By Guman Singh*
Recently the Forest Department started the drive to evict Schedule Tribes and other Traditional Forest Dwellers from forest land under the garb of HP High court order and particularly in Forest Division Banjar, Kullu and Parvati. Huge number of them belongs to Schedule Castes (SC) and had been evicted or had been ordered to evict them form forest land without following the procedure of verification and recognition of rights under the Forest Rights Act (FRA). These all SC families are having very less land holding with them and have constructed their residential houses, cow shed and toilet since last thirty years on forest land and have been cultivating small patches of forest land for their livelihood needs since decades.
In year 2002 HP government notified rules to regularize these all encroachments and application on affidavit were submitted to Tehsil office by paying Rs.50 for the form of application to government. More than 1.65 lakh applications for regularization were submitted to Tehsil offices throughout state, but not even single Patta had been granted.
Later on forest and revenue department registered cases of encroachment against them under H.P. Public Premises & Land (Eviction & Rent Recovery) Act, 1971 and section 163 of HP Land Revenue Act 1954.
Following SC families have been served notice of eviction by DFO Banjar last week. These are having less than 5 bigha of occupation and had houses on forest land for which had also applied for regularization in year 2002:
1. Krishan Kumar S/O Shri Jalpu Ram, village Buhara, PO Kalwari, Tehsil Banjar, District Kullu, HP
2. Balk Ram S/O Shri Ramu, village shahil, PO Kalwari, Tehsil Banjar, District Kullu, HP
3. Bhakat Ram S/O Shri Kadshu Ram, village Dehuri, PO Kalwari, Tehsil Banjar, District Kullu, HP
4. Dola Ram S/O Shri Sukru, village Dehuri, PO Kalwari, Tehsil Banjar, District Kullu, HP
5. Inder Kumar S/O Shri Bashakhu, village Seri Alehda, PO Kalwari, Tehsil Banjar, District Kullu
6. Rup Chand S/O Shri Kanhu, village Bhadech, PO Gahidhar, Tehsil Banjar, District Kullu, HP
In the light of law these evictions are illegal and cannot take place till verification and recognition of forest rights under Forest Rights Act 2006, as mentioned below:
• Forest Rights Act 2006 section 3( I ) provides right to occupy forest land for residential house and self cultivation to schedule tribe and other traditional forest dwellers but the occupation/practices shall be prior to 13 December 2005 for fulfilling their livelihood needs; which is mentioned as forest land right (IFR) and similarly Community forest resource rights (CFR).
• Eviction of forest dwellers are in direct contravention to protection provisions under Forest Rights Act 2006 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.”
• Whereas this was clarified in the Judgment of SUPREME COURT WRIT PETITION (CIVIL) NO. 180 OF 2011 dated April 18, 2013 in a case Orissa Mining Corporation Ltd. Versus 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.”
• Ministry of tribal Affairs issued much clarification to government of Himachal Pradesh and recently on dated 14 December 2015 and categorically explained that recorded rights in settlement record needs to be recorded and recognized under FRA. Ministry of tribal Affairs (GoI) 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.
• National Green Tribunal in its judgment 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. Gram Sabha shall consider community and individual forest rights claims under FRA after that gram sabhas will consider diversion matter for the project.
• 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 3-1(g) of the principal Act, on 31st December, 2015, which came to in force form 14 April 2016 and rules has been notified for the same.
• 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.
• Forest Right Act is a Special law hence looking into the above mentioned fact; state government cannot evict forest dwellers under any state acts such as H.P. Public Premises & Land (Eviction & Rent Recovery) Act, 1971 and section 163 of land revenue act 1954 till the verification and recognition of rights under the Forest Rights Act-2006.
Farmers of Himachal Pradesh are living here since three generations and are traditionally dependent on Forests land and forest products, hence rightfully come under the definition of “Forest Dwellers”. The eviction proceedings intentionally initiated by the forest department/authorities against forest dwelling Scheduled Tribes and Other Traditional Forest Dwellers is illegal and has hampered the implementation of FRA. Whereas the process of filing individual (IFR) and community (CFR) claims, their verification and recognition has to be taken up before declaring them encroachers under the Act but this was evaded.
In the light of waw we request as under:
• Eviction of Schedule Tribes and Other Traditional Forest Dwellers form forest land shall stop immediately.
• Implementation of FRA be ensured in letter and spirit and build a fearless atmosphere, so that tribals and other traditional forest dwellers be 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 under section 3-1(g) against those officials, who illegally evicted forest dwellers without following the process laid down under FRA.
*Coordinator, Himalaya Niti Abhiyan (HNA), Kullu, Himachal Pradesh. Based on representation to Sub Divisional Magistrate cum Chairperson SDLC (Under FRA), Banjar, District Kullu, to stop eviction of Schedule Tribes and Other Traditional Forest Dwellers form forest land till verification and recognition of rights under FRA-2006