Himalaya Niti Abhiyan’s Guman Singh, coordinator, and R. S. Negi, co- chairperson, have written a letter to Ravi Thakur, vice-chairperson, National Commission for Schedule Tribe, New Delhi requesting him “to stop illegal eviction of Schedule Tribes and Other Traditional Forest Dwellers (OTFDs)” in Himachal Pradesh. Text:
The Himachal Government has started the drive to evict Schedule Tribes and OTFDs from forest land under the garb of Himachal Pradesh (HP) High Court order as stated under. The hon’ble High Court of HP ordered on dated 18-10-2016 in CWPIL No.17/2014 a/w CWP No.3141/2015, COPC No.161/2012 and CWPIL No.9/2015 to remove encroachment on forest land/ revenue land, more than 10 bighas and to report the progress of eviction on next date of hearing on 15-11-2016.
We have come to know that under this pressure, the forest and revenue departments are launching a huge drive to evict forest dwellers in the state form 1st November 2016 for which internal direction has been given to local officials.
In this matter the forest department stated in the High Court and presented status report of eviction of encroachment as below:
The revenue department stated in the court as below:
In all 12 revenue districts of HP, total number of 4299 cases of revenue challan were filed before various revenue authorities, out of which 1277 cases stand decided and remaining 3022 cases are pending before various revenue authorities, out of 1277 such cases, encroachments in respect of 908 cases stand removed and process for eviction with respect to remaining 369 cases is in progress.
Court directed the Principal Chief Conservator of Forests (HoFF), HP, to personally monitor and ensure that all cases of at least Districts Shimla and Kullu be firmly dealt with and encroachments over government/forest land removed within the period so undertaken by him. Further, both Mr. Anup Rattan, learned Additional Advocate General and Mr. J.K. Verma, learned Deputy Advocate General assure that in future, shall personally vet all the affidavits/pleadings filed in these proceedings.
List on 15.11.2016, status report of the action(s) taken be filed before the next date of hearing. Principal Chief Conservator of Forests, (HoFF), HP, Conservator of Forests, Shimla, Rampur and Kullu, including all DFOs of Districts Shimla and Kullu shall also personally Remain present on next date of hearing to answer reply the queries , if any, on the action taken by them.
Himachal High Court in Cr.MP (M) No. 1299 of 2008, in its order on dated 27.02.2016 has earlier directed eviction proceedings against those in possession of forest land having even less than 10 Bighas and FIRs shall be filed against them within six week. The same order was passed by court last year on April 6, 2015 in CWPIL No.17 of 2014 for those in possession of more than 10 Bighas.
Under this pretext, the forest department has cut down more than 40 thousand fruit bearing apple and other trees and destroyed orchards and farm land of several small farmers having even less than ten Bigha occupation. Many residential houses were demolished in many parts of state, water and electricity connections were also disconnected in all parts of states even in tribal areas.
Unfortunately attorney general of the Himachal government has not presented before the court the restriction to evict such possessions under the provisions of the Forest Rights Act (FRA), 2006, nor referred to the Supreme Court judgment on Niyamgiri which has confirmed that no eviction can take place till the verification and recognition under FRA is completed.
Himalaya Niti Abhiyan is of the view in the light of law this order is in direct contravention to protection provisions under FRA, 2006. This was clarified in the judgment of Supreme Court writ petition (civil) No. 180 of 2011 dated April 18, 2013 in the case of Orissa Mining Corporation Ltd. vs Ministry of Environment & Forest & Others (Niyamgiri Judgment), which confirmed the provision of FRA Section 4(5): “Save as otherwise provided, no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is completed.”
Double bench of Himachal High Court on date 4.03.2016 clubbed all three cases Cr.MP(M)No. 1299 of 2008, CW PIL No. 17of 2014 and CWP No. 3141 of 2015 in the same matter of encroachment over forest land and FRA. Ministry of Tribal Affairs (MoTA), Government of India, has also filled affidavit in the same matter under CWP No. 3141 of 2015 to the court.
The HP government from the very beginning, since 2008, tried to evade implementation of the FRA and issued many such orders claiming that rights have been settled by the British through the imperial settlement process and hence recognition under FRA was not necessary. Under the constant pressure of MoTA, the state government started the process in 2008 in tribal region in first phase.
Feeble attempts were made in tribal areas with several illegal riders such as claimant should not be a government employee, income tax payee, and even some were considered encroachers. Forest dwellers were not provided information, nor was there wide publicity. Training to Gram Sabhas or local officials was never properly imparted. In fact in several places, the Forest Department threatened and pressurised the dwellers not to file claims.
In the tribal district of Kinnaur, FIRs under HP Public Premises & Land (Eviction & Rent Recovery) Act, 1971 on encroachment were registered against those people who filed individual claims is in clear contravention to Forest Rights Act 2006. The MoTA issued clarification to HP government on 14 December 2015 and categorically explained that recorded rights in settlement record need to be recorded and recognized under FRA.
Even as of date in the updates of the MoTA, 5409 individual claims and 283 Community claims of rights had been filled in the till date of which 238 individual claims and 108 community claims were settled, providing a ridiculous 0.35 acres (376.74 Sq feet only in both Individual and community claims cases) of land.
However, an affidavit presented by MoTA in the HP High Court states that the State Government has claimed that it has constituted forest rights committees (FRCs) in 14206 out of the 18055 revenue villages. The National Green Tribunal in its judgement on dated 4 May 2016 in a petition filled by Parayawarn Sanrakshan Sangharsh Samiti Lippa (Kinnaur) V/S Union of India, HP state and HPPCL in the matter of Kashang-II, III Hydro Power Project, ordered that Gram Sabha under FRA of village Lippa, Rarang, Pangi and Telangi shall be conducted under the supervision of district judge.
It said, the Gram Sabha shall consider community and individual forest rights claims under FRA, after that gram sabhas will consider diversion matter for the project. HPCCL appealed against this order in Supreme Court but with the intervention of Congress Vice President Rahul Gandhi, government withdrew the case.
As of date 5409 individual claims and 283 Community claims of forest rights had been filed in tribal areas whereas in non-tribal areas 1091 habitations through 112 FRCs have been filed community claims by other traditional forest dwellers till today. No further action of recognition has been taken up to the date by the Government.
Himachal Pradesh farmers are traditionally dependent on forests and rightfully come under the definition of “Forest Dwellers”. The eviction proceedings intentionally initiated by the forest department/authorities against forest dwelling scheduled tribes or other traditional forest dwellers has hampered the implementation of FRA and conferring rights.
In fact, the forest department and HP High Court issued such orders which pressurised dwellers not to file claims. FIRs under HP Public Premises & Land (Eviction & Rent Recovery) Act, 1971 on encroachment were registered by the forest department against those people who filed individual claims in clear contravention of FRA, 2006. Whereas the process of verification and recognition has to be taken up before declaring them encroachers under the Act, this was evaded.
MoTA has also submitted its affidavit to the HP high Court on 20-11- 2015 in the matter of CWP No.3141 of 2015 on the same issue under Para No. 49, 50 and 51 mentioning clear cut injunction against the removal or eviction of forest dwellers until the entire process of recognition and verification of forest rights is complete. The Supreme Court has also confirmed the same and so as recent order of NGT in the matter of Kashang HEP.
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 has also provided protection to forest dwellers belonging to Scheduled caste and Scheduled Tribes. Amendment in the act inserted the provision of protection of Forest Rights under FRA, under section 3 (g) of the principal Act, on 31st December, 2015, which came to in force form 14 April 2016.
The Supreme Court in its Judgment date 5 January 2005, in the matter of Iradium India Telecom Vs Motorola has specifically stated that it is well settled law, that in the event of a conflict between a special law and general law the special law must always prevail. FRA is a special law, hence looking into the above-mentioned fact, the state government cannot evict forest dwellers under any state acts such as HP Public Premises & Land (Eviction & Rent Recovery) Act, 1971 and section 163 of the Land Revenue Act, 1954 till the verification and recognition of rights under the FRA, 2006.
This eviction move has put farmers in a strange position from being right holder cultivators to now, encroachers, particularly those who come under the category of scheduled tribe and other traditional forest dwellers. The forest dwellers in such situation are helpless to initiate the process of “undoing the Historical injustice”.
We request the National Commission for Schedule Tribes to intervene to the matter immediately and protect Schedule Tribes and OTFDs of Himachal Pradesh from illegal eviction under State laws which are not in force if there prevails centre act. We further request:
- Eviction of Schedule Tribes and Other Traditional Forest Dwellers form forest land should be stop immediately.
- Implementation of FRA in letter and spirit and build a fearless atmosphere so that tribal’s and other traditional forest dwellers are encouraged to file claims under the Act.
- Legal Action shall be taken under section 7 of FRA and Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 against those officials who legally evicted forest dwellers without following the process laid down under FRA.