Spirit of Forest Law Being Quashed in Gujarat

The Supreme Court’s February 28 2019 order staying its February 13 order directing 21 states to evict 11.8 lakh illegal forest dwellers whose claims over the forest land have been rejected by the authorities, is vindicated by the proceedings at Ground Zero across Gujarat. “The state of Gujarat, in particular, acts in gross defiance of the law and is simply not serious about recognising rights,” feels Action Research in Community Health and Development (ARCH) trustee Ambrish Mehta.
It was following a Public Interest Litigation filed back in 2011 in the Gujarat High Court by ARCH for enforcement of Forest Rights of more than one lakh forest dwelling scheduled tribes and other traditional forest dwellers that the High Court examined the rejection of 1,13,000 claims, out of the 1,82,000 individual claims from across the 13 districts of Gujarat, approved by Gram Sabha but rejected by the Sub-Divisional Level Committee and District Level Committees on the basis of instructions that were in violation of Rule 13 of the Rules.

According to the petitioners, in all 1,13,000 claims were rejected though they deserved to be approved. Out of such rejected claims, 45,000 claims were rejected on the ground that no minimum two evidences were produced by the claimants and that their claims were not supported by the BISAG map.

In terms of Rule 13 (2) more than one evidence has to be produced, but 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, according to the petitioners because of the unscientific and defective user of BISAG maps, wrong conclusions have been reached as regards the claimants’ claims. The other 29,000 rejected claims were also rejected assigning the same reason that the minimum two evidences could not be adduced by the claimants. In such cases, the satellite imageries were not at all used.

In 2013, while deciding the PIL, the Gujarat High Court held, “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 Court then directed the respondents to take into consideration a series of evidences that included: Satellite images and/or maps prepared from imageries other than BISCAG 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 approach the 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,” offers ARCH Trustee Trupti Mehta.

So, 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%) 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%) claims, which are still pending.” according to Mr Mehta.

The claims that have been approved, have also been in most cases only partially approved with Sub-divisional Level Committees drastically reducing the area from that approved by the Gram Sabhas.

The Sub-divisional Level Committees did this without giving any reasons 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 District Level Committee against these reductions. And the District Level Committee also just accepted these reductions in area without giving any opportunity to the claimants to present their case.

The Sub-divisional Level Committees 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, expect 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,” offers Mr 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 for preparing these maps by carrying out GPS surveys of all claimed plots of lands and then getting the results of these surveys superimposed on the geo-referenced satellite imageries of 2005 with the help of the applicant organization. And yet the Sub-divisional and District level authorities have completely ignored these maps and sadly gone solely by the Forest Department 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 and to entrust this task to GEER Foundation, Gandhinagar, initially for Narmada district on a pilot basis.
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 from July, 2017.

These reports clearly endorse findings of the Gramsabhas 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 so far not corrected area of any partially approved claim or approved any pending claim, based on these findings.

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, they did not meet even 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 by Gujarat High Court’s 2013 order seems the next legal step, petitioners, ARCH trustees feels otherwise. “Punishing the official isn’t the goal. Our focus is on getting rights recognised,” they say.

The Gujarat High Court has directed the respondents - the state of Gujarat, to file their replies before the next hearing on March 8 2019.

State Highlights
* In Chhotaudepur district, during last five years, it has approved only 461 additional claims and kept as many as 10,890 claims 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 last five years. Nearly 4,000 claimants from nearly 75 villages have already got GPS surveys done of their lands by the FRCs and got maps with Satellite imageries prepared.
* In Sabarkantha and Arravali district, 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.), as they did before.
* In Bharuch, 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 DLC. 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 from before December 2005.
* In Dangs, 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 hearings of these appeals and 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.
* And, shockingly, Dahod District has approved only about 291 additional claims and rejected as many as 16,697 claims during this period of 5 years. Most importantly it has also not accepted the claimants demand of getting the GPS data of their plots cross-examined by GEER Foundation, which is a Forest Department Research Organization, with experience of GIS and interpretation of Satellite Imageries.