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PETITIONER: BANWASI SEWA ASHRAM

       Vs.

RESPONDENT: STATE OF U.P. AND ORS.

DATE OF JUDGMENT20/11/1986

BENCH: BHAGWATI, P.N. (CJ) BENCH: BHAGWATI, P.N. (CJ) MISRA RANGNATH

CITATION:  1987 AIR  374            1987 SCR  (1) 336  1986 SCC  (4) 753        1986 SCALE  (2)867

ACT:     Indian  Forest  Act, 1927--ss. 4  and  20--Jungle  lands notified  and  declared reserved forest--Possession  of  the Adivasis--Whether legal and valid. Environmental Law:     Forests--National    Asset--Important  for    ecological balance and economy--Schemes to generate electricity equally important and cannot be deferred. Legal Aid     Jungle  land habitated and cultivated  by  Adivasis--De- clared  reserved forest--Dispossession sought--Provision  of legal aid to protect their rights.

HEADNOTE:     Consequent upon the State Government declaring a part of the jungle lands in two tehsils of the District of  Mirzapur as reserved forest under s.20 of the Indian Forest Act, 1927 and  notifying  other areas under s.4 of the Act  for  final declaration as reserved forests, the forest officers started interfering  with the operations of the Adivasis living  for generations in those areas. Criminal cases for encroachments as  also other forest offences were registered against  them and  systematic  attempts were made to obstruct  their  free movement,  and even steps were taken under the  U.P.  Public Premises (Eviction of Unauthorised Occupants) Act, 1972  for throwing  them  out of the villages raised by them,  and  in existence  for quite some time. Their attempts to  cultivate the  lands  around these villages, converted  by  them  into cultivable  fields and on which they had been raising  crops for food, were also resisted.     On  the basis of a letter received from the  petitioner- Ashram,  a writ petition under Art. 32 of  the  Constitution was  registered by this Court with regard to the  claims  of these Adivasis to land and related rights.       By its order dated August 22, 1983 the Court  directed the  claims of Adivasis or tribals, to be in  possession  of land and to regularisation of such possession, to be  inves- tigated by a high powered committee with a view to 337 reaching  a final decision. The committee has since  identi- fied  433  villages relevant for the  present  dispute,  and roughly  one lakh eighty two thousand acres in  unauthorised

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occupation.     On December 15, 1983 the Court directed appointment of a high  powered committee consisting of a retired  High  Court Judge and two officers for the purpose of adjudicating  upon the claims of the persons belonging to Scheduled Castes  and backward  classes.  The  Government  by  notification  dated August  5, 1986 has established a special agency for  survey and record operations.     While  the matter had been pending before the court  the Government decided to locate a super thermal power plant  of the  National Thermal Power Corporation (NTPC) in a part  of these  lands  and acquisition  proceedings  were  initiated. NTPC, now a party before the Court, is seeking dispossession of  person in occupation and takeover of lands sought to  be acquired for its propose. The Court gave the following directions:     1.  The  lands which have already been declared  as  re- served forest under s. 20 of the Act not to form part of the writ petition. [342 C]     2.  Forest Officers to demarcate and identify the  lands notified  under  s.4 of the Act within six  weeks  from  1st December,  1986. The matter to be widely publicised.  Claims as  contemplated  under  s.6(c) of the Act  to  be  received within three months from 15th January, 1987. [342 F-343 A]     3. Adequate number of record officers to be appointed by December  31,  1986. Five Additional District Judges  to  be located at five notified places in the area and to  exercise the  powers of the Appellate Authority as provided under  s. 17 of the Act. [343 C-F]     4.  After the Forest Settlement Officer has  dealt  with the  matter,  the findings with the requisite papers  to  be placed  before  the Additional District Judge of  the  area, even  though no appeal is filed. These to be scrutinized  by him  as if an appeal has been taken. The order of the  Addi- tional  District Judge passed therein to be taken to be  the order contemplated under the Act. [343 G]     5. When the Appellate Authority finds that the claim  is admissible, the State Government to honour the said decision and proceed to implement the same. [344 A] 338     6. Assistance by way of legal aid to be provided to  the persons seeking to raise claims and for facilitating  infor- mation for lodging of claims and processing them both at the original  as also the appellate stage. State  Government  to provide the necessary funds. [344 C]     7. The land sought to be acquired by the NTPC to be free from  the ban of dispossession. However, provisions  of  the Land  Acquisition Act to be complied with. Necessary  record to be maintained, as indicated, for use in proceedings  that may  be taken subsequently. Facilities to be given  to  land oustees as undertaken before the Court. [344 F]     8. A Board of Commissioners to supervise the  operations and oversee the implementation of the directions. [345 C-D]     Forests are a much wanted national asset. On account  of the  depletion thereof ecology has been  disturbed;  climate has undergone a major change and rains have become  scanty., These have long-term adverse effects on national economy  as also  on  the living process. At the same  time,  the  court cannot lose sight of the fact that for industrial growth  as also  for provision of improved living facilities  there  is great demand in this country for energy such as electricity. A  scheme to generate electricity, therefore, is equally  of national importance and cannot be deferred. [342 AB]

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JUDGMENT: ORIGINAL JURISDICTION: Crl. Misc. Petition No. 2662 of 1986 IN Writ Petition (Crl.) No. 1061 of 1982 (Under Article 32 of the Constitution of India) M.K. Ramamurthi and M.A. Krishnamurthy for the Petitioner. Dalveer Bhandari and D.D. Sharma for the Respondents. J.C. Seth, Secretary and Gen. Attorney for N.T.P.C. The Court made the following Order:     On  the  basis of a letter received  from  Banwasi  Seva Ashram operating in the Mirzapur District this writ petition under  Article  32  was registered. Grievance  was  made  on several scores in that letter but ultimately the question 339 that  required  detailed consideration was relating  to  the claim  of the Adivasis living within Dudhi  and  Robertsganj Tehsils in the District of Mirzapur in Uttar Pradesh to land and related fights. The State Government declared a part  of these jungle lands in the two Tehsils as reserved forest  as provided under section 20 of the Indian Forest Act, 1927 and in regard to the other areas notification under section 4 of the  Act was made and proceedings for final  declaration  of those areas also as reserved forests were undertaken. It  is common knowledge that the Adivasis and other backward people living  within  the  jungle used the forest  area  as  their habitat.  They had raised several villages within these  two Tehsils  and  for  generations had been  using  the  jungles around   for   collecting   the   requirements   for   their livelihood--fruits,  vegetables,  fodder,  flowers,  timber, animals  by way of sport and fuel wood. When a part  of  the jungle  became reserved forest and in regard to  other  pro- ceedings  under  the  Act were taken,  the  forest  officers started  interfering with their operations in  those  areas. Criminal  cases for encroachments as also other  forest  of- fences  were registered and systematic attempt was  made  to obstruct  them from free movement. Even steps  for  throwing them  out under the U.P. Public Premises (Eviction of  Unau- thorised Occupants) Act, 1972 were taken.     Some  of the villages which were in existence for  quite some time also came. within the prohibited area. The tribals had  converted  certain  lands around  their  villages  into cultivable fields and had also been raising crops for  their food.  These lands too were included in the  notified  areas and,  therefore, attempt of the Adivasis to cultivate  these lands too was resisted. On 22.8.1983, this Court made the following order:               "The  Writ Petition is adjourned to 4th  Octo-               ber,  1983 in order to enable the  parties  to               work  out  a  formula under  which  claims  of               adivasis  or tribals in Dudhi and  Robertsganj               Tehsils,  to be in possession of land  and  to               regularisation  of  such  possession  may   be               investigated by a high powered committee  with               a view to reaching a final decision in  regard               to  such  claims. Meanwhile,  no  further  en-               croachments  shall be made on forest land  nor               will any of the adivasis of tribals be permit-               ted under colour of this order or any previous               order to cut any trees and if any such attempt               is made, it will be open to the State authori-               ties  to prevent such cutting of trees and  to               take  proper action in that behalf but not  so               as  to take away possession of the  land  from               the adivasis or tribals."

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   On behalf of the State of Uttar Pradesh an affidavit was filed by the Assistant Record Officer wherein it was stated: 340               "It  is  respectfully submitted that  for  the               information of this Court the State Government               is  already  seized  with the  matter  and  is               trying  to identify claims and find  out  ways               and  means to regularise the same. To  achieve               this aim the Government has already  appointed               a High Power Committee chaired by the Chairman               of Board of Revenue, U.P., Collector, Mirzapur               and  Conservator of Forest, South Circle,  are               also members of this Committee. This Committee               has  already  held two sittings. In  the  last               meeting  held at Pipri on 16/17.8.1983  people               of  all  shades  of  opinion  presented  their               respective  points of view before the  Commit-               tee."     On  15.12.1983,  this  Court made  another  order  which indicated  that the Court was of the view that another  High Powered Committee should be appointed. The relevant  portion of that order was to the following effect:               "  ....  the parties will discuss the composi-               tion and modalities of the High Power  Commit-               tee  to  be  appointed by the  Court  for  the               purpose of adjudicating the various claims  of               the persons belonging to the Scheduled  Castes               and other backward classes in Robertsganj  and               Dudhi  Tehsils  of Mirzapur  District.  Notice               will also specify, that the Court proposes  to               appoint  a High Power Committee consisting  of               retired  High Court Judge and two other  offi-               cers for the purposes of adjudicating upon the               claims  of the persons belonging to  Scheduled               Castes  and  backward  classes  in  Dudhi  and               Robertsganj Tehsils of their land entitlements               as also to examine the hereditary and  custom-               ary fights of farmers in those tehsils and  to               adjudicate upon the claims of tribals of their               customary fights with respect to fodder  fuel,               wood,  small timber, sand and stones  for  the               houses,  timber  for  agriculture  implements,               flowers, fruits and minor forest produce.     The  Uttar Pradesh Government had in the meantime  indi- cated  that the tenure of the Committee under the  Chairman- ship of Shri Maheshwar Prasad was to expire on December  31, 1983 and Government was awaiting the recommendations of that Committee. In that letter it was specifically stated:               "In  the  opinion of the State  Government  it               would  be more fruitful if the Committee  pro-               posed in your letter is constituted after  the               recommendations  and  advice of  the  previous               Committee  are received. The  Government  have               agreed in principle that the proposed  Commit-               tee with wide legal powers be constituted  for               adjudication of disputes."               341                   Admittedly  there had been no  survey  and               settlement in these tehsils and in the absence               of  any definite record, this  Court  accepted               the  representation  of the  parties  that  it               would be difficult to implement the directions               of  the Court. The Court, therefore,  directed               that  survey  and record operations  in  these               Tehsils  be completed. But later it was  again

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             represented on behalf of the State  Government               that  completion of such operations  within  a               short and limited time would be difficult  and               particularly, during the rainy and the  winter               seasons it would not at all be practicable  to               work.  The Court thereafter did not  reiterate               its directions in the matter of preparation of               the  survey and record operations and  awaited               the report of the Maheshwar Prasad  Committee.               Intermittent directions were given on applica-               tions filed on behalf of tribals when  further               prosecutions were launched.                   From  the  affidavit of  Shri  B.K.  Singh               Yadav, Joint Secretary to the Revenue  Depart-               ment of the State Government, it appears  that               the Maheshwar Prasad Committee identified  433               villages  lying south of the Kaimur  Range  of               the  Mirzapur District to be relevant for  the               present  dispute. Of those 299 were  in  Dudhi               Tehsil  and the remaining 134  in  Robertsganj               Tehsil.  The area involved was 9,23,293  acres               out  of  which in respect of  58,937.42  acres               notification  under section 20 of the Act  has               been  made  declaring  the  same  as  reserved               forest and in respect of 7,89,086 acres  noti-               fication  under section 4 of the Act has  been               made. The Committee in its report pointed  out               that unauthorised occupation related to rough-               ly one lakh eighty-two thousand acres.                    In  the same affidavit, it has been  fur-               ther  stated that the Government by  notifica-               tion  dated August 5, 1986, has established  a               special  agency for survey and  record  opera-               tions  to solve the problems of the  claimants               in the area and a copy of the notification has               also been produced.                    While this matter had been pending before               this Court and there has been a general direc-               tion that there should be no dispossession  of               the  local people in occupation of the  lands,               Government  has decided that a  Super  Thermal               Plant  of the National Thermal Power  Corpora-               tion Limited (for short ’NTPC) would be locat-               ed  in a part of these lands  and  acquisition               proceedings have been initiated. NTPC is now a               party  before us upon its own seeking and  has               made  an application  indicating  specifically               the  details of the lands which are sought  to               be  acquired  for  its purpose.  It  has  been               claimed that the completion of the Project  is               a  time-bound programme and unless  the  lands               intended  to  be acquired are made  free  from               prohibitive  directions  of  this  Court,  the               acquisition as also the consequential  dispos-               session of persons in occupation and  takeover               of  possession by the Corporation are  permit-               ted, the Project cannot be completed.               342                   Indisputably,  forests are a  much  wanted               national  asset. On account of  the  depletion               thereof  ecology has been  disturbed;  climate               has  undergone a major change and  rains  have               become  scanty. These have  long-term  adverse               effects  on  national economy as also  on  the               living  process. At the same time,  we  cannot

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             lose  sight  of the fact that  for  industrial               growth  as  also  for  provision  of  improved               living  facilities  there is great  demand  in               this  country for energy such as  electricity.               In fact, for quite some time the entire  coun-               try in general and specific parts thereof,  in               particular, have suffered a tremendous setback               in  industrial activity for want of energy.  A               scheme to generate electricity, therefore,  is               equally  of national importance and cannot  be               deferred.  Keeping all these aspects  in  view               and  after  heating learned  counsel  for  the               parties  in  the presence of officers  of  the               State Government and NTPC and  representatives               of the Banwasi Seva Ashram, we proceed to give               the following directions: ’               1. So far as the lands which have already been               declared  as reserved forest under section  20               of  the Act, the same would not form  part  of               the  Writ Petition and any direction  made  by               this  Court earlier, now or in future in  this               case  would not relate to the same. In  regard               to  the lands declared as reserved forest,  it               is,  however, open to the claimants to  estab-               lish their rights, if any, in any other appro-               priate proceeding. We express no opinion about               the maintainability of such claim.               2.  In  regard  to the  lands  notified  under               section 4 of the Act, even where no claim  has               been  filed within the time specified in’  the               notification as required under section  6(c)of               the  Act, such claims shall be allowed  to  be               filed  and dealt with in the  manner  detailed               below:               I. Within six weeks from 1.12.1986,  demarcat-               ing  pillars  shall be raised  by  the  Forest               Officers  of the State Government  identifying               the  lands covered by the  notification  under               section 4 of the Act. The fact that a  notifi-               cation  has been made under section 4  of  the               Act  and demarcating pillars have been  raised               in  the  locality  to  clearly  identify   the               property  subjected to the notification  shall               be  widely publicised by beat of drums in  all               the villages and surrounding areas  concerned.               Copies of notices printed in Hindi in abundant               number  will  be circulated through  the  Gram               Sabhas giving reasonable specifications of the               lands  which are covered by the  notification.               Sufficient  number of inquiry booths would  be               set  up  within  the notified area  so  as  to               enable the people               343               of  the  area  likely to be  affected  by  the               notification  to  get the  information  as  to               whether their lands are affected by the  noti-               fication,  so  as  to enable  them  to  decide               whether  any  claim need be  filed.  The  Gram               Sabhas shall give wide publicity to the matter               at  their  level,  Demarcation,  as  indicated               above, shall be completed by 15.1.1987. Within               three months therefrom, claims as contemplated               under  section 6(c) shall be received as  pro-               vided by the statute.               II.  Adequate number of record officers  shall

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             be  appointed  by 31st December,  1986.  There               shall  also  be  five  experienced  Additional               District  Judges,  one each to be  located  at               Dudhi,  Muirpur,  Kirbil of Dudhi  Tehsil  and               Robertsganj and Tilbudwa of Robersganj Tehsil.               Each  of these-Additional District Judges  who               will be spared by the  High  Court  of Allaha-               bad,   would have his establishment at one  of               the  places  indicated  and  the  State  shall               provide the requisite number of assistants and               other employees for their efficient  function-               ing. The learned Chief JuStice of the  Allaha-               bad High Court is requested to make the  serv-               ices  of five experienced Additional  District               Judges  available  for  the  purpose  by  15th               December,  1986 so that these officers may  be               posted  at  their respective stations  by  the               first  of January, 1987. Each of  those  Addi-               tional  District Judges would be  entitled  to               thirty  per  cent of the salary  as  allowance               during  the period of their work.  Each  Addi-               tional  District Judge would work at  such  of               the  five notified places that would be  fixed               up  by the District Judge’ of Mirzapur  before               20th  of  December,  1986.  These   Additional               District  Judges would exercise the powers  of               the  Appellate  Authority  as  provided  under               section 17 of the Act.               III.  After the Forest Settlement Officer  has               done  the needful under the provisions of  the               Act,  the findings with the  requisite  papers               shall be placed before the Additional District               Judge  of  the area even though no  appeal  is               filed and the same shall be scrutinized as  if               an appeal has been taken against the order  of               the authority and the order of the  Additional               District  Judge passed therein shall be  taken               to be the order contemplated under the Act.               344               3. When the Appellate Authority finds that the               claim  is  admissible,  the  State  Government               shall (and it is agreed before us) honour  the               said  decision  and proceed to  implement  the               same.  Status quo in regard to  possession  in               respect  of lands covered by the  notification               under  section 4 shall continue as at  present               until  the  determination  by  the   appellate               authority  and -no notification under  section               20 of the Act shall be made in regard to these               lands  until such appellate decision has  been               made.                         4.  Necessary assistance by  way  of               legal  aid shall be provided to the  claimants               or  persons  seeking to raise claims  and  for               facilitating  obtaining of requisite  informa-               tion for lodging of claims, actual lodging  of               claims and substantiating the same both at the               original  as also the appellate stage as  con-               templated, by the claimant. Legal aid shall be               extended  to the claimants, without  requiring               compliance  of the procedure laid down by  the               Legal  Aid  Board. The Legal  Aid  and  Advice               Board of Uttar Pradesh and the District  Legal               Aid  and  Advice Committee of  Mirzapur  shall               take appropriate steps to ensure  availability

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             of such assistance at the five places indicat-               ed  above.  For the purpose  of  ensuring  the               provision  of such legal aid, State  of  Uttar               Pradesh has agreed to deposit a sum of  rupees               five lakhs with the District Legal Aid Commit-               tee  headed by the District          Judge  of               Mirzapur  and has undertaken to  deposit  such               further  funds as will be necessary from  time               to  time.  It shall be open  to  the  District               Legal  Aid Committee under the supervision  of               the State Legal Aid Board to provide legal aid               either by itself or through any Social  Action               Groups, like the Banwasi Seva Ashram.               5.  The  land sought to be  acquired  for  the               Rihand Super Thermal Power Project of the NTPC               shall be freed from the ban of  dispossession.               Such  land is said to be about 153  acres  for               Ash Pipe Line and 1643 acres for Ash Dyke  and               are  located  in the  villages  of  Khamariya,               Mitahanai,  Parbatwa, Jheelotola,  Dodhar  and               Jarha.  Possession thereof may be taken  after               complying  with  the provisions  of  the  Land               Acquisition Act, but such possession should be               taken  in the presence of one of  the  Commis-               sioners who are being appointed by this  order               and a detailed record of the nature and extent               of  the  land, the name of the person  who  is               being dispossessed and the nature of enjoyment               of the land and all other relevant particulars               should               345               be  kept for appropriate use in  future.  Such               records  shall be. duly certified by the  Com-               missioner  in  whose  presence  possession  is               taken and the same should be available for use               in  all proceedings that may be  taken  subse-               quently.                         The NTPC has agreed before the Court               that  it shall strictly follow the  policy  on               "facilities  to be given to land  oustees"  as               placed before the Court in the matter of lands               which  are  subjected to acquisition  for  its               purpose. The same shall be taken as an  under-               taking to the Court.               6.  It is agreed that when a claim  is  estab-               lished  appropriate titledeed would be  issued               to  the claimant’within a reasonable  time  by               the appropriate authority.               7. The Court appoints the following as a Board               of  Commissioners to supervise the  operations               and  oversee the implementation of the  direc-               tions given:               (i)  Mr.  P.R. Vyas Bhiman  (I.A.S.  retired),               ExecutiveChairman of the State Board of  Reve-               nue, U.P. now residing at Lucknow;               (ii) Dr. Vasudha Dhagamwar;               (iii) A representative to be nominated by  the               Banwasi Seva Ashram.                         The  Committee shall be provided  by               the State Government with transport facilities               and   the  appropriate  infrastructure.   This               should  be  completed  before  31st  December,               1986.     In the affidavit filed by Shri Yadav, Joint Secretary to the  State Government on November 7, 1986, certain  instruc-

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tions  of  the State Government have been detailed.  To  the extent  the instructions are not superseded by  the  Court’s directions  in to-day’s order the same shall  remain  effec- tive.     We  must express our satisfaction in regard to  the  co- operation  shown by the parties. Mr. Gopal  Subramaniam  ap- pearing for the State of Uttar Pradesh has taken  considera- ble  pains to give shape to the matter. Mr.  Ramamurthi  for the  petitioner has also done considerable work in  evolving the ambit of the 346 guidelines  which we have adopted. We hope that all  parties concerned  with the matter would exhibit the  proper  spirit necessary  to successfully complete the assignment. We  give liberty to parties to move for directions as and when neces- sary. The Board of Commissioners shall also be at liberty to approach  this  Court  for directions  when   necessary  for implementing the present arrangements. P.S.S.                                              Petition disposed of. 347