Lok Sabha Question No. 4676 (UNSTARRED), answered on 2019-07-22
Subject: Land Right of STs
Ministry: TRIBAL AFFAIRS
Asked by: Heena Vijaykumar Gavit, Subhash Ramrao Bhamre, Amol Ramsing Kolhe, Kuldeep Rai Sharma, Sunil Dattatray Tatkare, Supriya Sadanand Sule

## GOVERNMENT OF INDIA (MINISTRY OF TRIBAL AFFAIRS)

## LOK SABHA UNSTARED QUESTION NO.4676

TO BE ANSWERED ON 22.07.2019

## LAND RIGHTS OF STs

4676. DR.  HEENA GAVIT: DR. SUBHASH RAMARO BHAMRE: DR   AMOLRAMSING KOLHE: SHRIKULDEEP RAI SHARMA: SHRI SUNIL. DATTATRAY TATAKARE : SHRIMATI SUPRIYA SULE:

Will the Minister of TRIBAL AFFAIRS be pleased to state:

- (a) whether the Government is aware that most of the tribal land is being encroached upon by various interest groups all over the country and if so, the details thereof;
- (b) whether  the  Government  protects  and  safeguards  the  land  rights  of Scheduled Tribes to address the issue of Land Acquisition and displacement of tribals and if so, the details thereof;
- (c) whether directions have been issued to the State Governments/UTs for strict  and  speedy  implementation  of  Forest  Rights  Act,  2006  and  if  so, the details thereof;
- (d) The  minimum  extent  of  land  that  is  entitled  for  tribals  and  other traditional Forest Dwellers as per the above Act, and
- (e) the other remedial steps being taken by the Government in this regard?

## ANSWER

MINISTER OF STATE FOR TRIBAL AFFAIRS (SMT. RENUKA SINGH SARUTA)

( a) to (b)    In so far as land related issues are concerned, the Ministry of  Rural  Development,  Department  of  Land  Resources  (DoLR),  is  the nodal Ministry at the Centre, which plays a monitoring role in the field of land reforms, Land  and  its management  fall  under  the  exclusive legislative and administrative jurisdiction of States as provided under the Constitution  of  India  (Seventh  Schedule)-List-II  (State  List)-Entry  No. (18).

The Scheduled Tribes (STs) have been the most marginalised, isolated and deprived population.  To protect and safeguarding the land rights of STs  and  to  address  the  issue  of  Land  Acquisition  and  displacement  of tribals,  following  Constitutional  and  legal  provisions  have  been  put  in place: -

- i) The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA in short), in section 4(5) states that save as other  wise  provided,  no  member  of  a  forest  dwelling  Scheduled  Tribes  or Other Traditional Forest Dweller shall be evicted or removed from the Forest

Land under his occupation till the recognition and verification procedure is complete.

- ii) Under Section 5 of FRA, Gram Sabha is, inter-alia,  empowered to ensure the decision taken in Gram Sabha to regulate access to community forest resources  and  stop  any  activity  which  adversely  affects  the  wild  animals, forest and the biodiversity are complied with.
- iii) Government has enacted the 'Right to fair compensation and Transparency in  Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act,  2013  in  short).    The  purpose  of  the  said  Act  is  to  ensure,  in consultation  with  institutions  of  local  self-government  and  Gram  Sabhas established under the Constitution, a humane, participative, informed and transparent  process  for  land  acquisition  with  the  least  disturbance  to  the owners  of  the  land  and  other  affected  families  and  provide  just  and  fair compensation  to  the  affected  families  whose  land  has  been  acquired  or proposed to be acquired.
- iv) Under  Section  48  of  RFCTLARR  Act,  2013,  a  National  Level  Monitoring Committee for Rehabilitation and Resettlement has been constituted in the DoLR vide DoLR's Order No. 26011/04/2017-LRD dated 2 nd  March, 2015 for the purpose of reviewing and monitoring the implementation of rehabilitation and resettlement schemes and plans related to land acquisition  under  the  RFCTLARR,  2013  and  National  Rehabilitation  and Resettlement Policy, 2007.
- v) By  way  of  safeguards  against  displacement  special  provisions  have  been made for Scheduled Caste and Scheduled Tribes under Section 41 and 42 of the RFCTLARR Act, 2013 which protect their interests.    As per Section 41 (1), as far as possible, no acquisition of land shall be made in the Scheduled Areas.  As per Section 41(2),where such acquisition does take place, it shall be done only as a demonstrable last resort.  As per Section 41(3),in case of acquisition or alternation of any land in Scheduled Areas, the prior consent of the concerned Gram Sabha or the Panchayats or the autonomous District Councils,  at  the  appropriate  level  in  Scheduled  Areas  under  the  Fifth Schedule to the Constitution, as the case may be, shall be obtained, in all cases  of  land  acquisition  in  such  areas,  including  acquisition  in  case  of urgency, before issue of a notification under this Act, or any other 9entral Act or a State Act for the time being in force.  The RFCTLARR Act, 2013 also lays down procedure and manner of rehabilitation and resettlement.
- vi) The Panchayats (Extension to Scheduled Area) Act, 1996, also provides that the  Gram  Sabha  or  the  Panchayats  at  the  appropriate  level  shall  be consulted before making the acquisition of land in the Scheduled Areas or development projects and before resettling or rehabilitating persons affected by such projects in the Scheduled Areas, the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State Level.
- vii) Constitutional  provision  under  Schedule-V  also  provide  for  safeguards against  displacement  of  tribal  population  because  of  land  acquisition  etc. The  Governor  of  the  State  which  has  scheduled  Areas  is  empowered  to prohibit or restrict transfer of land from tribals and regulate he allotment of land  to  members  of  the  Scheduled  Tribes  in  such  cases.      Land  being  a State  subject,  various  provisions  of  rehabilitation  and  resettlement  as  per

the RFCTLARR  Act, 2013 are implemented by the concerned State Governments.

- viii) The  Scheduled  castes  and  the  Scheduled  Tribes  (Prevention  of  Atrocities) Act,  1989'  has  been  introduced  to  prevent  the  commission  of  offences  of atrocities  against  members  of  the  Scheduled  Castes  and  the  Scheduled Tribes,  to  provide  for  the  trial  of  such  offences  and  for  the  relief  of rehabilitation  of  the  victims  of  such  offences  for    matters  connected therewith  or  incidental  thereto.    Wrongfully  dispossessing  members  of Scheduled  Castes  or  Scheduled  Tribes  from  their  land  or  premises  or interfering with the enjoyment of their rights, including forest rights, over any land or premises or water or irrigation facilities or destroying the crops or taking away the produce there from amount to offence of atrocities and are subject to punishment under the said Act.

Apart from the above, a 3 judges' bench of Supreme Court in Orissa Mining Corporation Vs. Ministry of Environment and Forest &Ors. vide W.P.(c) 180 of 2011, held that forest approval cannot be granted for a development project without  the  informed  consent  of  the  Gram  Sabhas,  given  after  proper consideration in a duly convened Gram Sabha and passed by resolution.  The Court stated that the Gram Sabha is also free to consider all the community, individual as well as cultural and religious claim.

The Ministry of Mines, vide their letter dated 5 th January, 2017 sent a letter to all State Governments regarding imposing of conditions in the lease deed in regard to FRA compliance in the cases covered under Section 10(A)(2) (c) of the  Mines  &  Minerals  (Development  &  Regulation)  Act,  1957.    In  the  said letter, it has been, inter-alia, mentioned that execution of lease deed shall not be construed to dilute any provision of FRA.

Further,  the  Ministry  of  Environment  and  Forests  vide  their  letter  dated 03.08.2009 has informed all State Governments regarding diversion of forest land for non-forest purposes under the Forest (Conservation) Act, 1980.  This letter includes that  a  letter  from  the  State  Government  certifying  that proposals for such diversion (with full details of project and its implication, in vernacular/local  languages)  have  been  placed  before  each  concerned  Gram Sabha of forest-dwellers, who are eligible under the FRA.

FRA  is  an  Act  to  recognize  and  vest  the  forest  rights  and  occupation  in forest  land  in  forest  dwelling  Scheduled  Tribes  and  other  traditional  forest dwellers who have been residing in such forests for generation but whose right could not e recorded.

The recognition and vesting of such forest rights under FRA is subject to the condition that such Scheduled Tribes or tribal communities or other traditional forest  dwellers  had  occupied  forest  land  before  the  13 th day  of  December, 2015.

(c)  The State Governments/UTs have been issued advisories by this Ministry from  time  to  time  to  carry  out  the  strict  and  speedy  implementation  of provisions of the Forest Right Act, 2006 and Rules there under and to ensure that while processing the claims of Forest dwellers under the Act, no eligible claim is rejected.    In addition, recently a letter dated 26.03.2019 was also issued to all

Sates/UTs  indicating  various  directions  issued  by  Ministry  of  Tribal  Affairs regarding the implementation of FRA, 2006 circulated, to facilitate necessary action by the States/UT Governments.

- (d )(i) FRA is an Act to recognize and vest the forest rights and occupation in Forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but who right could not be recorded.
- (ii)  The recognition and vesting of such forest rights under FRA is subject to the condition that such Scheduled Tribes or tribal communities or other traditional forest dwellers had occupied forest land before the 13 th day of December, 2005.

(iii)  As  per  Section 4(6) of FRA 'where the forest rights re-cognized and vested by sub-section (1) are in respect of land mentioned in clause (a) of sub-section (I) of section 3 such land shall be under the occupation of an individual or family or community on the date of commencement of this Act and shall be restricted to the area under actual occupation and shall in no case exceed an area of four hectares.

- (e)   As already given in reply to part (c) of the question above.

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