Tribal Rights on Forest Land: Orissa Scenario

    The tribal population of Orissa, which consists of 62 tribes, constitutes 23% of the total population of the state. Most of them reside in the - Schedule V (of Indian Constitution) areas, which constitute 44.70% of the total area of Orissa.  The history of the late 19^th and 20^th Century in these areas can be seen as one of increasing control and takeover of land and forests by the State and by non-tribals. This process has been facilitated by the concept of "Res nullius" and thereby the ability of the State not to recognize the various customary tenure systems of the tribes. The process has accelerated post independence, aided by draconian forest laws and increasing penetration of state infrastructure and administration in these areas, along with the fact that most mineral, forest, and water resources are concentrated in the tribal areas. 

    Since almost 50% of the Scheduled areas are categorized as forest land, the issue of ownership and access to these lands assumes great importance. Most of these forest lands have been declared as forests in 20th century. However, tribals have been living in and using much of these lands before they were declared as forests.

    So it is not uncommon to find that the forest lands in Scheduled Area of the area have been in use by the tribals since ages for both permanent and shifting cultivation. In official parlance, the tribals who stay and cultivate land officially categorized as forest land, are termed as encroachers.

    The main laws governing the forest lands are the Indian Forest Act, 1927, Orissa Forest Act, 1972, Wildlife protection Act, 1972 and Forest Conservation Act, 1980. None of these laws permit shifting cultivation, the mainstay of tribal food production system. – and in fact specifically forbid it. This, along with faulty processes of notification of forests has meant that large number of shifting as well as permanent cultivators have had their traditional lands categorized as forests, and thereby have been declared as forest encroachers.

    The passage of FCA, 1980, has aggravated the situation as it  prohibits the non-forest use (including cultivation) of the forestland without the permission of the Ministry of Environment and Forest, Government of India. Interpreting the FCA, 1980, in the Godavarman Case, the Hon’ble Supreme Court has stayed all diversion of forest land for cultivation (regularization of encroachments) till further orders.

    The implication of all these forest laws for the tribals who have been using these lands for cultivation, appears to be quite serious. Unless such lands, which have been under cultivation, both permanent and shifting, are settled in favour of the tribals, the displacement of hundred of thousands of the tribals from their sources of livelihood looms large as in the eyes of the law such tribals are dubbed as ‘encroachers’. In 1990, the Ministry of Environment and Forest, Government of India, having visualized such negative prospect released a set of orders in September 1990, which provided a possibility of regularizing such forestland under tribal occupation/ ‘ encroachment’.

    Shifting cultivation is practiced amongst the tribals everywhere in India. Compared to other Indian States, In Orissa, the area of land under the shifting cultivation is the highest with largest number of tribals involved in it (Vide Table A). Though the estimates of the total land under the shifting cultivation differ (Vide Table B), the least of these estimates reveals that 5,29,800 hectares of land are under active shifting cultivation. Over and above this magnitude of land under shifting cultivation, if the ‘forestland’ under permanent cultivation are taken into account, the claim of the Government of Orissa, made in the Affidavit submitted to the Hon’ble Supreme Court on the status of the forest encroachment in Orissa, that only 47,304 hectares of forest area is under encroachment appears to be a gross understatement. Further to treat only 4729 hectares as encroached forestland before the Forest Conservation Act, 1980 came into force is another huge understatement. Further this figure in the affidavit seems to ignore the land used by the tribals for shifting cultivation. In Nowarangpur Forest Division alone, 46126 hectares of forestlands were under encroachment as per the Government of Orissa report " A status report in Forest and Forestry in Koraput circle 97-98 (table no. 25), 1998, and 23039.45 hectares were encroached before 1980 as enumerated by the Nowarangpur Working Plan 1990-2000. 4729 hectares eligible for regularisation as being pre-1980 encroachments, in  reality only 29 hectares have been regularized till date. This doesn't behove well for the tribals’ future. As against such scaled down figure quoted in the affidavit by the Government of Orissa , the corresponding figures of other states is quite revealing (Vide Table-C)

Table-A

Estimated area under Shifting Cultivation (1971 – 1975 Data) (Thangam, 1987)

Table-B

Table-C

It is refer to in the reply to part (a) of the Lok Sabha started question no. 284 by Shri Tathagata Stpathy and Shri Mahavir Bhagora regarding " Regulation of Encroachments on Forestland" due for reply on 16.08.2004

Mallaguda village, Malkangiri District

    Initially the village Mallaguda was located on the bank of Sapta Dhara River flowing along the foot of Dharam Dongar. Apparently, in 1963 during the Revenue Survey and Settlement, three households were settled with patta land along the river. The shifting cultivation land was not settled. As the river valley is very steep, during the monsoon the habitation often became flooded. For this reason, in the early sixties, the tribals decided to shift to the top of the hill. During early 80's, 9 families immigrated to the village (3 Kandha trihals and 6 Mali families). These people were displaced from Damanjodi ol Koraput district, after being displaced by National Aluminum Company Ltd. (NALCO) mines and alumina plant.

    All tribal households depend on Podu Cultivation (shifting cultivation) and on jhola cultivation (streambed paddy cultivation). Over the years, they have converted the area along the riverbed and streams into permanent agriculture land (jhola). In these fields they cultivate paddy whereas in podu areas they cultivate Mandia (minor milles), Suan dhan (minor millet). Alasi (castor) and other crops, which sustain them for 4-6 months in a year. Apart from this, they work as wage-labour for road repairing, agriculture, etc. and also collect and sell forest produce.

    In the mid-eighties, as per the villagers, the forest department staff started harassing people by saying that they were illegally cultivating forestland. A number of forest cases were booked against the local habitants over time. In 2004, villagers allege that the forest department has carried out plantations in their agriculture land by destroying their crops. When the villagers protested, the department staff said that the Supreme Court has ordered to evict people from forestland. "It is not your patta land. We will do whatever we wish as the land belongs to the forest department". During interaction with the local NGO worker, when he took the issue of plantation before him, the local forester told him, "It is a reserve forest. We will not allow any body to cultivate in it. It is against Law. "

    Analysis of the history of this area brings out the history of alienation of land from the Malliuguda villagers. The Dharamgarh Dongar was declared as UnReserve Land (URL) under Section 26 of Chapter III of Madras Forest Act 1882 prior to 1940s when the area was under the Jeypore Zemindary. No settlement of rights was done in the area at that time. In unreserved lands, apart from clearing land for shifting cultivation, which was only allowed, on permission from Collector, other activities including felling un-reserved forest species, grazing, clearing land for permanent cultivation etc. seems to have been allowed. No settlement of rights was carried out in these lands as in the case of Reserve Forests or Protected Forests under IFA, 1927.

    However, the Dharamgarh URL seems to have been converted to Protected Forest u/s 33, sub-section (4) of Orissa Forest Act 1972. This happened even though the Forest Department took up no settlement of rights. This implies that by using this sub-section, rights were extinguished without any compensation or settlement. In case of Dharamgarh Dongar, and Malkanagiri in general, Section 33 (4) of OFA, 1972 was used to declare all the Reserve Land, Protected Land and Unreserved land as deemed P.F.

    Even though the State Government issued orders for regularization of cultivation on ForestLand as per the provisions of Orissa Prevention of Land Encroachment Act. 1972 in 1972, there was no effort by the district administration to regularize the cultivated lands in Dharamgarh Dongar. This Status quo continued till 1984, when the State Government issued a notification (24.4.1984, Notification No. 27915) u/s 4 (i) of Orissa forest Act to declare Dharamgarh Dongar as Reserve Forest. After the notification u/s 4(I) of OFA, 1972, Forest Settlement Officer (FSO) seems to have issued notice to the inhabitants to reclaim their rights over the land. However, apparently, these notices and their implications were not conveyed to the non-literate tribals, who considered these notices as similar to notices they have received regarding various cases booked against them by Forest Department. Nobody from the village approached the FSO to claim his or her right. As a result, the villagers lost the opportunity to claim the land and are now being treated as "Illegal Encroachers of Forestland'.

    At present, besides Mallapadar village, there are 8 more villages consisting of 82 households who have been living inside the Dharamgarh Dongar since long. They have gone through the same experience and are being treated as encroachers. Dharamgarh Dongar provides food and shelter to approximately 114 families from 9 villages. Almost all of these people are tribals and scheduled castes and cultivate over 231 acres of land proposed to be declared as Reserve Forests.

Villages inside the Dharamgarh Dongar P.R.F.

(Source: Personal communication, PUPAC, Govindpalli)

    Mallaguda is just an illustration of what has happened in a large number of settlements through out Malkangiri and in Undivided Koraput district. Now attempts are being made by the Forest Department t0 remove these people by taking up plantations of forest species on their lands.

    Malkanagiri is a scheduled district, which came into existence with effect from 2^nd October 1992 after being bifurcated from the erstwhile Koraput district. It is the home of primitive tribes like Bondas, Koyas, Paraja, Durua, Matia, Bhumia, Kandha, Halwa and Didayees. According to the 2001 census the population of tribal people is 2,89,538, which is 57.43% of the total population. 86% of the total rural families is below poverty line and in case of tribal families this is around 91%.

Most of the tribes are hill cultivators i.e. shifting cultivators. They cultivate Tobacco leaf Mandia, Maize, Chuan, Kangu, Alasi etc. Apart from this, they also grow various type of vegetables and cereals in the hills. The district has a history of revolts against the

    Colonial government because of its attempts to declare their land as forests. Due to the strong tribal movements at different periods, the colonial government failed to declare most of the forested areas as Reserve Forests under the Madras Forest Act 1882 but categorized large areas as Reserve Lands, Protected lands and Unreserved Lands under provisions of Chapter III of Madras Forest Act. 1882. These categorizations didn’t require the sort of rigorous Settlement of rights, which is done before declaring reserve forests (Koraput Survey and Settlement report, GOO. 1965, page 8). Reserve Land and protected land were notified as such. Unreserved land required no notification (Koraput Gazette, GOO, 1966, page 25)

    Most of the Reserve Lands and Protected Lands in Jeypore ex-state (earlier Malkangiri wass part of Jeypore ex-state) were declared between 1900 to 1935. These declarations were not made known at local levels due to the remoteness of these areas and were simply blanket declaration of areas as Reserved or Protected Lands. A provision was made that in unreserved land tribal cultivators could clear lands for podu cultivation after taking permission from the Collector. However, in practice, shifting cultivation was extensively practiced on both reserved and unreserved land, and the law was only implemented on paper.

    The first Revenue Settlement and Survey was taken up in Malkangiri area starting from 1959-60 no further Survey and Settlement has been taken up in the district. The Survey and Settlement report states "the experience gained in this survey belied the earlier impression that Malkangiri was full of forests … In fact the area also contained extensive cultivated fields in a large number of villages". (Page 85, Koraput Survey and Settlement report, G00, I960) This Statement shows how little was known about the habitations in these areas, and the fact that large chunks of these areas had been declared as forests (Reserve lands and Protected Lands) without having any idea about tribal settlements in these forest tracts. The Survey and Settlement processes excluded the Reserve Lands in Malkangiri. Two more large blocks of forests, which were proposed to be reserved, were also excluded from Settlement and Survey. Thus any habitations inside all these forest areas were never enumerated or surveyed, and their rights never settled. This illustrates the casualness with which the categorization of forestland has taken place in the region.

    Worse was to come. Orissa government declared all the Reserve Lands, protected lands and unreserved Lands as deemed to be "Protected Forest" under the Section 33 (4) of Orissa Forest Act 1972. No settlement operations were carried out before doing this conversion, even though Protected forests are supposed to be normally declared only after a detailed right settlement is done. Further, after 1972, the State Government has issued notifications u/s 4(i) of Orissa Forest Act, 1972 to bring all the R.L., Protected land and unreserved land under the category of Reserve Forest in Malkanagiri district. At present there are 120 forest blocks consisting of 85494 hectares of R.L. and URL waiting for final notification u/s 21 of OFA 1972.

    In almost all Reserve Lands and Un-reserve Land (URL) proposed for reservation, there are number of villages. Recently, under the claims campaign by the Campaign For Survival with Dignity, some local NGOs carried out a preliminary Field survey in their Operational area. The survey revealed that from 26 gram Panchayats in 99 villages around 1428 Households have been dwelling on 68.33 acre of homestead land and practicing settled cultivation on 3696 Acres of agricultural land since four to five decades. This survey only covers 1/10^th of the total occupied villages in the whole district of Malkanagiri. The survey also doesn't cover any land under podu cultivation.

    According to the list submitted to the MOEF by the State Government for regularization of pre- 1980 forest cultivation, 5113 families in 22 districts are cultivating a total of 4729 hectares of forestland from before 1980s. Surprisingly, Malkangiri district doesn’t even show up on this list. When the local people met with district collector on 14th July 2004 as part of a claim submission campaign started by CSD, and submitted memorandum that related to the regularization of their land, the District Collector told them, "Why are you all shouting here? Did you not claim your rights during the forest settlement operation? How are you all making noise today?"

    The Mallaguda and similar situations in Malkangiri can be summed up as follows:

• Vast stretches of land were declared as different kind of forests without any settlement of rights by the princely states.
• The Survey and Settlement Operations (1959-1964), many of these forest areas were left un-surveyed and rights of people cultivating lands within these areas were not recorded.
• In areas where rights were recorded, podu (shifting cultivation lands) were not recorded in any form and were retained as Government land. Under IFA and OFA, these various categories of forests have been "deemed" to be either Reserve Forests of Protected Forests. This implies that the normal safeguard of settlements of rights hasn't been followed in these areas at all.
• The Policy of GOO to settle forestlands (including Reserve Forests) being cultivated was formulated hut never implemented properly and extensively. These policies in general didn’t recognize podu as a valid landuse for which rights could be given to tribal communities.
• After 1980, the FCA put paid to any efforts for large-scale settlement of these lands with the cultivators, even if the State Government was serious about it.
• All the deemed Protected forest areas are now being planned to be converted to Reserve Forests and (the preliminary notifications?) notices have already been issued. One can infer from the situation in Mallaguda that the process of settlement of rights under the OFA might have been fulfilled only on paper. In any case, since the areas are already deemed to be protected forests, anyone cultivating land inside is automatically treated as an encroacher. The same applies to the shifting cultivator, whose land use itself is deemed to be illegal, even though she has been doing podu on these forestlands for ages.
• The net effect of all these processes has been that lands which have been traditionally cultivated and used by tribal communities are being alienated as forest land.

    The GOO, by not addressing these issues, is not only perpetuating grave injustice on its weakest inhabitants i.e. tribal communities, but is also ensuring disturbances and conflicts in these areas for ages to come. Conflicts have already started in Nabarangpur District, where major ethnic tension exists between the indigenous Gond tribal communities, the kandhs who have moved to Nabarangpur mainly after being displaced by the various development projects namely Kolab, Indrawati etc. and the Bengali settlers settled under Dandakaranya Project. People have been killed in clashes. Ironically, while the Bengali Settlers have been given land titles, the area’s indigenous tribal inhabitants have been labeled ‘encroachers’ on their own lands.

    Another implication is that communities inside these forest areas can't avail any services provided by the state, including health and education. Dongriguda village in Nobrangpur district was recently is the news when 11 children died of malnutrition and disease. This is a village inside a reserve forest, which the Forest Department claims to be a post-1980 encroachment because of which it had not permitted even an anganwadi under the ICDS programme to be opened there.

    The situation for the tribal people of Malkangiri and Nabarangpur has been doubly tragic as they have seen more than 200,000 acres of forestland being cleared for settling the refugees from erstwhile East Pakistan under the Dandakaranya project. It is also important to note that the persons who immigrated to Mallaguda after 1980s were displaced by NALCO from Damanjodi. Large-scale displacement of tribal people by projects and dams seem to be the most important cause of post 1980s encroachments on forest lands in Undivided Koraput district.

    Similar situations as in Malkangiri are repeated in other scheduled areas in the State. This process of alternation can be seen as a larger process of disempowerment and disenfranchisement of the tribal communities in Orissa, which includes parallel processes of patta land alienation and massive displacement through development projects. Another national threat is posed by the declaration of tribal areas as Wildlife sanctuaries and national parks under the Wildlife Protection Act, 1972.

What needs to be done?

    The very first requirement is to make the Government of Orissa accept the situation and stop trying to sweep the reality under the carpet. Simultaneously, a detailed analysis of the situation in various scheduled areas needs to be initiated to understand the extent of the problem. In the long term this will most probably require a revised Survey of all the Scheduled areas and thereafter settlement of rights of tribals must be taken up. Laws and policies at the State level need to be reviewed and modified. Most important, the FCA 1980 has to be amended in order to accommodate shifting cultivation as a legitimate land use. Alternatively, provisions of Schedule V of the Constitution should he activated to withdraw applicability of the FCA from the scheduled areas. It is obvious that all this needs political mobilization. However, the political mobilization has to be supported through high quality research and surveys, which bring out these issues and their linkages into the open.