CSD, Odisha slams Govt for bypassing MoTA’s Directions

Campaign for Survival and Dignity, CSD, Odisha, on Wednesday slammed the Naveen government for bypassing the Directions of MoTA ( Ministry of Tribal Affairs) over diversion of forest land in the State. The CSD is a national level coalition of forest rights groups which has fought for the enactment of historic Forest Rights Act (FRA), 2006 in the country and presently working of its effective implementation and monitoring in the State

In its letter sent to the Chief Secretary, Govt. of Odisha CSD has alleged that “While MoTA (the FRA nodal Ministry) is consistently against the exemption of required “consent of Gram Sabha” for the diversion of forest land for any projects including liner projects and has clarified its stand’s to the Chief Secretary, Govt. of Odisha on dated 7th March 2014, it is unfortunate that, Chief Secretary who is also the Chairman of FRA State level Monitoring Committee(SLMC) has bypassed the MoTA and has not communicated the MoTA’s objections letters with the concern District Collectors”.

“In spite of it, the Chief Secretary has communicated only the MoEFCC’s letters (which is contradictory to FRA, 2006 and PESA, 1996) regarding exemption of required “consent of Gram Sabha” for the diversion of forest land to the District Collectors based on which the district collectors are seriously engaged in diverting forest land for non-forest purposes without Gram Sabha’s consent which is illegally.” CSD charged.

CSD has asserted that “this has been led to violation of the constitutional provisions like FRA, 2006 and PESA, 1996 and reflects the anti-tribals and anti-FRA attitude of the Odisha Government”. “The Government of Odisha has failed to act upon the MoTA’s Guidelines issued on 8th Nov 2013 for identification and conversion of thousands of forest and un-surveyed villages located in reserve forest areas and convert them into revenue villages in the State. The recognition of “community forest rights” in the State is full of ambiguities and is not satisfactory in the State” CSD claims.

CSD has urged the Govt. of Odisha to respect the directions of the nodal Ministry of Tribal Affairs (MoTA) on the issue of diversion of forest land in particular and implementation of the historic Forest Rights Act, 2006 and PESA, 1996 in general.

It is to be noted that after enactment of historic Forest Rights Act (FRA), 2006, the Ministry of Forest, Environment and Climate Change (MoEFCC) had issued a Circular on 30th July, 2009 and on 3rd August, giving direction to all the Chief Secretary of the State Governments/Union Territories to ensure compliance of the provisions of FRA during diversion of forest land for non-forest purposes under the Forest (Conservation) Act, 1980. In this circular issued MoEFCC provided detailed guidelines for the State Governments to submit evidence for having initiated and completed the process of settlement of rights under FRA, 2006.

The guidelines also required that the concern Gram Sabha should have consented for the forest land diversion. But, the same ministry reviewed its 3.8.2009 Circular on dated 5th Feb, 2013 and exempted the requirement of obtaining consent of the Gram Sabha’s as per FRA, 2006 for liner protects like construction of roads, canal, lying of pipelines/optical fibers and transmission lines etc, where liner diversion of forest land in several villages involved. MoEFCC had said that the decision was based on the representation received from various ministries and decision taken in the inter-ministerial committee. It also categorically mentioned that the Ministry of Tribal Affairs (MoTA) was agreed to it. Thus MoEF had claimed that the “consent of gram sabha” do not required during diversion of forest land for liner projects as stipulated in clause(c) read with clauses (b), (e) and (f) in second Para of MoEF’s letter dated 3.8.2009.The MoEFCC also ascertained this stand in its Circular of dated 5th July 2013 and on 15th Jan, 2014 exempting liner projects for the requirement of the consent of the gram Sabha under FRA, 2006.

However, the MoTA in its letter dated 7th March, 2014 with the approval of the Minister, MoTA and Panchayatiraj sent to all the Chief Secretary of the State Governments and Union Territories marked a copy to Shri H.C Chaudhury, AIG of Forest, MoEFCC citing Section 3(2), Section 5 of 2006, Panchayat Extension to Scheduled Area (PESA), Act, 1996, and the Rights to Fair Compensation and Transparency and Land Acquisition, Rehabilitation and Resettlement (LARR Act, 2013) and Para 59 of the Supreme Court’s judgment in Niyamgiri Case(Odisha Mining Corporation(OMC) Vs. MoEFCC & Others, 2013) had strongly objected all the Circulars issued by MoEFCC on dated 5th Feb, 2013, 5th July, 2013 and 15th Jan 2014. It had asserted that “MoTA is the competent Ministry relating to FRA, 2006 and the law does not provide any exemption to any category of projects”. In its 7th March, 2014 letter, MoTA was of view that “compliance to FRA, 2006 is mandatory requirement before forest land can be diverted and failure to do so would be violation of the law.”

Despite MoTA’s objection, MoEFCC again issued another Circular on dated 28th October, 2014 and reiterated its stand and re-exempted the required ‘consent of the Gram Sabha’ under FRA, 2006 for the diversion of forest land for liner projects. However, before issuing the 28th October, 2014 Circular, MoEFCC had sought response from the MoTA on 9th Oct, 2014 on the issue which the MoTA again had clarified in its letter dated 21st October, 2014. In its reply letter of dated 21st October, 2014, MoTA had reiterated its stand and had written that “FRA, 2006 is for recognition and vesting of pre-existing rights of STs in occupation of forest land and OTFDs. The Act and Rules made therein required that due process has to be followed.” It further had clarified that, “no agency of the Govt. has been vested with powers to exempt application of the Act in portion or in full”. MoTA had also advised MoEFCC that, “any action or process inconsistent with the due process laid under the Act would not be legally tenable and is likely to struck down by the court of law.”

Thus despite the objections of MoTA, MoEFCC issued the 28th October 2014 Circular. This circular of MoEFCC not only exempted the required ‘consent of the Gram Sabha’ for the liner projects under FRA, 2006, but also exempted the requirement of initiation and completion of process for recognition and vesting of forest rights of FRA as stipulated in clause (a) read with clause (d) and clause (g) in second Para of the Circular 3rd August 2009 in case of plantation notified as ‘forest’ less than 75 years (prior to 13 Dec 2005) and are located in villages having no recorded population of STs and OTFDs as per the Census-2001 and 2011. The Circular further asserted that in such plantation cases, certificate from the concern District Collector would be sufficient to meet requirement of clause (a) read with clause (d) and clause (g) in second Para of the Circular 3rd August 2009.

However, on 12th Nov 2014, Dr. Hrusikesh Panda, the Secretary, MoTA served a tough letter to Shri Ashok Lavasa, the Secretary, MoEFCC marking a copy to Anil Goswami, the Secretary, Ministry of Home Affairs on the issue. Dr. Hrusikesh Panda wrote, “In recent past an impression is being created that the implementation of FRA is hindering or delaying the clearance of the developmental projects.” Putting his strong objection over the 28th Oct, 2014 Circular of MoEFCC, he wrote, “the basic legal point is that the FRA does not provide any scope to any executive agency for any kind of relaxation of the applicability of the FRA. Even if the arguments raised in the letter(dated 28th Oct, 2014) were factually correct, the correctness of the facts have to be decided by the process prescribed under FRA.” He further wrote, “This responsibility is not vested on the MoEFCC or on the MoTA”. He argued that “FRA process will take less time than clearance under FCA, 1980s and Land Acquisition Act and “we do not have any evidence that FRA process delays projects”. He further wrote, “FRA is the law of the land and 28th October 2014 letter violates the law…and this letter conveyed a massage that the Government is against fair implementation of FRA which is not desirable in the interest of peace and governance in forest area”. In his strong worded letter he strongly objected the 28th October 2014 letter and requested the MoEFCC to withdraw the same.

However, despite strong objections of MoTA and protests by forest rights groups all over the country, MoEFCC has not withdrawn the 28th October 2o14 letter.