'Action Should Be Against 'Urban Encroachers' Of Forest Lands And Not Tribals', Observes SC

The Supreme Court on Thursday observed that tribals who are genuine forest dwellers should be protected and eviction should be ordered only against 'urban encroachers' of forest land.

The bench of Justices Arun Mishra, M R Shah and B R Gavai made these oral observations while hearing a batch of petitions challenging the Forest Rights Act (FRA).

The Court also allowed intervention applications filed by several individuals and Adivasi organizations who defend the FRA.

The next hearing date is November 26. The State governments have been directed to supply details of forest survey of India about the forest land in their respective jurisdictions by the next date of hearing.

Senior Advocates Colin Gonsalves and Sanjay Parikh, appearing for the intervenors/respondents, submitted that action should be taken only against 'urban encroachers' who are masquerading as forest dwellers. The petitioners also expressed concerns about big tourist resorts and villas being built on forest land by encroachers.

On February 13, the SC had ordered the eviction of all those persons from forest land whose claims as forest dwellers stood rejected under the FRA. Concerns were raised about this order as it would have led to the eviction of at least 10 million adivasis. Forest rights activists pointed out that several claims were rejected in a mechanical manner without proper application of mind. Also, several forest dwellers were not aware of the appellate remedies.

The Court was categorical in its direction that eviction should be ensured by all States by July 24.

After the order became controversial, Central Government filed an application seeking its stay. On February 28, the Court stayed the earlier order, and directed the States to file affidavits to disclose the modalities of the procedure of adjudication of these claims on forestland. Noting that many of these claimants may not even possess the requisite documents, the court directed the states to furnish whether the rejections were made after following due process, if there was adequate communication with the evictees at all stages, and whether there is acquiescence of the State-level Monitoring Committees which ensure that no tribal is displaced except in compliance with the formalities under the Act.

The writ petitions are filed by an NGO Wildlife First and few retired forest officials, challenging the validity of Forests Rights Act. According to the petitioners, the Act has led to deforestation and encroachment of forest land. The petitions filed way back in 2008 also seek recovery of forestland from possession of those persons, whose claims under Forests Rights Act stood rejected. According to them approximately 20.5 lakh claims were rejected out of 44 lakh claims across states.

In a significant development, Wildlife Trust of India filed an application on August 27 stating that it was withdrawing as a petitioner in the case.

The 2006 Act seeks to correct the "historic injustice" done to forest dwellers by recognizing rights of forest dwelling scheduled tribes and other traditional forest dwellers who have been residing in forests for generations, but whose rights could not be recorded. It lays down a procedure to vest in them the rights of occupation in forestland, of using minor forest produce for livelihood etc.

To be eligible for rights under the Act, the person has to be either :

• traditionally residing in forests or forestland
• traditionally dependent on forest produce for livelihood

The Act recognizes two classes of persons :

• Forest Dwelling Scheduled Tribe - members of scheduled tribe living in forests
• Other Traditional Forest Dweller(OTFD) - persons residing in forest, or dependent on forest produce for 75 years

Section 6 of the Act lays down the procedure for establishing claims. Once established, the forest dwellers will get land rights, use rights and rights to conserve and protect forestland.