No procedure of eviction under FRA 2006: Chhattisgarh gov’t Analysis of state gov't affidavit submitted to SC
04, Sep 2019 | CJP Team
In a crucial intervention in the on-going litigation by Wildlife First challenging the constitutional validity of the law, Forest Rights Act (FRA) 2006, the Chhattisgarh state, in its affidavit filed in July 2019, not only recognises the lapses in recognition of forest rights, but also suggests the way forward.
In its affidavit filed as a response to the questions posed by the Supreme Court (SC) on the process undertaken by various states to “reject” land claims of forest dwellers, the state of Chhattisgarh has made some stark observations. Apart from acknowledging that “the process followed for rejection was not in accordance with the Rules under the Forest Rights Act”, it also said that the forest dwellers were not notified properly by the authorities when claims needed to be filed or clarifications required. The state government has also asked for two years to review all the ‘rejected’ claims and has said that “the question of eviction (under the law) does not arise.”
On August 6, 2019 the Supreme Court of India directed states that had not filed compliance affidavits on the matter of implementation of the Forest Rights Act, 2006, to do so within a fortnight. The court was responding to the petition filed by Wildlife First v/s Union of India in 2008 challenging the constitutional validity of the FRA. It was in February 2019, while hearing the petition, that the SC had, suddenly directed state governments to evict “encroachers” or the “illegal forest dwellers”. At the hearing that sent shock waves nationally and internationally, also leading to protests, the central government was absent. So was the Ministry of Tribal Affairs (MoTA), that has aggressively intervened in the case. A week later, the order was temporarily stayed after the Central government was compelled to move the same bench for review due to widespread protests against the court-ordered evictions!
Among its four pillars of action, the land and livelihood rights of Adivasis and traditional forest dwellers, is one. CJP, with its expertise in navigating cases of human rights violations in the courts and beyond has been active on the issue; partnering with the All India Union of Forest Working Peoples (AIUFWP) since 2017 to battle any setback to these rights in the courts. This includes legally fighting back against malicious prosecution of leaders of the community and defending the Forest Rights Act, 2006 in the Supreme Court. We stand with the millions of Forest Dwellers and Adivasis whose lives and livelihoods are threatened. Please support our efforts by donating here
The first SC order of February 2019, caused palpable tension among the forest dwelling communities and had sent shock-waves across the country’s forests, home to eight per cent of the population. It met with stiff resistance. It was called “unconstitutional”, especially those which had been struggling for forest rights for decades.
By the next date of hearing on July 24, more than 19 intervention applications had been filed before the SC and a lot of national and international bodies had urged the Government of India to defend the FRA and stop the eviction of forest dwellers from their lands. Filed by different sets of directly concerned individuals and organisations, all of these defended the constitutional validity of the Forest Rights Act 2006. The FRA 2006 has been a historic legislation that brings a jurisprudential shift in recognising the livelihood rights of traditional forest Dwellers, Adivasis and Dalits. Among the 19 intervention applications is one filed by retired bureaucrats and academics, Sharad Lele and Nandini Sundar, among others. Another one is one filed by two Adivasi women leaders, Sokala Gond, Nevada Rana backed by AIUFWP and CJP.
Twenty five states with significant Adivasi population had sought more time from the SC to “review their earlier rejections of more than 17 lakh claims” through which the communities had demanded their rights over the forest lands that they have inhabited since generations. These states filed separate affidavits in the SC citing “procedural lapses” in their own decisions rejecting the claims for pattas. This was a cumulation of decisions taken over the last 13 years, the time since the FRA was supposed to be implemented.
Following this, the Court had directed the Chief Secretary of the State Governments to file their detailed affidavit covering all the aforesaid aspects and also to place on record the following documents:
- The rejection order;
- Details of the procedure followed for the settlement;
- What are the main ground on which the claims have been rejected;
- Whether the Tribals were given opportunity to adduce evidence;
- And if yes, to what extent;
- Whether reasonable orders have been passed;
- The Category wise details of such incumbents who have been occupying these areas belonging to Scheduled Tribe Category and Other Traditional Forest Dwellers Category and such person who cannot be treated as Tribals;
- Place the orders on the record which have been passed;
- Course of action with respect to claims which have not been found to be genuine;
Detailed arguments are likely to resume in the month of September in this case that is crucial for the land and livelihood rights of Adivasis and Forest Dwellers .
“Due process not followed”: Chhattisgarh
The Chhattisgarh state has admitted in its affidavit filed in July 2019 that the verification process itself has been faulty. The entire affidavit may be read here:
The affidavit states that it was found on detailed investigation that, in many cases, the intimation of rejection was not provided to the claimants whose claims were rejected/not recommended. It noted, “Therefore, in such cases the due process has to be followed in accordance with Rules 2007 and Section 12A (3) of FR (Amendment) Rules 2012, so that all the eligible claimants are covered as per the established rules.”
Acknowledging that the process followed according to the letter and spirit of the FRA Act 2006 and its Rules, the affidavit, says, “that the process followed for rejection was not in accordance with the Forest Rights rules and hence in large number of cases due to in-appropriate process of rejection at Gram Sabha / Sub Divisional Level Committee (SDLC) / District Level Committee (DLC) level, the rejection orders passed in such cases have become infructuous / null and void and thus may not be placed in category of rejection.”
On the question of three tier monitoring committee, the state has noted, “It was also submitted that in most of the matters, tribals have not been served with the orders of rejection of their claims and it is also not clear whether the “Three Tier Monitoring Committee” constituted under the Schedule Tribes and Other Traditional Forest Dweller (Recognition of Forest Rights) Act, 2006 (..) and the Scheduled Tribes and Other Traditional Forest Dweller (Recognition of Forest Rights) Rules, 2007 (..) have supervised all these aspects.”
After submission of claims for individual forest rights at village level, the Forest Rights Committee (FRA) has to conduct spot verification in the presence of the claimants and should examine the evidences/ documents made available by the claimants. Upon examination, the claims which are found appropriate or not appropriate should be discussed in the meeting of Gram Sabha and the same should be disposed off by the Gram Sabha by passing a resolution either recommending or not recommending such claims. In case of non recommendation of the claims, the written intimation with reasons has to be provided to such claimants.
However, the affidavit highlighted that “…during verification, it was found that in many cases the intimation of rejection was not provided to the claimants whose claims were rejected/not recommended.”
Finally the affidavit clarifies that the state has taken the decision to review and reconsider all such cases in which the infirmities in compliance of the rules and procedure has been found.
On the question of the competent authority which accepts/ rejects such claims, upon examination and field verification of claims by the FRC at the Gram Sabha level, in presence of claimant, it is the Gram Sabha which recommends/ does not recommend through its resolution and forwards them to the Sub-Divisional Level Committee which again scrutinises the claims and either send back to the Gram Sabha if found incomplete or approve the claims and forward them to the District Level Committee for final decision. The District Level Committee is the final authority to issues title/rejects the claim.
Moreover, it noted, “intimation/reasoned orders about rejection of the claim was not conveyed by the Gram Sabha to the claimants in writing and large number of such claims were not forwarded to SDLC to prefer a petition by the claimant under rule 14 of Rules, 2007.”
And the most heartening part of the affidavit is the fact that it admitted that there is no procedure of eviction under FRA, 2006. The claims which were found to be non-eligible under this Act, the concerned department i.e. Forest Department and Revenue Department takes action for eviction under their relevant laws.
In its affidavit, the Chhattisgarh state government also directed to decide afresh all the claims that were received under the Act, 2006 at the Gram Sabha Level for recommendation to SDLC and thereafter the District level, so that all claims can be decided “strictly in accordance with provisions of the Act, 2006 and the Rules, 2007.”
It said that it had already issued detailed guidelines to all the Collectors of the district its circular dated 22.01.2019, 14.02.2019, 25.02.2019 and 06.06.2019
The State Government has also decided that while reconsidering the claims received under the Act, 2006, the claims which have been rejected will be given top priority and this will be considered in the first phase.
To decide ‘real’ encroachers
Even to deal with cases of encroachment, there are elaborate procedures laid down. It submitted that as per the Chhattisgarh Land Revenue Code, 1959, “the Halka Patwari after carrying out spot inspection in the presence of holder/encroacher & villagers and on the basis of govt. land records, prepares the inspection report and sends it to the Tahsildar for further action. For removal of encroachment on Government land, the Tahsildar after receiving the inquiry report from the Halka Patwari registers the case and issues notice to such encroacher and after giving due opportunity of hearing and on the basis of witness and evidence produced in the Court passes appropriate order.”
However, it said that all such cases previously rejected are under review. And hence “the issue of rejection does not arise.”
Way forward
The affidavit also highlights some key steps that the state plans to take in order to ensure the implementation of the FRA. It says that all the eligible claimants who couldn’t receive land so far, should be provided with claim related documents, free of cost at each Panchayat Levels for distribution of such deeds as per rules at the earliest. Those Gram Sabhas where the FRCs haven’t been constituted so far, it wil be ensured that such committees are formed. It said that each evidence document as mentioned in the FRA rules was equally important and hence no specific emphasis should be laid for a particular document. An important point that it lays stress on is that for the OTFDs, claims be determined taking into consideration fact of their holding forest land before the 13th day of December, 2005, evidences of their residing and depending on forest land for bona fide livelihood activities for three generations (as opposed to records of their holding forest land for three generations (75 years- a figure not mentioned in the FRA at all)).
The affidavit also asked the DLCs to “fix responsibility” to initiate and review the process of submitting claims at each Gram Panchayat level. And to record the reasons where no community forest rights are distributed. It emphasised on the need for “sensitisation” and “workshops and trainings” in order to spread awareness about the Act.
*Feature Image: The tribal women are fighting for legal ownership under India’s 2006 Forest Rights Act (FRA) law, which recognises forest-dwellers’ rights over their traditional lands and resources. (Photo Credit: Reuters)
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