KARMA BHUTIA, Vs. STATE OF SIKKIM
LAWS(SIK)-2010-10-13
HIGH COURT OF SIKKIM
Decided on October 12,2010

Karma Bhutia, Appellant
VERSUS
STATE OF SIKKIM,The Commissioner-Cum-Secretary Respondents

JUDGEMENT

DINAKARAN,J - (1.) THE petitioner is a bona fide holder of Certificate of Identification dated 25-07-2006 issued by the competent authority that the petitioner belongs to the Scheduled Tribe Community. He seeks the benefit of Section 3 of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007), of course, based on long his possession and enjoyment of forest land of an extent of 24' x 13' and 22' x 13' bounded in the East by North Sikkim Highway, in the West five storied R.C.C. building of one Shri Sonam Pintso Bhutia, Ex Assistant Conservator of Forest, four storied R.C.C. building of one Shri Tashi Bhutia, four storied R.C.C. building of one Smt. Jemima Pradhan and her father Late D. N. Pradhan, in the North one godown of one Shri D. B. Pradhan alias Damber Sardar and in the South stairway of Shri Sonam Pintso Bhutia situated at Burtuk, East Sikkim. The structure, according to the petitioner, was constructed by his grandfather in the year 1965. The petitioner claims that he made repeated representations to the respondents on 10-10-1991, 10-05-1994, 18-03-1996, 15-11-1996 and 27-01-2007 and 24-11-2007, seeking the benefit of Section 3 of the said Act; but he was made to run from pillar to post for getting allotment of the house site under the provisions of the said Act; and finally his request was turned down by the Range Officer, Gangtok Range by proceedings dated 11-01-2007, which is being impugned the writ petition. Of course, the petitioner made further representations dated 13-08-2009 and 21-04-2010, bringing to the notice of the respondents that similarly placed persons were allotted with forest house sites by the competent authority as informed to the petitioner by proceedings dated 26-11-2007, which reads hereunder:- "GOVERNMENT OF SIKKIM FOREST, ENV. and WILDLIFE MANAGEMENT DEPARTMENT DEORALI, GANGTOK-737102 26th November, 2007 No.30/RTI/HQ/GoS/FEWMD To, Divisional Forest Officer, Territorial (East), P.S. Road, Gangtok. Sub: Furnishing of Information under Right to Information Act, 2005. Sir, Enclosed herewith is an original application dated 24th November 2007 with Revenue Receipt No.0708N-17049 dated 24.11.2007 amounting to Rs.100 submitted by Shri Karma Bhutia, resident of Upper Burtuk, Gangtok, Sikkim seeking information under Right to Information Act, 2005. The application has been accepted under ID No. 19/RTI/HQ/GoS/ FEWMD dated 26th November 2007 and is being forwarded in order to furnish the required information at the earliest directly to the applicant with a copy to the undersigned please. Thanking you, Yours faithfully, Sd/- (Mrs. M. Pradhan), Joint Director, (P&Statistics)/SPIO(HQ) Copy for information to: 1. CCF (T), 2. CF (T), 3. Shri Karma Bhutia, Stenographer, Home Department, Govt. of Sikkim, Gangtok. List of site allotment under East Division (T) SL. NAME LOCATION ALLOTMENT ORDER NO. DATE 1 Harka Bdr. Tamang Martam 3-11-09 2 Passang Tamang Martam -do- 3 Harka Bdr. Rai Martam -do- 4 Jit Bdr. Subba Martam -do- 5 Budha Singh Tamang Martam -do- 6 Harka Bdr. Tamang Martam -do- 7 Prava Rai Martam -do- 8 B .P. Kharel, SMI Complex, 508/Ed/F dtd Mamring (S) Rangpo 8/11/93 9 S. K. Lepcha Pakyong Bazar During 1978 2nd Mile, JN Road 10 Jai Bdr. Gurung, 7.3.94 Driver Forest 11 Navin Tamang, Dechiling 30'x40' 5.3.94 Driver Forest 12 Lakchung Bhutia, -do- 5.3.94 Driver, Forest 13 Bhutia, Forest -do- -do- 14 Tshering Dorjee -do- -do- Bhutia, Driver Forest 2nd mile, JN road, 15 Sitaram Bhujel, 13.9.94 Driver Forest 30'x40' 16 Gopal Chettri, Driver Rongnek 13.9.94 Forest 17 Phu Bhutia, Driver Dechiling 30'x20' 5.3.94 Forest 18 19 20 21 22 23 24 Details allotment of Forest site and unauthorised huts from Rs.0' Point to Tashi View Point SL. Name Area Location Remarks NO. allotted 1. Mrs. Laden Tsh. Bhutia 20'x30' Ralling Copy enclosed Gaira 2 Lt. Mrs. Gita Gurung 20'x30' Ralling Allotted copy Gaira not provided 3 Mrs. Phupu Doma 20'x32' Ralling Allotted copy not Gaira provided 4 Shri Dazom Lachenpa Burtuk Allotted copy not provided 5 Shri Ringzing Gyatso Burtuk Allotted copy not provided 6 Ms. Katherine Sangay 100'x100' Burtuk Allotted copy not Lepcha provided 7 Lt. D.P. Rai Burtuk Allotted copy not provided 8 Lt. M.B. Tamang C/o Burtuk Allotted copy not Kailash Tamamg provided 9 Lt. M.B. Tamang C/o Burtuk Allotted copy not Thama Tamang provided 10 Lt. M.B. Tamang C/o Burtuk Allotted copy not Bir Bdr. Tamang provided 11 Lt. M.B. Tamang C/o Burtuk Allotted copy not Sanju Tamang provided 12 Lt. N.K. Rai C/o Bikar Burtuk Allotted copy not Rai provided 13 Mrs. Bina Gurung Burtuk Allotted copy not provided 14 Lt Khim Narayan Burtuk Allotted copy not Pradhan C/o Madan provided Pradhan 15 Shri Mohanlall Rai Burtuk Allotted copy not provided 16 Shri Tek Bdr. Chettri Burtuk Allotted copy not provided 17 Mrs. Tshering Ongmu 20'x25' Swastik Allotted copy not Bhutia provided 6 18 Shri Karma Bhutia Swastik Un-authorised 19 Lt. D.M. Pradhan Swastik Allotted copy not provided 20 Lt. D.M. Pradhan 10'x20' Swastik Un-authorised 3rd Mile 21 Shri K.B. Sunawar 15'x20' Un-authorised 3rd Mile 22 Shri Millan Gajmer 20'x30' Allotted copy not provided 3rd Mile 23 Shri Syam lall Rai 20'x30' Allotted copy not provided Sd/- Range Officer Gangtok Territorial Range Forest Department" The petitioner, therefore, complaints that his legitimate right under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is not favourably considered by the respondents, and seeks a writ of mandamus to direct the respondents ­ (i) to determine as to whether the land in question falls under the Forest land under the Respondent No.1 or under the proforma respondent No.2 (U.D and H.D) for the purpose of allotment; (ii) to treat the Petitioner at par and equally with other allottees with regard to the allotment of the housing site in possession of the petitioner since 1965; (iii) to grant title of the land in possession of the petitioner under Section 3 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006; (iv) to vest upon the Petitioner the right over the land in question by regularization, grant or contract; and (v) to rescind the stop order dated 11/01/2007 and allow the Petitioner to resume further construction. Hence, the above Writ Petition.
(2.) ACCORDING to the Mr. K. T. Bhutia, learned senior counsel appearing for the petitioner, the respondent having considered the request of similarly placed persons, ought to have considered the request of the petitioner also and, the refusal to consider the request of the petitioner and the direction dated 11-01-2007 issued to the petitioner to stop the unauthorised construction of the building, impugned in the writ petition, is discriminatory, arbitrary, mala fide and violative of Article 14 of the Constitution of India as well as contrary to the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Per contra, Mr. Karma Thinlay, learned Government Advocate, contends that the impugned land falls within the reserved forest range and, therefore, the petitioner has no right to put up any multi-storied building in the forest land, for which the provisions of the said Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 are not applicable and that the petitioner is not a person falling within the definition of "forest dwelling Scheduled Tribe". The petitioner does not satisfy the statutory requirements contemplated under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007 that he has 'bonafide livelihood needs' as defined under Rule 2(b) of the said Rules, 2007. The learned Government Advocate further contends that the Government authorities are rightly empowered to initiate the action under the provisions of the Sikkim Forests, Water Course and Road Reserve Preservation and Protection Act, 1988, when the petitioner proposed to violate the provisions of the same. However, the learned Government Advocate is not in a position to explain under what circumstances the similarly placed persons were granted dwelling right under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
(3.) WE have given our careful consideration to the submissions of both sides.;


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