Thakker C.K, C.J:— This petition is filed by the petitioners who claim to be adivasi tribals for an appropriate writ, direction or order permanently restraining the State of Maharashtra and Union of India and their officers from evicting adivasi padas listed in Exhibit A to the petition. A further direction is sought ordering respondents to regularise the occupation and possession of all persons residing in adivasi padas at the very same place and to grant full access to minor forest produce by recognising customary rights of such persons.
2. Petitioner No. 1 is a Warli Adivasi tribal. He has filed this petition for and on behalf of tribals in National Park. It is asserted by petitioner No. 1 that he and his family resided in National Park for generations. Such residence, according to petitioner No. 1, goes back to 500 years. Petitioner No. 2 is Shrarnik Mukti Andolan, a social movement of the tribals in National Park dedicated to the upliftment of tribals. The head of the said organisation has done his B.A, M.S.W from University of Bombay. He started his social movement in 1981 exclusively for tribals in National Park and surrounding areas. The petitioners have stated that approximately 2500 tribal families are residing in National Park, Borivli since last about 500 years. They belong to Warli, Kokana, Katkari, Mallar Koli, Mahadev Koli, Dhodi, Dubala and Thakur. They are staying in National Park in accordance with their customary rights and no objection or protest was raised either by the Government or by villagers in the nearby area. The petitioners have stated that since a notification was issued in 1983 under the Wild Life (Protection) Act, 1972, declaring Sanjay Gandhi National Park as National Park, they are sought to be evicted which necessitated them to approach this Court.
3. The case of the petitioners is that tribals are neither slum-dwellers nor encroachers. They have customary right to reside in the forest and also access to minor forest produce. They live in harmony in forest by offering their services to the Government. They are the natural allies of the forest and not its enemies. Their stay in the forest would not be contrary to the environment. On the contrary, it would be in the larger interest of forest preservation and protection.
4. The petitioners have also stated that a Public Interest Petition was filed in the Supreme Court under Article 32 of the Constitution of India by CORD v. Page: 651State of Madhya Pradesh and others, wherein adivasis in National Parks throughout the country claimed such customary right to reside in National Parks and sanctuaries. It was stated in the petition that the said petition is pending in the Supreme Court.
5. The petitioners have approached this Court because certain legal predicament concerning preservation of natural habitat and collective rights of tribals and other adivasis in respect of forest land, minor forest produce and other customary rights are sought to be disturbed. The petitioners have relied upon an order passed by the Supreme Court on 25th August, 1995 which directed the State Government to complete legal formalities and submit management plans of the National Parks and Sanctuaries. They have also relied upon certain orders passed by the Supreme Court in other cases. They have, therefore, prayed that they should not be disturbed from National Park, Borivli and their possession and occupation at the same place be regularised by granting and extending all facilities and amenities.
6. An affidavit in reply is filed by Mr. A.R Bharati, Deputy Conservator of Forests, Sanjay Gandhi National Park, Borivli, on 14th July, 2003 contesting the claim of the petitioners. It was stated that the area of Sanjay Gandhi National Park (“SGNP” for short) was declared as National Park by issuing notification under section 35 of the Wild Like (Protection) Act, 1972. It was stated that a preliminary notification was issued on 4th February, 1983 under sub-section (1) of section 35 of the Act. It was also stated that the Collector of Bombay Suburban District was asked to inquire into the claims' preferred under section 21 of the said Act. All the claims were rejected and a conclusion was arrived at that all the persons staying in the area were not local claimants but merely encroachers. Accordingly, the lands originally proposed in the preliminary notification dated 4th February, 1983 were proposed to be included and a final notification under sub-section (4) of section 35 of the Act was issued on 16th January, 1996.
7. The deponent stated that the alleged “Tribal Padas” in the SGNP do not have status of revenue village. They have neither statutory nor customary right over SGNP. They are merely encroachers. It was then stated:
“I say that there were only 46 tribal families in Krishnagiri Upavan Area of Sanjay Gandhi National Park Division in 1969 when this area was handed over to Forest Department for Management by Parks and Gardens Department. The said hamlets were shifted out of National Park Division by an administrative Order No. FLP/77222.F-2 dated 21st March, 1977 of the Government and relocated in tribal area village Khutal of Palgar Taluka in Thane District for which the Government incurred substantial expenditure. I say that the said tribal families were working with the Aarey Milk Colony and when the area came to be transferred to the Forest Department the families were shifted outside the Park for the better management of the Park.”
8. It was also stated that petitioners' contention that there were about 2500 families residing since centuries is not correct. Save and except Yeoor Village, which is a revenue village, there is no other village which is a part of National Park or National Park Division. The deponent proceeded to state:
“I say that as per the survey carried out in June, 1996, 1989 tribal families were found to be living in 11 hamlets within Sanjay Gandhi National Park Division. Most of the families have been living since a Page: 652number of years though they do not have any legal right over the forest land in the said area.”
9. It was also stated that the petitioners claim that about 2500 tribal families are residing in the Park was falsified even by a letter addressed by Adivasi Hakka Samiti, SGNP, Borivli, under the signature of 15 tribal residents. In the said letter, the signatories themselves have stated that there were 11 padas with 260 tribal families residing there. A copy of the letter is also annexed to the affidavit in reply which is dated 16th December, 1998.
10. Relying on an order passed by a Division Bench of this Court in Writ Petition No. 305 of 1995, it was stated that the petitioners and other similarly situated persons were liable to be removed as they were encroachers. It was also the case of the respondents that the reliance placed on the orders of the Supreme Court was ill-founded and would not help the petitioners.
11. We have heard the learned Counsel for the parties.
12. Ms. Maharukh Adenwala, the learned Counsel for the petitioners, contended that there was serious error on the part of the respondent-authorities in equating unauthorised occupants/trespassers/encroachers with tribals, adivasis, who are wedded to the forest. Strongly relying upon “the National Forest Policy” presented by the Government of India in Parliament in December, 1988, it was submitted that there is intrinsic relationship between forests and tribals and other poor people living in and around forests by protecting their customary rights and concessions on the forests. Our attention was also invited to various clauses of the said policy resolutions and the basic objectives. The Counsel also submitted that not only such tribals and adivasis are entitled to stay in forest areas but they are entitled to minor forest produce also which will provide sustenance of tribal population and other communities residing in and around forest. Certain other rights and concessions have also been highlighted in the said policy resolution. The Counsel submitted that it is in the light of the above policy that even the Wild Life (Protection) Act, 1972 came to be amended in 2002 (Act 16 of 2003) with effect from 1st April, 2003. On all these grounds, it was submitted that the petitioners are entitled to reliefs claimed in the petition.
13. It may be stated at this state that we have dealt with the relevant provisions of the Wild Life (Protection) Act, 1972 and other statutes elaborately in a petition filed by Bombay Environmental Action Group and another, being Writ Petition No. 305 of 1995, and cognate matters decided by a separate judgment today. It is, therefore, not necessary to reiterate and deal with all the statutes in the present case. It is, no doubt, true that tribals and adivasis cannot be equated with slum-dwellers, unauthorised occupants and trespassers. It is also true that adivasis and tribals are “wedded” to forest and they preserve, protest and propagate forest. Their case, therefore, has to be dealt with separately and, keeping in mind the above consideration, it is because of this reason that the Supreme Court also in many cases issued necessary directions to the authorities so that such tribals are protected and their interests are safeguarded.
14. In (Banwasi Seva Ashram v. State of U.P), (1986) 4 SCC 753 : A.I.R 1987 S.C 374, the Apex Court highlighted on the habitat of tribals and adivasis. Again in (Animal and Environment Legal Defence Fund v. Union of India), (1997) 3 SCC 549 : A.I.R 1997 S.C 1071, the same principle was reiterated by the Page: 653Supreme Court and the authorities were impressed to take into account such considerations.
15. In the instant case, as is clear from the affidavit filed by the Deputy Conservator of Forests, the claim put forward by the petitioners was seriously disputed. Not only that, but it was stated that in 1969 when this area was handed over to Forest Department for Management by Parks and. Gardens Department, there were only 46 tribal families in Krishnagiri Upavan Area of SGNP Division. It was also stated that the Government re-located those families in tribal area village Khutal in Palghar Taluka in Thane District, for which the Government incurred substantial expenditure.
16. It was also stated that again in 1996, when the survey was carried out, there were about 189 tribal families in 11 hamlets. Finally, it was stated that when a letter was written by Adivasi Hakka Samiti, SGNP, in December, 1998 (Exhibit A to the affidavit in reply), the signatories of the said letter of 15 tribal residents stated that there were 11 padas with 260 tribal families.
17. In view of the above facts and figures, in our opinion, a tall claim put forward, by the petitioners cannot be upheld. There is no evidence, even of a “prima facie nature, that the assertion made by the petitioners has substance. In the circumstances, in our opinion, the plea put forward by the learned Counsel for the petitioners cannot be upheld. For the foregoing reasons, the petition deserves to be dismissed and is accordingly dismissed.
(i) It is, however, open to the State Government to consider the case of the petitioners and if it is found that they or any of them are tribals/adivasis, the respondent authorities will take appropriate proceedings in accordance with law for their settlement, keeping in mind the relevant provisions of the Wild Life (Protection) Act, 1972, as amended from time to time, the National Forest Policy. Resolutions of the Government of Maharashtra issued from time to time and various decisions of the Supreme Court referred to hereinabove.
(ii) It is also clarified that the directions issued by us in Writ Petition No. 305 of 1995 as to re-location of eligible encroachers and payment of an amount of Rs. 7,000/- would apply in case of the present petitioners also, if they are found to be “eligible encroachers”.
18. Writ petition is accordingly dismissed. In the facts and circumstances, however, there shall be no order as to costs.
19. Parties to act on an ordinary copy of this order duly authenticated by the Associate/Private Secretary.
20. Petition dismissed.