More exclusions from the FRA

Rahul Choudhary

One of the most significant aspects of any right-giving legislation is the institution of layers of filters by which newer forms of segmentation and identities among “citizens” are created – a whole series of the included and excluded is generated every time a new law is legislated. If statutory laws are insufficient in this regard, judicial pronouncements fix the filtering machinery.

Persons having shops inside the Tiger reserve were not considered as “Forest Dwelling Scheduled Tribes” or “Other Traditional Forest Dwellers” by the High Court of Allahabad (1) and the same has been confirmed by the Supreme Court (2). A petition was filed in Allahabad High Court challenging the order of eviction passed by the Deputy Director, Dudhwa Tiger Reserve and the order passed by the Chief Conservator of Forest, Dudhwa Tiger Reserve.

A notice was sent to the shop owners on 11th July 2010 for eviction from the forest area. The shop owners claimed protection of the Forest Rights Act, 2006 (3). As per their contention, it recognizes the rights and occupation on forest land, of the Forest dwelling scheduled tribes and other traditional forest dwellers. Under this Act a complete procedure to deal with the matter has been provided, therefore, they are liable to be governed only under the procedure prescribed therein. They claimed eviction process initiated by the Forest Department is under Forest Act, 1927 and therefore is illegal.

The stand of the Forest Department before the High Court was that the persons who have come to court are shop owners and doing business. They neither belong to any Scheduled tribe nor they are traditional forest dwellers, whereas the Forest Rights Act gives protection to Scheduled Tribe and traditional forest dwellers who depend on forest for their livelihood.

The Forest Rights Act defines ‘forest dwelling scheduled tribes’ and ‘other traditional forest dweller’ as:

(c) “forest dwelling Scheduled Tribes” means the members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs and includes the Scheduled Tribe pastoralist communities;

(o) “other traditional forest dweller” means any member or community who has for at least three generations prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs.

The High Court came to conclusion in its order and judgment dated 22.02.2011 that the Forest Rights Act only provides protection to the Forest Dwelling Scheduled Tribes and Other Traditional Forest Dwellers, and the shop owners are not covered under the Forest Rights Act.

The shop owners challenged the order before the Supreme Court, and the Supreme Court agreeing with the findings of the High Court dismissed their petition. The Supreme Court was of the pinion that the person claiming protection under Forest Rights Act as ‘other traditional forest dweller’ has to satisfy both the requirement – of residing in and being dependent on forest. But in this case they were not residing inside the forest nor were dependent on it.

Notes:

(1) Ishwer Chandra Gupta Vs. State of U.p Writ Petition No. 6887 of 2010 and other six petitions
(2) SLP (C) No. 9837-9838 of 2011
(3) Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

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