Sunday, November 8, 2015

28 Comparison with forest legislation. Land Acquisition Acts in India-IV.

We make a brief comparison here with another legislation that originated in British India, the Indian Forest Act (1925) that set aside tracts of forest, along with the post-independence Forest Conservation Act (1980), that put curbs on the states’ powers to divert forest areas for other purposes. The IFA (and its local variants like the Karnataka Forest Act, 1963) provides principally for the notification of areas as Reserved or Protected Forest. This is parallel to the LAA in that it provides for notification of intent under Section 4, but the difference, of course, is that the IFA or the KFA seeks to sequester government land (the revenue ‘wastes’) for environmental and productive purposes, rather than taking over private lands. This last point is however disputed by current social environmentalists’ discourse, that claims even this uncultured land as part of the resource base of the village community. Under their prompting, the polity has legislated to restore some of the control, individually and communally, on these resources back to the community, through the Recognition of Forest Rights Act, 2006.

In the IFA, just as in the old LAA, there is process of enquiry, open hearing of objections and claims, etc., presided over, not by the Collector, but by a specially appointed Forest Settlement Officer (FSO), who should not be a member of the forest service (it is usually a revenue department officer). The end result of the proceedings will be a speaking order, listing out all the persons and their individual rights that have been recognized, apart from the general rights and privileges of the community due to force of long practice or past grants etc. For example, we have before us a revised working plan for the organized forests of Coorg by Somaiah (1959), wherein a “List of rights granted at the Forest Settlement” is given in Appendix II. For Anekad forest, for instance, there is a list of 75 individual names and the number of animals each is entitled to graze in the forest, starting with 3 head of cattle pertaining, to Shivagowda of Attur village. Of course, this settlement was done in 1894 for the Anekad reserve, and the very levy of grazing fees was itself abolished by resolution of the Coorg Legislative Council in 1948 (Somaiah, op cit., p.6-7), so the whole issue of regulating grazing in the forests appears to be a moot one.

For the jungle tribes (Kurubars and Yerwars) it is stated that although nothing is placed on record about the rights enjoyed by them, they are “as a matter of course allowed to be tenants at the will of the forest department”, and those “who prefer to remain in the forests and work for the department” are given “land for cultivation free of assessment together with the concession of free grazing for their cattle” (op. cit., p.8). Each forest settlement award is expected to have a similar list of rights and privileges, which are reproduced in some of the older working plans for the convenience of the forest administration.

From the present topic’s point of view, it is noteworthy that the Forest Act gives government the power to ‘extinguish’ those of the rights for which no claim was put forth (Karnataka Forest Act, Sec. 9), “unless, before the final notification under section 17 is published, the person claiming them satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim...” and so on. Section 10 of the KFA also provides that claims for shifting cultivation should be recorded and submitted to the government with the FSO’s opinion “as to whether the practice should be permitted or prohibited wholly or in part”. In any case, “The practice of shifting cultivation shall in all cases be deemed a privilege subject to control, restriction and abolition by the State Government”. Land portions against which claims are made may be deleted from the notification, or they may be acquired as provided by the land Acquisition Act, 1894 if admitted wholly or in part (Sec.11). Under Sec.13, if the FSO finds it “impossible” to admit certain rights in the interests of maintaining the forest, “he shall direct payment by the State Government”  of compensation determined in accordance with the applicable provisions of the LAA, 1894 (Sec.15). Further sections deal with appeals, notification of final award, revisions, etc.

One of the strengths of the framework of forest law was its clarity and finality. A very important part of the whole system was the follow-up measures in terms of survey, demarcation, organisation into blocks and compartments, drawing up of working plans, and custody of a trained and coherent force on the ground. However, the weakness of the British colonial system was the discounting or down-playing of the dependence of the village communities, especially tribal. The colonial government also had a constant struggle to come to terms with practices that were deemed to be damaging to the forests, like shifting cultivation, uncontrolled grazing by huge herds for commercial reasons (which we term livelihoods today), and rampant fuelwood and timber cutting, occupation of good forest  for cultivation, and so on.

After independence, industrial needs were placed on top, leading to excessive exploitation and neglect of ecological interest as well as of the relationship with local communities. The revised forest policy of 1988 made suitable course corrections, placed ecological conservation as the top priority, followed by needs of local community, and also gave a basis for the participatory or joint management with the people on the ground that has now become a nation-wide movement with over 125,000  village forest committees jointly taking care of over 28 million hectares of hitherto degraded forest.

The Recognition of Forest Rights Act (2006), popularly referred to as the ROFR or FRA, introduces a changed scenario. The village community has now has the power to decide its own rights in the forest without reference to the forest settlement proceedings or the forest notification. Obviously, there is still much ambiguity on many aspects of this landmark rights-based legislation made by the UPA government. However, it appears in retrospect that the FRA 2006 was a sort of pre-run for LARR 2013, in that the community has been given a decisive say in the disposal of land resources.

The weakness of FRA 2006 in comparison with the older IFA or KFA, is that  now the solidity  of the administrative structure in the form of the forest department etc. has come undone, leading to apprehensions that the forests will again become a no-man’s land, a proprietor-less commons. The community will have neither the time nor the structure to look after such extensive resources, nor will the forest department have a say. Thus, an aspirational legislation made with the best of intentions to safeguard the livelihoods of the poor may well become an exercise in futility due to neglect of the huge institutional effort that is required post-award of the forest rights.


Much the same weakness may well stymie the LARR Act 2013 as well, as there is no institutional set-up to implement the ambitious R&R component, or even the social impact assessment in any meaningful way. Some of these aspects of the practical side of the land acquisition process will be discussed in the concluding section.

References

Somaiah, K.K. (1959). Working Plan for a Portion of the Eastern Deciduous Forests of Coorg (from 1st April 1957 to 31 March 1972). District Forest Officer, Working Plan Division, Mercara, Coorg.

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