seventy-five trees per hectare, namely:– (a) schools; (b) dispensary or hospital; (c) anganwadis; (d) fair price shops; (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: Provided that such diversion of forest land shall be allowed only if,– (i) the forest land to be diverted for the purposes mentioned in this sub-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 Gram Sabha.-. 22 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 24. Reading of the aforesaid provisions would indicate that a forest village could have been established in any forest by any State Government or forestry operations or a village is converted into forest village through forest reservation process.
25. We are, in the present case, not concerned with the forest village. The forest-dwelling schedule tribe as per Sub-Section (c) of Section 2 means the members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for their bona fide livelihood needs and includes Scheduled Tribe pastoralist communities.
26. In the present case, there is no dispute that the petitioner is a member of a forest-dwelling Scheduled Tribe and that the land in question is a “forest land” coming within the meaning and definition of sub- section(d) of Section 2 of the Act.-. 23 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 27. “other traditional forest dweller” in terms of sub- section (o) of Section 2, means any member or community who has for at least three generations prior to the 13th day of December, 2005, primarily residing in and who depend on the forest or forests land for bona fide livelihood needs and as per explanation “generation” means a period comprising of twenty-five years.
28. Section 3 of the Act provides for Forest rights or forest-dwelling Scheduled Tribes and other traditional forest dwellers, which includes right of ownership and access to collect, use and dispose of minor forest produce. The right for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles, in terms of sub- clause (g) of Section 3 and several other rights as enumerated therein.-. 24 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 29. Sub-section(1) of Section 4 provides for vesting of forest rights in forest dwelling Scheduled Tribes in the States or areas in the States where they are declared as Scheduled Tribes in respect of forest rights mentioned in Section 3.
30. In terms of sub-section(4) of Section 4, a right conferred by sub-section (1) is stated to be heritable, but not alienable or transferable. In terms of sub- section(5) of Section 4, it is made clear that no member of a forest-dwelling Scheduled Tribe or other traditional forest dwellers shall be evicted or removed from the forest land under his occupation till the recognition and verification procedure is complete.
31. The procedure for vesting of forest rights is provided under Section 6 of Chapter IV of the Act. The process shall be initiated by the Gram Sabha for determining the nature and extent of individual or community forest rights or both within their - 25 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 respective local limits by receiving claims, consolidating and verifying them and preparing a map delineating the area of each recommended claim in such manner as may be prescribed for the exercise of such rights and then pass a resolution to that effect and thereafter forward a copy of the same to the Sub-Divisional Level Committee.
32. Any person aggrieved by the resolution of the Gram Sabha may prefer a petition to the Sub-Divisional Level Committee, who shall consider and dispose of the said petition within the time prescribed, in terms of sub-section(2) of Section 6 of the Act.
33. The Sub-Divisional Level Committee, which has been constituted by the State Government is vested with the authority to examine the resolution passed by the Gram Sabha and prepare the record of forest rights and forward it to the District Level Committee for final decision.-. 26 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 34. The grievance redressal mechanism provided under Sub-Section (4) of Section 6 is for a person aggrieved, to approach the District Level Committee as against the action of the Sub-Divisional Level Committee. The District Level Committee is required to consider and finally approve the record of forest rights prepared by the Sub-Divisional Level Committee in terms of Sub-section (5) of Section 6 of the Act, the said decision being final and binding.
35. In terms of Sub-section (7) of Section 6 of the Act, the State Government is also required to constitute a State Level Monitoring Committee to monitor the process of recognition and vesting of forest rights and to submit to the nodal agency such returns and reports as may be called for by that agency.
36. The rulemaking powers have been provided under Section 14 of the Act. The Rules have been formulated thereunder, which has come into effect - 27 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 from 01.01.2008. The Rules further enumerate the functions of Gram Sabha, Sub-Divisional Level Committee, District Level Committee, Sub-level monitoring Committee.
37. Under Rule 4, the Gram Sabha is required to initiate the process of determining the nature and extent of the forest rights, receive and hear the claims, prepare a list of claimants and maintain a register, pass a resolution of claims of forest rights after hearing the applicants etc. The Sub-Divisional Level Committee is required to provide all and necessary information to the Gram Sabha including revenue maps and collate all the resolutions of Gram Sabhas, consolidate maps and details received from Gram Sabha, examine the resolutions, hear and adjudicate the disputes, prepare block and tehsil-wise draft record of proposed forest rights after reconciliation of government records and forward the claims with the draft record to the District Level Committee through - 28 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 the Sub-Divisional Officer. The District Level Committee has to consider and finally approve the claims and record of forest rights prepared by the Sub-Divisional Level Committee.
38. Rule 8 of the Rules is reproduced hereunder for easy reference:
8. Functions of District Level Committee .- The District Level Committee shall- (a) ensure that the requisite information under clause (b) of rule 6 has been provided to Gram Sabha or Forest Rights Committee; (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 Act; (c) consider and finally approve the claims and record of forest rights prepared by the Sub-Divisional Level Committee; (d) hear petitions from persons aggrieved by the orders of the Sub Divisional Level Committee; (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; - 29 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 (g) ensure publication of the record of forest rights as may be finalized; and ensure that a certified copy of the record of forest rights and title under the Act, (h) as specified in Annexures II & III to these rules, is provided to the concerned claimant and the Gram Sabha respectively; 39. The matter and methodology of verifying the claims by the Forest Rights Committee of the Gram Sabha is as detailed in Rule 12 of the Rules. The evidence required for the determination of forest rights has been detailed under Rule 13. The said Rule 13 is reproduced hereunder for easy reference:
13. Evidence for determination of forest rights .- (1) The evidence for recognition and vesting of forest rights shall, inter alia, include- (a) public documents, Government records such as Gazetteers, Census, 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 Government, Government orders, notifications, circulars, resolutions; (b) Government authorised documents such as voter identity card, ration card, - 30 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 passport, house tax receipts, domicile certificates; (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 Anthropological Survey of India; (f) any record including maps, record of rights, privileges, concessions, favours, from erstwhile princely States 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. (2) An evidence for Community Forest Rights 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 - 31 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 produce; fishing 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; (3) The Gram Sabha, the Sub-Divisional Level Committee and the District Level Committee shall consider more than one of the above – mentioned evidences in determining the forest rights.
40. An examination of the aforesaid provisions of the Act and the Rules indicate that the Gram Sabha shall call for claims, receive claims, process the same after verifying the said claims through the Forest Rights Committee by following the procedure under Rule 12 and forward the same to the Sub-Divisional Level Committee. The Sub-Divisional Committee will examine the resolution and maps to ascertain the veracity and forward it to the District Level Committee, who is required to consider and finally approve the claims and record of forest rights prepared by the Sub-Divisional Level Committee.-. 32 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 41. Neither in the Act, nor in the Rules, is there any provision made for the District Level Committee to examine the resolution passed by the Sub-Divisional Level Committee and/or reject the same. It is only in the case of a person being aggrieved by the recommendation of the Sub-Divisional Level Committee, inasmuch such person’s name not being recommended and/or application being rejected then the District Level Committee has the power to hear objections from the persons aggrieved by the orders of the Sub-Divisional Level Committee. Other than the said provision, the District Level Committee does not sit in superintendence or supervision of the list prepared by the Sub-Division Level Committee.
42. It is in the background of the above different powers vested with the different authorities that the action taken in the present matter needs to be examined.-. 33 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 43. The petitioner being a person belonging to a schedule tribe and cultivating the lands in RS No.154 measuring 8 acres 10 guntas situated at Tumaurguidi village, Taluk and District Belagavi is not in dispute. The entire village is also stated to be comprised of persons belonging to Schedule Tribes.
44. The State issued a notification to acquire the land for construction of dam and canal and submergence area for Ballari nala project which included RS No.154.
45. The notification under Section 4(1) of the Land Acquisition Act including the land of the petitioner was issued on 09.04.2007 and a joint measurement was conducted on 10.06.2007. The spot panchanama and inspection was conducted by the Forest Range Officer subsequent thereto Section 6(1) notification came to be issued. Thereafter the Deputy Conservator of Forest vide his letter dated 19.06.2010 addressed a letter to the Karnataka - 34 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 Neeravari Nigam Limited (KNNL), requesting it to obtain consent from concerned Gram Sabha that no member of the Schedule Tribes and other Traditional Forest Dwellers has any right over the proposed land to be acquired as per Forest Rights Act,2006.
46. The Gram Sabha invited applications in terms of the Act for recommendation of the Forest Rights Act. Upon an application being submitted, the list of beneficiaries was prepared by the Grama Sabha on 17.04.2015, which included the name of the petitioner. The said list was forwarded to the Taluka Level Committee and/or the Sub-Divisional Level Committee which came to be approved by the Sub- Divisional Level Committee on 28.04.2015 vide Annexure-L and thereafter forwarded it to the District Level Committee. The District Level Committee approved the said list on 20.11.2015 as per Annexure-M. The list continued to include the name of the petitioner.-. 35 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 47. The Belagavi Backward Classes Officer had issued a letter dated 20.11.2020 to the PDO, Gram Panchayat, Tummaraguddi, enclosing a list of beneficiaries to whom Haku Patra were issued with the extent of land. The petitioner’s father, due to non-receipt of the Haku Patra had filed an application under the Right to Information Act with the District Backward Classes Welfare Officer, who had, in turn, replied by giving the details of the persons to whom Haku Patra had been issued, wherein the name of the father of the petitioner has been found at Sl. No.29 and the extent of land is said to be recognized as 5.1 acres.
48. It is thereafter that on 28.10.2015, the Special Deputy Commissioner rejected the claim of the father of the petitioner on the ground that RS NO.154 stands as Forest Land. The petitioner had approached this Court challenging the said order dated 28.10.2015 by filing a writ petition, which - 36 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 came to be numbered as WP No.110253/2017 and this Court vide its order dated 21.03.2019, had observed that the counsel for the petitioner was justified in submitting that certain rights and some limited interest in such land are created in favour of the Traditional Forest Dwellers and the petitioner belongs to Scheduled Tribe and if the land is taken away, some compensation has to be granted.
49. This not having been taken into consideration by the Deputy Commissioner in his order dated 28.10.2015, the writ petition was allowed in part. The said order dated 28.10.2015 was quashed and the matter was remanded to respondents No.1 to 4 to consider the petitioner’s representation in accordance with law within a period of three months of the said order.
50. Subsequently, respondent No.3 – Deputy Commissioner convened a meeting on 08.11.2016 and modified the order dated 28.10.2015, insofar as - 37 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 114 beneficiaries were concerned and decided not to issue Haku Patras to the said persons.
51. The District Level Committee had reviewed its own order dated 20.11.2015 at Annexure-M vide its order dated 30.05.2019 at Annexure-X and while doing so, the claim of the petitioner and/or his family came to be rejected. Respondent No.4 vide order dated 20.06.2021, communicated the said rejection.
52. While the petition was pending, respondent No.3 passed an order dated 15.07.2021 rejecting the claim of the petitioner and/or his father.
53. A perusal of the aforesaid provisions, which have been extracted, indicate that the Gram Sabha is required to initiate the process of determining the nature and extent of forest rights, prepare a list of claimants and pass a resolution recognizing the said rights and forward it to the Sub-divisional Level Committee or Taluka Level Committee. The Taluka - 38 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 Level Committee is to collate the resolutions of the Gram Sabha and forward it to the District Level Committee. If there are any grievances as regards the action of the Gram Sabha, the Taluka Level Committee is empowered to hear the said grievances. The District Level Committee has to consider and address the claims forwarded by the Sub-Divisional Level Committee, as also to hear any grievances as regards the actions of the Taluka Level Committee. The District Level Committee has no power to set aside the recommendation made by the Taluka Level Committee, nor the Taluka Level Committee has power to set aside or overrule the recommendation made by the Gram Sabha.
54. In the present case, Gram Sabha has approved the application of the petitioner’s father, forwarded it to the Taluka Level Committee, who has also accepted it and forwarded it to the District Level Committee, which also came to be accepted. It is only - 39 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 subsequently, that on the ground of all the documents not having been produced, the claim of the petitioner’s father came to be reviewed and rejected by the District Level Committee. There is no such power vested with the District Level Committee as aforesaid.
55. Furthermore, the claim of the learned Addl. Advocate General that the list prepared by the District Level Committee was subject to verification is not sustainable. The applications having been invited and collected by the Gram Sabha, initially approved by the Gram Sabha, cross-checked by the Taluka Level Committee and approved by the District Level Committee. Hence the question of the recommendation of District Level Committee being subject to further verification would not at all arise.
56. The Act being a beneficial enactment, the same is required to be given full effect to and a technical - 40 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 approach cannot be resorted to by the State for dispossessing a forest dweller from his land, whose interests are required to be protected under the Act. The State would have to recognize and make payment of the compensation on acquisition of the rights of the forest dweller in the land acquired.
57. In view of the above, I pass the following:
ORDERi. Writ petitions are allowed. ii. Certiorari is issued in WP No.102683/2021 and the order dated 30.05.2019 passed by respondent No.3 – District Level Committee, reviewing the earlier order dated 20.11.2015, is hereby quashed. The order dated 15.07.2021 passed by respondent No.3 – District Level Committee rejecting the claim of the petitioner is quashed. Consequently, the order dated 30.06.2021 and communication dated 06.07.2021 at Annexure-AG and AH - 41 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 rejecting the claim of compensation by the petitioner are quashed. iii. Mandamus is issued in WP No.1038914/2020, directing the respondents to issue a Certificate of Title for forest land under occupation (Haku Patra) in respect of RS No.154 measuring 5 acres 01 guntas in Siddhanahalli village of Belagavi Taluka and District as per the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules 2008 and amended rules 2012, within a period of 6 weeks from the receipt of a copy of this order. iv. A mandamus is issued in WP No.146578/2020, directing the respondents to make payment of compensation as regards the land of the petitioner in RS No.154 measuring 5 acres 01 guntas, acquired by the respondents, in accordance with law. While awarding compensation any - 42 - WP No.102683 of 2021 C/w. W.P.Nos.138914/2020 & 146578/2020 submissions of the beneficiary Karnataka Neeravari Nigam Limited (KNNL) will also have to be considered in so far as the calculation and quantum of compensation, this process to be completed within a period of 6 weeks of the issuance of a Certificate of Title for forest land under occupation (Haku Patra) as directed above. Sd/- JUDGE GAB,RH