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PUCL Bulletin, 2003

IN THE SUPREME COURT OF INDIA
EXTRA ORDINARY CIVIL ORIGINAL JURISDICTION
INTERVENTION APPLICATION NO. OF 2002
IN
INTERLOCUTORY APPLICATION NO. 703 OF 2001
IN
WRIT PETITION (CIVIL) NO. 202 OF 1995

 

IN THE MATTER OF:
T. N. GODAVARMAN …..PETITIONER
VERSUS
UNION OF INDIA & ORS. …..RESPONDENTS

AND IN THE MATTER OF:

KASHTAKARI SANGHATNA
THROUGH ITS GENERAL SECRETARY,
PRADIP D PRABHU,
MALAYAN, DHANU ROAD,
THANE DISTRICT-401602
MAHARASTRA …..APPLICANT/
INTERVENORS


APPLICATION FOR INTERVENTION:

TO,
THE HON'BLE CHIEF JUSTICE OF INDIA
AND HIS LORDSHIPS COMPANION JUSTICES
OF THE SUPREME COURT

THE HUMBLE APPLICATION OF THE
APPLICANT ABOVENAMED

MOST RESPECTFULLY SHOWETH:

1. That the Kashtakari Sanghatna (KS) is a peoples' organization constituted by tribal landless, agricultural labourers and migrant workers, all of whom are below the poverty line. The KS is active and working to protect the rights of the poor in Dahanu, Jawahar, Vikramgad and Mokhada talukas of Thane District of Maharashtra for the past 25 years. The Sanghatna 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 public interests litigations before the Hon'ble Supreme Court of India and the High Court at Mumbai.

Pradip Prabhu is a member founder and voluntary social worker in the capacity of the General Secretary in the Kashtakari Sanghatna for the past twenty five years. He is also active as a member of the Advisory Committee of the Planning Commission on the Implementation of Welfare Legislation. He is also an Expert Member of the Expert Committee appointed by the Government of India to Examine the extent of tribal Land Alienation and to Recommend Legislative Measures to curb and control the same. He has also been the Petitioner before this Hon'ble Court in Writ Petition No. 1778 of 1986 on the issue of Forest Encroachments.

2. At the outset, we humbly beg to state and submit that we have seen the Report of the Committee (Centrally Empowered Committee) in Interlocutory Application No. 703 of 2001 in Writ Petition No. 202 of 1995 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 Maharashtra.

3. That we humbly 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. Further, we 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. That the tribal people that we represent and those whom we have been associated with for the past two decades 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. 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. 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 Centrally Empowered Committee 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. 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 has drawn the attention of the Government to longstanding disputes 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 cultivation by tribals for the past several generations which have not been settled notwithstanding the numerous legislations that required they settlement.

We humbly submit that following the report of the Commissioner for SC/ST 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
iii. II.3 FP(1) Review of Encroachments on forest lands.
iv. 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 problem was examined by the Government while framing the instructions for the officials undertaking the task of regularization of encroachments on forest lands in Annexure 'B' to Government of Maharashtra, Revenue and Forests Department, Government Resolution No. LEN-1078/3483-GI, Mantralaya, Bombay, dated 27th December 1978 at 1(iv).

We humbly state and submit that the Government of Maharashtra has directed officers that " In deciding the factum of encroachment as on 31st March 1978 and its subsistence, all evidence (of every relevant sort) on record as also the evidence which the encroacher may be in a position to produce should be relied upon and recorded. The encroacher should be given an opportunity to produce his evidence for the purpose. Normally entries in the 'Pik Pahani Patrak' would form the basic evidence of encroachment. However, in those cases where other sufficient evidence is available to establish the fact of encroachment, absence of entry in 'Pik Pahani Patrak' need not disqualify the encroacher for getting his encroachment regularized under this scheme".

We further state and submit that similar directions are also given 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 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 Maharashtra 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 cooperation of 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.

It is submitted 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. It is submitted 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.

It is submitted that a large number of tribals are de facto landless and subsisting entirely on their cultivation in the forests. We believe that the Planning Commission note to the IX Plan in 1990 mentions that 90.30% of tribals are landless and without any other form of livelihood, thereby forced into starvation. The State of Maharashtra is also facing endemic malnutrition induced deaths of tribal children. Over 8000 tribal children have succumbed in 2001. From April to September 2002, in one District alone, 494 children have already fallen victim to malnutrition.

It is submitted 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"

It is submitted 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. It is humbly submitted 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. It is submitted 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.

It is also humbly stated and submitted that the said recommendation undermines the independence of the legislature and the functioning of a democracy. It is humbly submitted that it is the power and authority of the legislatures to legislate in the best interests of the nation and its citizens. It is submitted 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.

g. It is humbly submitted that in the light of the above, we have humbly requested 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.

8. That the application is bonafide and made in the interest of justice.

PRAYER:
In the facts and circumstances of the cases stated herein above it is Most Respectfully prayed that this Hon'ble Court may be pleased to :
a) allow the applicants to be impleaded in the present petition;
b) pass any such further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances stated herein above.

AND FOR THIS ACT OF KINDNESS THE APPLICANTS IN DUTY BOUND SHALL EVER PRAY

Drawn by:


Filed by:

Bharat Sangal
Advocate for the Applicants


New Delhi
Dated: 8.10.2002


IN THE SUPREME COURT OF INDIA
EXTRA ORDINARY CIVIL ORIGINAL JURISDICTION

INTERVENTION APPLICATION NO. OF 2002
IN
INTERLOCUTORY APPLICATION NO. 703 OF 2001
IN
WRIT PETITION (CIVIL) NO. 202 OF 1995

IN THE MATTER OF:
T. N. GODAVARMAN …..PETITIONER
VERSUS
UNION OF INDIA & ORS. …..RESPONDENTS

AND IN THE MATTER OF:

KASHTAKARI SANGHATNA …..APPLICANT/
INTERVENORS

FOR INDEX: KINDLY SEE INSIDE


ADOVCATE FOR THE APPLICANT/INTERVENOR: BHARAT SANGAL


New Delhi


INDEX
SL.NO. PARTICULARS PAGE NO.

1. An application for intervention 1-
with affidavit

IN THE SUPREME COURT OF INDIA
EXTRA ORDINARY CIVIL ORIGINAL JURISDICTION
INTERVENTION APPLICATION NO. OF 2002
IN
INTERLOCUTORY APPLICATION NO. 703 OF 2001
IN
WRIT PETITION (CIVIL) NO. 202 OF 1995

IN THE MATTER OF:
T. N. GODAVARMAN …..PETITIONER
VERSUS
UNION OF INDIA & ORS. …..RESPONDENTS


AND IN THE MATTER OF:

KASHTAKARI SANGATHAN …..APPLICANT/
INTERVENOR

AFFIDAVIT


I Pradip D. Prabhu son of Sebastian D'mello resident of Kashtakari

Sanghathan, Malayan, Dhanu Road, Thane District-401620, Maharastra,

presently at New Delhi do here solemnly affirm and state as under:-


1. That I am the General Secretary of the Applicant/Intervenor organisation in the above mentioned matter and am well conversant with the facts and circumstances of this case and am competent to swear this affidavit.


2. That I have gone through the contents of the accompanying application for intervention and state that the same is being filed under my instructions and the contents there of are true to the best of my belief and nothing material has been concealed.

 

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