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
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]
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.”
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
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
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
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
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-
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