Prepared by: Hitabhilash Mohanty, LLM in Human Rights
The FRA recognized the following four types of rights of the STs and other Traditional Forest Dwellers.
Land Rights: A claimant gets rights to any land occupied by him prior to 15 December 2005. Those who occupy land without having documents can claim up to 4.00 hectares, so long they are occupying the land for livelihood. Those who have patta or government lease but whose land is legally taken by the forest department or whose land is subject to a dispute between the forest and revenue departments, can claim those land. The land recognized under FRA cannot be sold or transferred except by inheritance.
Use of Resources Rights: FRA provides for rights to be given to collect and use minor forest produce (kendu leaf, herbs, medicinal plants, arise but excluding timber). Besides community rights of uses or entitlements like for fish and other products of water bodies, grazing and traditional seasonal resources access of nomadic or pastoralist communities.
Rights to development facilities: The Act is mandated to provide for diversion of forest land for the following facilities managed by the Government which involve felling of trees not exceeding seventy five trees per hectare namely- (a) Schools;(b) Dispensary or hospital;(c) Anganwadis; (d) Fair price shops; (e) Electric and telecommunication lines;(f) Tanks and other minor water bodies;(g) Drinking water supply and water pipelines;(h) Water or rain water harvesting structures; (i) Minor irrigation canals;(j) Non-conventional source of energy;(k) Skill up gradation or vocational training centres;(l) Roads and; (m)Community Centers;
DETERMINATION & RECOGNITION OF INDIVIDUAL FOREST RIGHTS
Individual forest under FRA include “rights to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Schedule Tribes or other traditional forest dwellers” enumerated under section 3(1)(a) of the Act.
Table – 1: Steps for Recognition of Individual Claim
| Stages | Subject | Contents |
|---|---|---|
| Step – 1 | Intimation to FRC Members for Preparatory Meeting for Claim Verification | Secretary of FRC in consultation with the President, FRC would fix a date for FRC meeting. Due intimation to all FRC members for the meeting needs to be given (‘due intimation’ includes issuance of notices to each member) The purpose of the meeting, date, time and venue needs to be specified while intimating the FRC members. Signature’s from each member needs to be taken after intimation. |
| Step – 2 | Preparation of Record of Claims and Evidence by the Forest Rights Committee | This consolidation of claims can only take place after the expiry of the last date of the submission of claim forms as fixed by the Gram Sabha/ Palli Sabha. Before the preparation of a consolidated report of claims received, FRC should ensure that all the claimants have submitted their claim forms. FRC should prepare a tabular format for consolidation of information provided by the claimants in the form. During the preparation of the Consolidated Report, if is found that some of the claimants have not signed/ not duly filled up the claim form/not annexed the documents/evidence as required under the Act/Rule, please intimate the claimant and ask him/her to furnish all the required information/ document or you can help him/her in filling up the form or in collecting requisite information/document. FRC should collect the village map, RoR, forest map (RF, DPF, PF), which would help in identifying the forest land or status of land for which the claimants have applied. The village map and RoR are available in the Tehsil Office and the forest map is available in the Divisional Forest Office (DFO). |
| Step – 3 | Forest Rights Committee Meeting for Fixing of Date and Time for Claim Verification | Ensure attendance of all the members of FRC. Share the purpose of the meeting 11 Share the consolidated report prepared prior to the meeting If there are some conflicting claims or cases, please share it with the members, which would help in strategizing the verification process Ensure participation of all members in the meeting Fix date and time for claim verification While fixing date and time for claim verification, please ensure that the date and time suits all claimantsEnsure that there is at least a ten to fifteen day gap between the date of issuance of notice and date of verification (for both the claimant and FD/Revenue) It is not necessary to complete the verification process in a day. If the number of claimants is more, you can make a group and accordingly fix a date and time for each group During the consolidation of the claims, if you find conflicting cases like, for a single patch of land more than one person has applied, either you fix same date for those claimants or fix separate dates and listen to their view separately and try to resolve it. Before conclusion of the meeting, please share the decisions taken in the meeting and ensure that all the members who have attended the meeting have signed the register (attendance register/ proceedings book). |
| Step – 4 | Due Intimation to Claimants and the Forest Department | Intimate all the claimants regarding the decision taken in the FRC meeting Share the purpose of verification and intimate them about the date and time fixed for verification Take signature in the notice book after intimating the person Intimate the DFO and SDLC with due process (such as through a letter) and send a copy to the SDLC. Keep a copy of the letter sent to the SDLC in the record file. |
| Step – 5 | Site Visit, Physical Verification of Claims and Preparation of Maps | Before moving for field verification, please ensure all records like claim forms, consolidated report, village map, forest map, RoR, white paper/ note book, are with the verification team. Ensure attendance of all the claimants to whom notices have been served including FD and Revenue Department Before moving for field verification and demarcation, share the purpose with the claimants and representatives of the authorities concerned (FD/Revenue) Visit each site and verify the nature of the claim. With help of cadastral village map/RoR / forest map assess whether the claim made is on forest land or not If the land is forestland, then record the extent of total area claimed; if the land is not forestland, please intimate the claimant and record the finding. If the area claimed does not match with the area as mentioned in the claim form, please inform the claimant and make the necessary changes. During physical verification, collect further evidence or record from the claimant and witnesses. Prepare the map delineating the area of each claim indicating identifiable marks (such as East, West, South and North, location of the land etc) After the preparation of the map, either write the name of the claimant or give a number and mention that number onthe claimant form, which would later help in identifying the land, or tag the sketch map with the claim form. While carrying out physical verification, record findings/field observations, such as physical attributes of the claims like improvements made to the land including levelling, bunds, check dams and the like, traditional structures like wells, burial grounds, sacred places etc.. This is most essential as these observations would also act as evidence for the claimant. Before moving for the next verification, please write the details in the note book or white paper or in the claimant register. Complete the physical verification of all claimants as per the process cited above |
| Step – 6 | Preparation of Final Maps Delineating the Area of Each Claim Indicating Recognizable Landmarks and Verification Report | After the field verifications complete, please prepare a rough sketch map, indicating the area claimed by each claimant – its location, total area, name of the claimant etc. If the maps are available, then write the plot number in each claimed area if the forestland is located inside the village boundary; if the forest land is with the Forest Department, then please write the name (both local and legal name)and number of the In the index, please mention the name of claimant against the plot number as mentioned in the sketch map Finalize the observation made during the field verification and record the findings properly. Either the observation/findings can be written in the remark column of consolidation report or in a separate note or in the claimant register. Prepare a final verification report on the findings |
CORRECTION OF Record of Rights (ROR) AND MAP
Rule 8(f) of the aforesaid rules provides that the District Level Committee shall issue directions for incorporation of the forest rights in the relevant government records including record of rights. Rule 8(g) further provides that the Committee shall ensure publication of the record of forest rights as may be finalized
Manner of Correction of R.O.R. and Map:
In the view of the above provisions of law, the Tahasildar who maintains the records of right shall on receipt of copies of title for forest land under individual tenure in Annexure – II issued under rule 8(h) of the ST & OTFD (RFR) Rules, 2007 and the sketch map of the said land from the District Level Committee in respect of revenue village, proceed to incorporate the contents of the title in the Record of rights of the Revenue village and correct the R.O.R. and Map accordingly. Wherever necessary, bata plots shall be carved out of original plots as is done during correction of records of rights to give effects to orders in mutation cases and such bata plots given bata numbers in the manner provided in paragraph 81 of the Orissa Mutation Mannual.
Joint records in the name of both Spouses:
The record shall be prepared jointly in the name of both the spouses in case of married person and in the name of single head in the case of a household headed by a single person as required under subsection (4) of section of the Act.
Status of the land:
In view of the peculiar status of land, new Khatians shall have to be prepared for such land covered under forest rights after the existing Government Khatas of the village and allotted new numbers following the last in serial of Government Khata. The status column of the R.O.R. in respect of such forest land under individual tenure shall record the status as “Forest right recognized under the ST & OTFD (RFR) Act, 2006.
Non – transferability of the land:
The forest right conferred under the act is heritable but not alienable or transferable as mentioned earlier. The special incidence column of the R.O.R. should, therefore, contain the note that the right is heritable but not transferable or alienable.
Kissam:
Sub-section (7) of section 4 of the Act of 2006 provides that the forest rights shall be conferred free of all encumbrances and procedural requirements, including clearance under the Forest (Conservation) Act, 1980, requirement of paying the ‘net present value’ and compensatory afforestation’ for diversion of forest land, except those specified in this Act. The jungle kissam of such forest land over which the forest right of individual occupants is recognized will remain unchanged.
Supply of certified copy of ROR to the claimant:
Rule 8(h) of the Rules of 2007 provides that the District Level Committees is to ensure that a certified copy of the record of forest rights is provided to the concerned claimant. A certified copy of the records of right newly created shall, therefore, be provided to the occupants.
Correction of records maintained by the Revenue Inspector (RI):
The records maintained by the Revenue inspector shall be similarly corrected for which intimation slip and sketch map may be sent to the Revenue inspector in duplicate of which one copy will be returned by the R.I. with an endorsement that he has retained one copy with him.
PROVISIONS FOR COMMUNITY RIGHTS IN FRA
The FRA recognises and vests secure community tenure on ‘community forest resources’, which are defined as common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in case of pastoral communities, including reserved forests, protected forests and protected areas such as sanctuaries and national parks to which the community had traditional access.
- It covers community rights such as usufruct (nistar), or by whatever name it is called, including those used in erstwhile princely states, zamindari or such intermediary regimes. It confers the right of ownership and access to collect, use and dispose of MFPs traditionally collected within or outside the village boundary.
- It defines MFPs to include all non-timber forest produce of plant origin, including bamboo, brushwood, stumps, cane, tussar, cocoons, honey, wax, lac, tendu or kendu leaves, medicinal plants and herbs, roots, tubers and the like.
- It covers local-level processing, value addition and transportation of MFPs in forest areas by head-loads, bicycle and handcarts for use or sale by the gatherer or community for their livelihood. The use of motor vehicles is regulated by existing transit rules.
- It covers other community rights for use or entitlements, such as fish and other products of water bodies, grazing and access to traditional seasonal resources by nomadic or pastoral communities.
- It covers rights of primitive tribal groups (PTGs) and pre-agricultural communities to community tenures for habitat and habitation.
- It covers rights in or over disputed lands under any nomenclature in any state where claims are disputed.
- It covers rights to convert pattas, leases or grants of forest lands issued by a local authority or state government into titles.
- It covers the right to protect, regenerate, conserve or manage any community forest resource that forest dwellers have been traditionally protecting and conserving for sustainable use.
- It covers the right of access to biodiversity and community rights to intellectual property and traditional knowledge related to biodiversity and cultural diversity.
- It covers any other traditional rights customarily enjoyed by STs or other traditional forest dwellers that are not mentioned in the earlier clauses, excluding the traditional right to hunt, trap or extract a part of the body of any species of wild animal.
OTHER IMPORTANT PROVISIONS RELATING TO COMMUNITY RIGHTS
The Government of India reserves the right, regardless of the FCA provisions, to divert forest land for the following government-managed facilities: schools. dispensaries or hospitals, anganwadis, fair price (PDS) shops, electricity and telecommunication lines, tanks and other minor water bodies, drinking water supply systems and water pipelines, water or rain water harvesting structures, minor irrigation canals, non-conventional sources of energy, skill up-gradation or vocational training centres, roads, and community centres.
However, such diversion for developing common infrastructural resources, which was not permissible earlier, will be allowed only if the forest land to be diverted is less than one hectare in each case and not more than 75 trees per hectare are required to be felled. Also, recommendation of the Gram Sabha is required to clear the project.
The Government of India reserves the right to modify forest rights and resettle forest dwellers to create inviolate areas for wildlife conservation in critical wildlife habitats (national parks and sanctuaries) subject to the following conditions:
- The process of recognising and vesting rights of forest dwellers in the areas under consideration is completed in accordance with the specifications in section 6.
- The concerned agencies of the state government establish, in exercise of their powers under the Wild Life (Protection) Act, 1972, that the activities or presence of the forest dwellers can cause irreversible damage and threaten the existence of the animal species and their habitat.
- The state government concludes that other reasonable options, such as co-existence are not available.
- A resettlement or alternative package to provide a secure livelihood for the affected individuals and communities that fulfills their requirements under the relevant laws and policies has been prepared and communicated.
- The free and informed consent of the Gram Sabhas in the area for the proposed resettlement package has been obtained in writing. No resettlement can take place until facilities and land allocation at the resettlement location are complete as per the promised package.
- The critical wildlife habitats from which the rights holders are being relocated are not subsequently diverted by the state or central government or any other entity for other uses.
TYPES OF FOREST RESOURCES USED BY THE COMMUNITY
The study team conducted a PRA exercise in the sample villages to identify the range of forest assets and resources used by communities and map claims that could be made for community and individual user rights to these resources. The facilitators also made field visits during which they interacted with the village communities and identified several other resources that could potentially be claimed under the FRA. Some of the important community resources and which could potentially be claimed as Community Forest Resources are listed below.
Places of worship: The community has several places of worship that are visited and used regularly, especially for organising seasonal festivals throughout the year.
Forests for Usufruct (Nistar) Rights: The community depends on forests for fuel-wood for cooking and wooden beams, pillars and rafters for constructing huts. Animals are also let loose in the forests to graze.
MFP collection:Tribals and other forest dwellers collect a wide range of MFPs from forests, such as gond (gum), khair, sal seeds, harra, baheda, chotaphool, bilaiyahana, arjun, nokha, murli etc. Two key MFPs are kendupatta, which they collect in large quantities for earning a cash income, and mahua, which they pluck for personal use.
Water bodies: There are several water bodies in forests – such as large and small ponds, rivulets and seasonal rivers – that are accessed by the community on a regular basis for water, fisheries and other water-based resources.
Quarries: The community also depends on small quarries in the forests for materials like sand and sandstone, which they use for constructing their houses. These quarries are used for self-consumption, not for commercial purposes.
Cremation/burial grounds: A key use of forest land by the community is for cremation/burial purposes. Different tribes have their designated cremation/burial grounds in the forest.
Connecting and approach roads: There are many connecting roads between villages and approach roads from the village to the highway. Pathways are also commonly used to access public utility spaces like ponds, burial ground and temples.
Community halls and other government infrastructure: The government has created several community assets to render services to the people, such as PDS shops, schools, PHCs, anganwadis, Panchayat bhawans, etc. Many of these facilities are on forest land and are regularly accessed by village communities.
Training Manual – 1, Forest Rights Act Training Manual for Government Functionaries, SCSTRTI. Available at https://tribal.nic.in/FRA/data/FRATrainingManual.pdf.
PROCESS & PROCEDURE FOR IMPLEMENTATION OF FRA
Sub-Section (1) of Section 6 of the FRA designates the Gram Sabha as the authority to initiate the process for determining the nature and extent of individual and community rights to be given to STs and other traditional forest dwellers within the limits of its jurisdiction. It shall receive claims, consolidate and verify them and prepare a map delineating the area where each recommended claim can be exercised. The Gram Sabha shall then pass a resolution to this effect and also forward the copy to SDLC. The list of claims for community rights shall be prepared by the Forest Rights Committee (FRC), on behalf of the Gram Sabha, in accordance with Rule 11 (4) of the Rules.
The evidence to be furnished to back up the claims includes:
Details of community rights such as usufruct (nistar) or by whatever name it may be called.
Details of traditional grazing grounds; areas for collecting roots and tubers, fodder, wild edible fruits and other MFPs; fishing grounds; irrigation systems; water sources for human or livestock use; territories for herbal practitioners to collect medicinal plants.
Details of structures or their remnants built by the local community, sacred trees, groves and ponds or river areas, burial or cremation grounds.
- The FRC will verify the claims of pastoral and nomadic tribes to determine their rights, either individual or community or traditional community institution, in the presence of these individuals, communities or their representatives.
- Similarly, it will verify the claims of Primitive Tribal Groups or pre-agricultural communities to determine their rights to habitat, either through their community or traditional community institution, in the presence of these communities or their representatives.
- If there are conflicting claims from another village in respect of traditional or customary boundaries, or if a forest area is used by more than one Gram Sabha, then the FRCs of the Gram Sabhas of the concerned villages will meet to jointly consider the true status of enjoyment of such claims and submit their findings to the respective Gram Sabhas in writing.
- If the Gram Sabhas are unable to resolve the conflicting claims, they will refer the matter to the SDLC for resolution.
- Once it receives the findings of the FRC {clause (v) of sub-rule (2)}, the Gram Sabha will meet, after giving the required notice, to consider the findings, pass appropriate resolutions and forward these resolutions to the SDLC.
- The decision of the DLC on claims for user rights to forest resources will be final and binding.
- The state government will constitute a state-level monitoring committee to ensure recognition of forest rights as well as monitor the process in accordance with the Rules (2008) framed to implement the FRA.