Stuck in semantics: How confusions over forest land definitions keep benefits away from forest dwellers

Ministry believes that the Chhattisgarh government cannot transfer these lands for any purpose without the prior permission of the Government of India

By Satyam Shrivastava
Published: Wednesday 31 August 2022

A news report published in the Indian Express daily August 25, 2022 spurred a debate on the definition of ‘forest land’, its contentious history and many of the associated facts related to such lands.

Ignored completely by the colonial administration and largely unresolved even after independence, many of these facts remain obscure even today.

Disputes relating to these areas have added to the historic injustices faced by forest-dwellers, which the Indian Parliament accepted during the promulgation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

Chhattisgarh Chief Minister Bhupesh Baghel, in his budget speech in March 2022, announced that the state government had transferred 300 square kilometres of land in the Bastar region from the forest department to the revenue department.

It was transferred to facilitate industries and ensure easy availability of land for other infrastructure projects, he added.

However, the Union Ministry of Forest, Environment and Climate Change (MoEF&CC) has raised some serious questions about these proactive initiatives and subsequent actions of the state government.

The MoEF&CC has raised two primary concerns on the matter.

First, it argued that the state governments cannot order the diversion or transfer of forest land without the approval of the Union government. These powers are no longer with the state governments. After The Forest (Conservation) Act came into force in 1980, these powers were accorded to the MoEF&CC, the ministry added.

Second, what the state government is describing as ‘de-notified lands’ are actually demarcated forest areas, which have been treated as forest land as per the definition of ‘forests’ by the Supreme Court (SC) in the Godavarman case, 1996. These lands are added in the records of the forest department and are under its control.

Citing these two reasons, the ministry believes that the Chhattisgarh government cannot transfer these lands for any purpose without the prior permission of the Government of India. Such transfers are not only violative of the Forest (Conservation Act), 1980 but are also in contravention to the orders of the SC.

Based on this logic, the regional office of the MoEF&CC, Raipur, wrote a letter, to the chief secretary of Chhattisgarh and the state head of the forest department August 15, 2022, asking them to stop the transfer of such lands.

Such transfers violate the Forest (Conservation) Act, 1980 and orders issued in this matter by the Hon’ble Supreme Court from time to time, the letter noted. It added that such lands should be immediately returned to the forest department.

These kinds of land disputes exist in almost every state in India. Still, their impact in undivided Madhya Pradesh is so widespread that the state governments of Madhya Pradesh and now separated Chhattisgarh do not have clarity if they really have such land available for diversion and development projects.

The Chhattisgarh government claims there is no need to take forest clearance from the centre as these lands fall under the category of ‘non-forest land’, which was given to the forest department by ‘mistake’ long ago.

In this context, the MoEF&CC has raised an argument that the lands in question are ‘un-demarcated protected forests’ which cannot be transferred for non-forestry (including diversion for infrastructural projects) purposes without obtaining forest clearance.

In other words, the lands the Chhattisgarh government refers to as de-notified are the same lands the MoEF&CC refers to as un-demarcated forest regions, citing Supreme Court decisions.

Same land but different names 

The problematic approach to these different names and their various definitions is not new in the case of land issues. Since independence, the same land has been given different names at different times — causing grave injustices to the people inhabiting these lands.  

Advocate Anil Garg, an expert on this subject, has been questioning the government’s serious ‘mistakes’ for over three decades.

On December 12, 1996, the SC, in the Godavarman or forest case, defined forests as all land with forest cover, including small shrubs and big bush and under the purview of the Forest (Conservation) Act, 1980, Garg said.

These are the lands that the forest department in undivided Madhya Pradesh (under Section 29 of the Indian Forest Act, 1927) considered protected forest land in 1958.

In 1975, the same lands were proposed to be a reserve forest (as per Section 4, IFA). By 1976, these lands were de-notified and have been put into effect through a notification in the gazette of Madhya Pradesh as ‘de-notified’ land, he added.

There was a need to amend the records of these ‘de-notified’ lands and the revenue and forest department should have corrected their records through joint action.

However, due to a lack of administrative will and inefficiency of the officers responsible, this was never done. Action has not been taken to date, contrary to the provision of law. 

There is no legal provision to revert back such de-notified lands into forest land, said Garg.

When these lands were declared as forest land in 1996, the fact that they were excluded from forest land even before 1980 was not brought before the notice of the SC, he added.

However, in 2013, the SC had directed to keep such lands out of the purview of the Forest (Conservation) Act. 

This order is usually not mentioned because it brings only land up to 10 hectares under the purview of the Forest (Conservation) Act. However, the forest department has used this order as a formula and advocated for its application.

The most significant point highlighted in the 2013 SC order in the Madhya Pradesh case was that the lands excluded from forest land before 1980 could be considered outside the Forest (Conservation) Act.

Through a notification, the Madhya Pradesh government August 1, 1958, acquired lands with forest cover for land reform. These lands were procured from the zamindars, princely states, mahalwadis and malguzars. 

The forest department was assigned these lands only for management. These notifications are not even available with the Chhattisgarh government.

All these notifications were published in the official gazette from time to time until 1976. Garg calls this a ridiculous situation and refers to a letter dated April 30 2015, written to him by YP Dupare, undersecretary, revenue and disaster management department, Chhattisgarh. 

In its letter, the revenue department admits that it does not have copies of the de-notification and requested Garg to make it available to the department.

In this situation, the revenue department is unable to substantiate its claims due to the non-availability of documents.

Even after 22 years of the formation of the state, subsequent governments here did not have the time and will to rectify these mistakes. If initiatives are taken, there is still time to correct them.

 Alok Shukla of Chhattisgarh Bachao Andolan said:

On any such land, MoEF&CC has its parallel governance and administrative system. Indeed, these mistakes have happened in history, which has caused the most damage to tribal and other forest dwelling communities who have inhabited, protected and conserved these lands for centuries.

Today, they have been made encroachers on their own lands. It would be better if the state government took the initiative to ensure recognition of community rights on these lands. But the intention of the government is contrary to the rights of communities. In this light, the approach of the Government of India is in contravention of the country’s federal structure, he added.

In February 2020, a task force formed by Madhya Pradesh goverenment has also raised these issues and explained the mistakes made by the state government since its formation in 1956.

In its report, the task force has refused to consider these de-notified lands as forest land. In cases where forest rights titles have already been issued, the ownership rights should be recognised, it added.

Garg, referring to the provisions made in Section 5 of the Dakhal Rahit Bhumi (Vishesh Upbandh) Adhinyam, 1970, Madhya Pradesh, advises the Chhattisgarh government that instead of giving such lands to industrialists, it would be better if these could be re-distributed to landless communities and recognise the rights of those already inhabiting the land. 

Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth

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