Central Information Commission
Mrd Suresh Kumar vs Ministry Of Environment & Forests on 18 September, 2015
CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
Information Commissioner
CIC/SA/A/2015/000297
D Suresh Kumar v. PIO, M/o Environment, Forests & Climate Change
Important Dates and time taken:
RTI: 11.10.2014 Reply : 14.10.2014 SA : 27.02.2015
Hearing: 23.07.2015 Decision: Direction to give information 18.9.15
Parties Present:
1. The Appellant Mr. D. Suresh Kumar and concerned PIO Mr. H.C. Choudhury were
present before the Commission in New Delhi.
FACTS:
2. The Appellant Mr. D. Suresh Kumar filed a RTI application to Forest Conservation Division, Ministry of Environment and Forests on 10.11.2014 seeking detailed information about Forest Clearance granted to Indira Sagar Polavaram Project (ISPP). Relevant portion of the information sought by him is as follows:
1) Pursuant to grant of StageII Forest Clearance for Indira Sagar Polavaram project, the MoEF has received various representations from the affected villages of Polavaram project complaining about the nonimplementation of Forest Right Act. On this, the ministry after various communications with stage government of AP about the non implementation of FRA, on 2nd February, 2011, sent a letter (annexure2) to AP government stating that the Director General of Forest & Secretary (DGF&SS) will shortly visit the area/villages affected by the said project to have on the spot assessment of the matter. In this regard, please provide me the following information.
a) Certified copy of the report submitted by the official who visited the area/affected villages
b) Certified copy of action taken report of this Ministry based on the report of the official who visited the affected villages
c) Certified copies of all the communications between this ministry and state government of AP on the above subject until the matter has been finally decided by the Ministry.
d) Certified copies of all the note sheets and file notings on the above subject.
e) Certified copy of the action taken report submitted by the government of AP on the subject mentioned above.
f) Certified copies of all the communications from the ministry to all the affected villages which have written to it about the nonimplementation of Forest Rights Act.
2) Certified copy of the action taken report based on Mr. Swarup Bhattacharya's letter dated 2nd September, 2010 (Annexure3) and copies of all the communications from the ministry to Mr. Swarup Bhattacharya relating to his letter dated 2nd September, 2010.
3) Please provide me copy of all the Forest Clearance related documents/files of Indira Sagar Polavaram Project from 26th April, 2011 to till date."
3. Since no reply was received from Public Information Officer, he filed First Appeal on 16.12.2014 requesting to provide information. On the nonreceipt of information even after that, Second Appeal was filed on 21.02.2015.
Proceedings Before the Commission:
4. The appellant submitted that he has not received any information till date. The respondent authority submitted that whatever the information that they have in relation to Forest Clearance granted to Polavaram Project, the same has been sent to him as a reply to the RTI previously filed by him on 12.06.2014.
5. The appellant contended that the information sought by him for his previous application dated 12.6.2014 does not correspond to any information that he sought in this application. It is in fact a followup RTI, based on the information received in previous RTI filed on 12.6.2014.
He has further explained that after the Forest Clearance for Polavaram Project was granted, the ministry received many complaints from local villages about noncompliance of Forest Rights Act, whose compliance is mandatory before granting Forest Clearance. Based on these complaints, the Ministry of Environment and Forests on 2nd February, 2011 sent a communication to Andhra Pradesh government stating that Director General of Forests & Secretary (DGF&SS) would shortly visit the area to have onthespot assessment of the matter. He contended that the information pertaining to what happened further after the visit of the said official is neither in the information received by him for his previous RTI application nor is in public domain anywhere, including the website of Ministry of Environment and Forests. Therefore, he had to resort to the usage of RTI which unfortunately has not been disposed of even after 8 months now. He prayed the Commission to direct the Public Authority to provide him information as soon as possible.
6. The responding authority perused through the records sent to the appellant for his previous application. The authority then submitted that they will relook into the matter and provide the necessary information within 2 months.
7. Prior to 2006 Forest Rights law, in preIndependence era, the Indian Forest Act, 1927, main forest law, was made to serve the British need for timber. It sought to override customary rights and forest management systems by declaring forests state property and exploiting their timber. The law says that, at the time a "forest" is declared, a single official (the Forest Settlement Officer) is to enquire into and "settle" the land and forest rights people had in that area. They are the supreme judges to decide the rights of the forest dwellers, who do not know how to approach courts and lawyers and never tried to enforce their right to possession and live in areas which are declared as forests by the Governments. There is a strong criticism that the Independent Indian Governments have continued to exploit this draconian law which was never a will of the native Indians, though this law denies all the rights of all the tribals with one stroke, and that this law was not made and used to protect the forest but to convert it into colonies after driving out the aboriginal families who dwelled there since centuries.
8. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 shortly known as Forest Rights Act (FRA), is hailed as a step towards recognising the rights of forest dwellers, and was made to correct historic/dynamic injustice done to tribals, as crores of people live in forest lands for several generations without having any legal rights to their homes or lands or to forest produce. The Government claims all powers over forests against the people living in it. Under different 'development' schemes/projects several lakhs of tribal forest dwellers were driven out of forests. The then Commissioner for Scheduled Castes and Scheduled Tribes, in his 29th Report, said that "The criminalisation of the entire communities in the tribal areas is the darkest blot on the liberal tradition of our country." This Forest Rights Act for the first time recognised forest dwellers' rights and made conservators more accountable.
9. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is expected to perform following essential functions:
• Granting legal recognition to the rights of traditional forest dwelling communities, partially correcting the injustice.
• Giving tribal communities and the public statutory space and voice in conservation of forest and wildlife in their vicinity.
10. No one gets rights to any land that they have not been cultivating prior to December 13, 2005 (section 4(3)) and that they are not cultivating right now. Those who are cultivating land but don't have document can claim up to 4 hectares, as long as they are cultivating the land themselves for a livelihood (section 3(1) (a) and 4(6)). Those who have a patta or a government lease, but whose land has been illegally taken by the Forest Department or whose land is the subject of a dispute between Forest and Revenue Departments, can claim those lands (section 3(1)(f) and (g)). The land cannot be sold or transferred to anyone except by inheritance (section 4(4)).
Use Rights
11. This historic & truly Independent Indian law provides for rights to use and/or collect the following: a. Minor forest produce things like tendu patta, herbs, medicinal plants etc "that has been traditionally collected (section 3(1) (c)). This does not include timber. b. Grazing grounds and water bodies (sections 3) c. Traditional areas of use by nomadic or pastoralist communities i.e. communities that move with their herds, as opposed to practicing settled agriculture.
12. Section 6 of the FR Act provides a transparent three step procedure for deciding on who gets rights. First, the gram sabha (full village assembly, NOT the gram panchayat) makes a recommendation i.e who has been cultivating land for how long, which minor forest produce is collected, etc. The gram sabha plays this role because it is a public body where all people participate, and hence is fully democratic and transparent. The gram sabha's recommendation goes through two stages of screening committees at the taluka and district levels. The district level committee makes the final decision (section 6(6)). The Committees have six members three government officers and three elected persons. At both the taluka and the district levels, any person who believes a claim is false can appeal to the Committees, and if they prove their case the right is denied (sections 6(2) and 6(4)). Finally, land recognised under this Act cannot be sold or transferred.
13. If these rights are not recognized and given as per above referred procedure before the tribals are displaced from villages threatened to be submerged for ISPP, there is no possibility of compensating or rehabilitating them by providing similar rights at relocated places. Hence the conferring Forest Rights as per this law is essential before the forest clearance is given to ISPP as per law. It is apprehended that any attempt to drive them out without conferring these rights will place the Independent democratic Indian Government in the same shoes of British Colonial Government.
14. The Commission after perusal of all the records finds that the information provided by the Ministry of Environment and Forests for appellant's previous application dated 12.06.2014 did not contain complete information sought under present RTI application. As contended by the appellant, his present application is a followup of another application filed by him, seeking further information pertaining to the subject of Forest Rights Act implementation and Forest Clearance granted for Polavaram Project.
15. Several legislations and rules have provided right to information besides RTI Act. The EIA notification, 2006, which was given under Environmental Protection Act, in Section 7 deals with Public Hearing, which says: Whenever any developmental project is proposed in a given area, the project have to first place all the project information and environmental and social impact of the project before the local community which will be affected. Only after this information is placed before them and their views and concerns of the project have been taken, the project will be appraised by the concerned authorities. Under this EIA notification 2006, III Stage (3) Public Consultation is prescribed. It says: (i) "Public Consultation" refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate.
16. As per Panchayat Raj act, whenever revenue lands are marked for other purposes like compensatory afforestation, leasing to an industry, etc. the Panchayat consultation is desirable (but not mandatory) which means that Panchayat has to be provided with information about proposed diversion.
17. For all the proposals for diversion where the FRA compliance required, the consultation with full information of the proposed project and the their written consent is required, as per the circular F. No. 119/1998FC (pt), Government of India, Ministry of Environment and Forests, (FC Division) dated 30.07.2009.
18. Provisions of the Panchayats (Extension to the Scheduled Areas) PESA Act, 1996, from section 3 (e) to 3 (m), every provision need to be understood from the requirement of Right to Information. Every Gram Sabha shall approve of the plans and projects for social and economic development before implementation of such projects, it shall be responsible for the identification or selection of persons as beneficiaries under the poverty alleviation and other programs. The Gram Sabha or Panchayat shall be consulted before making the acquisition of land in the Scheduled Areas for development projects.
19. FRA Act, Section 4 (2) (e) says: the free informed consent of the Gram Sabhas in the areas concerned to the proposed resettlement and to the package has been obtained in writing.
20. It is surprising that some PIOs and other officers of the Ministry of Forests & Environment are not implementing the right to information of the tribals and others in forests guaranteed by legislations and continuing their functioning under preIndependence laws which did not serve interests of forest dwellers and thus denying their rights both under Forest related laws and RTI. They have a duty to inform under all legislations, regulations, notifications and circulars as explained above to inform the tribals and other forest dwellers. Especially when there is a threat of displacement, the victims of so called development are entitled to recognition and certification of their rights under the FRA, and information about which cannot be denied or delayed. If this information is delayed beyond the replacement, it amounts to denial of information and their right to live in forest etc also. The Commission therefore orders the Forest Conservation Division of Ministry of Environment and Forests to give pointwise reply to the appellant and inform him current status of action taken under FRA within a period of one month from the date of receipt of this order. In fact, the state has a duty to inform all the villagers in 276 villages going to be deprived of rights accrued under Forest Rights Act even before they have been accrued and accredited. Hence the Ministry has to take necessary steps immediately to inform the affected villagers about their recognized rights under this law, before they are displaced.
21. The Commission also directs respondent Authority and Government of Andhra Pradesh to provide information about the action taken on various representations from the people of affected villages of Polavaram project complaining about nonimplementation of Forest Rights Act, copy of report submitted by any officer visiting the affected areas/villages in pursuance of order dated 2nd February 2011, and action taken thereon, communication about this between Ministry and Government of AP, with certified copies, copies of all correspondence relating to Forest Clearance, etc to the applicant within one month from the date of receipt of this order. Delay beyond a month will attract penalty provision of Rs. 250/ per day which might extend to the maximum penalty.
22. The Commission directs the PIO to show cause why penalty should not be imposed against him for not furnishing information despite the order of First Appellate Authority and compensation be given to appellant, within 21 days from the date of receipt of this order. With these observations and directions, the appeal is disposed of.
(M. Sridhar Acharyulu) Information Commissioner Authenticated true copy (Babu Lal) Deputy Registrar Addresses of the parties:
1. The CPIO under RTI, Govt. of India, M/o Environment, Forests & Climate Change (FC Division), Indira Paryavaran Bhawan, Jor Bagh Road, Aliganj, New Delhi110003.
2. The Prl. Secretary to the Govt.
Environment, Forest, Science & Technology, Andhra Pradesh Secretariat, Hyderabad.
3. Shri D Suresh Kumar, Flat No. 305, Devi Jayana Apartments, Opp. RRB, New Mettuguda, Secunderabad500017.