Spirit of forest law being quashed in Gujarat

The Supreme Court’s February 28, 2019 order staying its earlier order directing 21 states to evict forest dwellers, whose claims over the forest land have been rejected, is vindicated by the proceedings on ground across Gujarat.

“The state of Gujarat, in particular, acts in gross defiance of the law and is simply not serious about recognising rights,” says Action Research in Community Health and Development (ARCH) trustee Ambrish Mehta.

It was following a public interest litigation (PIL) filed in 2011 in the Gujarat high court by ARCH, for enforcement of forest rights of more than one lakh people from scheduled tribes and other traditional forest dwelling communities, that the HC examined the rejection of 1,13,000 claims, out of the 1,82,000 individual claims from across the 13 districts of Gujarat.

The claims had been approved by the gram sabhas but rejected by the sub-divisional level committee (SDLC) and district level committees (DLC). According to the petitioners, 1,13,000 claims were rejected even though they deserved approval. Out of them, 45,000 claims were rejected on the ground that a minimum of two evidences were not produced by the claimants, and that their claims were not supported by the Bhaskaracharya Institute for Space Applications and Geo-Informatics (BISAG) map.

In terms of Rule 13 (2) of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules-2007, more than one evidence has to be produced. However, according to the petitioners, apart from the statements of the elders which the respondents considered, they had produced other evidence too, but the SDLC and DLCs did not consider the same as evidences.

This was in violation of Rule 13 which permits such evidences to be produced and considered. As far as support from BISAG map is concerned, the petitioners claim that due to the unscientific and defective use of these maps, wrong conclusions have been reached in regard to the claims. The other 29,000 were also rejected over the same reason of not having a minimum of two evidences. In such cases, the satellite imageries were not used at all.

In 2013, while deciding on the PIL, the Gujarat High Court said, “Having regard to the object of the Act and the purpose for which the same has been enacted, that to demand from such a class of citizens strict proof as regards their rights would frustrate the very object with which the Act has been enacted…the legislative intent is to protect the rights of the Scheduled Tribes dwelling in the forests. The objective of such social welfare measures, no doubt is to provide better, efficient and meaningful life to such forest dwellers…”

“One should not overlook or ignore the hard fact that the claim petitions are filed by the persons who are absolutely illiterate and would hardly possess any such cogent and convincing evidence to the satisfaction of the authorities. We do not propose to say that the authorities should consider the claims in a slipshod manner but at the same time to decide the entire claim based only on satellite imageries would also not subserve the object of the Act, ignoring other pieces of evidences,” the HC said.

The HC then directed the respondents to take into consideration a series of evidences that included — satellite images and/or maps prepared from imageries other than BISAG and/or maps prepared from other authorised imageries. It also directed the respondents to communicate the decision of rejection or modification of the claim so as to enable the claimant to approach a higher forum in accordance with the law and expedite the process of deciding the pending claims.

“However, over the next five years, the state government has shown that it is not serious about recognising rights as it has not taken any corrective actions despite repeated representations,” said ARCH trustee Trupti Mehta.

ARCH filed another writ petition in 2018 because, in nearly six years that have passed, “the respondent sub-divisional and district level authorities decided and approved only 3,133 (25 per cent) of the 12,340 claims for forest rights that were still pending in the district at the time of this order, and have not even considered remaining 9,207 (75 per cent) claims, which are still pending.”

The claims that have been approved, have also been in most cases only partially approved with SDLCs drastically reducing the area from that approved by the gram sabhas. The SDLC did this without giving any reason and also without giving any opportunity to the claimants to present their case. They also did not communicate these decisions to the claimants, and thus deprived them of the opportunity file appeals to the DLC against these reductions.

The DLC further accepted these reductions in area without giving any opportunity to the claimants to present their case. The SDLC reduced the area not on the basis of any evidence or gram sabha recommendation, but simply on the basis of opinions given by the Range Forest Officers, who are not even the member of the committee and have no role in the claim approval process, except as respondents.

“Similarly, they have kept all those claims pending that have not been recommended by the Range Forest Officers. The Sub-divisional Committees have thus abdicated their own responsibilities and transferred the authority of deciding the claims to the Range Forest Officers, which is in total violation of Rule 12-A for amended Forest Rights Rules,” adds Mehta.

“More importantly, most of these partially approved and pending claims have, in addition to other evidences, highly-credible evidence of maps of the claimed plots of lands with satellite imagery of 2005 (procured from NRSA, Hyderabad) in the background.”

The village forest rights committees/gram sabhas have done commendable work while preparing these maps by carrying out GPS surveys of all claimed plots of land, and then getting the results of these surveys superimposed on the geo-referenced satellite imageries of 2005 with the help of the applicant organisation.

Yet, the sub-divisional and district level authorities ignored these maps and went solely by the forest department’s opinion. On July 14, 2016, the state level monitoring committee of the government of Gujarat decided to use satellite imageries for verification of disputed / rejected (but under appeal) / pending claims for Narmada district on a pilot basis, and entrusted this task to GEER Foundation, Gandhinagar.

In pursuant to this decision, the GEER Foundation has already verified GPS data of about 2,096 partially approved claims with area dispute, and 2,505 pending claims from 66 villages and submitted the verification reports to the district authorities in July 2017. These reports clearly endorse findings of the gram sabhas in 99 per cent cases and have accordingly recommended correction of area in partially-approved claims and approval of claims with proper area for pending claims.

The petitioner claims that respondent district authorities have ignored even these reports by GEER Foundation and have not corrected area of any partially approved claim or approved any pending claim so far.

The gram sabha meetings for deciding claims were held two to three times in 2008-2009, and then in 2014-2016, to consider maps with satellite images. While the SDLC and DLC are supposed to meet twice a month till they have pending claims, they meet rather irregularly and in Narmada area, they did not even meet once during 2018.

SDLCs are headed by sub-divisional magistrates while DLCs are headed by district collectors. While a case for contempt of court following the state’s failure to comply with the HC’s 2013 order seems to be the next legal step; the petitioners and ARCH trustees feels otherwise. “Punishing the official isn’t the goal. Our focus is on getting rights recognised,” they say.

The HC had directed the respondents, including the state of Gujarat, to file their replies before the hearing on March 8, 2019. The state filed an affidavit claiming compliance with the High Court order. “They have conveniently suppressed an important fact that the 4,000 partially-approved claims had their areas reduced without giving any reasons and without giving an opportunity to the claimants to file an appeal," said Mehta, who has filed a rejoinder. The matter has now been slotted for a final hearing, to start from May 1, 2019.

State Highlights

• In Chhotaudepur district, during last five years, only 461 additional claims have been approved and as many as 10,890 claims are pending. This district has relied largely on the opinion of the Forest Department. There have been very few SDLC and DLC meetings in the district in the last five years. Nearly 4,000 claimants from nearly 75 villages have already got GPS surveys done and maps with satellite imageries prepared.
• In Sabarkantha and Aravalli districts, the authorities have approved only about 804 new claims in last five years and have rejected as many as 12,917 claims. The SDLCs, while rejecting these claims, have relied totally on the Forest Department recommendations, without verifying them. And, the Forest Department has largely relied on record-based evidence (fine receipts, etc).
• In Bharuch district, only about 163 claims during last five years have been approved, while about 2,000 claims rejected. The authorities have relied mainly on the field verification Panchnamas by teams of officers to identify and record physical attributes like farm-bunds, planted trees, farm ponds, etc, which indicate long-term occupation of land. These recommendations by the teams have been uncritically accepted first by SDLCs and then by DLCs. More than 1,000 claims have been rejected because the field verification Panchnamas by the teams did not find such physical attributes. Many claimants in Bharuch have also carried out GPS survey of the claimed lands and got maps with satellite imageries prepared. These maps in most cases clearly indicate occupation of land before December 2005.
• In Dang district, based on Panchnamas, teams recommended approval of about 1,765 claims — the lands of which had physical attributes like farm-bunds, planted trees, etc — and recommended rejection of remaining 4,080 claims, lands of which did not have such physical attributes. The DLC has recently started hearing these appeals, but despite these submissions in the appeals, it is not accepting/considering evidences of maps with satellite imagery or past applications and only relying on field verification Panchnamas showing physical attributes like farm-bunds.
• Dahod district has approved only about 291 additional claims and rejected as many as 16,697 claims during the period of five years. Most importantly it has not accepted the claimants demand of getting the GPS data of their plots cross-examined by GEER Foundation, which is a Forest Department’s research organisation with experience of GIS and interpretation of satellite imageries.