Dismissed

Shaikh Turab Shaikh Shamat and Another v. the Government of Maharashtra through Principal Secretary Tribal Development Dept Mumbai and Others

Bombay HC5 Nov 2019WP/2567/2016

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the rejection of an application for forest rights under the 2006 Act. The Court held that petitioners failed to prove 75-year possession of land across three generations, a mandatory prerequisite, and thus did not show any illegality in the impugned order.

What the court decided

AI extract

Shaikh Turab Shaikh Shamat and Another Vs the… — Pension and Retirement Benefits | Bombay HC (2019)

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1 WP-2567-2016_J_

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.2567 OF 2016

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1. Shaikh Turab S/o Shaikh Shamat, Age : 56 years, Occu: Agri.,

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1. Fatemabee W/o Shaikh Turab, Age : 51 years, Occu: Agri.,

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Both R/o Dudhala, Tq. Aundha (Na), Dist. Hingoli.

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...Petitioners

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Versus

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1. The Government of Maharashtra, Through Principal Secretary, Tribal Development Department, Mantralaya, Mumbai.

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1. Sub Divisional Officer (S.D.O.) and President Sub Divisional Forest Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Tribe) Committee, Basmat, Dist. Hingoli.

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The District Collector, Hingoli, and President District Level Forest Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Tribe) Committee, Hingoli, Dist. Hingoli.

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Range Forest Officer, Aundha (Na), Tq. Aundha (Na), Dist. Hingoli.

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...Respondents

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---------------------------------------------------------------------------------------------------Mr. M. P. Kale, Advocate for Petitioners

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Mr. K. N. Lokhande, Assistant Government Pleader for Respondents-State

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2 WP-2567-2016_J_

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CORAM : PRASANNA B. VARALE AND ANIL S. KILOR, JJ.

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DATE : 05.11.2019

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JUDGMENT: (PER : ANIL S. KILOR J.)

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Rule. Rule made returnable forthwith. With the consent of the advocates of the parties, the writ petition is taken up for fnal disposal at admission stage.

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The petitioners by the present petition has called in question the correctness and legality of the order dated 28.11.2012 issued by the Collector, Hingoli, who is also the President of the District Level Forest Committee under the provision of The Schedule Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (for short ‘the Act, 2006’), rejecting thereby the application preferred by the petitioners under Section 4 of the Act, 2006.

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The petitioners are claiming to be “other traditional forest dwellers” and made an application under Section 4 of the Act, 2006, for recognition of, and vesting of, various rights in forest dwelling scheduled tribes and other traditional forest dwellers.

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It is the case of the petitioners that they are having possession of land in Gat No. 387, admeasuring 2 Hector 00 R situated at village Dudhala, Taluka Aundha (Na), District Hingoli, since their forefathers from about four to fve generations.

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It is the further case of the petitioners that on making said application under Section 4, the Circle

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3 WP-2567-2016_J_

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Inspector, Talathi and other Villagers prepared Punchanama, stating therein that the petitioners have encroachment over the forest land and doing the agriculture activities for their livelihood.

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The petitioners in support of their claim submitted all the requisite documents; Caste Certifcate, Residential Certifcate and Domicile Certifcate etc.

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The Sub-Divisional Officer rejected the claim of the petitioners, against which the petitioners had preferred appeal before the Collector who is also the President of the District Level Committee. The District Level Committee rejected the appeal on 28.11.2012. The same is underchallenge in the present petition.

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Heard Shri Mahesh Kale, learned counsel for the petitioners and Shri K. N. Lokhande, learned Assistant Government Pleader for Respondent Nos.1 to 4.

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Shri Kale, learned counsel for the petitioners, points out that the Collector did not consider the documents submitted by the petitioners and on frivolous ground the application of the petitioners under Section 4 of the Act, 2006, has been rejected. He submits that without giving an opportunity of being heard and in case of requirements of additional information, an opportunity to submit additional documents was also not given. Therefore, according to him, impugned order dated 28.11.2012 is illegal and liable to be set aside.

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Per-contra, Shri Lokhande, learned Assistant Government Pleader opposes the present petition and submits that the notices issued to the petitioners, inter-alia

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4 WP-2567-2016_J_

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granting opportunity to remove the defects in the application by submitting the necessary documents mentioned in the notices. Thus, he submits that sufficient opportunity was given to the petitioners and because the petitioners failed to fulfll the per-requisites of being "other Traditional Forest Dweller", the learned Collector rightly rejected the application of the petitioners.

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To consider the rival contention of the parties, I have gone through the record and also the relevant provisions of the law.

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To decide the contravercy involved in the present matter, it is necessary to refer the defnition of "other Traditional Forest Dwellers", as given under Section 2 (O) of the Act, 2006", which reads thus:

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“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 � fde livelihood needs. Explanation. For the purpose of this clause, generation means a period comprising of� � twenty-fve years;”

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It is clear from the said defnition that the other Traditional forest Dweller means any member or community who has for at least three generation prior to the 13^th day of December, 2005 primarily resided in and who depend on the forest or forest land for bonafde livelihood needs.

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In the said backdrop, the petitioners were called upon by issuing notices to submit the documentary evidence or any other evidence to establish that for last 75 years i.e.

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5 WP-2567-2016_J_

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from last three generations, prior to 13^th day of December, 2005, the petitioners and their forefathers have primarily been residing in and depend on the forest or forest land for bonafde livelihood needs.

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Admittedly the petitioners have failed to submit necessary documents in support of their claim. In the applications made by the petitioners dated 19.10.2011 and 18.02.2014, the petitioners have mentioned that they and their father are in possession of land in question prior to 13.12.2005. However, there is no mentioned that they are in possession of the land in question from last three generations i.e. from more than 75 years.

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In the said backdrop, we do not fnd any illegality made by the Collector in rejecting the application of the petitioners, on the ground that the petitioners failed to establish that they are in possession of the land in question from last three generation or they have been in possession of the land in question from last 75 years, which is the prerequisite for making application as “other traditional forest dweller”. In the circumstances, we do not fnd any merit in the present writ petition.

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Accordingly, the same is dismissed.

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No order as to costs.

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[ ANIL S.KILOR ] [ PRASANNA B. VARALE ] JUDGE JUDGE

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nd.thawre

Shaikh Turab Shaikh Shamat and Another v. the Government of Maharashtra through Principal Secretary Tribal Development Dept Mumbai and Others

Case brief

What is this about?

What the court decided

Shaikh Turab Shaikh Shamat and Another v. the Government of Maharashtra through Principal Secretary Tribal Development Dept Mumbai and Others

Case brief

What is this about?

What the court decided

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