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PUCL June 2003


Before the Centrally Empowered Committee
In
Interlocutory Application No. 703 of 2001
In
Writ Petition (Civil) No. 202 of 1995


Submissions by Nikunj Bihari Bhutia on Behalf of the Adivasi Mukti Sangathan

HUMBLY SUBMITTED AS UNDER

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 survival.

6. 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.

7. 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 forest settlement.]
ii. II.2 FP(3) Disputes regarding pattas/leases/grants involving forest land
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 in
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 villagers.

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 settlement.
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 be subverted.

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.

8. 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.

9. 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 the Constitution.

10. 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.

11. 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.

Yours Truly,

 

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