Submission to Minister of Tribal Affairs regarding Non-implementation of Forest Rights Act in Himachal Pradesh

                                                                                                                                                                                             28-01-19

To,

Shri Jual Oram

Minister of Tribal Affairs

Government of India

New Delhi

Subject: With regard to the impediments and hurdles in the implementation of the Forest Rights Act, 2006 in Himachal Pradesh

Dear Sir,

We as community organisations and civil society organisations in the state are writing to you to apprise of the key challenges being faced in the implementation of the provisions of the Forest Rights Act 2006 in Himachal Pradesh. Most of these challenges, as you may be already aware of, are bureaucratic in nature and your Ministry in the past has regularly issued clarifications in some of the matters. However, at present a few critical hurdles continue to prevail that may require urgent attention and further clarification from the side of the Ministry of Tribal Affairs in order to ensure the speedy and fair implementation of the Act in the State. Here we present to you two submissions:

1. Submission on clarification with regard to the eligibility and application of the Forest Rights Act 2006 in the state
2. Submission with regard to implementation of 3(2) in the absence of settlement of rights under the section 3 (1) of the Act

Please find attached separately the annexures for both submissions.

Submission 1: Clarification with regard to the eligibility and application of the Forest Rights Act 2006 in the state

This is in regard to the delays in implementation of Section 3(1) in the state of Himachal Pradesh due to confusions amongst official implementing agencies with regard to the provisions for proving eligibility and applicability of the Act. We would like to bring to light a recent decision of the official members of the Sub Divisional Level Committee Pooh and District Level Committee of Kinnaur in the case of the Lippa Gram Sabha where by Individual Forest Rights claims of 47 rightholders were not recommended on certain grounds which need to re-examined closely. (Annexure 1. A Minutes DLC meeting – Lippa)

One of the main objections of the official members of the SDLC Pooh and DLC Kinnaur in the above said case is:

“The forest rights have already been settled vide the revenue settlement process conducted in 1984 and the forest settlement of 1921. Hence individual claims are not recommended as per the provisions of the Act.”

In this regard we would like to make the following submission

1. The eligibility criteria to claim forest rights mentioned under section 3(1) are fixed on the basis of whether a community/individual is FDSTs/OTFDs or not and not on the basis of whether community/individual is from un-surveyed village/forest village or revenue village.
2. Moreover, the claimants are from a revenue village but the land under their “occupation” is forest land. This is the ground on which the claims have been made and approved by the Gram Sabha Lippa following the necessary verification process.
3. It is pertinent to mention that in Himachal Pradesh, vide Govt. notification dated 25.02.1952, all forest lands and waste lands in the state were brought under the category of ‘Protected Forests’ under the provisions of the Chapter IV of the Indian Forests Act 1927. As a result of this notification the process of forest settlement has remained incomplete.(Annexure 1.B 1952 notification and copy of excerpts from Forest Manual Vol 1 of the Forest Department referring to the incomplete settlement)

All over Himachal, there are thousands of cases of occupation on forest land which are entered and categorised as “najayaz kabza” in Jamabandi of revenue villages.(Annexure 1.C -Jamabandi of Lippa village and other village from other districts). Under the settlement process (Land Revenue Act, 1953 and Indian Forest Act, 1927) these are termed as ‘encroachments’. We thus submit that the repeated stand of the Himachal government that the revenue and forest settlement processes have been completed in the state, and hence this act is not applicable is questionable

1980. Revenue settlement of 1984 is not an answer to the individual occupations on forest land, because of limitation put forth by the Forest Conservation Act, 1980. The inadequacies of revenue and forest settlements at the State level across the country and not just Himachal, to address this issue, led to the enactment of the FRA 2006
1981. Under the FRA, 2006 these “najayaz kabza” are occupations of right holders on which they can make rightful claims as FDSTs/OTFDs by fulfilling certain conditions as mentioned under section 4(6) of the FRA, 2006. Any FDST/OTFD who fulfils the criteria under the said act should get ownership titles over these lands. The occupants in Himachal fall under these categories of FDST/OTFD.
1982. Moreover, the Ministry of Tribal Affairs in its Letter F.No.23011/11/2013-FRA dated 14th December 2015 to the Tribal Development Commissioner has categorically clarified in point no. 4 that even if the forest settlement has been carried out and the rights have been recorded, modifications have to made in the record of rights and the titles have to be issued to the individual as well as the community as mandated by the FRA. Considering this very clarification, the SDLC and DLC in the same case of Lippa, had recommended the CFR claims of the Gram Sabha.
1983. We further point out that the decision of not approving the IFRs in the Lippa Gram Sabha case was taken only by the official members of the SDLC and the DLC while the non-official members abstained from signing because of disagreement. This goes against the very spirit of the Forest Rights Act 2006, which is meant to decentralize the process of decision making, giving powers to the Gram Sabha and the local political representatives. We appeal to you to provide your observation in regard to such cases where decisions are taken by the SDLC or DLC official members in absence of agreement of the non-official members.

We, once again, submit that the contention of the implementing officials in Himachal that the revenue and forest settlement process is complete needs to be challenged on the basis of the evidence in form of ‘najayaz kabza’ in the record of rights. We appeal to the Ministry of Tribal Affairs to issue a letter to the State Government with the observation that the resolution of the existing ‘illegal occupations’ on forest land can only be carried out through implementation of section 3(1) of the Forest Rights Act 2006.

Submission 2: Submission with regard to implementation of 3(2) in the absence of settlement of rights under the section 3 (1) of the Act

It may be stated at the outset that after the formation of the 17, 503 FRCs, in the year 2013-14, the process of implementation of section 3(1) of the Act has not moved much. As of today, the status of the titles issued in the state is given below:

1. a) Whereas close to 1500 cases of diversion of land have been cleared under section 3(2) of the act. The state government has been implementing section 3(2) of the Act in absence of implementation of 3(1).
2. b) Not only that, in the Districts of Mandi and Chamba, the district authorities have got ‘NIL claims certificates’ from almost all villages indicating that there are no claims to be made under the Forest Rights Act, 2006. This exercise of obtaining NIL certificates was carried out in a hurried manner in Mandi and Chamba districts and is now being carried out in the whole of Kangra district without implementing Section 3(1) of the FRA and settling of the rights under the Act. In most cases, as testified by gram sabha members, there had been no Gram Sabha quorum or inadequate information to members about the provisions of act, while taking these certificates. In some cases the same have been signed by only Panchayat Secretaries and members of FRCs or only official members of the SDLC/DLC. (Annexure 2.A)
3. c) These blanket certificates are based on a letter dated 19th June 2014 whereby the Principal Secretary (Forest) issued ‘templates” to all district authorities ‘to get recommendations/consent from FRCs, SDLCs and DLCs for diversion of forest land’. Whereas the Forest Department has no authority to issue such templates for implementation of the FRA 2006, as the state nodal agency is the Tribal Development Department and therefore these templates are questionable. (Annexure 2.B)
4. d) These certificates are being used in cases of forest clearance from the Ministry of Environment, Forests and Climate Change (MoEFCC) considering that under the 2009 advisory issued by the Ministry, an NOC from the gram sabha indicating compliance to provisions of FRA is mandatory. It however, needs to be noted that these ‘certificates’ being presented as ‘NOCs’, do not indicate ‘consent’ for a particular forest diversion proposal as required by the guidelines of the MoEF&CC 2009 advisory.
5. e) We bring to your notice that from the same districts of Mandi and Chamba, where NIL certificates have been obtained from villages, proposals for Section 3(2) have been passed in the same villages. The fact that the rightholders are being approached for diversion of land under section3(2) makes it clear that they have claims on the forest land. (Annexure 2.C)
6. f) Further, in the SLMC meeting dated 27th July 2017, it was clearly stated that “community rights in Himachal Pradesh have already been defined in Record of Rights…. it shouldn’t be difficult to settle them expeditiously.”. If we look at the records of rights, then it is amply clear, as this decision of SLMC implies, that these rights exist across the state and therefore, getting certificates to show that rightholders have “NIL” claims, is an erroneous and illegal exercise.
7. g) Additionally, there was a clarification issued by your ministry on 14^th December 2015, where it is stated that 3(2) can be carried out in parallel with 3 (1) as long as the rights of the claimants are not affected. (Annexure 2.D)

However, this clarification has not made it clear whether section 3(2) can be carried out if there are ‘zero’ claims for rights under section 3(1), as is being asserted through these ‘Nil claims certificates’. In our understanding, this partial implementation of the act is erroneous, as the state government is continuing to use the FRA 2006 only to divert land under section 3(2), even as it is seeking certificates of ‘nil’ community and individual claims from the same communities, under the act.

We appeal to you to issue further clarifications in the matter to the State government to indicate that the diversion under section 3(2) is not legally tenable in areas where such ‘Nil claims certificates’ have been or are being issued. If the State government is acknowledging that in fact communities are rightholders under FRA 2006 and are eligible to grant consent under section 3(2), then all the NIL certificates issued will stand null and void and the State government needs to ensure full and fair implementation of Section 3 (1) specifically in the case of Mandi and Chamba districts of the state. We hope that necessary clarifications and observations in this regard will be issued by your Ministry at the earliest.

Attached for your perusal are also the submissions made to the State Government in the above said matters (Annexure 3 & 4 – Copies of Submissions made).

Signatories

Jiyalal Negi, President, Zilla Van Adhikar Samiti Kinnaur

Prem Katoch, President, Save Lahaul Spiti, Lahaul.

R.S Negi, Him Lok Jagriti Manch, Kinnaur

Kulbhushan Upmanyu, Himalaya Bachao Samiti, Chamba

Manoj Kumar and Lal Hussain, Chamba

Gulab Singh,  Social Activist, Sirmaur

Shyam Singh Chauhan, Zilla Parishad Member, Mandi

Tenzin Takpa, Spiti Civil Society, Spiti

Uma Mahajan, Himachal Van Adhikar Manch

Manshi Asher and Prakash Bhandari, Himdhara Collective

Akshay Jasrotia, President, Kisan Sabha, Baijnath & Convenor, Himachal Van Adhikar Manch