Before the Centrally Empowered Committee
Interlocutory Application No. 703 of 2001
Writ Petition (Civil) No. 202 of 1995
Submissions by Nikunj Bihari Bhutia on Behalf of the Adivasi Mukti Sangathan
HUMBLY SUBMITTED AS UNDER
The Adivasi Mukti Sangathan (AMS) is a peoples' organization constituted
by tribal landless, agricultural labourers and migrant workers, all of
whom are below the poverty line. The AMS is active and working to protect
the rights of the poor in Badwani, Khargone, Khandwa and Devas Districts
of MP for the past 10 years. The Sangathan has been actively involved
in issues of tribal rights, land rights, labour rights of its members
and has been and is a petitioner in several cases before the Hon'ble High
Court at MP. Nikunj Bihari Bhutia is a member founder and voluntary social
worker in the capacity of the Convenor in the Adivasi Mukti Sangathan
for the past Ten years.
At the outset, we humbly beg to state and submit that we have seen the
Report of this Committee in IA 703 in WP 202/95 and have had the opportunity
to examine its recommendations. We crave leave to submit that the tribal
people are greatly disturbed by the recommendations and the grievous harm
that they will cause to rights of hundred of thousands of tribal landless
in the state of MP.
We humbly crave leave to submit that if the recommendations are implemented
in their present form, will cause nothing short of mass disruption of
undermine the lives and livelihoods of the tribal people. We humbly submit
that the recommendations in their present form will not only deny the
Right to Life with dignity but will take away the Right to Life itself
to over ten million tribals and result in a situation akin to genocide.
We further crave leave to submit that even while the recommendations
have such grievous and long lasting effects on the poor tribals not a
single representative of the tribal people, whether their elected representatives
from Parliament or the State Assembly or their representative peoples
organizations working among them for the past several decades or NGOs
or from the Tribal Affairs Ministry have been consulted. We humbly submit
that we have not been given any opportunity to give our say, the due process
of law has been vitiated and the sacred principles of the Constitution
have been violated.
We submit that the tribal people that we represent and those whom we have
been associated with for the past one decade are committed to the preservation
of the forest and the conservation of nature. The tribal people believe
that it is their sacred duty which has been entrusted to us by their forefathers
and which they have handed down from generation to generation. For example
the tribal people collect minor forest produce ensuring that trees are
not destroyed. The unwise policy of the government to bring contractors
and outside laboures for collection of produce has led to wide seals destruction
tendu and amal trees. The tribal people have face to false cases for example
in Bastar region when they fought with intruders to protect their forest
We humbly crave leave to reassert that we are committed to conserve the
forest environment because the culture, ethos and spiritual traditions
of the tribal people are intimately linked to the forest and if the forest
would disappear, we would lose the material and spiritual basis of our
We crave leave to state and submit that these very realities have been
clearly articulated in the Forest Policy, which speaks of the symbiosis
of tribals with the forest. Hence we submit that if this Committee would
make a realistic assessment of the ground realities, it would discover
that forests are still found only where the tribal people live. This is
because the tribals have eked out their subsistence in a sustainable manner
without damaging the forest ecology while all other communities have cut
down the forests to clear the lands for agriculture. We humbly crave leave
to submit that through the Recommendations of the CEC the tribals are
now being punished for having conserved the forests while the others are
rewarded with land deeds after having destroyed the forests.
We humbly submit that we have studied the numerous recommendations
of the Centrally Empowered Committee subsequent to its meeting dated 25th
July 2002 and are submitting our response to the said recommendations
on a clause by clause basis.
a. In reply to Recommendations of
the Centrally Empowered Committee at
(a), "Further regularization of encroachments on forest lands in
any form including by issue of pattas, ownership certificate, certificate
of possession, lease, renewal of lease, eligibility certificate or allotment/use
for agricultural, horticultural or for plantation purposes is strictly
prohibited except encroachments which are eligible for regularization
in conformity with the guidelines dated 18/9/1990 issued by the MOEF"
We humbly state and submit that the XXIX Report of the Commissioner SC/ST
to President had drawn the attention of the Government to longstanding
disputes leading to virtual confrontation between the people and the State
concerning the rights of the tribal people living in an around the forest
which have not been addressed for the past five decades.
We humbly submit that Commissioner SC/ST, which is a Constitutional Authority
had drawn the attention of the President to the fact that most of the
cases of cultivation of land in the forests which are now being termed
as encroachments are not encroachments but disputes on various counts
which have not been settled notwithstanding the good will gestures and
conceding the merits of their claims. We humbly quote from the Forwarding
of the Commissioner to the President of India at para 44 on page (xiii)
of the Report
"There is only one way to resolve this tangle. The present law and
order approach must be abandoned for good and a clear plan of action should
be formulated on the basis of mutual understanding and good will between
the government and the people within the frame of a clear long-term perspective.
A beginning in this regard can be made with a sort of informal agreement
between the people and the government accepting the todays position as
it is about the land with the people. In this case, the government on
its part should make a commitment that no action will be taken against
the people in respect of the land under cultivation unless and until a
final action plan has been prepared on the basis of mutual understanding.
The village community on its part should take the responsibility of ensuring
that there will be no further extension of cultivation in the forest.
With a view to create a climate of goodwill, all cases pending in Courts
against the tribal people should be withdrawn. Moreover a final decision
should be taken in respect of the land of each individual taking into
account his specific situation. If this approach is adopted, the present
confrontation between the people and the state will end. A plan should
be prepared for making this temporary state of peace a permanent one.
Such a plan should inter alia provide for work to the people in the immediate
context, protection and improvement of environment and creation of a strong
and permanent economic base for the tribal people."
We humbly submit that following this Report to the President calling for
the settlement of these long standing issues, an Inter Ministerial Committee
was set up to examine the numerous areas of dispute between the Forest
Administration and the Forest Dwellers. The whole range of disputes were
examined and a series of guidelines were issued vide Circular No 13-1/90-FP
of Government of India, Ministry of Environment & Forests, Department
of Environment, Forests & Wildlife dated 18.9.1990 and addressed to
the Secretaries of Forest Departments of all States/UTs. The guidelines
addressed the disputes as mentioned below.
i II.I FP(2) Review of disputed claims over forest land arising out of
ii. II.2 FP(3) Disputes regarding pattas/leases/grants involving forest
ii. II.3 FP(1) Review of Encroachments on forest lands.
iii. II.4 FP(5) Conversion of forest villages into revenue villages and
Settlement of other old habitations.
Further recognizing the fact that the involvement of the tribal people
and other forest dwellers is absolutely necessary for forest conservation,
the Government of India, Ministry of Environment & Forests, Department
of Environment, Forests & Wildlife addressed this important issue
Circular No. 15-2/90-FP of dated 20.12.1990 addressed to the Secretary,
Forest Department and Principal, Chief Conservator of Forests of all States,
concerning the Centrally Sponsored Scheme for Association of Scheduled
Tribes and rural poor in afforestation of degraded forests.
Government of India, Ministry of Environment & Forests, Department
of Environment, Forests & Wildlife also recognized the critical role
that the forests play in the life of the tribal people and the equally
critical role that the tribal people play in the preservation of the forests
and has stated the same in no uncertain terms in the National Forest Policy
1988 (No.3-1/86-FP) was issued on 7th December 1988by Ministry of Environment
& Forests, Department of Environment, Forests & Wildlife, which
at 4.6 states that "Having Regard to the symbiotic relationship between
the tribal people and the forests
.While safeguarding the customary
rights and interests of such people, programs should pay attention to
issues inter alia forest degradation"
We humbly state and submit that all these guidelines of the Ministry of
Environment and Forests must be seen in an organic and comprehensive manner
and a time bound program should be drawn out to resolve standing issues.
We humbly submit that these guidelines and circulars mentioned above have
not been implemented by the state government and the failure of implementation
has resulted in the problems that the CEC intend to address in their Recommendations.
We humbly submit that due to the failure of the various state authorities
both at the center and the state that a very large number of the cultivations
of the tribal people are being categorized encroachments. We humbly submit
that these cultivations are not encroachments but are prior to both the
Indian Forest Act 1927 and the Forest Conservation Act 1980. We humbly
submit that a large number of forest areas have not been settled as yet,
boundaries have not been finalized and the rights of forest dwellers living
therein have not been recognized or recorded. The failure in doing so
will render a large number of tribal cultivators who are legitimately
cultivating lands in the forests into illegal encroachers. This will be
a grave injustice to the millions of tribal people in the country.
We humbly submit that a piecemeal approach will render a large number
of tribals and other poor forest dwellers as encroachers. These communities
have been living in the area for the past several generations and subsisting
on cultivation in the forests because their customary rights have not
been settled. The tribal communities are not simply asking for regularization
under FP(1) and the Government of Maharashtra Resolutions of 1978 and
1979, but for implementation of guidelines FP(2), FP(3) and FP(5) which
will resolve these long standing issues once and for all.
We humbly submit that the cooperation of the forest dwellers cultivating
on forest land is absolutely essential for forest conservation and regeneration.
We submit that there are a large number of communities all across the
state are actively involved in forest conservation. We submit that in
these efforts alone, will both conservation of forests and the preservation
of life, culture and ethos be successful.
We also humbly submit that all those encroachers, particularly tribals,
who have encroached on forest lands for their livelihood and whose claims
to regularization cannot be upheld, will have to be rehabilitated following
the Circular No. 15-2/90-FP as eviction without rehabilitation through
programs of forest conservation and provision of an alternative livelihood
will only result in the evicted person clearing a patch of forest elsewhere
and encroaching again resulting in further loss of forest cover.
b. In reply to Recommendations of
the Centrally Empowered Committee at (b), "The First Offence Report
issued under the relevant Forest Act shall be the basis to decide whether
the encroachment has taken place before 25.10.80."
We humbly state and submit that the Commissioner for Scheduled Castes
and Scheduled Tribes in his foreword to "Resolution of conflicts
Concerning Forests Lands - Adoption of a Frame by the Government of India.
At para 39 on page 9 states " If the claims of the tribal people
are to be determined on the basis of the record of the forest department
or at best, record of other government departments, his claim is as good
as lost. It is the fact of possession, of law, its cultivation and actual
reclamation, in some cases by his ancestors which is the common knowledge
of the village which is the basis of his claim. These facts may or may
not have been brought on record. The reasons for this dissonance are many.
For example, the official may not have visited the area or may have preferred
not to take note of the cultivation, or may not have bothered to bring
it on record and such like. They are of no concern of the tribal people.
They cannot be expected to know what is there in government records. In
these circumstances if the records are to be insisted upon, the disputes
about land can never be expected to be resolved".
We humbly state and submit that the above mentioned frame was adopted
by the Inter-ministerial Committee and was also adopted by the Cabinet.
But while formulating the guidelines, the MOEF has not remained consistent
with the frame adopted by the Inter-ministerial Committee and the Cabinet.
We further state and submit that this principle was accepted by the Central
Government in its guidelines dated 18th September 1990 - II.3 FP(1) -
Review of encroachments on forest lands at para 1.2 " All such cases
should be individually reviewed. For this purpose the State Government
may appoint a joint team of the Revenue, Forest and Tribal Welfare Departments
for this work and complete it as a time bound program. In all cases where
proposals are yet to be formulated, the final picture after taking into
consideration all the stipulations specified here may be placed before
the concerned Gaon Sabha with a view to avoid disputes in future".
We further state and submit that his Hon'ble Court in its directions on
28/10/1990 in Writ Petition No. 1778/1986 has clearly directed the Government
of MP and Officers conducting an Inquiry into claims for regularization
in saying "that in all cases where the claim is not supported by
documents, the Committee shall conduct an Inquiry, receive evidence and
then come to accept the claim"
In the light of the above we humbly submit that considering the POR as
the only basis for regularization will result in a grave travesty of justice
particularly to the impoverished and illiterate tribals and forest dwellers.
It will also result in an abrogation of due process that has already been
put in place by prior legislation in the instructions at Annexure 'B'
at 1(iv) of GR of 27/12/1978 and the directions of this Hon'ble Court.
c. In reply to the Recommendations
of the Centrally Empowered Committee at (c), "All encroachments other
than those eligible for regularization shall be evicted forthwith from
the Forest Lands,"
We humbly state and submit that the Government of MP has also been trying
to tackle the issue piece-meal ignoring the holistic policy frame evolved
in 1990. For example
The survey made by MP forest dept to identify encroachment made before
24.10.1980 during 1994 is questioned. A lot of irregularities have been
made in this survey. i. The Gram Sabha or village committee was not consulted
during the survey. ii. The villages even don't know about the such a survey
and how it has been done. iii. The Chief Minister assured the tribal organization
then to order the forest dept. to take Gram Sabha into confidence during
the survey to identify the status of encroachment which was never made
In some cases those who offered money to the forest officials managed
to get POR as a proof of encroachment before 1980. Those who could not
arrange money to offered denied the same.
The MP forest dept. invited World Bank money and started MP forestry
project and also formed JFM in order to protect forest. They also formed
Van Surakhya Samiti in forest areas which deprive people to use the forest
produce for their livelihood as a result now create lots of disputes among
Inhuman methods have been applied to evict the people from their livelihood
in last 3 years. There have been 66 incidents of firing on tribals killing
many of them. The incident of Mehendi Kheda in Dewas district is well
known. Before firing have been done in Khandwa district.
Van Grams of M.P. is still leading a life of bondage. Till date they
have not recognized as revenue village
We, therefore, humbly state and submit that the Government of Madhya Pradesh
must undertake the implementations of the guidelines of the MOEF at (GOI)
in Circular No 13-1/90-FP dated 18.9.1990
II.I FP(2) Review of disputed claims over forest land arising out of forest
II.2 FP(3) Disputes regarding pattas/leases/grants involving forest land
II.3 FP(1) Review of Encroachments on forest lands.
II.4 FP(5) Conversion of forest villages into revenue villages and Settlement
of other old habitations.
And Circular No. 15-2/90-FP of MOEF (GoI) dated 20.12.1990 on a war footing.
We humbly submit that creating antagonism between the State and the forest
dwelling communities through large scale eviction, will be harmful both
to the forests and to the forest dwelling communities particularly tribals
in the long run. In fact it will threaten their very survival. We submit
that the dialogue with the forest dwellers is absolutely essential for
forest conservation and regeneration.
We submit that the positive and pro-active initiatives of forest dwelling
communities, who are cultivating in the forests, are an important component
in the State's efforts to curb illegal felling and poaching. We humbly
submit that driving communities out of the forest will weaken the efforts
of the Forest Department to curb illegal felling and poaching. Eviction
without rehabilitation through programs of forest conservation and provision
of an alternative livelihood will only result in the evicted person clearing
a patch of forest elsewhere and encroaching again resulting in further
loss of forest cover.
We therefore humbly submit that if any cultivators are found to be ineligible
for regularization, they should not be evicted forthwith from the Forest
lands. Instead, their participation in forest conservation along with
on-going cultivation on forest land needs to be seriously addressed. We
submit that the State Government must commit itself to providing them
a protected access to livelihood. Their livelihood skills and survival
capacities are linked with the forest environment. A combination of ecologically
sustainable cultivation with tree plantation and forest protection will
have to be evolved in joint collaboration of the forest department and
the forest dwelling communities.
We submit that in these efforts alone, will both conservation of forests
and preservation of life, culture and ethos be successful.
We humbly submit that the implementation of the guidelines and circulars
mentioned above will go a long way to resolve this serious problem. We
humbly submit that in the interest of justice and fairness and in the
light of numerous judgements and orders of the Hon'ble Supreme Court of
India that till the process of regularization is completed and the other
guidelines are implemented, no poor tribal or forest dweller will be evicted.
d. In reply to the Recommendations
of the Centrally Empowered Committee at (j) "Any person or authority
aggrieved by any action taken during the course of removal of encroachments
in compliance with the orders of this Court including in respect of alleged
excessive use of force, un-provoked firing, atrocities punishable under
the SC/ST Atrocities Act will be at liberty to approach this Court through
the Central Empowered Committee for redressal of the grievances. The Committee
after examining such complaints shall place its recommendations before
this Court for passing appropriate orders"
We humbly state and submit that the above mentioned recommendations will
undermine due process and the rule of law. This recommendation also strikes
at the root of the principles of equality before the law guaranteed to
all citizens. We further humbly submit that the recommendation reflects
a fundamental mistrust in the administration of law and order and in the
judiciary. The actions of the officials mentioned above if committed are
contrary to the protection of civil rights granted to all citizens and
special protection granted to the vulnerable sections of society by special
protective legislation for the most vulnerable sections of society. We
humbly submit that there are adequate safeguards in the law to protect
the law abiding officer in the performance of his duty. Providing undue
protection to a section of society who are already empowered by virtue
of their office will result in a travesty of justice because the most
vulnerable sections will be seriously prejudiced and the rule of law will
e. In reply to the Recommendations
of the Centrally Empowered Committee at (o) "This order is to operate
and to be implemented notwithstanding any order at variance, made or which
may be made by any government or any authority, tribunal or Court including
the High Court"
f. We humbly state and submit that
by this recommendation exparte and without even hearing the other side
and taking in consideration all the decisions of then governments or the
Courts unilaterally seeks to eliminate all judgements or governmental
decisions that try to ensure justice to the poor. We humbly state and
submit that the High Courts and the subsidiary Courts are governed by
the precedents laid down by the Hon'ble Supreme court in its various judgements
and applies the same judiciously in the cases being heard by it.
This recommendation seeks to discredit the lower judiciary including
the High Court and destroy its independence. We also submit that any order
at variance, made or which may be made by any government or any authority,
tribunal or Court including the High Court is open to review by the higher
courts on the bedrock of the Constitution. We humbly submit that this
sweeping recommendation will reduce the rule of law to a mockery.
We also humbly state and submit that the said recommendation undermines
the independence of the legislature and the functioning of a democracy.
We humbly submit that it is the power and authority of the legislatures
to legislate in the best interests of the nation and its citizens. We
submit that the courts of the land are already empowered if any act of
the legislature is contrary to the Constitution. The above mentioned recommendation
seeks to virtually create an order in the nature of a Constitutional Amendment
which will remove the independence of both the legislature and the judiciary.
We humbly submit that in the Vth Schedule Areas, under the Provisions
of Panchayats (Extension to the Scheduled Areas) Act 1996, the Gram Sabha
has no a central role in the governance at the village level including
command over natural resources u/s 4 (d).
The stipulations in the 1990 circular concerning consultation with Gram
Sabha are therefore constitutionally mandated. However the recommendations
of the CEC have totally ignored and neglected this constitutional mandate.
We humbly submit that the Recommendations of the CEC are de jure and de
facto a major policy issue that affects the Scheduled Castes and Scheduled
Tribes who will be very adversely affected by the said recommendations.
We humbly submit that Article 338(9) of the Constitution mandates the
consultation with the National Commission for Scheduled Castes and Scheduled
Tribes on all major policy matters affecting these vulnerable sections.
In this matter the policy frame of 1990, mentioned above, was worked out
at the instance of the Commissioner for Scheduled Castes and Scheduled
Tribes, the predecessor in office of the National Commission. He was also
actively associated by virtue of his office in the Inter-Ministerial Committee.
We submit that the failure to consult the Commission before making the
recommendations is a violation of the provisions of Article 338(9) of
We humbly submit that on 18/7/2002, the Government of India has
appointed the Second Scheduled Areas and Scheduled Commission Tribes with
Shri Dileepsing Bhuria as the Chairperson under Article 339(1) of the
Constitution to review the working of the Constitutional safeguards and
development programs and to prepare a policy frame in the context of the
social, political, economic and administrative changes, keeping in view
the mandate under Article 46 of the Constitution. We humbly submit that
the failure to consult the Commission before making the recommendations
is a violation of the provisions of Article 339(1) of the Constitution.
We humbly submit that in the light of the above, we humbly request the
Centrally Empowered Committee which, is charged with the responsibility
to make suitable recommendations to further the conservation of the forests,
to give us a hearing at the earliest and consider the numerous submissions
and ensure justice and fairness to the millions of tribal people of our
state and the country. We believe that the forest of this country must
be conserved but the rights of the citizens of this nation cannot be trampled
upon. We believe that we must work out a just and fair solution that will
both conserve nature and preserve the Constitution.
Looking forward to your sympathetic response.
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