- (1.) These two writ petitions have been filed against the orders passed by Additional District and Sessions Judge, Myorpur, Mirzapur, in appeals arising out of orders passed by Forest Settlement Officer, Mirzapur, deciding the claims of Adivasis and Banvasis living in the area covered by Notification under S. 4 of the Indian Forest Act, 1927, hereinafter referred to as the 'Act. In Writ Petition No. 10055 of 1989, order of respondent No. 2 passed on 22-9-1988; whereas in Writ Petition No. 10056 of 1989, order of same officer passed on 7-10-1988 have been challenged. The learned Additional District Judge, Mirzapur by his aforesaid two orders has decided as many as 459 appeals arising out of the orders passed by Forest Settlement Officer. It may be recalled that these proceedings for protecting the rights and interest of Adivasis and Banvasis living in Dudhi and Robartsganj tahsils of district Mirzapur were initiated under orders of the Hon'ble Supreme Court dated 20th November, 1986 reported in AIR 1987 SC p. 374, Banwasi Seva Ashram v. State of U. P. It may be useful to quote here the direction of Hon'ble Supreme Court. The relevant directions pertaining to the procedure which was to be adopted by the Record Officer Forest Settlement Officer and Appellate authority are being quoted below (at pages 376 & 377) : "In regard to the lands notified under S.4 of the Act, even where no claim has been filed within the time specified in the notification as required under S. 6(c) of the Act, such claims shall be allowed to be filed and dealt with in the manner detailed below. Within six weeks from 1-12-1986, damarcating pillars shall be raised by the Forest Officers of the State Government identifying the lands covered by the notification under S. 4 of the Act. The fact that a notification has been made under S. 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 published by beat of drums in all the villages and surrounding area concerned. Copies of notice 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 of the area likely to be affected by the notification to get the information as to whether their lands are affected by the notification, 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 S. 6(c) shall be received as provided by the statute. 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 scrutinised 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." It is relevant to mention here that the notifications under S.4 of the Act were published in respect of the area in dispute long back and in some cases even 20 years have passed. Normally under the provisions of the Act, the objections cannot be entertained after such a long time. However, in order to save Adivasis and Banvasis of area, from hardship and to protect their interest as they are illiterate and ignorant of their legal rights and were found to be handicapped, fresh proceedings were directed to be taken. After survey and demarcation of land and revision of the record the Forest Settlement Officer, the respondent No. 3 passed the aforesaid two orders considering the claims of several persons. He accepted the claims of some persons and excluded the same from the area to be notified as reserve forest under S.20. Some area was left to be vested in Gaon Sabha as it was found not fit for being-declared as reserve foresl as the land was situated between agricultural holding of the persons residing there. It is not necessary to give details of the area so determined, as controversy in the present writ petitions is regarding the procedural part. As directed by Hon'ble Supreme Court the finding and the requisite papers were to be placed before the Additional District Judge of the area even though no appeals were filed and the same were to be scrutinised as if the appeal had been preferred 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 relevant provisions of the Act. Thus the orders of respondent No. 3 and the entire record was placed before the respondent No. 2 which constituted appeals as directed. The respondent No. 2 in his order has also noted that in all these cases appeals have also been filed by the Forest department separately. The respondent No. 2 by the impugned order has set aside the orders passed by respondent No. 3 and has rejected the claims of all the persons which were accepted by the Forest Settlement Officer, respondent No. 3. The respondent No. 2, however, has further observed in the operative part that if any objection is filed in accordance with law before Notification under S. 20, the disposal of the same shall not be affected. Aggrieved by these two orders dated 22-9-1988 and 7-10-1988 the present writ petitions have been filed by U. P. Legal Aid and Advise Board, Lucknow which was authorised by Hon'ble Supreme Court to look after the cases of Banvasis and Adivasis and to take appropriate sleps to ensure availability of alt the legal assistance to them. The other petitioners have also joined.
(2.) Sri G. N. Varma, learned counsel appearing for the petitioners in both the writ petitions, has assailed the order of respondent No. 2 on the ground that his observations regarding the procedure adopted by respondent No. 3 are incorrect and misconceived. The claim of the petitioners has been rejected on technicalities and Adivasis and Banvasis shall suffer irreparable loss and injury. He has contended that if the order of the respondent No. 2 is maintained, the object and purpose of the direction given by the Hon'ble Supreme Court to protect the interest and claims of the Banvasis & Adivasis shall be frustrated. Sri Varma has further submitted that in case the respondent No. 2 was not satisfied with the procedure adopted by Forest Settlement Officer, he should have remanded the case for decision afresh and respondent No. 2 was not justified in rejecting the claims. The learned Standing Counsel, Sri Vinay Malviya, on the other hand, contended that the order passed by respondent No. 2 is correct and legal and do not suffer from any error of law. According to the learned Standing Counsel, the Hon'ble Supreme Court granted relaxation to the petitioners only in respect of the steps which could be taken under S. 6 following the . notification under S. 4 of the Act but the claims could only be decided in accordance with the procedure laid down for the same in the Act and the Rules and the various Manuals.
(3.) I have considered the rival contention of both the parties and I have thoroughly examined the impugned orders. A perusal of the order passed by respondent No. 3 will show that he has treated the oral objections raised during survey at par with the written objections. He further observed that in record and survey operations where a fresh settlement of the land is being done the rights of every persons whether he has filed the objection or not has to be decided and in view of the aforesaid reasons he decided the claims of those persons also who had not filed objections but their claims of possession were noted in survey and record operation in the relevant form. The respondent No. 2 appears to be very critical in respect of the aforesaid procedure adopted by respondent No. 3. In my opinion, respondent No. 2 was not justified in taking this view. Hon'ble Supreme Court clearly observed that the claims as contemplated under S. 6(c) of the Act shall be received as provided by the Statute. Section 7 of the Act is very relevant in this respect which is being quoted below: "Inquiry by Forest Settlement Officer. The Forest Settlement Officer shall take down in writing all statements made under S. 6, and shall at some convenient place inquire into all claims duly preferred under that section, and the existence of any rights mentioned in S.4 or S. 5 and not claimed under S. 6 so far as the same may be ascertainable from the records of Government and the evidence of any person likely to be acquainted with the same". From Section 7 (portions underlined) it is clear that the Forest Settlement Officer was obliged under law to enquire into the claims duly preferred under S. 6 and the existence of any right mentioned in S. 4 or S. 5 and not claimed under S. 6, so far as the same may be ascertainable from the record of the Government and the evidence of any persons likely to be acquainted with the same. Thus the procedure adopted by Forest Settlement Officer cannot be said to be illegal or contrary to law as observed by respondent No. 2. The Forest Settlement Officer was under legal obligation to enquire into all the claims including those existence of which could be ascertained from the records of the Government and the evidence of any persons acquainted with such claim. The claims of the innocent and illiterate persons like Adivasis if could be ascertained from the Government record already existing or prepared during the survey and revision of the record was rightly taken into account by the Forest Settlement Officer. The order of respondent No. 2, rejecting the claims on the ground that the objection in writing were not filed, cannot be said to be justified. The claims and objections, recorded during survey and revision of records and noted in Form No. 9, could be lawfully taken notice of under the provisions of S. 7. It cannot be denied that form No. 9 is a Government record and was prepared by Government machinery.;