MOHAMMAD Ahsan Wagay 63 was born and brought up at Kanidajan village in central Kashmir’s Budgam district. His father Lal Wagay and even his grandfather Siddiq Wagay were also born and brought up in the same village. The Wagay’s are the traditional Kashmiri shepherds like Chopan’s but they haven’t been brought under the ambit of Scheduled Tribe (ST) category by Government in spite of the fact that they live alongside tribal Gujjars and even undertake seasonal migration during summers to pasturelands along with their sheep and livestock. In view of being the traditional forest dwellers, Mohammad Ahsan Wagay’s family and many of his neighbors have been cultivating the land in Kanidajan village which actually belongs to the Government (Forest Department). Until 30 to 40 years back they would only cultivate corn, kidney beans or potatoes on the land but after the early 1990’s the farming trend changed and people started apple cultivation in view of fetching more money to farmers, Ahsan Wagay also started planting apple trees on the land under his possession.
Recently Jammu & Kashmir Forest Department on the orders of Divisional Forest Officer (DFO) Pir Panjal Forest division Budgam with an aim of evicting what they call, “illegal encroachers” axed around 10,000 apple trees in Kanidajan village. Mohammad Ahsan Wagay told me that forest officials axed his 250 fruit bearing apple trees aged between 10 to 15 years. Some trees, he says, were even 20 to 30 years of age that fetched him good amount of money.
Wagay’s son Sameer accompanied me and some journalists on December 13th to their vandalized apple orchard. The destruction was quite visible.
“The forest officials first axed the trees in our village on Nov 18th belonging to around 50 households and then issued the eviction notice under section 79-A of Indian Forest Act 1927”, said Sameer Ahmad
SC ban on evictions
In February last year, the Supreme Court in the case of Wildlife First v/s Union of India had directed for eviction of almost 12 lakh forest dwellers in 16 states across India. The February 13, 2019 order was the outcome of a process that was taken under the Forest Rights Act 2006. But the order of the Apex Court was criticized not only by several forest rights activists and NGO’s but the United Nations special rapporteurs for human rights also came in support of evicted people.
The Government of India finally admitted before the Supreme Court that most rejections of claims for forest rights entitlements were illegal and requested the court to stay its eviction order. The Supreme Court stayed its own order on Feb 28th 2019. Was the J & K Government not aware of this Supreme Court order?
Government claims that they are acting on the orders of J&K High Court where a Public Interest Litigation (PIL) was filed some years back on illegal encroachment of forest land. When I asked a forest officer, “do you have an order to axe apple trees?” he couldn’t utter a word. Didn’t the Advocate General of J&K High Court apprise the J&K Government about the Supreme Court’s stay on evictions? Why isn’t Government showing seriousness when it comes to ensuring protection of the rights of Scheduled Tribes (ST’s) and Other Traditional Forest Dwellers of Jammu & Kashmir like Gujjars , Bakerwals , Pahadis , Chopans , and Kashmiri speaking forest dwellers ?
Eviction Notices
The Divisional Forest Officer (DFO) Pir Panjal forest division Budgam had issued eviction notices also called Show Cause notices to the people living near forests in the entire forest division. The notices were issued under section 79-A sub section 1 of Indian Forest Act 1927. I have reports that similar notices were issued in other districts as well. One of the notices reads:
“Name xxxx s/o xxx R/o xxx Subject: Show cause notice under sub section 1 of section 70 A of Indian Forest Act 1927 (Penalty for unauthorizedly taking possession of land constituted as a reserved or protected forest. Whereas the undersigned is of the opinion on the grounds specified below that you are in unauthorized occupation of Reserved Forest land and you should be evicted from the said area (premises) “
The Government has made Range Officers the scapegoats as in the Grounds section of the eviction notice signed by DFO. The notice further reads:
“Range Officer of …… forest range has reported that you are in illegal possession of about …… kanals of forest land in a compartment ……. Of …… block (reserved forest) . After demarcation of the said land it is clear that you are in an unauthorized occupation of about …. Kanals of forest land in violation of the provisions of the Indian Forest Act 1927 section 79-A. Now therefore in pursuance of sub section (1) of section 79-A of Indian Forest Act 1927, I hereby call upon you in show cause notice on or before 10 days that why should not an order of eviction be made “
If at all the forest land has been grabbed by the people in Pakherpora or adjoining villages, it could have been identified once the Forest Rights Act 2006 would have been rolled out. Was it necessary to axe fruit trees without any knowledge of the owners? There were many other options available with the Forest Department to seize the land like erecting sign boards outside each orchard, but a team of around 3 dozen forest officials carrying axes destroyed around 10,000 trees within 4 to 5 hours only. When some boys filmed this act, they were threatened and the videos were deleted from their cellphones.
Forest Rights Act (FRA-2006)
Government is issuing eviction notices & axing fruit and non-fruit bearing trees under the Indian Forest Act 1927 but on the other hand Government claims that they would be going to implement the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 commonly known as Forest Rights Act (FRA-2006). After our protests and media highlighting the axing of apple trees in Kanidajan, Government is issuing more and more statements on implementation of FRA.
Commissioner Secretary Forests & Environment and Secretary Tribal Affairs held a meeting some days back on implementation of the Forest Rights Act in J&K. Before that, the Chief Secretary had also held a meeting on this issue. FRA recognizes and vests the forest rights and occupation on Forest land in favour of Forest Dwelling Scheduled Tribes (FDST) and Other Traditional Forest Dwellers (OTFD) who have been residing in such forests for generations. This act also establishes the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance of the forest dwellers.
Issuance of eviction notices goes completely against the FRA 2006. Before the abrogation of article 370, this law was not applicable in J&K but from October 31st Forest Rights Act is very much applicable here. If FRA 2006 is applicable in J&K, why is Indian Forest Act 1927 being invoked by Government? Forest Rights Act 2006 has an overriding effect on Indian Forest Act 1927. If Government plans to implement the FRA, it should not invoke an obsolete forest law which is actually a 93 years old law enacted by the British Indian Government.
Eligibility for FRA entitlement
Under Section 2(o) of FRA 2006, the “member or community” should have primarily resided in forest land for at least three generations prior to December 13, 2005 (for all states except J&K). In the case of Jammu & Kashmir, the date will begin from Oct 31st 2019 in my opinion as FRA 2006 was extended to J&K from this date. The community should depend on the forest for their bonafide livelihood needs. Once this eligibility criteria is fulfilled, the vesting provision of the Act, namely Section 4, does not differentiate between forest dwelling STs (Gujjars in case of J&K) and Non ST’s also called Other Traditional Forest Dwellers (OTFDs). Insistence of any particular form of documentary evidence for consideration of a claim has been held to be illegal by the Gujarat High Court in Arch Vahini vs. State of Gujarat & Ors. Under Forest Rights Act 2006 (FRA) a committee of 14 to 15 persons is to be constituted at panchayat level which will look into giving land rights to forest dwellers. This report will then go to the Sub Division level committee headed by SDM which will further go to district and state level committees. Among all of them the village level committee is more empowered.
If Government wants to seize all the forest land that is under the possession of forest dwellers, to whom does Government plan to give forest rights when there will be no forest dwellers left in and around the forests of Jammu & Kashmir ?
When neither village nor sub division or district level Forest Rights Committees (FRC) are constituted in Jammu & Kashmir , how did the Forest Department initiate eviction proceedings by issuing notices to forest dwellers and axing their apple trees? Legal experts need to throw more light on whether Indian Forest Act 1927 could be invoked when people are entitled to get land rights under a new forest law (Forest Rights Act 2006)?
Unfortunately, they are mum. The affected people whose apple trees have been axed are entitled to get compensation and the Government must immediately make an assessment for the same. The top officers of the Forest Department need to be taken to task as well especially those who directed the field staff to axe thousands of apple trees. This needs a high level judicial inquiry as the action in Kanidajan violates the rights of Gujjars. Action should be taken against the culprits under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 which is also applicable in J&K w.e.f Oct 31st 2019.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial stance of Kashmir Observer.
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