Forest Enroachments

Guidelines and Implications of Recent Orders

Archana Prasad

THE problem of “encroachments on forestlands” is contentious and complex. While the forest department has time and again reiterated its inalienable right to land, grassroots movements emphasise the need to look at the problem from the point of view of the villagers who will lose their livelihood and places of residence if they are evicted from the forest. As per the forest department, the ministry of agriculture revealed in early 1980 that nearly 7 lakh hectares of forests were under encroachments. Today this figure has gone up to 12.5 lakh hectares, as per information furnished by the states. However, what is more significant is the fact that between 1950 to 1980, 43 lakh hectares of forestland were diverted, of which only half was for agricultural practices. Also significant is the fact that only the land diverted for agriculture was classed as “encroachment.” The explanation given for why such encroachments occur is also significant. In a presentation made by the ministry of forest and environment to some non-government organisations (NGOs), it said poor economic activity in forest areas leads to encroachments and the regularisation of encroachments then induces further encroachments. But, above all, the policy is based on the assumption that human settlements are necessarily detrimental to forest use. How the officials describe the scale of the problem, is evident from Table 1 given alongside.

POLICY AND GUIDELINES

In order to tackle this problem, the ministry issued to the state governments an order on May 30, 2002. Herein it said that the state governments should evict all encroachers in compliance with the Forest Conservation Act of 1980 and the guidelines of 1990. In essence, the act and the order mentioned by the May 30 circular form the core of the government policy on encroachments.

The legal position on encroachments can be summed up as below. (1) Encroachment on forestlands is an offence under the Indian Forest Act 1927 and various state acts. (2) The Forest Conservation Act of 1980 forbids regularisation of encroachments. (3) In writ petition no. 202/95 and 171/96 the Supreme Court has banned the regularisation of encroachments on the forestlands till the leave of court.

The provisions of Forest Conservation Act 1980 (1) regulate the pre-1980 encroachments and permit their regularisation; (2) stop regularisation of post-1980 encroachments; and (3) following this the National Forest Policy of 1988 insisted on “no regularisation of encroachments.”

The main points of the guidelines issued on September 18, 1990 are as below:

(1) The pre-1980 encroachments are to be regularised if the concerned state government had already taken a decision before enactment of the Forest Conservation Act (that is, before October 25, 1980) but could not implement its decision due to coming into force of the act.

(2) The state has evolved certain eligibility criteria based on local condition:

* the socio-economic status of encroachers, location/extent/date of encroachment, etc

* regularisation of encroachment proposals has been ascertained from the first offence report under relevant forest acts at that point of time; and 

* encroached land must be under continuous possession of the encroachers.

(3) All “ineligible” category of pre 1980 and encroachments after October 25, 1980 must be evicted.

The guidelines of 1990 outlined the following procedure for settlement of encroachments: (1) Each case will be reviewed individually by a team consisting of a forest officer, a revenue officer and one officer of the tribal welfare department, in a time-bound manner. (2) In order to avoid future disputes in cases where proposals are yet to be formulated, all the stipulations may be placed before the concerned Gram Sabha. (3) All such cases in a district should be covered in one proposal, accompanied by a proposal for compensatory afforestation.

The cabinet reviewed these guidelines on February 21, 1991 and again on January 24, 1992, and reiterated the same points.

THE RECENT CRISIS

Given this legal and policy level background, the ministry decided to issue an urgent order for eviction of the post-1980s encroachers by the government:

a) All encroachments which are not eligible for regularisation as per the guidelines issued by the ministry vide no. 13.1/90-FP(1) dated September 18, 1990 should be summarily evicted in a time-bound manner and by September 30, 2002 in any case.

b) A cell should be constituted in the PCCF office, headed by the CCT level officer, to plan and monitor the eviction of encroachments on forestland on a continuous basis.

c) Forest officers should be delegated powers under relevant acts for trial of encroachers and adequate steps should be taken for completion of the eviction process through summary trials in a time-bound manner.

d) At the state level, a monitoring committee may be constituted under the chairmanship of the chief secretary, which may meet biannually to take stock of the situation. While monitoring forest encroachments, this committee must also fix responsibility of the field formulations, including revenue officials, for their failure to prevent/evict encroachments on the forestlands.

e) At the forest circle level, a committee should be constituted under the chairmanship of conservator of forests, with district collector and police superintendent as members. This committee may meet every quarter and take effective steps to assist the divisional forest officers or the territorial division/wildlife warden/national park and sanctuary director for evicting the encroachers.

This order was the direct result of a Supreme Court judgement on a writ petition that challenged the decimation of forests taking place on account of large-scale encroachments on forestlands. The petition said such encroachments were rampant particularly in the states of Orissa, West Bengal, Karnataka, Tamil Nadu, Assam, Maharashtra, Madhya Pradesh, Chhattisgarh, Kerala and the union territory of Andaman and Nicobar Islands (A&N). The court banned regularisation of encroachments through its orders on IA no. 703 in writ petition no. 202/95 on November 23, 2001, without leave of the Supreme Court. It also said there would be no dereservation of forestlands pending further orders, and restrained any removal of dead, diseased, dying or wind-fallen trees, drift wood and grasses, etc, from any national park or sanctuary.

On October 30, 2002, however, the government clarified that the order of May 30, 2002 did not contravene its earlier policy and that it was committed to implementing its guidelines for the tribal-forest interface. Here it stressed the importance of conversion of forest villages to revenue villages and the involvement of tribals in JFM as a way of amelioration of their poverty.

An indication of the extent of regularisation of encroachments made before 1980, and considered under the provisions of the FCA 1980, are given in Table 2 alongside.

 Problems with Acts and Orders

As noticed in these orders, they do not distinguish between, on the one hand, the tribal and peasant ‘encroachers’ who live in the forest and, on the other, industries and development projects who divert forestland for other purposes. It must be noted that a lot of encroachment has occurred because of the diverse impact of industries and projects on tribals and weaker sections of the society. Not surprisingly, therefore, most of the grassroots and mass organisations fear that much of the eviction process will concentrate on small farmers and agriculturists who have no political clout to protect their interests. In contrast, there are very few cases of eviction of big farms and industrialists for unauthorised encroachments on forestlands.

Secondly, even if these acts and orders differentiate between the pre-1980 and post-1980 encroachments, these differences are quite immaterial at the ground level. The point was well made by the National Commission on Schedule Castes and Schedule Tribes. The commission noted that, as a result of the Forest Conservation Act, 1.48 lakh persons, mainly tribals, occupying 1.81 lakh hectares of lands in forest areas in Madhya Pradesh suddenly became encroachers on October 24, 1980, and thus liable for eviction. The same is the situation in Karnataka, Orissa and Maharashtra. Further, the reasons and circumstances may be same for both categories of encroachment but the Forest Conservation Act provides a legal remedy for encroachments prior to 1980 only, by providing for a process for their regularisation. It is on record, however, that a large number of the pre-1980 encroachments, running into hundreds of thousands of hectares, have not been regularised even after 21 years and their accurate recording is also contested. The consequent uncertainty of the poor people’s livelihood and the harassment they suffer seem unjustifiable and insensitive. The delay seems to be due to the technicalities specified for regularisation.

Thirdly, the government assumes that eviction of the people from forests is the only solution to the problem of encroachment. On the other hand, there is no policy on what to do with the people evicted from the post-1980 encroachments, for whom the Forest Conservation Act provides no remedy. In contrast, it has set up expert panels for processing the applications for diversion of forestlands for projects and industry. In most cases the EIA procedures followed are neither rigorous nor substantive enough to allow any fair assessment of the eco-friendliness of projects.

Lastly, of the three criteria set up for regularisation of encroachments, the one about continuous occupation is unrealistic for the nomadic and tribal people who also depend on other seasonal occupations to supplement their meagre incomes. There must be some provision also for these people’s livelihood and rehabilitation as well as recognition of their rights.

WHAT DEMANDS TO BE MADE

Grassroots movements have for a long time been raising legitimate demands about regularisation of land holdings in forests. These movements have also been demanding that the forest classification and laws must be changed, as they are part of a colonial legacy and are completely incompatible with the policies of decentralised natural resource management that the government is propagating today. Perhaps the root cause of the encroachment problem lies in the very nature of the forest laws that are permeated with a colonial spirit. Moreover, these laws have in a sense assumed that their provisions and the definition of encroachment and encroachers need not be questioned at all. Keeping all this in mind, there is an urgent need to press for the following:

(1) There must be a reclassification of forests and new forest and land settlements.

(2) There must be a revision of forest laws through a consultative process.

(3) Instead of distinguishing between pre-1980 and post-1980 encroachments, the government must distinguish between encroachments for livelihood and encroachments for commercial purposes. Each category must have a different set of guidelines and the FCA 1980 should be amended accordingly.

(4) Tribals and poor peasants must be granted forest pattas on the condition that they would not deforest such lands. They must be encouraged to bring such areas under tree or under NTFP-based production system and the state must provide them assistance to do value addition to the produce, in order that they are able to make decent living out of them.

TABLE 1

Statistics on Encroachments, 2002

(In Lakh Hectares)

Source: V K Bahuguna, Presentation on Problems of Encroachments on Forestlands, RUPFOR Series No. 3, presented at Van Vigyan Bhavan, New Delhi, November 15, 2002.