Disposed

Wayanad Prakruthi Samrakshana Samithi v. the Union of India

Kerala HC18 Sept 2020WP(C)/1034/2010

Case brief

AI extract

What is this about?

Forest-rights implementation was challenged over allegedly irregular assignments and failure to notify critical wildlife habitats. The court held that the first and fourth prayers no longer survived subsequent events, declined the requested declaration, and disposed of the petition with nothing further remaining for consideration.

What the court decided

AI extract

Wayanad Prakruthi Samrakshana Samithi Vs the Union… — Environment and Pollution | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942

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WP(C).No.1034 OF 2010(S)

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PETITIONERS:

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WAYANAD PRAKRUTHI SAMRAKSHANA SAMITHI

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(REGN.NO.293/3) S.BATHERY POST, WAYANAD, REPRESENTED BY ITS SECRETARY, SHRI THOMAS AMBALAVAYAL.

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BY ADVS. SRI.K.JAYAKUMAR (SR.) SMT.GEETHA P.MENON SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN

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RESPONDENTS:

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1 THE UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF ENVIRONMENT & FOREST, NEW DELHI.

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2 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.

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3 THE SECRETARY, TRIBAL WELFARE DEPARTMENT, STATE OF KERALA, THIRUVANANTHAPURAM.

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4 THE SECRETARY, FOREST & WILDLIFE DEPARTMENT, STATE OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.

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5 STATE LEVEL COMMITTEE FOR IDENTIFICATION OF CRITICAL WILDLIFE HABITATS IN THE STATE OF KERALA, REPRESENTED BY THE CHAIRMAN, STATE CHIEF WILDLIFE WARDEN, THIRUVANANTHAPURAM.

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6 SHRI K.BHASKARAN, 266-SREE NAGAR, PATTATHANAM, KOLLAM-21.[DELETED][R6 IN THE CAUSE TITLE IS DELETED VIDE ORDER DATED 18.03.2016 IN IA 3629/16.]

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7 SRI.K.K.JANARDHANAN, NEELAMBARI IRUVETTI POST, AREECODE, MALAPPURAM. (DELETED) [RESPONDENT NO.7 OCCURING IN THE CAUSE TITLE IS DELETED VIDE ORDER DATED 07/03/2016 IN IA.4554/2016]

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8 'THAMP', A NATIONAL TRUST FOR TRIBAL EDUCATION DEVELOPMENT AND RESEARCH REG.NO.ER 565/02 REGISTERED UNDER THE SOCIETIES ACT, 2002 REPRESENTED BY ITS PRESIDENT K.S.RAJENDRAPRASAD, S/O.LATE A.SUKUMARAN, SREENIVASA KOVIL ROAD, TRIPUNITHURA.

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IS IMPLEADED AS ADDITIONAL RESPONDENT NO.8 VIDE ORDER DATED 18/03/2010 IN IA.3745/2010.

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SRI.P.VIJAYAKUMAR, ASG FOR R1 SRI.RANJITH THAMPAN, ADDL. AG, FOR R2-R4 SRI.ARAVIND KUMAR BABU, SR.GP FOR R2 TO R4 R8 BY ADV. SHAJI JOSEPH FOR R8

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.1034 OF 2010

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JUDGMENT

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Dated this the 18^th day of September 2020

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S.MANIKUMAR, C.J.

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The petitioner is a Society registered under the Societies Registration Act, 1912. Grievance of the petitioner relates to the irregular methods adopted by the State and its functionaries in the matter of implementation of the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Regulation of Forest Rights) Act, 2006. According to the petitioner, the State and its functionaries are actively encouraging trespass of forest areas of the State with the objective of assigning larger extent of land. Moreover, the critical wildlife habitat, which is inviolate to wildlife conservation, has not been identified. In fact, the committee constituted for this purpose is defunct. The State is also attempting to issue assignment orders under the abovesaid Act assigning lands to eligible persons under the Kerala Restriction of Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999. Petitioner has contended that the implementation of the Act in the present manner will confer benefits to ineligible persons and denude the forest wealth of the State. Hence this writ petition is filed for the following reliefs:

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(i) issue a writ of certiorari or any other appropriate writ or order quashing Ext.P2;

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(ii) issue a writ of mandamus or any other appropriate writ, order or direction restraining the respondents from processing and granting applications for assignment resubmitted on the strength of Ext.P2.

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(iii) declare that assignment of land under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 will not qualify as assignments/ allotment of land under the Kerala Scheduled Tribes (Restriction on transfer of lands and Restoration of Alienated Lands) Act, 1975 and/or the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999.

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(iv) issue a writ of mandamus or any other appropriate writ, order or direction restraining the respondents from assigning lands under the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 without first notifying the critical wildlife habitats;

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(v) issue a writ of quo-warranto to respondents 6 and 7 from their membership of the committee constituted under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 for determination of the critical wildlife habitats in the State of Kerala.

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Petitioner has contended that non forest activities including cutting and removing trees are taking place on a large scale in the forests of the State on the strength of Ext.P2. It is also contended that the persons who are eligible under the FRA are different from those who may be eligible for assignment under the 1975 Act or 1999 Act respectively. Moreover, the process of determination of critical wildlife habitat is a pre-requisite for making assignment under the FRA. The determination of the critical wildlife habitat is a matter that requires expertise in the field of wildlife conservation. Contending, inter alia, instant writ petition has been filed on the following grounds:

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(a) The decision of the group of ministers and assignment proceedings pursuant thereto are attempts to grant assignment to ineligible persons and/or to persons in excess of their eligibility. The decision of the Group of Ministers is illegal, arbitrary and opposed to the provisions of the FRA. Non forest activities including cutting and removing trees are taking place on a large scale in the forests of the state on the strength of Ext.P2. Appropriate directions are issued by this Hon'ble court.

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(b) The persons who are eligible under the FRA are different from those who may be eligible for assignment under the 1975 Act or 1999 Act. The State has hit upon the idea of fulfilling its obligations under the 1975 Act, the 1999 Act and the decision of the Hon'ble Supreme Court by assigning forest land under the FRA. The assignment to ineligible persons and assignment of extents that are not forest lands under actual occupation by persons eligible under the FRA is illegal. Appropriate directions are liable to issue by this Hon'ble Court.

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(c) The process of determination of critical wildlife habitat is a pre-requisite for making assignment under the FRA. The determination of the critical wildlife habitat is a matter that requires expertise in the field of wildlife conservation. The Government, by nominating ineligible persons to get the critical wildlife habitats notified, is stultifying the mandatory provisions of the FRA. It is submitted that the determination of the critical wildlife habitat must precede assignments under the FRA. In any event, the determination of the critical wildlife habitats and asignment of lands under the FRA must proceed simultaneously so as to avoid a fait accomplii. Appropriate directions are liable to be issued by this Hon'ble Court.

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On behalf of the Secretary to Government of India, Ministry of Environment and Forests, New Delhi, respondent No.1, counter affidavit

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has been filed wherein, it is stated that the Scheduled Tribes & Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has been enacted to recognize and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations, but whose rights could not be recorded, and also to provide for a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land. The Act and the Rules have been notified on 1^st January 2008. The Nodal Ministry for the implementation of the said Act is the Ministry of Tribal Affairs. It is also submitted that the Ministry of Environment, Forest and Climate change prepared rules for notification of critical wildlife habitat under Section 2(b) of the Forest Right Act, 2006 and held several rounds of consultation with the Department of Legal Affairs, Ministry of Law and Justice in this regard. The Department of Legal Affairs advised the Ministry that, all the terms and conditions of the stipulations made in Section 2(b) of Forest Rights Act, 2006 be complied with and to re-send the file to the legislative department. The draft rules, after due approval of the Hon'ble Ministry of State (Independent Charge) for Environment, Forest and Climate Change, were resubmitted to the Ministry of Law and Justice for vetting. The process of recognition of Critical Wildlife Habitat and recognition of forest right are independent process. The precondition for relocation from critical wildlife habitat is that the individual rights are duly settled. The recognition of development rights is to be done after declaration of critical wildlife habitat. However, Legislative Department,

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Ministry of Law and Justice informed that there were no clear provision in the Forest Rights Act, 2006 empowering MoFF&CC to frame the critical wildlife habitats Rules and that there was no clear provision in the Act enabling the Central Government to constitute an Expert Committee. The Legislative Department was also of the view that MoEF&CC may issue a notification instead of framing rules. In pursuance of the opinion of the Ministry of Law and Justice, the MoEF&CC is framing guidelines for notification of critical wildlife habitats. It is also averred that this respondent vide letter No.1-39/2007-WL-I (pt) dated 7.2.2011 issued revised guidelines for identification and notification of Critical Wildlife Habitats, as has been provided in the Forest Rights Act, 2006. The process of recognition of Critical Wildlife Habitat and recognition of forest right are independent process. The pre-condition for relocation from critical wildlife habitat is that the individual rights are duly settled. The recognition of development rights is to be done after declaration of critical wildlife habitat. The process of determination of forest rights would start at the level of Gram Sabha which will be scrutinized at the sub divisional level committee, after which the District level committee will approve/award forest rights. Concerned Range Forest Officers and Divisional Forest Officers are the members of Sub Divisional and divisional Committee respectively. Contentions from Forest Department regarding the assignment of individual or community Right could be raised in the committees and solutions could be formulated.

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Respondents 2 to 4 have submitted that the State is duty bound to protect the forest land encroachments and at the same time, ensure the welfare of the tribal families in accordance with the provisions of the Act. It is also submitted that both the Forest Rights Act and the Kerala Restriction

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on Transfer by and Restoration of land to Scheduled Tribes Act, 1999 are independent legislations and that it is not the intention of the State to evade its responsibility under either Act. Government of Kerala are implementing the Act in just and fair manner. Although the Forest Rights Act provides for the recognition and vesting of the rights of both tribals as well as of nontribal forest dwellers, Government of Kerala accepted the recommendation of the Working Group set up as per G.O. (Rt) No. 207/2008/SC ST DD dated 25.02.2008 that there were no non tribal forest dwellers in Kerala meeting the eligibility conditions of the Act, i.e., of having lived in the forests for three generations or for 75 years without having got their rights regularized as on 13.12.2005, and therefore, consciously decided to concentrate only on dwelling tribals for the recognition of vesting of rights under this Act.

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In the Additional Counter Affidavit filed on behalf of the third respondent/the Secretary, Tribal Welfare Department, it is stated as follows:

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It is respectfully submitted that in the objects to the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 it is stated that it is an Act to recognize and vest the forest rights and occupation in forest land in forest dwelling scheduled tribes and other traditional forest dwellers who have been residing in such forest for generations but whose rights could not be recorded, to provide for a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land.

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The preamble to the Act stated that "the forest rights on ancestral lands and their habitat were not adequately recognized in the consolidation of State forest during the colonial period as well as in independent India resulting in historical injustice to the forest dwelling scheduled tribes and other traditional forest

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dwellers who are integral to the very survival and sustainability of the forest ecosystem", and that "it has become necessary to address the long standing insecurity of tenurial and access rights of forest dwelling scheduled tribes and other traditional forest dwellers including those who forced to relocate their dwelling due to State Development-intervention". It is submitted that this sufficiently represents the intention of the Legislature in passing this historic enactment. The aim of the Act is to harmonize the potentially conflicting interest of recognizing forest rights of Forest Dwelling Scheduled Tribes and other Traditional Forest Dwellers while protecting forests and wildlife resources.

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It is submitted that with regard to tribal individuals, the individual right most commonly, sought to be enforced under this Act are the right under Section 3(1) (a), which is the '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'.

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However, even more importantly, the Act goes on to regularize the "right to insitu 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 13^th day of December, 2005" under Section 3 (1) (m).

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At Section 4(7), the Act clarifies that "the forest rights shall be conferred free of all encumbrances and procedural requirements, including clearance under the Forest (Conservation) Act, 1980, requirement of paying the 'net present value' and 'compensatory aforestation' for diversion of forest land, except those specified in this Act".

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It is also submitted that with regard to the creation of critical wild life habitats, the Forest Rights Act makes it clear in Section 4

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that the rights of man come before animal, and that the rights of forest dwelling tribes shall be forest recognized and vested and that "no forest rights holders shall be resettled or have their rights in any manner affected for the purposes of creating inviolate areas for wild life conservation" except after following the procedure laid down therein, which specifically required the rights of forestdwelling tribals to be first completely vested, concerned agencies enforcing the Wild Life (Protection) Act, 1972 to establish that "the presence of holders of rights upon wild animals is sufficient to cause-irreversible damage and threaten the existence of said species and their habitat”, a resettlement package to be formulated and free informed consent of the affected persons to be obtained in writing.

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It is submitted that Government of Kerala have gone about implementing the Act in just and fair manner. Although the Forest Rights Act provides for the recognition and vesting of the rights of both tribals as well as of non-tribal forest dwellers, the Government of Kerala accepted the recommendation of the Working Group set up as per G.O. (Rt) No. 207/2008/SC ST DD dated 25.02.2008 that there were no non tribal forest dwellers in Kerala meeting the eligibility conditions of the Act, i.e., of having lived in the forests for three generations or for 75 years without having got their rights regularized as on 13.12.2005, and therefore, consciously decided to concentrate only on dwelling tribals for the recognition of vesting of rights under this Act.

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Moreover, the Forest Rights Act and Rules thereunder provide for a fool proof mechanism of getting the claims first approved by the Grama Sabha of the beneficiaries, where a two-thirds quorum is mandatory, it further requires a survey with the Forest Department Officers to be mandatorily present and approval of the claim by the Sub Divisional Level Committee comprising the Revenue Divisional Officer, representative of the Scheduled Tribes Development Department and of the Forest Department and a

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further level of approval by the District Level Committee comprising the District Collector and representatives of the Scheduled Tribes Development Department and of the Forest Department.

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It is averred that the Government of Kerala have never sought to mix up the Forest Rights Act, 2006 and the Kerala Restriction on Transfer by and Restoration of lands to Scheduled Tribes Act, 1999. In fact, when the implementation of the Forest Right Act, 2006 was started in 2008, the Kerala Restriction on Transfer by and Restoration Lands to Scheduled Tribes Act, 1999 was under a stay order by the Honourable Supreme Court in Civil Appeal Nos. 104105 of 2001, which was ultimately lifted only on 21.07.2009.

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It is submitted that Scheduled Tribes community does not have the same levels of education, literacy or awareness as the other segments of population; the situation is even more serious in the case of forest dwelling tribes because of difficulties in service provision in the terrain of the deep forest. As such, without guidance and assistance, these tribals cannot be expected to fully articulate their rights, without which they cannot be vested. The State has only tried to do its bounden duty hereby putting in place a frame work for tribals who had made mistakes in submitting their original claims to rectify and give corrected claims. The State is going about to implement the provisions of the Act in true spirit and actively promoting awareness about the provisions of the Act so that no eligible tribal family gets ignored in providing the rights to the land they possess as per the provisions of the Act. State will not give any scope for misuse of the provisions of the Act and it is duty bound to protect the forests from any misuse and at the same time ensuring the entitled land to the eligible tribal families.

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In response to the contentions raised in Paragraph 7 of the Writ Petition, it is submitted that the facts herein have been fully and finally adjudicated upon by the Honourable Supreme Court in its judgment dated 21.07.2009 in Civil Appeal Nos. 104, 105 of 2001

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and therefore, do not require further explanation.

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In response to the averments made by the petitioner in Paragraph 7 of the Writ Petition, it is submitted that the context in which the meeting on 23.09.2001 was called needs to be elucidated. This was a meeting of the Scheduled Tribes Development Department, the Forest Department and the Revenue Department at the higher levels to review implementation of schemes and programmes benefiting the Tribals. Both the Forest Rights Act, 2006 and the Kerala Restriction on Transfer by and Restoration of land to Scheduled Tribes Act, 1999 came up for discussion there. But this should not be used as a basis for trying to evade its responsibility under one Act through action under the other.

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Though the minimum extent that could be claimed is ensured in the said minutes it never intended to permit the ineligible people to get the land and at the same time no further encroachments will be permitted as the land in possession of the tribal families was clearly protected by trenches and solar fences. The protected area includes both living areas and cropped areas. However, the actual extent in their possession will be ascertained and confirmed by the joint verification teams.

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It is submitted that it is totally untrue to state that the State is using assignment of land under the Forest Rights Act, 2006 to evade its responsibility under the Kerala Restriction on Transfer by and Restoration of Land to Scheduled Tribes Act, 1999. Both the enactments are independent of each other and cast different obligations on the State which cannot be evaded in the manner alleged by the petitioner. A tribal who has lost land to non tribals coming under the purview of the Kerala Restriction on Transfer by and Restoration of Land to Scheduled Tribes Act, 1999 would usually be living on Revenue Land whereas the domain of the Forest Rights Act, 2006 is only forest land. As such there is no way whereby loss of Revenue land can be substituted by gain of Forest

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Land. This has been conceded by the petitioner himself in paragraph 14 of the Writ Petition.

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It is submitted that the very-fact that the Forest Department booked offences when attempts were made in some places by the tribals in the settlernent to clear forest areas outside the boundary of the settlernent which were not in their possession and cultivation or when the tribals living outside forests in revenue land tried to encroach into forests presumably by misinterpretation of the decision of the said minutes proves that the State is alert in preventing such actions and duty bound to protect the precious forest wealth.

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It is submitted that the averments made in paragraph 14 of the Writ Petition is totally incorrect and without any basis. It is submitted that the State is duty bound to implement the provisions of the Act in true spirit and ensure that all the eligible tribal families will be given recod of rights to the extent actually in their possession and enjoyment as per the provisions of the Act. The State has taken strict action wherever instances of attempt to encroach the forest land has come to notice.

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In reply to the statement made in paragraph 15 of the Writ Petition it is submitted that the State has only tried to ensure that tribals' get their due under the Forest Rights Act in a desire to provide them a sustainable livelihood and that the ignorance and illiteracy of the forest dwelling tribals does not lead to a situation where they claim less than their entitlement and hurt themselves in the process. However, any attempt by the tribals or non tribals to claim more than their entitlement as per the provisions of the act will be prevented and strict action will be taken against such violators. It is also submitted that it is the bounden duty to ensure the rights of the tribal families as envisaged under the Act and at the same time protect the forest wealth from the greedy and selfish interests. The instruction given to get the corrected applications have been misinterpreted in certain instances and

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claims are reported to have been received for more land than they actually posses or actually that exist. Such cases will be rejected outright and no injury is caused to forest wealth.

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It is submitted that the Forest Rights Act very clearly states at Section 4 that inviolate area for wild life conservation shall be created only after the rights of forest right holders have first been vested and only after the procedure in Section (2) followed totally. Hence, it is submitted that it is not true that the determination of critical wildlife habitats is a process integral to the implementation of the Forest Rights Act or that the determination of critical wildlife habitats must precede the assignment of forest land under the Forest Rights Act. In fact, the allegation that the determination of critical wildlife habitats must precede the assignment of forest land under the Forest Rights Act is contrary to provisions of Section 4 (2) (a) of the Forest Rights Act. This said fact has been conceded by the petitioner himself at paragraph 20 of the Writ Petition.

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It is submitted that the averments made in paragraph 19 of the Writ Petition has no base and therefore, the same is liable to be rejected. The persons appointed to the Committee are fully qualified for the posts. It is submitted that the State itself submits that it is duty bound to protect the forest land encroachments and at the same time ensure the welfare of the tribal families in accordance with the provisions of the Act.

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It is also submitted that the State is only implementing the provisions of the Act and no instructions beyond the provisions will have effect on the process of implementation. The meeting of the Ministers is only a review of the progress of the implementation of the provisions. The minutes will not be used to misinterpret the provisions and derail the process of implementation as the tribal families deserve quick settlement of their record of rights.

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It is reiterated that both the Forest Rights Act and the Kerala Restriction on Transfer by and Restoration of land to Scheduled

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Tribes Act, 1999 are independent legislations and that it is not the intention of the State to evade its responsibility under either Act.

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Section 3 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 deals with Forest rights of Forest dwelling Scheduled Tribes and other traditional forest dwellers. Section 4 of the Act deals with recognition of, and vesting of, forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers. Sections 3 and 4 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 read as follows:

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Forest rights of Forest dwelling Scheduled Tribes and other traditional forest dwellers.

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(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:�

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(a) right to hold and live in the forest land under the individual or common occupation for habitation or for selfcultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers;

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(b) community rights such as nistar, by whatever name called, including those used in erstwhile Princely States, Zamindari or such intermediary regimes;

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(c) right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries;

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(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;

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(e) rights including community tenures of habitat and habitation for primitive tribal groups and pre-agricultural communities;

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(f) rights in or over disputed lands under any nomenclature in any State where claims are disputed;

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(g) rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles;

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(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;

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(i) right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use;

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(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;

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(k) right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity;

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(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;

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(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.

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(2) Notwithstanding anything contained in the Forest (Conservation) Act, 1980 (59 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:�

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(a) schools;

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(b) dispensary or hospital;

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(d) fair price shops;

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(e) electric and telecommunication lines;

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(f) tanks and other minor water bodies;

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(g) drinking water supply and water pipelines;

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(h) water or rain water harvesting structures;

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(i) minor irrigation canals;

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(j) non-conventional source of energy;

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(k) skill upgradation or vocational training centres;

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(l) roads; and

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(m) community centres:

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Provided that such diversion of forest land shall be allowed only if,�

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(i) the forest land to be diverted for the purposes mentioned in this sub-section is less than one hectare in each case; and

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(ii) the clearance of such developmental projects shall be subject to the condition that the same is recommended by the Gram Sabha.

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Recognition of, and vesting of, forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers. �

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(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�

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(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;

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(b) the other traditional forest dwellers in respect of all forest rights mentioned in section 3.

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(2) The forest rights recognised under this Act in critical wildlife habitats of National Parks and Sanctuaries may subsequently be modified or resettled, provided that no forest rights holders shall be resettled or have their rights in any manner affected for the purposes of creating inviolate areas for wildlife conservation except in case all the following conditions are satisfied, namely:�

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(a) the process of recognition and vesting of rights as specified in section 6 is complete in all the areas under consideration;

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(b) it has been established by the concerned agencies of the

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State Government, in exercise of their powers under the Wild Life (Protection) Act, 1972 (53 of 1972) that the activities or impact of the presence of holders of rights upon wild animals is sufficient to cause irreversible damage and threaten the existence of said species and their habitat;

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(d) a resettlement or alternatives package has been prepared and communicated that provides a secure livelihood for the affected individuals and communities and fulfils the requirements of such affected individuals and communities given in the relevant laws and the policy of the Central Government;

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(e) the free informed consent of the Gram Sabhas in the areas concerned to the proposed resettlement and to the package has been obtained in writing;

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(f) no resettlement shall take place until facilities and land allocation at the resettlement location are complete as per the promised package: Provided that the critical wildlife habitats from which rights holders are thus relocated for purposes of wildlife conservation shall not be subsequently diverted by the State Government or the Central Government or any other entity for other uses.

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(3) The recognition and vesting of forest rights under this Act to the forest dwelling Scheduled Tribes and to other traditional forest dwellers in relation to any State or Union territory in respect of forest land and their habitat shall be subject to the condition that such Scheduled Tribes or tribal communities or other traditional forest dwellers had occupied forest land before the 13th day of December, 2005.

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(4) A right conferred by sub-section (1) shall be heritable but not alienable or transferable and shall be registered jointly in the name of both the spouses in case of married persons and in the name of the single head in the case of a household headed by a single person and in the absence of a direct heir, the heritable right shall pass on to the next-ofkin.

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(5) 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.

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(6) Where the forest rights recognised and vested by subsection (1) are in respect of land mentioned in clause (a) of sub-section (1) of section 3 such land shall be under the

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WP(C).No.1034 OF 2010

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occupation of an individual or family or community on the date of commencement of this Act and shall be restricted to the area under actual occupation and shall in no case exceed an area of four hectares.

¶157

(7) The forest rights shall be conferred free of all encumbrances and procedural requirements, including clearance under the Forest (Conservation) Act, 1980, requirement of paying the net present value' and� �compensatory afforestation' for diversion of forest land, except those specified in this Act.

¶158

(8) The forest rights recognised and vested under this Act shall include the right of land to forest dwelling Scheduled Tribes and other traditional forest dwellers who can establish that they were displaced from their dwelling and cultivation without land compensation due to State development interventions, and where the land has not been used for the purpose for which it was acquired within five years of the said acquisition.

¶159

On this day, when the matter came up for further hearing, on instructions, learned Senior Government Pleader Sri.Aravindakumar Babu submitted that about 43331 applications were received by the Grama Sabha. Among 27381 applications that were accepted, 26260 persons were issued title and remaining 1118 applications are pending consideration.

¶160

In view of the subsequent events, we are of the view that the prayer nos.1 and 4 sought for in this writ petition would not survive and the prayer for declaration cannot be granted by this court. Nothing further survives in this writ petition to be considered.

¶161

Writ petition is disposed of.

SD/-

S.MANIKUMAR

CHIEF JUSTICE

SD/- SHAJI P. CHALY JUDGE

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jes

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WP(C).No.1034 OF 2010

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ANNEXURES

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PETITIONER'S EXHIBITS:

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EXT.P1: TRUE COPY OF THE STUDY REPORT TITLED 'SCHEDULED TRIBES & SCHEDULED CASTES IN THE FOREST OF KERALA – FACTS & FIGURES' PUBLISHED BY THE FOREST DEPARTMENT.

¶172

EXT.P2: DATED 23-9-2009, TRUE COPY OF THE MINUTES OF THE GROUP OF MINISTERS.

¶173

EXT.P2(a): DATED 23-9-2009, TRUE COPY OF ENGLISH TRANSLATION OF EXT.P2.

¶174

EXT.P3: DATED 22-10-2019 TRUE COPY OF THE COMMUNICATION NO.G16045/03 SENT BY DIVISIONAL FOREST OFFICER, SOUTH WYNAD RANGE.

¶175

EXT.P3(a): DATED 22-10-2009, TRUE ENGLISH TRANSLATION OF EXT.P3.

¶176

EXT.P4: DATED 6-1-2010, TRUE COPY OF THE NEWS REPORT PUBLISHED IN HINDU DAILY.

¶177

EXT.P5: TRUE COPY OF GUIDELINES FRAMED BY Moef.

¶178

EXT.P6: DATED 31-1-2008, TRUE COPY OF THE NOTIFICATION G.O. (MS)NO.8/2008/F&WLD. ISSUED BY THE 2ND RESPONDENT.

¶179

RESPONDENTS' EXHIBITS:

¶180

EXT.R1(a): TRUE COPY OF THE REVISED GUIDELINES ISSUED AS PER LETTER DATED 7.2.2011.

¶181

// TRUE COPY //

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P.S. TO JUDGE

Wayanad Prakruthi Samrakshana Samithi v. the Union of India

Case brief

What is this about?

What the court decided

Wayanad Prakruthi Samrakshana Samithi v. the Union of India

Case brief

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What the court decided

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