Fatesang Gimba Vasava and Ors. vs. State of Gujarat and Ors. [AIR 1987 Guj 9]

Laws involved

Indian Forest Act, 1927; Gujarat Forest Manual (Volume III); Bombay Forest Rules, 1942

Facts of Fatesang Gimba Vasava and Ors. vs. State of Gujarat and Ors.

The case has clubbed together three petitions- two by tribal populations and one by a businessman or private trader.

According to the petitions by the tribal people, two tribal communities named Kotwalias and Vansfodias, residing within the reserved forests (hereinafter RFs), were granted certain privileges vide certain resolutions passed by the Gujarat government, to collect bamboo at the concessional rate of Rs. 7 per 100 bamboos, subject to a maximum of 800 bamboos per family per year.

These bamboos were to be used by them to make toplas, supdas and palas (collectively referred to as bamboo articles), and eventually, they sold these articles to earn a living.

Later, with a view to ensure proper supervision and curb indiscriminate felling of trees which was fueled by high market demand, resolutions were passed, wherein the bamboos would be departmentally cut and made available to the tribal people at an increased rate, i.e., the cost of bamboos (Rs.7) plus the cost of exploitation or cutting of bamboos by the department.

So, a total of Rs. 22 per 100 bamboo, subject to a maximum of 800 bamboo per family per year was fixed for the Kotwalias and Vansfodias living within the RFs. And, those living outside the RFs had to procure bamboo at Rs. 27 for 100 bamboos subject to a maximum of 200 bamboo per member of the family per year subject to certain conditions like availability of bamboo; engagement in the manufacture of bamboo articles; membership of industrial cooperative societies, wherein such societies would collect the bamboos and eventually distribute them to the Kotwalias and Vansfodias living outside the RFs.[1]

Despite the governmental resolutions granting these tribal groups the privilege to exploit bamboos and make bamboo articles out of them, the forest officers allegedly prevented them from doing so. As a result, the source of income of these tribals was hit which has increased their economic hardship.

One forest range officer, had allegedly raided the hutments of a few of the tribal people and had carried away their bamboo chips without preparing a panchnama, neither did he issue any show-cause notice to them nor was any prosecution launched against them.

A letters patent appeal was filed by a businessman against the decision of a single judge who had summarily dismissed his writ of mandamus. In the original writ, he asserted that the forest officials prevented him from entering the forest to collect the bamboo articles from the tribals on the ground that he didn’t have the required permit or pass to enter the forest and remove the ‘forest produce’. So, he had sought a writ of mandamus to restrain the officers from preventing him and also sought the refund of Rs. 3000 which was paid by him to the officers as a deposit.

Issues raised in Fatesang Gimba Vasava and Ors. vs. State of Gujarat and Ors.

1. Whether the petitioners are Kotwalias and are entitled to the privileges conferred by the government resolutions of availing bamboos at a concessional price?
2. Whether the petitioners have to collect bamboos through a cooperative society?
3. Whether bamboo articles like supdas, palas and toplas fall under the definition of ‘forest produce’ as per the Indian Forest Act, 1927; and are private traders and dealers required to get permits from forest officials before removing such articles from the forests?

Arguments of the petitioners

1. The tribal petitioners contend that the forest officials were preventing them from exercising their privilege because of some vested interest. This was done in the guise of curbing illicit and indiscriminate exploitation of bamboos.
2. The forest officials allegedly, wanted the tribals to enter into a scheme or arrangement with the Central Pulp Mills, such that the tribals would give up on their privilege of removing bamboos from the forest and the same would be settled in favour of the Central Pulp Mills.
3. To facilitate this arrangement or rather to coerce the tribals to enter into it, the forest officials kept on putting obstacles like limiting the supply of bamboos to 20 only per family per week, and went to the extent of requesting the Railway administration to not book and carry any bamboo articles prepared by the tribals on the trains; despite the absence of any such rule to do the same.
4. In their rejoinder, the tribals submitted certificates of proof issued by the Gram Sabhas to show that they were Kotwalias and were rightfully entitled to the privilege given by the resolutions.

Arguments of the respondents

1. The respondents (forest officials representing the state of Gujarat) claimed that the petitions are not maintainable because the petitioners aren’t Kotwalias and Vansfodias, rather they are Vasavas, who are people from an agricultural community, primarily.
2. That the Vasavas are falsely describing themselves as Kotwalias to avail the privilege of collecting bamboo at concessional rates, such that they could prepare bamboo articles and sell them off to private contractors, who (contractors) encourage reckless cutting of bamboos in order to increase competition such that they could sell the articles at throw-away prices.
3. That the surge in demand of bamboos (fueled by encouragement by private contractors) has made it increasingly difficult for the forest officials to keep a check on and regulate the reckless cutting of bamboos. With a view to check over-exploitation of bamboos, a new resolution had to be passed by the government preventing the direct cutting of bamboos by the beneficiaries- rather the bamboos were to be departmentally cut and provided to the intended beneficiaries at an increased cost.
4. The petitioners had no special privileges with respect to collection of bamboos because a society named “Natrang Vibhag Van Kamdar Audyogik Shahkari Mandali” was registered, to whom the bamboos were supplied by the forest department for eventual distribution to the intended tribal groups. And since the society facilitated the distribution, the adivasis were not issued any individual permits for collection of bamboos from the forests.

Judgment of the court in Fatesang Gimba Vasava and Ors. vs. State of Gujarat and Ors.

The court, having perused the submissions from both sides concluded the following:

1. To decide on the first issue raised, the court referred to Article 75 of the Gujarat Forest Manual which lays down the definition of the term ‘aboriginal or hill tribe’. The definition includes persons who are residents of the forest tracts and who depend entirely on manual labour to earn a living. They usually earn a livelihood by labouring in the forests and by collecting, selling or bartering the ‘forest produce’.

• The list of ‘aboriginal or hill tribes’ includes several tribal groups like Bhils, Tadvi Bhils and Vasavas. Though Vasavas have been alleged to be agriculturists by the forest department but the forest manual has included them under the said definition and the list thereto. Thus, they are entitled to the privileges given by the government to collect bamboos at concessional rates.
• Except for the allegation that the petitioners aren’t adivasis, and hence aren’t entitled to the privileges, no other evidence has been placed on record to substantiate and support the same. On the other hand, the petitioners have duly submitted the certificates issued by the Gram Sabhas to disprove the allegation. The certificates also prove that they have been living on the sale of bamboo articles since generations.
• Thus, it is clear that the petitioners are dependent on the forest, especially bamboos, to eke out a living by the sale of bamboo articles manufactured by them. If the said privilege is denied to them, they would starve due to lack of income.
• So, they are eligible to collect bamboos at concessional rates by availing the governmental privilege, even if they aren’t Kotwalias in particular, because the Forest Manual extends the rights to several other groups including Vasavas. Further, since they are residents of the forest, no special permit needs to be obtained from the forest officials, individually.

2. To decide on the second issue raised, the court observed that some petitioners had formed a cooperative society to supply bamboo to the members, and many others wanted to join the society. But the society wasn’t able to supply bamboos to the existing members itself so taking in new members wasn’t an option.

• Though, one of the government resolutions mandate the formation of a cooperative industrial society for collection and distribution of bamboos- it doesn’t extend to the Kotwalias and Vansfodias living within the RFs. It is applicable for those Kotwalias and Vansfodias living outside the RFs, such that the distribution of bamboos could be properly regulated.
• The petitioners in question are residents of the forest areas itself so, they don’t need to establish a cooperative society for regulation of bamboos’ distribution.

3. The Letters Patent appeal (LPA) has been filed against the decision of a single judge, who held that ‘bamboo articles and furniture’ amount to ‘forest produce’ and hence the private trader was required to obtain permits from the forest officials a priori. And if any such removal was done without such permit, the it would amount to a ‘forest offence’ under section 26 of the Indian Forest Act, 1927 (hereinafter the Act). The court decided on this LPA in the following terms:

• The court looked at the definition of ‘forest offence’ under section 26(1)[2] of the Act. However, under subsection (2) clause (a)[3], an exception for these activities have been carved out, if they are done with the permission of the forest officer, i.e., with such a permission, it won’t amount to a forest offence under section 26(1).
• The court also looked into Rule 66 of the Bombay Forest Rules[4], 1942- which lays that no ‘forest produce’ shall be moved into, or from or within any district without a pass from a duly authorized officer.
• Due to the aforementioned provisions, it becomes imperative to look into the definition of ‘forest produce’, which is given under section 2(4) of the Act[5]. This subsection uses a blanket term ‘tree’ but when we look at section 2(7), it clarifies that “tree” includes ‘palms, bamboos, skumps, brush-wood and canes’[6]. Thus, clearly bamboo falls under the definition of ‘forest produce’.
• But the question wasn’t about ‘bamboos’ per se, rather it was that if ‘bamboo articles’ amounted to forest produce under the meaning of the Act. The court reasoned that bamboo articles aren’t forest-produce under the meaning of section 2(4) of the Act. The definition under the said section makes it clear that “all that has been produced by nature amounts to forest-produce but doesn’t include articles made by man, which in this case are the bamboo articles namely palas, supdas and toplas, made from bamboo chips”. Bamboo chips shall also fall under the definition of forest-produce but once they get converted into a new article due to human effort, they get merged with the new article or product so produced and cease to be ‘forest-produce’.
• On the question of whether the private traders are required to obtain passes or permits from forest officials before removing bamboo articles from the forest; the court held that no such permit is needed because the private traders aren’t engaged in manufacturing activities, they are only buying the finished goods made by the Kotwalias and Vansfodias. So, removing bamboo articles without a permit would not constitute a ‘forest offence’ as there is no removal of forest produce per se. Thus, the Letters Patent Appeal was allowed and the decision of the single judge was set aside.
• Therefore, the court allowed all three petitions which were clubbed together in this case.

Conclusion

Having analyzed the case by considering the various laws in place for the protection of forests, it can be said that the laws can never be read in isolation, nor can they be mechanically applied. Though forest conservation is extremely important and has been gaining momentum in recent times; the exercise cannot be done by excluding human beings, especially the indigenous people who have a close-knit relationship with forests and have lived in harmony with them, for generations.

They are, in many cases, solely dependent on the forest and its produce or resources to make a living and if they were to be cut off from the forests, it would threaten their very existence. What must also be kept in mind is that these communities serve as reservoirs of traditional knowledge which can be used to conserve forests better, so it becomes even more important to protect their rights and provide for certain privileges such that their close-knit relationship with the forest is maintained.

Having looked into other cases like Pradeep Krishen vs. Union of India[7](recognition of the right of forest-dwelling communities to collect tendu leaves from the national park, because the State had failed to notify an area for them and ensure their resettlement) and Animal and Environment Legal Defence Fund v. Union of India[8] (the traditional rights of tribals to fish from a particular reservoir within the Pench National Park was upheld by the Supreme Court), wherein the forest-dwelling communities have been forced to relocate from the reserved forests, national parks, wildlife sanctuaries etc., without adequate rehabilitation; the Government of India’s Ministry of Tribal Affairs, enacted the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

This Act recognizes the rights of the forest-dwelling tribal communities and other traditional forest dwellers to forest resources, on which they have been dependent for a variety of needs, including livelihood, habitation and other socio-cultural needs.[9] The forest management policies, Acts, Rules etc., in both colonial and independent India, did not, till the enactment of this Act, recognize the symbiotic relationship of the STs with the forests, reflected in their dependence on the forest as well as in their traditional wisdom regarding conservation of the forests.[10]

Thus, the enactment of the Forest Rights Act of 2006 has been a welcome step towards the protection of the traditional rights of tribals. It is also essential to note at this juncture that a balance must be struck between forest conservation and the protection of tribal rights so as to achieve holistic development.

References:

[1]Fatesang Gimba Vasava and Ors. vs State of Gujarat and Ors. (Gujarat High Court 1987).

[2]The Indian Forest Act (1927), Section 26. Acts prohibited in such forests.—

(1) Any person who-

(a) makes any fresh clearing prohibited by section 5, or

(b) sets fire to a reserved forest, or, in contravention of any rules made by the [State Government] in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest; or who, in a reserved forest—

(c) kindles, keeps or carries any fire except at such seasons as the Forest-officer may notify in this behalf;

(d) trespasses or pastures cattle, or permits cattle to trespass;

(e) causes any damage by negligence in felling any tree or cutting or dragging any timber;

(f) fells, girdles, lops, or burns any tree or strips off the bark or leaves from, or otherwise damages, the same;

(g) quarries stone, burns lime or charcoal, or collects, subjects to any manufacturing process, or removes, any forest-produce;

(h) clears or breaks up any land for cultivation or any other purpose;

(i) in contravention of any rules made in this behalf by the [State Government] hunts, shoots, fishes, poisons water or sets traps or snares; or

(j) in any area in which the Elephants’ Preservation Act, 1879 (6 of 1879), is not in force, kills or catches elephants in contravention of any rules so made, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.

[3]Section 26 (2). Nothing in this section shall be deemed to prohibit (a) any act done by permission in writing of the Forest-officer, or under any rule made by the state Government; or (b) the exercise of any right continued under clause (c) of sub-section (2) of section 15, or created by grant or contract in writing made by or on behalf of the Government under section 23.

[4]The Bombay Forest Rules, 1942 have been duly adopted by the State of Gujarat.

[5]The Indian Forest Act (1927), Section 2(4) “forest-produce” includes–

(a) the following whether found in, or brought from, a forest or not, that is to say timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds, [kuth] and myrabolams, and

(b) the following when found in, or brought from a forest, that is to say (i) trees and leaves, flowers and fruits, and all other parts or produce not herein before mentioned, of trees, (ii) plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants, (iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other parts or produce of animals, and (iv) peat, surface soil, rock and minerals (including lime-stone, laterite, mineral oils, and all products of mines or quarries).

[6]The Indian Forest Act (1927), Section 2(7).

[7]Pradeep Krishen vs. Union of India (Supreme Court of India 1996).

[8]Animal and Environment Legal Defence Fund v. Union of India (Supreme Court of India 1997).

[9]Samvaad, D. (2022). Ministry of Tribal Affairs, Government of India. Tribal.nic.in. Retrieved 24 September 2022, from https://tribal.nic.in/FRA.aspx.

[10]Samvaad, D. (2022).