The petitioners, who are traditional forest dwellers at Warriam near Pooyamkutty, have approached this Court seeking a direction to allot forest land to Warriam settlers at Kandanpara for their settlement and also for a direction to respondents 1 to 4 to take immediate steps for allotting alternate land for Warriam Adivasy Colony settlers on the basis of Ext.P7, considering the fact that they have already surrendered 600 acres of forest land to the Government.
2. The petitioners allege that they belong to the traditional forest dwellers at Warriam settlement and their ancestors were living in Warriam settlement area since 300 years. The forest department, in the year 1984, surveyed and demarcated the settlement area and erected juntas. Formerly, the settlers lived in the forest by collecting honey, bamboo and other wild items from there. However, after the allotment of land by the Government the settlers moved to agricultural operations by cultivating crops like cardamom, pepper wines, coconut trees and other seasonal improvements. They further allege that Pooyamkutty is a dense reserved forest and as per present census of the forest department, majority of elephants are in the said forest area. Due to the attack of wild animals the cultivations in the settlement area are destroyed and there are no schools, hospitals or any other infrastructural facilities to live in; it is alleged.
3. It is further alleged that as per Ext.P2, the Government admitted that since developmental activities are not going on in the area, they have decided to allot another property to the settlers. On the basis of Ext.P2 and also at the request of the Government, the petitioners' settlement colony have decided to surrender their property to the Government on the promise made by the authorities. About 600 acres of land was surrendered by the Warriam settlers to the Government and the Government informed the settlers that they would take immediate steps to rehabilitate them near Pooyamkutty at Kandanpara.
4. The petitioners allege that as per the Schedule Tribe and other Forest Dwellers (Recognition of Forest Rights) Act, 2006, the settlers have every right to get allotment of another property. Ext.P7 Government Order affirmed the said fact and as per Ext.P7 decision, the tribal department was directed to prepare a detailed scheme for rehabilitation incorporating their present rights and privileges and also to reallocate alternate sites. The petitioners further allege that believing the words of the Government authorities they thought that alternate land would be allotted to them immediately. That was not done. Due to the heavy attack of the wild animals and other deceases, all the improvements in the settlement area were ruined and the petitioners were not in a position to live at Warriam; it is alleged.
5. The petitioners further allege that the Government have promised that forest property at Kandanpara would be allotted to them and hence on 25.2.2009, 61 families having 300 members shifted their residence from Warriam to Kandanpara. The said area is a plain rocky land which is on the bank of Pooyamkutty river. Small thatched sheds were erected there and about four families are residing in a single shed. During rainy season, heavy flood is likely to come and all the settlers would be washed away; it is alleged. Therefore, they say that as per law they are entitled to get alternate land and the Government have the duty to rehabilitate the settlers in a suitable place at Kandanpara near Pooyamkutty.
6. The first respondent on 1.1.2012 filed a statement as directed by this Court regarding the steps taken by the departments for the rehabilitation of 218 families at Warriam Uriyampetty settlement. It is submitted that another affidavit was also filed on 13.6.2013 on behalf of the respondents stating the steps taken for the rehabilitation of tribals. Later in the statement by the Special Government Pleader on 23.1.2014, it was averred that in continuation of the steps taken by the department, a meeting was again convened on 7.11.2013 by the Chief Minister and the Minister for Scheduled Tribe Development Department, the Member of Parliament and other officers concerned. In the meeting discussions were made for taking effective steps for rehabilitation. The copy of the minutes is produced as Annexure-R1(a) along with the statement.
7. As directed by this Court, the Kerala State Legal Services Authority was impleaded in this case as additional 6th respondent. The 6th respondent was represented by Adv. Pinku H. Thaliath.
8. I have heard the learned counsel for the petitioners, the learned Special Government Pleader (Forests) as well as the learned counsel appearing for the Kerala Legal Services Authority.
9. Though it is submitted by the Government that effective steps are being taken, the grievance of the petitioners have not been redressed so far. It was pointed out by the learned counsel appearing for the 6th respondent that as per G.O(MS) No.06/14/F&WLD. dated 1.2.2014 which is produced as Annexure R1(b), the State Cabinet is seen to have given permission to approach the Central Government for exemption from Net Present Value (NPV) and cost of compensatory afforestation, in order to rehabilitate the tribals from Warriam colony in Kuttampuzha to the Urulanthanny teak plantation. The State Government seems to have been advised that there is an issue of payment of NPV and cost of compensatory afforestation in the matter at hand, as according to the Principal Chief Conservator of forests, the rehabilitation constitutes a diversion of forest land.
10. However, the learned counsel for the 6th respondent submitted that it is not a case where any such proposal need be forwarded to the Central Government (Minister of Environment and Forests) for exemption from NPV and cost of compensatory afforestation. In support of her argument, it was pointed out that this is a case of rehabilitating the tribals and not a case of diversion of forest land. The tribals are entitled to forest rights and by shifting them from their original place from the thick forest areas, the State Government is merely modifying their forest rights and resettling them; so submitted the learned counsel for the petitioners. I see force in the said submission. It is not a case of diversion of forest land, but it is a case of modification of forest rights.
11. As per the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act forest rights were to be conferred free of the requirement of paying of NPV and cost of compensatory afforestation. It is submitted that the present area in which the tribals are to be rehabilitated is a teak-elavu plantation. As these are being maintained as plantations since long ago, they cannot be treated as pukka forest land. Moreover, there is no loss of forest land as the tribals are surrendering close to double the extent of thick forest land i.e. 939 acres. As admitted even by the Chief Conservator of Forests, there is no need for afforestation, as the area given by the tribals is highly thick forest area.
12. This Court on 28.11.2013 had directed the Government to file a statement incorporating the status of the land to which the tribals are to be relocated, which was not complied with. Enquiries made by the 6th respondent would reveal that the Urulanthanny plantations to where the tribals are to be rehabilitated comprise an area of 523 acres falling in 1977 TP (Bit I) plantation, 1977 TP (Bit II) Plantation, 1978 TP Plantation and 1981 TP Plantation. The plantation journals being kept with regard to the above plantations in the Kuttampuzha range office, which is produced by the 6th respondent would show that these plantations have been formed after clearing forest in 1977, 1978 and 1981 respectively and is being maintained as such since long back as per a working plan already approved by the Central Government. Usually working plans are revised once in 10 years, according to the procedure laid down in the National Working Plan Code, 2004. Two years time was usually granted to the State Government to incorporate changes in the present working plan for each area, and to submit it to the Central Government for approval. The present working plan for 'Malayattoor forest division' in which the Urulanthanny plantations are situated is due to be submitted for revision and approval, for the next 10 years. Therefore, the proposed rehabilitation package for these tribals has to be included in the working plan of this area i.e. the Malayattoor forest division, before submitting it for approval of the Central Government, as 'rehabilitating tribals' is also a part of 'forest management'.
13. On examining the rehabilitation package, it is seen that other than the 2 acres of land allocated to each tribal family in recognition of their forest rights, 87 acres of land has been set apart for infrastructure development. As per section 3(2) of the Scheduled Tribes and other traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 even in case of forest land, it is possible to divert an extent of less than 1 hectare each, for each developmental initiative of the Government, subject to certain conditions, and in such cases, the Central Government is bound to allow diversion. Here, in the case of Urulanthanny plantation, the situation is even more favourable, as the area is not a pukka forest, but a teak- elavu plantation existing since long back, that too as per a working plan approved by the Central Government. If the matter is handled by the State Government in the above manner, the tribals can be rehabilitated speedily.
14. In order to facilitate the speedy and compulsory rehabilitation of the tribals, the Writ Petition is disposed of as under:
(a) It is hereby declared that this is not a case where there is any question of NPV or cost of compensatory afforestation is involved.
(b) The 3rd respondent is directed to render all assistance to the 1st respondent to rehabilitate the tribals, to which the petitioners belong, if necessary, by including them in the next working plan of the area, in furtherance of modification of their forest rights.
(c) As the working plan of the area (Malayattoor forest division) in which the Urulanthanny teak plantation is situated is being revised, earnest efforts shall be made by both Governments to see that the grievance of the petitioners are redressed during the next plan itself by complying with the aforesaid direction.
Before parting with this judgment, I would like to place on record the appreciation towards the learned counsel for the sixth respondent for the able and valuable assistance rendered by her in this case.
krj Sd/-
A.V.RAMAKRISHNA PILLAI JUDGE /True Copy/ P.A to Judge