ORDER
A.K. Patnaik, C.J.
1. The petitioner has filed this Public Interest Litigation to protect the rights of tribals residing in the Tribal Village Ghorpodmal in Bhaisdehi Tehsil in the Mohada forest range in the West Betul Forest Division in the State of Madhya Pradesh.
2. The petitioner is a Psychology graduate from Jesus and Mary College, Delhi and holds a Master's Degree in Psychology from Lady Ram College, Delhi. She did her M.Phil in Social Science from the Tata Institute of Social Science, Mumbai and graduation in Law from the Barkatullah University, Bhopal and thereafter became a Project Officer of OXFAM (India) Trust, a British Funding Agency in 1991-92. She has stated in the writ petition that while working as Project Officer of OXFAM (India) Trust, she got an opportunity to serve in the tribal areas of Madhya Pradesh and she was shocked to find the pathetic conditions in which the tribals are living and she has therefore formed an organisation of the tribals called the Shramik Adivasi Sangathan (for short 'the Sangathan') for the welfare of the tribals.
3. The petitioner has alleged in the writ petition that the Beat Guard, Deputy Ranger and the Ranger of the Forest Department of the Government of Madhya Pradesh have been threatening the tribals of Ghorpodmal village of dire consequences if they do not restrain from participating in the activities of the Sangathan. She has alleged that on 17th July, 2004 at about 11.00 p.m., fifty armed personnel of the Police and the Forest Departments marched through Village Ghorpodmal and created havoc. She has alleged that these personnel of the Police and the Forest Departments were armed with rifles and most of them were drunk and they came in 6 to 7 jeeps, 7 to 8 motorcycles and abused the tribals in foul language. The petitioner has further alleged that these armed personnel of the Police and the Forest Departments entered Soma Korku's hutment and on being told by his wife Sukhiyabai that Soma was not present, the drunk intruders started molesting two tribal women, Sukhiya Bai and Mundli, and when the women protested vehemently, they were beaten up with the butts of rifles. She has further alleged that these assaulters went on rampage and started assaulting anyone and everyone in the night and in these circumstances, the villagers got panicky and in self defence started pelting stones at the assaulters and they left the place. The petitioner has also alleged that the Police personnel then registered a false case of dacoity and attempt to murder against 13 tribals. To avoid arrest and fearing further assault, the 13 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.
4. The petitioner has stated in the writ petition that although complaints of the incidents of 17th July, 2004 were filed before different authorities, no investigation was initiated by any Competent Authority, and on the other hand, Munji Yadav and two other tribal activists namely, Balaram and Bhoota were asked by Thanedar Tripathi on 29th September, 2004 to withdraw the complaints against the Police personnel. The petitioner has also stated that on 21st August, 2004, the Forest personnel went to Chamil Jungle near Kabra village, which is in vicinity of Ghorpodmal village, and arrested 8-10 tribals who were mercilessly beaten up and taken to Mohada Police Station. Of these tribals, Hannu and Shyamlal were beaten the most and were implicated in the offence of dacoity alongwith other tribals of Village Ghorpodmal. The petitioner has further stated that Hannu and Shyamlal were arrested on 21st August, 2004 and were kept in custody till 23rd August, 2004 at the Mohada Police Station and produced before the Magistrate on 24th August, 2004 and were remanded to judicial custody, and were denied bail and they languished in Betul Jail for atleast four and half months. The petitioner has, inter alia, prayed that an enquiry be conducted into the incidents of 17th July, 2004 in the Ghorpodmal village by an independent agency and that the arrest of tribals of Ghorpodmal be stopped immediately.
5. In the preliminary submissions, the respondent Nos. 4(a), (b) and (c) have stated that approximately 200 families of local tribes live in Villages Kabra and Ghorpodmal within the forest ranges of Mohada and Tawdi under West Betul (G) Forest Division 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 Nos. 1293, 1304, 1273 and 1283 of West Forest Division, Betul. They have also stated that the Department of Forest has been taking suitable action by registering cases of forest offences, encroachments etc. against the offenders.
6. Regarding the incidents which took place on 17th July, 2004 in Village Ghorpodmal, respondent Nos. 4(a), (b) and (c) have alleged that Soma and Mer Singh including Hannua and Shyamlal encroached upon the forest land of compartment No. 1293. These respondents have further stated that a Task Force consisting of officials of Forest, Revenue and Police Departments reached the spot where the encroachment was being made at about 2.30 p.m. on 17th July, 2004 and on seeing the Task Force, the encroachers fled from the spot and were chased by the Task Force to the Ghorpodmal Village. They have also alleged that on 17th of July, 2004 at 5.30 p.m., when the members of the Task Force reached Soma's 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 Villages Kabra, Keli-Rawang, Malegaon, Batki, Kayada etc. including Soma, Hannu and Shyamlal, who could be 100 to 125 in number, started shouting slogans and attacking and assaulting the members of the Task Force by deadly weapons like lathi, axe, farsa and stones and as a result, the employees of the Forest Department sustained grievous injuries. They have also stated that these tribals damaged police vehicle No. MP-03/3627 and also took away a wireless set. They have further stated that the Task Force showed tremendous restraint in not taking any coercive action though they were fully equipped and to save their lives, they had to flee in different directions and some of them had to spend the night in the forest and reached safer places only on the next day. They have also stated that a case was registered against Soma and others bearing Crime No. 31 of 2004 of P.S. Mohada on 18th July, 2004 and after investigation, challan has also been filed in the Court of Judicial Magistrate First Class, Bhaisdehi against Hannu and Shyamlal and investigation in respect of other persons is still in progress and as they are absconding, challan could not be filed against Soma and others.
7. Regarding the incidents of 21st August, 2004, the respondent Nos. 4(a), (b) and (c) have stated in their preliminary submissions that the Forest Chowkidars made a complaint that some people in the Village Kabra, Temar, Ghorpodmal and Batki were ploughing the field by illegally cutting teak trees, and Kesho Lodhi, Assistant Forest Range Officer, Piparia, Beat Guard Wamanrao and the complainant Forest Chowkidars went to the President of Van Suraksha Samiti, Sullo Bai and Village Sarpanch Vishram Singh and informed them about the complaint and about 25-30 persons went to Chimlakheda and saw 20-22 people ploughing the field and some women were sitting and when they did not stop ploughing the field despite warning, POR No. 291/03, dated 21st August, 2004 was issued against Hannu Thathia, Shamu Gond, Munnilal, Tulsiram, Prem Gond, Sammal Gond, Mangal Hoji, Shiv and others and getting annoyed they attacked Kesho Lodhi with lathis etc. and tore down his shirt. Thereafter, Kesho Lodhi alongwith Beat Guard Wamanrao came to the Police Station and lodged a report of the incident and Crime No. 36 of 2004, dated 22nd August, 2004 under Sections 147, 353, 186, 332, 342, 506-B and 294, Indian Penal Code was registered against Hannu, Thathia, Shyamlal and others. Thereafter, Hannu, Shyamlal and nine others were arrested and produced before the Judicial Magistrate First Class on 24th August, 2004. Hannu and Shyamlal then filed bail applications before the Judicial Magistrate First Class, Bhensdehi, which was rejected. When they filed a second bail application, the same was allowed by order dated 21st December, 2004 and Hannu and Shyamlal were released on bail. In the parawise return filed on behalf of the respondent Nos. 4(a), (b) and (c), the averments made in their preliminary submissions have been reiterated with regard to the incidents which took place on 17th July, 2004 and 21st August, 2004.
8. Since there were two divergent versions, one of the petitioner and the other of the respondent Nos. 4(a), (b) and (c) regarding the incident of 17th July, 2004, the Court passed an order on 3rd October, 2005 directing the learned District Judge, Betul, within whose jurisdiction Village Ghorpodmal is situated to make an enquiry into the incident on 17th July, 2004 and submit a report to this Court within a period of two months. By the order passed by the Court on 3rd October, 2005, the learned District Judge was also directed to hear the petitioner, respondent No. 4(a), (b), (c) or their representatives, examine witnesses and allow the concerned parties to cross examine the witnesses. Pursuant to the order of the Court, the learned District Judge, Betul 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 Sessions Court and also in the criminal case pending before the Judicial Magistrate First Class. Thereafter, on 20th July, 2006, the Third Additional Sessions Judge, Betul passed an order in Sessions Trial No. 65 of 2005 that there was absolutely no evidence to implicate the 13 tribals in offences under Sections 395 and 307, Indian Penal Code and the case has been sent for trial by Magistrate under Sections 147, 148, 149, 332 and 447, IPC.
9. At the hearing of the writ petition, the petitioner appearing in person submitted that the order passed by the learned Additional Sessions Judge on 20th July, 2007 would clearly show that 13 innocent tribals were falsely booked for dacoity and attempt to murder by the Forest Officials of the State of M.P. She submitted that on account of the false implication of 13 tribals in the offences of dacoity and attempt to murder, they were arrested and two of them, namely, Hannu and Shyamlal, were detained in custody for about four and half months and hence, they are entitled to compensation for gross violation of their rights under Article 21 of the Constitution. She cited Rudul Shah v. State of Bihar and Anr. : 1983CriLJ1644 , in which the Supreme Court 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 State must repair the damage done by its officers by paying compensation to those whose rights are violated. She also relied on the observations of J.S. Verma, J., as he then was, in Nilabati Behera v. State of Orissa and Ors. : 1993CriLJ2899 , that the Court should forge new tools and devise new remedies for enforcing the fundamental rights guaranteed by the Constitution and award monetary compensation in appropriate cases. She submitted that in D.K. Basu v. State of West Bengal : 1997CriLJ743 , the Supreme Court, relying on the legal maxim 'Ubi jus, ibi remedium' has held that monetary compensation for redressal by the Court finding 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.
10. Mr. Kumaresh Pathak, learned Deputy Advocate General appearing for the respondent Nos. 4(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 Code of Criminal Procedure, 1973 (for short 'the Cr.PC') and the applications for bail of some of the arrested tribals were rejected by the Court, but at the later stage, allowed by the Court in accordance with the Cr.PC. Hence, the arrest and detention of the tribals were in accordance with the procedure established by law and the rights of these tribals under Article 21 of the Constitution have not been violated and therefore these tribals are not entitled to compensation for their arrest and detention, as contended by the petitioner.
11. We find full force in the aforesaid submissions of Mr. Pathak. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to the procedure established by law. The personal liberty of person thus can be taken away by a reasonable procedure laid down in law. The tribals including Hannu and Shyamlal were arrested for various offences alleged to have been committed by them and they were produced before the Court of the Judicial Magistrate First Class, Bhaisdehi on 24th August, 2004. While the bail applications of two tribals were rejected, the other tribals were released on bail. Subsequently, however, the second bail applications of Hannu and Shyamlal were allowed by order dated 21st December, 2004 and Hannu and Shyamlal were released on bail. The arrest and detention of the tribals including Hannu and Shyamlal are therefore in accordance with the procedure laid down in the Cr.PC. The fundamental rights of the tribals including Hannu and Shyamlal under Article 21 of the Constitution have not been violated and they are not entitled to award of compensation.
12. In Rudul Shah v. State of Bihar (supra), cited by the petitioner, the facts were that Rudul Shah was acquitted by the Court of Sessions, Muzaffarpur, Bihar on 3rd June, 1968 but he was released from jail on 16th October, 1982, more than 14 years after he was acquitted. On these facts, the Supreme Court held that the detention of Rudul Shah for about 14 years from 1968 to 1982 was unauthorised and illegal and hence his liberty had been taken away for the period of 14 years without following the procedure under the law. The Supreme Court, therefore, granted compensation of Rs. 30,000/- in addition to compensation of Rs. 5000/- paid to Rudul Shah. In the present case, on the other hand, as we have found, the detention of 13 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.
13. In Nilabati Behera v. State of Orissa and Ors. (supra), cited by the petitioner, the son of Nilabati Behera, aged about 22 years was killed while in custody and on these facts, the Supreme Court held that the right guaranteed under Article 21 of the Constitution that no person shall be deprived of his life without following the prescribed procedure of law was violated and accordingly awarded compensation of Rs. 1,50,000/- to Nilabati Behera from the State of Orissa. In the present case, none of the tribals has been killed in custody.
14. D.K. Basu v. State of West Bengal (supra), cited by the petitioner was a case registered pursuant to a letter dated 26-8-1986 to the Chief Justice of India by the Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, drawing His Lordship's attention to news items published in The Telegraph dated 20-7-1986, 21-7-1986 and 22-7-1986 and in the Statesman and Indian Express dated 17-8-1986 regarding deaths in police custody and it is in this context that the Supreme Court held that award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 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. The 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 Article 21 of the Constitution on account of arrest and detention for commission of alleged offences according the provisions of the Cr.PC.
15. The petitioner next submitted that Section 3(1)(viii) of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the 1989 Act') provides that any person who is not a member of Scheduled Caste or a Scheduled Tribe and who institutes false, malicious or vexatious suit or criminal or other proceedings against a member of a Scheduled Caste or a Scheduled Tribe is punishable with imprisonment. She submitted that similarly Section 3(1)(ix) of the 1989 Act provides that any person who is not a member of Scheduled Caste or a Scheduled Tribe 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 Scheduled Caste or a Scheduled Tribe is punishable with imprisonment. She submitted that the Forest and Police Officials are guilty of these offences as they instituted false, malicious or vexatious criminal proceedings or gave false or frivolous information to the Police against the members of the Scheduled Tribes because of which criminal cases were instituted against the members of the Scheduled Tribes. She submitted that the fact that the Third Additional Sessions Judge, Betul passed the order dated 20th July, 2006 saying that there was absolutely no evidence to implicate the accused persons in the offences under Sections 395 and 307, Indian Penal Code would show that a false, malicious and vexatious criminal case had been instituted against the members of the Scheduled Tribes for which the Police and Forest personnel are liable to be prosecuted for the offences under Section 3(1)(viii) and 3(1)(ix) of the 1989 Act.
16. Mr. Pathak, learned Deputy Advocate General, on the other hand, submitted that first an FIR has to be lodged and an investigation has to be carried out by the Police in accordance with the provisions of the 1989 Act and the Rules made thereunder as well as the Cr.PC and thereafter, if a charge-sheet is filed with materials to show that the Police or Forest Officials have committed the offences under Section 3(1)(viii) and 3(1)(ix) of the 1989 Act, then only the case can be tried by the Special Court constituted under Section 14 of the Act and the High Court, in exercise of its powers under Article 226 of the Constitution, cannot direct prosecution of the Police and Forest personnel straight away on the basis of allegations made by the petitioner in the writ petition.
17. The petitioner, however, submitted if the FIR is lodged against the Police and Forest Officials, the Police will not register the case and if the Police registers the case a fair investigation into the offences alleged to have been committed by the Police and Forest personnel is not possible and for this reason the Court should straight away direct prosecution of the Police and Forest personnel guilty of the offences under Sections 3(1)(viii) and 3(1)(ix) of the 1989 Act.
18. We are unable to accept the submission of the petitioner. The High Court, in exercise of its powers under Article 226 of the Constitution, cannot direct prosecution of Police and Forest personnel merely on the allegations made by the petitioner in the writ petition that they have committed offences under Sections 3(1)(viii) and 3(1)(ix) of the 1989 Act. Section 4(1) of the Cr.PC provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with in accordance with the provisions contained in the Cr.PC and Section 4(2) of the Cr.PC 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. Hence, the provisions of the Cr.PC are applicable to investigation, inquiry and trial of offences under the 1989 Act subject to specific provisions of the 1989 Act regulating the manner or place of investigation, inquiry and trial dealing with the offences under the 1989 Act. Unless, therefore, offences under the 1989 Act are investigated by the Police pursuant to an FIR, or inquired into by the Magistrate pursuant to a complaint and unless an order is passed by the Magistrate committing the case to the Special Court constituted under Section 14 of the 1989 Act as provided in the Cr.PC, the Special Court cannot take cognizance of the offences. In Gangula Ashok and Anr. v. State of A.P. 2000(1) Crimes. 196 (SC), the Supreme Court had the occasion to decide the question whether the Special Court constituted under Section 14 of the 1989 Act could straight away take cognizance of offences under the 1989 Act, and referring to the provisions of Cr.PC and the 1989 Act as the Code and the Special Act held in Paragraphs 15 and 16:
This Court, on a reading of Section 5 is juxtaposition with Section 4(2) of the Code, has held that 'it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2); In short, the provisions of this Code would be applicable to the extent, in the absence of any contrary provision in the Special Act or any special provision including the jurisdiction or applicability of the Code'. (vide Para 128 in Directorate of Enforcement v. Deepak Mahajan). Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straight away be laid before the Special Court under the Act.
19. Thus, in case the petitioner is apprehensive that the Police may not register a case at all pursuant to the FIR lodged against the Police and Forest personnel and investigate into the offences with fairness and impartiality, it is open to the members of the Scheduled Tribes to file complaints before the concerned Magistrate for inquiry in accordance with the Cr.PC and in case the Magistrate finds that the case is one for committal to the Special Court, he can pass orders accordingly and only then the Special Court can take cognizance of the offences under the 1989 Act alleged to be committed by the Police and the Forest Personnel.
20. The petitioner has filed written submissions contending that on 16-3-2007, three tribals, namely, Mangal Singh, Phool Singh and Sukhram were arrested, handcuffed and paraded through the public thoroughfare in Betul during their transit to the Court of SDM and made to sit handcuffed outside the Court of the SDM. She submitted that such handcuffing was in clear violation of the judgment of the Supreme Court in Sunil Gupta and Ors. v. State of M.P. and Ors. : [1990]2SCR871 . She further submitted that all this was brought to the notice of this Court and on 10-4-2007, the Court, after considering the reply filed by the respondents, passed an order saying that it was not prima facie convinced with the reply filed on behalf of the respondents and gave an opportunity of hearing to Mr. A.L. Patel, ASI, on whose instructions, Mangal Singh, Phool Singh and Sukhram were handcuffed. Thereafter, Mr. Patel appeared before the Court 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 Supreme Court in Sunil Gupta's case and Mr. Patel submitted an explanation but the order is yet to be passed by the authorities. She submitted that handcuffing of Mangal Singh, Phool Singh and Sukhram was a clear violation of right to dignity guaranteed under Article 21 of the Constitution and the Court must award compensation to Mangal Singh, Phool Singh and Sukhram for such violation of their rights.
21. After taking into consideration the observations of the Supreme Court in Prem Shankar Shukla and Ors. v. Delhi Administration : [1990]3SCR7 , the Supreme Court had held in Sunil Gupta and Ors. v. State of M.P. and Ors. (supra), cited by the petitioner that taking of persons from prison to the Court or back from the Court to the prison by the escort party is only under the judicial orders of the Court 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 Court so that the Court considering the circumstances either approve or disapprove the action of the escort party and issue necessary directions. In the aforesaid case of Sunil Gupta and Ors. v. State of M.P. and Ors. (supra), the Supreme Court found that the escort party without any justification had handcuffed the petitioners when taking them from the prison to the Court and then from Court to prison and accordingly directed the State Government to take appropriate action against the erring officials who had unjustly and unreasonably handcuffed the petitioners in violation of the rights guaranteed under Article 21 of the Constitution.
22. In State of Maharashtra and Ors. v. Ravikant S. Patel : (1991)2SCC373 , the Supreme Court relying on Sunil Gupta and Ors. v. State of M.P. and Ors. (supra) and Rudul Shah v. State of Bihar and Anr. (supra), upheld the award of compensation of Rs. 10,000/- by the High Court of Bombay to an under-trial prisoner who had been handcuffed and taken through the streets in a procession by the Police during investigation for violation of his right under Article 21 of the Constitution.
23. The records of the present case reveal that Mr. Patel, ASI, who was heading the Police personnel carrying Mangal Singh, Phool Singh and Sukhram from jail to the Court of SDM, stated before the Court on 3-5-2007 that as per the directions of the SDM, Betul, he brought the three persons from jail to the Court. Mr. Patel did not dispute that the three persons were handcuffed by a long chain when they were brought to the Court of SDM, Betul. The SDM, Betul, who appeared before the Court on 16-5-2007, however stated that the three persons were not handcuffed when they were produced before the Court. No valid justification has thus been given for the handcuffing of the three persons when they were brought from jail to the Court and no orders appear to have been passed by the SDM for handcuffing all these three persons. Since no valid justification has been shown in the returns filed by the respondents for handcuffing Mangal Singh, Phool Singh and Sukhram, we award a compensation of Rs. 10,000/- (Rupees Ten thousand) to each one of these three persons, namely, Mangal Singh, Phool Singh and Sukhram and the respondent No. 4, State of Madhya Pradesh, is directed to pay the compensation within a period of two months from today. It will be open for the State of M.P. to recover the compensation from the police personnel or the officers found guilty in the disciplinary proceedings for such blatant violation of the law laid down by the Supreme Court.
24. The petitioner has also contended in her written submissions that the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (for short 'the 2006 Act') provides in Section 4 for recognition of, and vesting of, forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers and Sub-section (5) of Section 4 of the 2006 Act states that save as otherwise provided, no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete. She has submitted that the Court should accordingly direct the respondents not to evict the tribals of Village Ghorpodmal from the forest land in their occupation till their claims are settled in accordance with the provisions of the 2006 Act.
25. During the pendency of this case, the petitioner had filed I.A. No. 8154 of 2005 praying for an order restraining the Forest Authorities of the State Government from taking any coercive steps against any Scheduled Tribe people of Village Ghorpodmal, District Betul and alongwith the I.A. had filed a Draft of Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 and instructions of Government of India, Ministry of Environment & Forest in connection with the Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005. One such instruction was a communication dated 12th May, 2005 issued by the Government of India, Ministry of Environment and Forests to the Principal Secretaries (Forests) to all the States and the Union Territories, 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 25-10-1980, Le., the date of enactment of Forest (Conservation) Act, 1980 (for short 'the 1980 Act'), shall be eligible to be considered for settlement of land right including regularisation of encroachment on forest land. The communication dated 12th May, 2005 also contained instructions of the Government of India to the State Governments not to take action for eviction of Scheduled Tribes including tribals who are in occupation of Government land on or after 25th October, 1980. In view of these instructions of the Government of India, by order dated 18th October, 2005, the Court 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 25th October, 1980. In the order dated 18th October, 2005, the Court 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 25th October, 1980, and if such a stand is taken, the Competent Authority will consider the same in accordance with law.
26. The Bill has now become the 2006 Act and a notification dated 31st December, 2007 has been issued by the Central Government under Section 1(3) of the 2006 Act appointing 31st December, 2007 as the date on which the provisions of the 2006 Act came into force. Section 3(1)(a) and Section 4 (1) and (5) of the 2006 Act are quoted hereinbelow:
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.
*** *** *** *** ***4. Recognition of, and vesting of, forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers.-(1) Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Act, the Central Government hereby recognises and vests forest rights in-
(a) the forest dwelling Scheduled Tribes in States or areas in States where they are declared as Scheduled Tribes in respect of all forest rights mentioned in Section 3;
(b) the other traditional forest dwellers in respect of all forest rights mentioned in Section 3.
*** *** *** *** ***(5) Save as otherwise provided, no member of a forest dwelling Scheduled Tribes or other traditional forest dweller shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete.
27. It is clear from Sub-section (1) of Section 4 of the 2006 Act that notwithstanding anything contained in any other law, the forest rights including the right to hold and cultivate land as mentioned in Section 3(1)(a) of Forest Dwelling Scheduled Tribes and other traditional forest dwellers are now recognized. Sub-section (5) of Section 4 of the 2006 Act further provides that save as otherwise provided, no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete. Accordingly, we direct that the claims of the members of the Scheduled Tribes and other traditional forest dwellers of Village Ghorpodmal, District Betul will be decided in accordance with the provisions of the 2006 Act and the authorities will not evict a member of a forest dwelling Scheduled Tribe or any other traditional forest dweller from the forest land under his occupation till the recognition and verification procedure is complete.
28. The petitioner has next submitted in the written submissions that some contractors very close to the ruling party politicians in the State are involved in illegal excavations in the forest areas of Districts Betul and Harda and the Police and District Administration of Betul and Harda are not taking any action to stop such illegal excavations. She further submitted that by a letter dated 3rd September, 2005 of the Under Secretary, Forest, Government of Madhya Pradesh and by letter dated 5th November, 2005, the Chief Conservator of Forest, Government of Madhya Pradesh have permitted such, illegal excavations in contravention of the provisions of the 1980 Act and, therefore, a direction should be given for prosecution of officers under Section 3(B) of the 1980 Act, who in collusion with politically influential contractors have permitted such illegal excavations in the forest areas.
29. These allegations of illegal excavations were made in I.A. Nos. 8937, 8939 and 9438 of 2005 filed by the petitioner and were denied by the respondent Nos. 4(a), (b) and (c) in their replies. Hence, the Court passed an order on 6-1-2006 directing that an inquiry be conducted by Mr. L.L. Shukla, the then Registrar (Vigilance) of this Court. By the order dated 6-1-2006, the Court directed that Mr. Shukla will visit the concerned areas in Betul District alongwith a photographer and will submit a report whether or not such illegal excavations have taken place in the Betul District, as alleged in the I.As. The Court further directed that the petitioner and the Government may depute their representatives to the spots at the time Mr. Shukla visits the spot. Thereafter, Mr. Shukla conducted the inquiry and submitted a report dated 1st March, 2006 that illegal excavation has taken place in some of the places. The Court accordingly passed orders on 10th April, 2006 directing the Collector, Betul to ensure that such illegal excavations are stopped immediately and further directed the Collector to exercise all powers under the law to seize any material collected by such illegal excavations.
30. Again an application (I.A. No. 4185 of 2006) was filed by the petitioner complaining of fresh illegal excavations in the reserved forest and revenue areas in Harda and Betul Districts and the respondents in their reply denied such fresh illegal excavations. The Court passed orders on 20th November, 2006 directing the Registrar (Vigilance) to make spot inspection of the areas mentioned in the I. A. and submit a report to this Court and in the order dated 20th November, 2006, the Court further directed that notice be issued to the petitioner and the Collector about the date and time of the spot inspection so that they may remain present at the time of spot inspection. Pursuant to the order dated 20th November, 2006, the Registrar (Vigilance) Mr. Jayant Chouhan reached the spot, carried out the inspection and submitted a report dated 10-1-2007 in which he has again confirmed illegal excavations in some of reserved forest areas and revenue areas of Harda and Betul Districts.
31. Section 2 of the 1980 Act is quoted hereinbelow:
Section 2. Restriction on the preservation of forests or use of forest land for non-forest purpose.-
Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other Authority shall make, except with the prior approval of the Central Government, 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 State) 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.
Explanation: For 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 wild life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.
32. It will be clear from a reading of Section 2(ii) of the 1980 Act quoted above, that notwithstanding anything contained in any other law for the time being in force, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing that any forest land or any portion thereof may be used for any non-forest purpose. Clause (b) to the Explanation appended to Section 2 states that for the purposes of this Section, 'non-forest purpose' means the breaking up or clearing of any forest land or portion thereof for any purpose other than reafforestation. Hence, no forest land or portion of forest land can be broken up for any purpose other than reafforestation, without the prior approval of the Central Government. This being the clear position of law, excavations in forest land without the prior approval of the Central Government are prohibited under Section 2 of the 1980 Act.
33. In T.N. Godavarman Thirumulkpad v. Union of India and Ors. : AIR1997SC1228 , the Supreme Court interpreting Section 2 of the 1980 Act held:.The term 'forest land', occurring in Section 2, will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof....
34. Thus, no land in areas recorded as forest in Government records can be broken up by excavations without the prior approval of the Central Government as provided in Section 2 of the 1980 Act. We accordingly direct the respondent Nos. 4(a), (b) and (c) to ensure that no excavations in land recorded in Government records as forest takes place either the State or other authorities or private persons including contractors without the prior approval of the Central Government and in case such excavations are conducted by the Government Departments, authorities or by private persons including contractors steps will be taken for their prosecution for the offences under Sections 3-A and 3-B of the 1980 Act.
35. The petitioner finally submitted that the petitioner and her husband are being harassed by the Forest and Police Officials 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. This relief cannot be granted to the petitioner in this PIL, which has been filed for the protection of rights of the tribals. In 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 Cr.PC or by separate writ petitions under Article 226 of the Constitution, as they may be advised.
With the aforesaid directions, the writ petition is disposed of. Interim orders passed by the Court are vacated.