Bariya Raising Veljibhai vs State Of Gujarat

[1] This petition is filed under Article 226 of the Constitution of India with following prayers:-

"A. Be pleased to hold and declare that the order of rejection passed by respondent Dy. Collector as a Chairman of Respondent Sub-Divisional Level Committee dt. 13/09/2019 (at Annexure-F) in the application of petitioners for grant of forest rights on the land bearing survey no. 5 paiki 1 in revenue limits of village Vateda, Taluka Limkheda, Dist. Dahod is Coram Non-Judice, illegal and unconstitutional;

B. Be pleased to consider directing respondents to grant forest rights to the petitioners taking into consideration judgment and decree passed by Ld. 2nd Joint Civil Judge (Senior Division), Godhra, Dist. Panchmahal in Regular Civil Suit No. 422 of 1989 on 29/09/1999 and other documentary evidences placed on record before respondent Sub- Divisional Level Committee by the petitioners within the stipulated period of time in accordance with law;

C. To hold and declare that the act of plantation of trees, fencing and preventing petitioners from cultivating the land in question bearing survey no. 5 paiki 1 in revenue limits of village Vateda, Taluka Limkheda, Dist. Dahod by respondent forest department is a contempt of court of judgment and decree passed by Ld. 2nd Joint Civil Judge Page 1 of 3 Downloaded on : Thu Jan 09 03:31:51 IST 2020 C/SCA/260/2020 ORDER (Senior Division), Godhra, Dist. Panchmahal passed in Regular Civil Suit No. 422 of 1989 on 29/09/1999;

D. To direct the respondents and respondent forest department to restore possession of the land in question admeasuring 6 acres and 10 gunthas bearing survey no. 5 paiki 1 in revenue limits of village Vateda, Taluka Limkheda, Dist. Dahod to the petitioners on execution of panchnama in presence of independent witnesses and be further pleased to direct the respondents to place on record the act of restoration actual and effective possession of land in question to the petitioners;

E. In the event of this Hon'ble Court directing the respondent Sub Divisional Level Committee to decide the application of the petitioner afresh on consideration of all the evidence in accordance with law, be pleased quash and set aside the Orders dated 13/09/2019 passed by the Sub- Divisional Level Committee (at Annexure-F) and be pleased to direct respondents to allow the petitioners to engage private lawyer of their choice and represent their case before the Committee and be further pleased to direct Ld. SDLC to maintain coram at the time of hearing as provided in the law and decide the matter and pass order in accordance with law within a stipulated period of time;"

[2] Learned advocate for the petitioners at the outset draws attention of this Court to the decision of this Court in the case of petitioners in Special Civil Application No.12645 of 2016 and allied matter and reference made extensively in such order to the civil suit filed by the ancestors of the petitioners in connection with the very land which the petitioners claimed to be in possession since their ancestor's time. He also drew attention of this Court to the impugned orders passed by the 13.09.2019 in case of each of the petitioners. Prima-facie, the perusal of the impugned communications dated 13.09.2019 indicate that four points stated in such communications for rejecting the claim of the petitioners are more or less the same which were reflected in the order prior to the aforesaid order of this Court in Special Civil Application No.12645 of 2016.

C/SCA/260/2020 ORDER [3] This Court is of the view that while passing the order dated 06.08.2019 in Special Civil Application No.12645 of 2016 and allied matter, purpose of referring to the civil suit proceedings was to refer to the long period of occupation of the ancestors of the petitioners of the very forest land more particularly when the civil suit at the relevant time was contested by the Forest Department which now is objecting to such occupation.

[4] In view of the aforesaid, the orders dated 13.09.2019 at Annexure-F Collectively are quashed and set aside. The petitioners are relegated back to the Sub-Divisional Level Committee to once again consider the case of the petitioners afresh especially considering the observation made by this Court in order dated 06.08.2019 in Special Civil Application No.12645 of 2016 and allied matter.

[5] With the aforesaid, the petition stands disposed of. The case of the petitioners be considered by the Sub-Divisional Level Committee afresh within a period of one month from the date of receipt of writ of this order. It is open for the petitioners to produce any other and further evidence that may be necessary to substantiate their claim to be in occupation of forest land since long and to raise any contentions including contention of having complete Coram of Sub-Divisional Level Committee. Direct service is permitted.

(A.Y. KOGJE, J) SIDDHARTH Page 3 of 3 Downloaded on : Thu Jan 09 03:31:51 IST 2020