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Yesterday's 'encroachers' are today's rights-holders

By Manshi Asher

The giant POSCO steel plant and port in Jagatsinghpur district of Orissa will displace 471 families in 11 hamlets. For the last three years, local communities have been fighting to retain the land they have been cultivating for generations but which, after Independence, has been deemed government forest land. Will the recently-notified Forest Rights Act give them the locus standi to assert their rights over this land?

Ersama block of Jagatsinghpur district in the Indian state of Orissa put itself on the world map on the unfortunate day of October 29, 1999, when a supercyclone hit the east coast of India, devastating the area and killing almost 20,000 people. But as we move from one disaster to the next, memories of this natural calamity faded as people were rehabilitated and resettled.

What they did not know, however, was that they would face a disaster of another kind within less than a decade, and that this time around the struggle would be harder and longer.

On June 22, 2005, the Orissa government signed a Memorandum of Understanding (MoU) with the South Korean steel giant Pohang Steel Company Limited, also known as POSCO.

POSCO marks India's largest foreign direct investment (FDI), involving the building of a 12-million-tonne integrated steel plant and port in Jagatsinghpur district, Ersama block. The proposed port and steel plant are expected to affect seven villages in three gram panchayats -- Dhinkia, Nuagaon and Gadakujang.

The local communities of these three panchayats, under the banner of the POSCO Pratirodh Sangram Samiti, have been resisting POSCO's project for almost three years. They maintain that their vibrant and self-sufficient local economy based on betel leaf, cashew and paddy cultivation, pisciculture and fishing will be destroyed, rendering them homeless and jobless if the steel plant and port come up. The government and the company in question have been doggedly pursuing efforts to 'clear the land of people', with the argument that the plant, port and mines together will generate 45,000 jobs and unprecedented revenue for the state.

The pressure on local communities is based on the contention that much of the occupation and cultivation in the area is illegal because it is on government land under the jurisdiction of the forest department. This claim that the people of the affected villages are 'encroachers', and thus have no locus standi to resist the project, needs to be examined in the light of history and official records.

The seven revenue villages in question, comprising 11 hamlets in three gram panchayats, are located 10 km from Paradeep Port in Kujang tehsil (Jagatsinghpur district). According to official statistics, 471 families in all will be affected by the project. The total land area sanctioned by the state government for the proposed project is 1,620 hectares, of which 1,426 hectares is government land and the rest private land (1). While the private land in question, pretty tiny in size, is mostly under paddy cultivation, the government land, 87% of which is under the jurisdiction of the forest department, has been under betel vine and cashew cultivation for decades, apart from over 2 lakh casuarina, neem and mango trees and other coastal scrub. Forest department records show that a break-up of the 1,253 hectares of forest land required for the proposed project is as follows: almost 70 hectares of reserved forest, 1,135 hectares of protected forest, and around 49 hectares of revenue forest. The question then is -- has 'forest land' been diverted to cultivation, or is it the other way around?

It is important to view this process in the context of forest and land settlement in Orissa specifically, and the country in general. A review of the forest history of Orissa suggests that only 2.7% of total forest in Bihar and Orissa was under the control of the government in the year 1926; all other forests were private forests under princely rule. The erstwhile princely states and zamindars had forest rules that recognised various rights and concessions (2). An account of the local history of Kujang (the proposed project site) suggests that the entire area was once part of the kingdom of the Sandha dynasty; in the post-Mughal era and British rule the land became part of the Bardhaman Pradhan zamindari (3).

Local communities had been paying taxes to use this land for generations, and cultivation in the area dates back to this time. In the post-Independence period, when the privy purses of the maharajas were abolished, zamindari lands and forests were taken over by the State. In many states, including Orissa, much of this land was transferred to the forest department, and declared either 'reserved' or 'protected' forest under the Indian Forest Act, 1927 (which is still operational). In Orissa, most protected and reserved forests are either declared as such or 'deemed' to be so under the Orissa Forest Act (OFA), 1972.

In most cases, however, the rights of communities occupying this land were neither recognised nor settled. Nor have the reserved forests and protected forests been properly surveyed. In the absence of settlement, lands under cultivation or other domestic use were transferred to the state forest or revenue department (4). In many cases they are under the control of both departments, leading to conflict and confusion between the two. The same may have been the case for lands in Kujang tehsil.

In response to an RTI petition by Biswajeet Mohanty, an environmental activist, the forest department of Orissa, in August 2007, provided copies of various reports prepared for the diversion of forest land involved in the POSCO case. These reports reveal a difference of opinion between the two departments on details of the settlement process for the villages involved. The Record of Rights (RoR) in these villages is in accordance with two separate settlement processes, one the Sabik settlement of 1930 and the other the Hal settlement which seems to have taken place after 1960. Some of the areas that were declared forest land under the Sabik settlement seem to have been transferred to the revenue department under the Hal settlement. But by the time the second settlement was completed, the 1972 OFA came into being, under which final notification of the forest area was to take place. "The 1961 notification should have been followed up after the Orissa Forest Act, 1972 came into force by submitting a proposal for protected forest (by the forest department), but no such steps seem to have been taken. Rather, steps for (blanket) declaration of demarcated protected forests (under the OFA) have been initiated in 1977 after conclusion of reservation of proceedings under the (Hal) settlement operation," says a fact-finding report by the revenue department. Meanwhile, the divisional forest officer's correspondence (2006) in the matter continues to maintain that protected, reserved and revenue forest adding up to 1,253 hectares is under the department's jurisdiction. The letter finally states that "the forest area shown in the ROR of the Sabik settlement (1930) is to be taken for the purpose of diversion of forest land by POSCO India Ltd".

Matters relating to disputes over "forest lands" and settlement of rights remained unresolved, not just in Orissa but all over India, even after enforcement of the 1980 Forest Conservation Act that limited the use of forests to forestry activities. Communities using these 'forest' lands, not just in Orissa but across the country, have since been considered "encroachers". In 1990, based on the recommendations of the Scheduled Castes and Scheduled Tribes Commission, the Ministry of Environment and Forests (MoEF) issued a set of circulars to the state forest departments making a clear distinction between "encroachers" and those with disputed claims. The 1990 orders also recommended that the claims be verified in consultation with the gram sabhas. In essence, the 1990 guidelines provided that any state orders for regularisation of pre-1980 claims could be implemented; but few states implemented this.

In the absence of regularisation of their legal titles on such lands, these "illegal occupants" and "encroachers" have been consistently and systematically displaced and evicted in the name of development and conservation projects, mostly without any rights to rehabilitation.

This historical injustice, after a long country-wide struggle, has now been adequately recognised with the enforcement of a legislation entitled the Scheduled Tribes and Other Forest-Dwellers Recognition of Forest Rights Act, in 2006. The rules for the Act were notified in January 2008. The Act aims to correct this historical injustice by completing the unfinished task of settlement of rights by recognising the right of forest-dwellers to occupy, cultivate, use and protect areas within which they were residing before December 13, 2005. Apart from providing individual rights, the Act also makes place for community rights over everyday use of forests. "The most important provisions that communities (residing on or using forest lands) under threat of displacement could benefit from are under sub-section 4 and 5 in Section 4 of the Act which state that rights granted under the Act will be heritable but inalienable, and that beneficiaries of the Act cannot be evicted or removed until recognition of the rights process is complete," says Shankar Gopalakrishnan, member of the Campaign for Survival and Dignity.

It has been more than a year since the Act was passed, and the states have been asked by the central government to gear up for implementation of the rules. Yet, the state government of Orissa, which has been busy wooing mining companies for the last decade or so, is far from initiating the forest rights settlement process in places like Kujang. Instead, it has used coercive methods to facilitate the acquisition of land for corporate giants like POSCO. Environmental clearance for the project has been granted and, in all likelihood, forest clearance will soon be given, notwithstanding the fact that the Forest Rights Act is applicable on this land.

Meanwhile, tension continues to prevail at what is now referred to as the "POSCO project site". Police platoons have been deployed in the area over the last few months and various tactics are being used by political interests to divide the community. Some families appear to have caved in under the intense pressure and have come forward to negotiate on rehabilitation. But the people of one village, Dhinkia, stand firm and united.

Whatever the circumstances, it's time the state woke up to the fact that yesterday's "encroachers" are today's rights-holders. If they are forcibly removed it will be in complete violation of the UPA government's much-touted pro-people initiative, the Forest Rights Act 2006, which has given local communities the locus standi to assert their rights over land.

(Manshi Asher is an independent researcher and campaigner.)

References

  1. Asher, M, 'Striking while the iron is hot? A case study of POSCO's proposed steel project in Jagatsinghpur, Orissa'. NCAS, 2007
  2. Singh Subrat, 'Conflicts and disturbance -- A reason to change: Lessons from community-based natural resource management institutions in Orissa, India. Foundation for Ecological Security, 2002
  3. Sethi, A, 'Caterpillar and the mahua flower: Tremors in India's mining fields'. PANOS, 2007
  4. Sarin, M, 'Bad-in-Law', Down to Earth, July 15, 2003

InfoChange News & Features, April 2008