Case Note & Summary
The petitioner, an agriculturist, filed a writ petition before the Nagpur Bench of the Bombay High Court challenging the denial of allotment of land for cultivation under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. He claimed to be an 'other traditional forest dweller' as defined under Section 2(o) of the Act and sought to quash the Collector's order dated 17/09/2010 which rejected his claim on the ground that he and his family did not reside in the forest where the land was located. The petitioner contended that his residence at Sironcha was only two kilometers from the claimed land at Janampalli (Chek), and that his ancestors had resided at Tekada. He argued that the Collector's finding of non-residence was perverse, and that a similarly situated person, Ramabai Durgam, had been allotted land in the same area, thus violating Article 14. The respondent State opposed the petition, asserting that the petitioner failed to satisfy the statutory conditions of being a member of a community that had primarily resided in forest for at least three generations (75 years) prior to 13/12/2005 and depended on forest or forest land for bonafide livelihood. The court examined the definitions under the Act, particularly Sections 2(c), 2(o), and the scheme under Sections 3(1) and 4(3). It held that the definition of 'other traditional forest dweller' requires community membership and a three-generation link with the forest for residence and livelihood. The petitioner had not pleaded that his ancestors lived in the forest or depended on it; his own residence was not in the forest, and his cultivation activity alone did not amount to bonafide livelihood dependence. The court also emphasized that the Act is designed for communities, not individual encroachers. The contention based on Article 14 was rejected because an erroneous earlier allotment to a Scheduled Caste person could not create a legal right. Finding that the Act might be misused by ineligible persons, the court directed the registry to register a Public Interest Litigation and appointed an Amicus Curiae. The writ petition was dismissed with no costs.
Headnote
A) Forest Rights – Other Traditional Forest Dweller – Definition under Section 2(o), 2006 Act – Requirement of community membership and three generations primary residence in forest – To qualify, the claimant must be a member of a community that has primarily resided in forest for at least 75 years prior to 13/12/2005 and depend on forest or forest land for bonafide livelihood needs; individual encroacher not part of any community cannot claim rights (Paras 8-11). B) Forest Rights – Nature of Rights – Community occupation vs. individual encroachment – Sections 3(1) and 4(3), 2006 Act – The scheme of the Act emphasizes occupation of forest by a community as a whole and use of forest land for livelihood by the community or self-cultivation by a member; an individual not belonging to such a community cannot seek protection (Paras 10-11). C) Evidence – Failure to plead ancestral forest residence and dependence – Burden on claimant – Petitioner had not pleaded that his grandfather or great-grandfather also resided in the same forest and primarily earned livelihood from forest or forest land bonafide; thus, he did not satisfy the definition (Para 8). D) Equality – Article 14 – Wrong precedent not a ground – An erroneous allotment of land to another person cannot be cited as a precedent to claim a right; comparison was erroneous as she belonged to Scheduled Caste and possibly resided in forest, unlike petitioner (Para 12). E) Practice – Misuse of welfare legislation – Court directed registration of PIL and appointed Amicus Curiae to assist – Provisions of the 2006 Act appeared to be misused or abused by encroachers not entitled, so suo motu PIL registered (Paras 14-15).
Issue of Consideration
Whether the denial of allotment of land for cultivation to the petitioner under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is contrary to his rights as a forest dweller or contrary to the Constitution of India.
Final Decision
Writ petition dismissed; Rule discharged; No costs. Additionally, court directed registration of a PIL on misuse of the Act and appointed Advocate Omkar Deshpande as Amicus Curiae.
Law Points
- Under Section 2(o) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act
- 2006
- an 'other traditional forest dweller' must be a member of a community that has primarily resided in forest for at least three generations prior to 13/12/2005 and depend on forest or forest land for bonafide livelihood needs
- individual encroachment not protected
- requirement of community membership is inherent
- wrong allotment to another person cannot be cited as a precedent under Article 14.
