1 HIGH COURT OF MADHYA PRADESH AT JABALPUR SINGLE BENCH : JUSTICE J.K. MAHESHWARI MISC. APPEAL No. 1966 OF 2010 Madhu and others -Versus- The State of M.P. and another MISC. APPEAL No. 1967 OF 2010 Narve Singh and others -Versus- The State of M.P. and another MISC. APPEAL No. 1970 OF 2010 Mansoor Singh and others -Versus- The State of M.P. and another ______________________________________________________________ Shri Greeshm Jain, Advocate for the appellants. Smt. Sheetal Dubey, Govt. Advocate for the respondents. ______________________________________________________________ O R D E R (20.09.2011) Challenging three different orders passed on 25.11.2009 in three different suits rejecting the application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure by the 3rd Additional District Judge, (Fast Track Court) Nasrullaganj, district Sehore, the plaintiffs have 2 filed three different appeals which are being decided by this common order, as the facts and question of law as involved for adjudication is similar. 2. The plaintiffs have filed three suits for declaration of their title over the land of various survey numbers, total area 904.02 acres, situated in village Saeedganj, tahsil Budhni, district Sehore on the ground that they are 'forest dwellers' came from Jhabua having possession on the said land and cultivating the same. They also belong to the Scheduled Tribes community and having no other source of livelihood except the said agricultural land. The Collector, district Sehore by passing the order dated 3.7.2007 in Case No. 14- A-20(3)/2006-07 directed to convert the revenue land into forest land, with further direction to deliver possession after demarcation to the Forest Department. The compliance report has also been sought by the Collector, District Sehore. It is stated that the plaintiffs belong to the Scheduled Tribe community and forest dwellers having possession on the said land, however, declare them as owner of the disputed land. On resistance to take forcible possession from them, the respondent authorities have registered offence, however, by issuing a notice the suits for declaration and permanent injunction restraining the defendants to not to interfere in possession of plaintiffs have been filed. An application seeking temporary injunction of the same nature was also filed by the plaintiffs which has been rejected by the order impugned. 3. The defendants by filing the reply to application for temporary injunction denied all the allegations and contended that the plaintiffs are not in possession on the suit land. It is also denied that ancestors of the plaintiffs 3 were in possession and cultivating thereon. It is said that on the disputed land, area 904.02 acres, dense forest is situated which was recorded in the revenue papers in the name of Revenue Department, however, vide order dated 3.7.2007 passed by the Collector, District Sehore the said land has rightly allocated to the Forest Department. On the said land Sagon trees are standing and the plaintiffs are creating hindrance to protect the forest products and land, however, denied all other allegations as alleged in the application are denied. It is further denied that the plaintiffs have become owners under the M.P. Krishi Prayojan Ke Liye Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kya Jana (Vshesh Upabandh) Adhiniyam, 1984. It is stated that when the employees of the defendants have restrained to plaintiffs to cut the Sagon trees, they made assault, therefore offence has rightly been registered against them, and the case is pending before the competent Court. In such circumstances prayer is made to reject the application filed by the plaintiffs upholding the order impugned. 4. Before the trial Court the argument was advanced on the basis of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter it be called as The Act of 2006) contending that under the said Act they are having right to continue in possession of the lands in question and be declared owner thereof. The defendants are not entitled to take the possession from plaintiffs who belong to scheduled tribe community in view of the provisions of the said Act. Learned trial Court considering various documents filed by the Forest Department, Sthal Nirikshan Panchnama, referring the cases registered against various persons 4 and the report on the claims as set-forth by the plaintiffs passed an order that the plaintiffs are not in possession on the disputed land, however, no prima facie case is made out in their favour. As the land belongs to the Forest Department to which they want to grab forcibly, however, balance of convenience, do not lie in their favour. It is further held that there is no irreparable loss to the plaintiffs. Thus by passing the order impugned, the prayer for grant of temporry injunction has been disallowed. 5. Shri Greeshm Jain, learned counsel appearing on behalf of the plaintiffs has strenuously urged that 'the Act of 2006' has been enacted to recognize the rights of the scheduled tribe forest dwellers and other traditional forest dwellers alike the plaintiffs, however, till determination of their right as per section 6 of the of Act 2006, their possession should not be disturbed. The Government of Madhya Pradesh through Forest Department has issued various circulars dated 21st January, 2008, 15th February, 2008 and 25th September, 2009 whereby it was directed that the members of the Scheduled Tribes who are in possession of the forest lands be not evicted till determination of their rights over the land in question. It is submitted that as per the various affidavits filed before the trial Court it is apparent that they are in possession of the disputed land, therefore, till adjudication of their right, which are the issues triable by the Civil Court, the injunction protecting their possession may be directed, however trial Court committed an error ignoring the provisions of the Act of 2006 and various circulars, therefore by setting aside the order impugned, application filed by the plaintiffs may be 5 allowed and the defendants may be restrained from interfering in plaintiffs' possession, by allowing the appeals. 6. Per contra, Smt. Sheetal Dubey, learned Govt. Advocate appearing on behalf of the respondents contends that the Act of 2006 has been enacted to protect the special category of Scheduled Tribes and traditional forest dwellers which are pastoral or expressive of the life of shepherds living like a conventionalized manner and nomadic i.e. wanderer not having fixed home and also not the urban have been protected. It is submitted that restoration and vesting of forest rights are only to the forest dwelling Scheduled Tribes and other traditional forest dwellers who are 'critical wildlife habitat'. As per Section 6 of the Act of 2006, the authorities are required to determine their rights and not of the plaintiffs as per the procedure prescribed therein. As per Section 7 if the authorities have committed an error they are liable to face the prosecution. The plaintiffs are not the forest dwelling Scheduled Tribes or other traditional forest dwellers, however, under the garb of the provisions of the Act of 2006 they are having no right to get protection under the law. As per the plaint allegations it is apparent that the plaintiffs were not the permanent resident of village Saeedganj, in fact, they have been shifted from Jhabua. However, merely being members of a tribal community and on commencement of the Act of 2006 they want to grab the forest land contrary to the object of the said enactment. It is further said that as per Sthal Nirikraton Panchnama and various reports the plaintiffs are not in possession of the land in dispute, however, the trial Court referring those reports rightly recorded the finding and three ingredients of temporary injunction i.e. prima 6 facie case, balance of convenience or irreparable injury are not in favour of the plaintiff, thus rightly rejected the application filed by the plaintiffs under Order 39 Rules 1 and 2 read with Section 151 of CPC, however, the appeals filed by the appellants may be dismissed. 7. After having heard learned counsel appearing on behalf of the parties it is seen that the plaintiffs have prayed for temporary injunction seeking protection under the Act of 2006. As per the plaint allegations it is said that they are the Scheduled Tribe belonging to the tribal area having possession over the forest land, however, their possession deserves to be protected as they fall within the definition of the forest dwelling Scheduled Tribes and other traditional forest dwellers. It is also submitted that the possession on the forest land which they are having may be protected by issuing temporary injunction till decision in the civil suit. While dealing with the contention as advanced by learned counsel appearing on behalf of the appellants and on going through the provisions of the Act of 2006, in the opinion of this Court, the object to which the said Act was enacted is pious. By the the said Act, vesting of forest right and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers residing in forest for generations but whose right could not be recorded were required to provide some framework for recognition of their right. While determining the rights for sustainable use, conservation of biodiversity and maintenance of ecological balance and thereby strengthening the conservation regime of the forests while ensuring livelihood and food security to such persons is required to be seen. In the said context forest rights on ancestral lands and their 7 habitat which were not adequately recognised in the consolidation of State forests during the colonial period as well as in independent India resulting in historical injustice to the forest dwelling Scheduled Tribes and other traditional forest dwellers who are integral to the very survival and sustainability of the forest ecosystem. It was also thoughtful that the long standing insecurity of tenurial and access rights of forest dwelling Scheduled Tribes and other traditional forest dwellers including those who were forced to relocate their dwelling due to State development interventions is required to be settled. 8. Under the Act of 2006 in Section 2 various definitions have been given, some of them are relevant for determination of the issue involved in this case which are reproduced hereinunder. “2. (b) “critical wildlife habitat” means such areas of National Park and Sanctuaries where it has been specifically and clearly established, case by case, on the basis of scientific and objective criteria, that such areas are required to be kept as inviolate for the purposes of wildlife conservation as may be determined and notified by the Central Government in the Ministry of Environment and Forests after open process of consultation by an Expert Committee, which includes experts from the locality appointed by the Government wherein a representative of the Ministry of Tribal Affairs shall also be included, in determining such areas according to the procedural requirements arising from sub-sections (1) and (2) of Section 4; 8 (c ) “forest dwelling Scheduled Tribes” means the members or community of the Scheduled Tribes who primarily reside in and who depend on the forest or forest lands for bona fide livelihood needs and includes Tribe pastoralist communities; (d) “forest land” means land of any description falling within any forest area and includes unclassified forests, undemarcated forests existing or deemed forests, protected forests, reserved forests, Sanctuaries and National Parks; (e) “forest rights” means the forest rights referred to in Section 3: (h) “habitat” includes the area comprising the customary habitat and such other habitants in reserved forests and protected forests of primitive tribal group and preagricultural communities and other forest dwelling Scheduled Tribes; (o) “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 fide livelihood needs.” Explanation.- For the purpose of this clause, “generation” means a period comprising twenty-five years. 9. Under the Act of 2006 Chapter II Section 3 deals with forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers wherein 9 right to hold and live in the forest land to the habitats, community right on the land, right of ownership, access to collect, use and dispose of minor forest produce within or outside the village boundaries, other community rights such as fish and other products of water bodies, grazing and traditional, seasonal resource access of nomadic or pastoralist communities, tenures of habitat and habitation for primitive tribal groups and pre- agricultural communities, right in or over disputed lands, rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to title, rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and other villages, whether recorded, notified or not into revenue villages, right to protect regenerate or conserve or manage any community forest resource are required to be protected traditionally and conserving for sustainable use, rights recognised under any State law, right of access to biodiversity and community right to intellectual property and traditionally knowledge related to biodiversity and cultural diversity and any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers, as the case may be, and right to rehabilitation including alternative land to the Scheduled Tribes and other traditional forest dwellers. 10. Section 4 recognises State forest rights in forest dwelling Scheduled Tribes in State or areas in State where they are declared as Scheduled Tribes and other traditional forest dwellers in context of Section 3. Sub-section (2) of Section 4 deals with critical wildlife habitats of National Parks and Sanctuaries. Section 5 specifies duties of holders of forest right. Chapter IV 10 starts from Section 6 and specifies authorities for vesting the forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers. Bare reading of Chapter IV which deals the authorities and procedure for vesting of forest rights, it is apparent that Gram Sabha shall be the authority who may initiate the process for determining the nature and extent of individual or community forest rights or both given to the forest dwelling Scheduled Tribes and other traditional forest dwellers within the local limits of its jurisdiction. It is further clear that on receiving the claim under this Act after consolidating, verifying and on preparing a map delineating the area of each recommended claim be prepared and then Gram Sabha shall pass a resolution to that effect. After resolution a copy thereof be forwarded to the Sub-Divisional Level Committee. If a person is aggrieved by the resolution of the Gram Sabha he may prefer a petition to the Sub-Divisional Level Committee constituted under Sub-Section 3. if such petition is preferred within 60 days from the date of passing of the resolution by the Gram Panchayat, it shall be decided after giving an opportunity of hearing to the aggrieved person. The Government is duty bound to constitute Sub-Divisional Level Committee and District Level committee. If a person feels aggrieved by the decision of the Sub-Divisional Level Committee he may prefer a petition before the District Level Committee and the decision of the District Level Committee shall be final and binding. The State Government is also required to constitute State Level Monitoring Committee with a view to assess that the procedure for recognition and vesting of right has been properly observed or not. Section 7 makes it clear that contravention of the aforesaid provision by 11 any authority or committee or officer or member of such authority or authorities is liable to face prosecution, which is punishable also as per Section-8. Section 11 deals with Nodal Agency. The Ministry of the Central Government dealing with Tribal Affairs or any officer or authority authorized by the Central Government in this behalf shall be the Nodal Agency for the implementation of the provision of this Act. The Central Government is having ultimate powers to carry out the purpose of Chapter-IV. In view of the foregoing it is apparent that the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has been enacted to protect Tribal culture and rights of such Scheduled Tribes and other traditional forest dwellers as defined under the Act. Initiation to determine their right as per the Act of 2006 is to be made by the Gram Sabha. A claim may be submitted by forest dweller or any other traditional forest dweller showing any of the forest right. On submitting such claim the Gram Sabha is required to consolidate, verify and prepare a map delineating the area of each recommended claim in the manner as prescribed and thereafter if the Gram Sabha is of the opinion that forest dwelling Scheduled Tribes and other traditional forest dweller is having forest right a resolution be passed in this regard and be preferred to Sub-Divisional Level Committee. If the claim is not preferred after resolution of the Gram Sabha, the aggrieved person may take recourse of law as per sub-sections (2) and (4) of Section-6. If the authorities and the committees contravene the provision, they may be liable to face the prosecution, which is punishable also. The State Government is required to constitute a State Level Monitoring Committee, which is bound to report the 12 matter to nodal agency. Thus, it is clear that for determination of the forest right of forest dwelling Scheduled Tribes and other traditional forest dwellers a complete Code has been specified giving the consequences, if any, contravention has been shown. However, in the said context facts of the present case are required to be seen. 11. In the present case plaintiffs showing their possession on 904.02 acres of land of Village Saeedganj showing themselves to be forest dwelling Scheduled Tribe and other traditional forest dwellers filed a suit for seeking declaration of tile over the said land. As per allegations of the plaintiff it is apparent that their ancestors were the resident of Jhabua and they came to reside in Village Saeedganj, Distrit Sehore few years back. To show that they belong to forest dwelling Scheduled Tribe it is not enough that they belong to Scheduled Tribe Community. Simultaneously to demonstrate other traditional forest dwellers it is not sufficient that they belong to the Tribal Community. In fact three generations not less than 25 years of period, who were pastoral living in non urban area likely to be a portraying or expressive of the life of shepherds or country people especially in an idealized and conventionalized manner living or in nomadic having no fixed resident and wandering here and there may fall within the purview of definition of forest dwelling Scheduled Tribes or any other traditional forest dwellers. Bare reading of the plaint shows that contents as required under the act to fall within the category is not sufficiently pleaded. In view of the foregoing it can safely be said that as per definition of 'critical wildlife habitat' they do not fall within that category. It is to be observed that in view of the object of the enactment it cannot be 13 accepted that the plaintiffs, who are claiming themselves to be forest dwelling Scheduled Tribes or other traditional forest dwellers may fall within the aforesaid discussion having possession of 904.02 acres of land. A wanderer or pastoral cannot have possession of such huge land belonging to the Forest. Thus, in the facts of the present case the application of the Act of 2006 and the contravention thereof as prayed in view of the discussions made herein above, cannot be directed. However, the argument as advanced by Shri Greeshm Jain, counsel representing the appellants is of no substances and liable to be repelled. 12. In the aforesaid context the argument as advanced in reference to the circulars issued by the State Government is required to be explained that the State Government is duty bound to act as per the object and spirit of the provisions of Act of 2006. The circulars as issued do not disclose the manner and procedure for determination of rights of forest dwelling Scheduled Tribes and other traditional forest dwellers. It is to be observed here that their rights ought to have been determined in a manner and procedure as specified under the Act. Until and unless a person falls within the definition of forest dwelling Scheduled Tribes and other traditional forest dwellers or critical wildlife habitat after following the procedure as specified under section 6 of the Act of 2006 the application of those circulars must be refrained by the officials, however, the State Government, the authorities, the Sub-Divisional Committee and the State Level Committee are duty bound to go through the basic provision of the enactment and to comply it in its true sense and spirit. 14 13. In view of the foregoing discussion merely alleging possession of the plaintiffs which is prima facie not found established before the trial Court from the record, if grant of injunction was declined rejecting the application under Order 39 Rules 1 and 2 read with Section 151 of CPC by the impugned order, in the opinion of this Court, such finding do not warrant any interference even on making a submission to apply the provisions of the Act of 2006 in view of the discussion as made hereinabove. 14. Accordingly, the appeals filed by the appellants are devoid of any merit, hence they are dismissed. The impugned order passed on 25.11.2009 rejecting the application under Order 39 Rules 1 and 2 read with Section 151 of CPC is hereby upheld. In the facts and circumstances of the case there is no order as to costs. (J.K. Maheshwari) JUDGE ap.