Baha Murmu Vs the State of Assam and 5 Ors.

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GAHC010022272023

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2025:GAU-AS:12666

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/586/2023

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BAHA MURMU W/O- LT. JHADE TUDU @ DHADE TUDU, R/O- VILL.- DHAROMPUR (LUNGSUNG), P.O- BISHMURI, P.S.- KOKRAJHAR, DIST.- KOKRAJHAR, ASSAM, PIN- 783370.

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VERSUS

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THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, ENVIRONMENT AND FOREST DEPARTMENT, DISPUR, GUWAHATI- 781006.

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2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM ENVIRONMENT AND FOREST DEPARTMENT DISPUR GUWAHATI- 781006.

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3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI- 781006.

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4:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD OF FOREST FORCE ASSAM ARANYA BHAWAN

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PANJABARI GUWAHATI- 781037.

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5:THE DEPUTY COMMISSIONER OF KOKRAJHAR

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P.O. AND P.S.- KOKRAJHAR

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DIST.- KOKRAJHAR ASSAM PIN- 783370. 6:THE DIVISIONAL FOREST OFFICER KOKRAJHAR WILDLIFE DIST.- KOKRAJHAR ASSAM PIN- 783370

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Advocate for the Petitioner : S I AKAND, MS A ZAHAN

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Advocate for the Respondent : SC, FOREST, SC, FINANCE,GA, ASSAM

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B E F O R E

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Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

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Advocate for the petitioner : Shri SI Akand

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Advocate for the respondents : Shri I. Borthakur, SC-Forest Shri N. Goswami, GA-Assam Date of hearing : 16.09.2025 Date of judgment : 16.09.2025

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Judgment & Order

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Heard Shri S.I. Akand, learned counsel for the petitioner. Also heard Shri I. Borthakur, learned Standing Counsel, Forest Department and Shri N. Goswami, learned Government Advocate, Assam.

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The approach to this Court by the petitioner is with a claim for ex gratia / compensation in terms of a Government notification dated 06.03.2017. As per the facts projected, the husband of the petitioner,

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namely, Late Jhade Tudu @ Dhade Tudu was attacked by a wild elephant in his house on 01.01.2022 at about 01:00 AM, as a result of which, he had expired. The matter was reported to the Police and Bishmuri Police Outpost GDE No. 20 was registered on 02.01.2022 and subsequently, Kokrajhar PSUD Case No. 1/2022 was also registered. As a Notification dated 06.03.2017 for payment of ex gratia was in operation, the petitioner had applied for such ex gratia which was not acted upon and therefore, the present writ petition was instituted.

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Shri Akand, learned counsel for the petitioner has submitted that the notification which was published on the Gazette on 06.03.2017, prescribes for ex gratia payment to families of deceased persons @ Rs.4,00,000/-. He has submitted that the said notification is for loss of human life and injuries including damage to crops and properties caused by wild animals. He submits that the inaction on the part of the respondent authorities in spite of being eligible for such ex gratia amounts to illegality and therefore, this Court may issue appropriate direction for release of such payment.

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He has also drawn the attention of this Court to the affidavit-inopposition filed by the respondent no. 5 - District Commissioner, Kokrajhar on 26.06.2023 wherein it has been stated that the deceased belongs to Other Traditional Forest Dweller (OTFD). He has also referred the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter the Act) and has contended that Other Traditional Forest Dwellers are entitled, amongst others, to hold and live in a forest land. He has drawn the attention of this Court to Section 3(1)(a) of the Act to buttress his argument. He has submitted that when the respondent no. 5 has admitted that the petitioner belongs to the Other

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Traditional Forest Dwellers (OTFD), there should not be any hindrance or barrier for release of the amount in question.

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Per contra, Shri Borthakur, learned Standing Counsel, Forest Department has submitted that the application of the notification dated 06.03.2017 for payment of ex gratia has to be with regard to death or injuries caused by wild animals which is outside the forest area. He has submitted that the area in question is inside Haltugaon Reserve Forest in the district of Kokrajhar and therefore the notification would not be applicable.

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On the contention that the petitioner is a Traditional Forest Dweller, learned Standing Counsel has submitted that the aforesaid aspect was not even pleaded in the petition and had come to surface only on presentation of the affidavit-in-opposition by the respondent no. 5. By drawing the attention of this Court to the averments made in paragraph 4 of the said affidavit, the learned Standing Counsel has submitted that though there is a reference to the petitioner as Other Traditional Forest Dwellers (OTFD), the report of the DFO also mentions that the petitioner / deceased would still be an encroacher till the issue of FRA Title, if eligible. By drawing the attention of this Court to the Act of 2006, more specifically Section 6 thereof, the learned Standing Counsel has submitted that the authorities and the procedure for vesting of forest rights have been laid down in the said provision. It is submitted that it is the Gram Sabha which would be the authority to initiate the process of determining the nature and extent of individual or community forest rights or both that may be given to the forest dwelling scheduled tribes and other traditional forest dwellers. He accordingly submits that unless the deceased / petitioner is recognized as a

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Traditional Forest Dweller in the manner prescribed, such ex gratia payment cannot be given.

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The rival submissions have been duly considered and the materials placed before this Court have been carefully examined.

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The claim in this petition is primarily based on the notification dated 06.03.2017 as the husband of the petitioner was killed by wild elephant on 01.01.2022. It is however not in dispute that the deceased was residing inside the Haltugaon Reserve Forest. This Court has noted that it was not the pleaded case of the petitioner that the deceased belongs to the Traditional Forest Dweller. However the said aspect came to be disclosed in the affidavit-in-opposition filed by the respondent no. 5 dated 26.06.2023 and the relevant aspect is extracted hereinbelow:

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“4. That while the matter came up for consideration before the Hon'ble Court on 16-06-2023 after hearing the parties and on being placed the communication dated 02-06-2023 sent by the Additional Deputy Commissioner, Kokrajhar inter alia stated that the Divisional Forest Officer, Haltugaon Forest Division had been directed on 0303-2023 for sanction of ex-gratia grant to the petitioner, namely, Baha Murmu. In this connection, the Divisional Forest Officer, Haltugaon Forest Division, Kokrajhar submitted a report dated 1403-2023 regarding sanction of ex-gratia. The report dated 14-032023 inter alia stated that the petitioner is the next of kin of the deceased person and a family member of Lungsung Kodamguri Gram Sabha under village 2 No. Dharmpur and belongs to Other Traditional Forest Dweller (OTFD). The report stated that the petitioner is " not a regular forest villager and is not legally

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authorized to be present inside the forest". The Report further states that " sufferer is still encroacher for which payment of exgratia will not be justified till issue of FRA title, if eligible.”

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The power exercised by this Court under Article 226 of the Constitution of India is equitable in nature and therefore the strict rules of pleading may not be applicable. In the affidavit-in-opposition, the aforesaid aspect has come to light wherein the respondent no. 5 has referred to a report of the DFO wherein the aspect of the petitioner / deceased belonging to Other Traditional Forest Dweller (OTFD) has found mention. However, the report given by the Divisional Forest Officer, Haltugaon Forest Division also contains the aspect that the petitioner / deceased is an encroacher unless FRA Title is issued.

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Under Section 6 of the Act, both the authorities and the procedure to be adopted for vesting of forest rights have been laid down. For ready reference, the relevant provisions are extracted hereinbelow:

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

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(1) The Gram Sabha shall be the authority to initiate the process for determining the nature and extent of individual or community forest rights or both that may be given to the forest dwelling Scheduled Tribes and other traditional forest dwellers within the local limits of its jurisdiction under this Act by receiving claims, consolidating and verifying them and preparing a map delineating the area of each recommended

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claim in such manner as may be prescribed for exercise of such rights and the Gram Sabha shall, then, pass a resolution to that effect and thereafter forward a copy of the same to the Sub-Divisional Level Committee.

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

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

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

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

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

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

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

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

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

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(7) The State Government shall 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.

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

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(9) The composition and functions of the Sub-Divisional Level

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Committee, the District Level Committee and the State Level Monitoring Committee and the procedure to be followed by them in the discharge of their functions shall be such as may be prescribed.”

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Admittedly, in the instant case there is no such recognition by the authorities prescribed and therefore this Court cannot come to a conclusion that the deceased / petitioner is indeed a Traditional Forest Dweller. The petitioner has also not disputed the proposition that the payment of ex gratia will not be applicable if the incident occurs inside the Reserve Forest and further that the incident had occurred inside a Reserve Forest. In any case, a proper interpretation of the notification dated 06.03.2017 would be that such incident has to be outside a forest area.

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In view of the aforesaid findings, this Court is unable to grant any relief to the petitioner. However, considering the objective of the Act of 2006, it is provided that the petitioner would be at liberty to apply before the appropriate authority under Section 6 of the said Act for issuing certificates of such recognition as Other Traditional Forest Dweller (OTFD) and thereafter submit the same before the Forest Authorities for the grant of ex gratia payment. It is made clear that if such a claim is accompanied by the certificate under Section 6, the same shall be considered and disposed of in accordance with law.

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The writ petition accordingly stands disposed of.

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JUDGE

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Comparing Assistant

Baha Murmu v. the State of Assam and 5 Ors.

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Baha Murmu v. the State of Assam and 5 Ors.

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