WA 351/2009 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE B.P. KATAKEY (By Ranjan Gogoi, J.) Two writ petitions i.e. W.P.(C) No. 5043/2008 and W.P.(C) No.3540/2008 have been disposed of by the common order dated 22.10.2009 passed by a learned S ingle Judge of this Court. Two separate writ appeals ought to have been filed by the appellants who are the petitioners in the aforesaid two writ petitions. Ins tead, a composite appeal has been filed against the order dated 22.10.2009 passe d in both the writ petitions. Having regard to the issues involved, we have thou ght it appropriate not to dismiss the writ appeal on the aforesaid ground and, i nstead, consider the same on merit. The appellants-writ petitioners in W.P.(C) No.5043 of 2008 claim to be m embers of the Scheduled Tribe Community living in a Forest Village known as Sara lpara Forest Village. According to them, the ethnic violence that had occurred i n the decade of 90s had compelled them to leave the village to which they return ed later. On such return, they have been threatened with eviction. Hence, the wr it petition claiming protection as Forest Villagers under the provisions of Assa m Forest Regulation. Additionally, protection under the Scheduled Tribes and oth er Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereina fter referred to as the Act of 2006) has also been prayed for. The other set of appellants who were the petitioners in W.P.(C) No.3840 of 2008 contend that the y belong to different Tea Tribes living in the forest areas for long. The said a ppellants-petitioners also complain of threats of eviction from the land in thei r occupation and have sought similar protection as in the case of the petitioner s in W.P.(C) No.5043 of 2008. The respondents in the appeal who were also the respondents in the writ petitions, particularly the authorities of the Bodoland Territorial Council had contested the claims made in the writ petitions by filing their affidavit. Accor ding to the respondent-BTC, the petitioners in W.P.(C) No.5043 of 2008 are not r ecognized forest villagers of Saralpara forest village and they are rank encroac hers who are destroying the forest areas in their illegal occupation. The respon dents in the affidavit filed, have also denied that the petitioners in either of the writ petitions out of which this appeal has arisen are entitled to protecti on under the provisions of the Act of 2006. The learned Single Judge hearing the writ petitions came to the conclusi on that the petitioners in W.P.(C) No.5043 of 2008 are not villagers of Saralpar a Forest Village. The said finding was arrived at by the learned Single Judge on a consideration of the respective cases pleaded and the materials adduced, part icularly the statements made by the respondent BTC, in the affidavit filed, that in the Jamabandi of Saralpara Forest Village the name of the petitioners are no t included. The learned Single Judge also came to the conclusion that to be enti tled to protection envisaged by the provisions of the Act of 2006, a claimant mu st be either a forest dwelling Scheduled Tribe within the meaning of Section 2(c) of the Act or other traditional forest dweller within the meaning of Sect ion 2(o) of the Act. In this regard, the learned Single Judge came to the conclu sion that on the pleadings contained in the writ petitions the definition contai ned in Section 2(c) and 2(o) of the Act are not satisfied so as to entitle the p etitioners to claim any protection under the Act of 2006. Consequently, both the writ petitions were dismissed giving rise to this composite appeal. Shri A. Dasgupta, learned counsel for the appellants-writ petitioners ha s vehemently urged that the learned Single Judge had committed a manifest error in law in determining the entitlement of the appellants-writ petitioners to prot ection under the Act of 2006 on the basis of the pleadings of the parties. Shri Dasgupta, by pointing to the relevant provisions of the Act and the Rules, has s ubmitted that a distinct procedure for determination of such rights has been lai d down which determination is required to be made by the specified bodies contem plated by the Act. The said procedure was not followed in the present case and, instead, the learned Single Judge had determined the question on the basis of th e pleadings of the parties though the same ought to have been determined by the statutorily appointed authorities on the basis of evidence and materials to be a dduced. Apart from the above, Shri Dasgupta has submitted that the appellants-pe titioners in both the cases have been in occupation of the land in their possess ion for long and their names have been included in the Voters List. Ration Cards have also been issued to them. All the said facts, according to the learned cou nsel, would go to show that the appellants-petitioners are in occupation of the forest land. According to Shri Dasgupta, both sets of appellants being members o f the Tribal Community are entitled to protection under the Act of 2006. Shri PS Deka, learned Government Advocate, Assam, Mrs. M. Bordoloi, Stan ding Counsel, BTC and Mr. H. Thakuria, learned Central Government Counsel have o ffered a combined opposition to the contentions advanced on behalf of the petiti oners. Learned counsels for the respondents, by referring to the affidavits file d by the BTC as-well-as the Union of India, have contended that the appellants-p etitioners are rank encroachers and have destroyed valuable forest areas and are not entitled to any protection under the provisions of the Act of 2006. The lea rned counsels by referring to the said affidavits have further submitted that on each occasion that the appellants-petitioners had been evicted they have come b ack to reoccupy the land without any legal authority. We have considered the rival contentions advanced on behalf of the conte sting parties. If the respondents by referring to the Jamabandi of the Saralpar a Village have sought to establish that the petitioners in W.P.(C) No.5043 of 20 08 are not included in the list of recognized forest villagers of the said Saral para village, the Court cannot adjudge them to be the lawful and authorized resi dents of Saralpara Forest Village merely on the strength of the assertions made in the writ petition to the above effect. Under Section 2(c) of the Act of 2006, a member of the Scheduled Tribe C ommunity is required to primarily reside in a forest village and has to be depen dent on the forest land for his bonafide livelihood. Under Section 2(o) of the A ct, to come within the meaning of other traditional forest dweller , a person h as to be residing in and dependent on the forests and forests land for bonafide livelihood for at-least three generations prior to 13.12.2005. There is no averm ent in either of the writ petition to even, prima facie, attract the definitions contained in Section 2(c) and 2(o) of the Act of 2006. In-fact, in so far as W. P.(C) No.3840/2008 is concerned, it is clear that the petitioners who claim to b e members of different tea tribes, admittedly will not be members of any Schedul ed Tribe. That apart, the stand taken by the respondents in the affidavits filed that the petitioners are rank encroachers having no legal right to the forest l and in their occupation cannot be brushed aside. In any case the said stand of t he respondents give rise to a disputed question of fact which cannot be adjudica ted in a writ petition. In this regard, the absence of any material to the contr ary is also conspicuous. The Court, therefore has to hold that the findings reco rded by the learned Single Judge that the petitioners, on the basis of their ple adings, have failed to establish that they are either forest dwelling Scheduled Tribe and/or other traditional forest dweller is correct and justified. The argument advanced by Shri Dasgupta, learned counsel for the appellan ts with regard to the scheme for determination of forest rights under the Act of 2006 and the Rules famed thereunder proceeds on an assumption that the petition ers are either forest dwelling Scheduled Tribe within the meaning of Section 2 (c) of the Act or other traditional forest dweller within the meaning of Secti on 2(o) of the Act of 2006. Even if the Court is to proceed on the said assumpti on, the materials laid down before the Court by Shri PS Deka, learned Government Advocate, Assam indicate that the bodies contemplated by the Act of 2006 to mak e the necessary determination are not yet in existence. Shri Dasgupta, therefore , has submitted that a direction should be issued to the State to constitute the said bodies. Not only the appellants-petitioners would not be entitled to the s aid direction as they have failed to establish that they are either forest dwel ling Scheduled Tribe or other traditional forest dweller , even otherwise, the Court would not be inclined to issue any such direction inasmuch as the appella nts had not in either of the writ petitions, prayed for such a direction. It is not the appellants’ case in either of the writ petitions that the bodies contemp lated by the Act are not in existence and, therefore, State Government should be directed to constitute the said bodies. Consequently and in the light of the foregoing discussions, we do not fi nd any merit in this writ appeal. The writ appeal is consequently dismissed. How ever, in the facts and circumstances of the case, we make no order as to costs.