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Forest Land Tenures

Arun K. Bansal

Former Addl. DG Forests,

Ministry of environment & Forests

Government of India, New Delhi

bansalka@yahoo.in

Abstract

Forest is a unique renewable natural local resource of global importance. In India is

one of the twelve mega biodiversity countries of the world, and is home of 7.7% of world’s

bio-diversity of which 80% is in forests accounting for 10.9% of global flora and 7.31% of

global. Indian forests meet 40 % of the energy needs and 30 % of total fodder supply in the

country. They provide livelihood support to over 275 million people living in and around

forests – with 1,73,000 villages located inside or on forest fringe areas. Against the national

goal of 1/3rd

of land to be under forests the recorded forest area in the country is 23.4% of

the total geographical area of India. The Indian forest are under huge pressure evident from

the fact that with only 2.3 % of world’s total geographical area India supports 17% of the

world’s population and 18% of world’s livestock population. Per capita forest area in the

country is only 0.06 ha. against the world average of 0.59 ha.

However, actual area having forest cover according to the latest state of forest report

brought out by the forest survey of India is only 21%. What is even more disturbing is that

FSI in not able to give extent of forest cover in the recorded forest areas due to non-

availability of digitized boundary maps of all forest areas in the country in spite of recent

renewed significance of forest in the ongoing global climate change debate and various

orders of the Apex Court for identification and preparation of geo referenced maps of all

forest areas in the country.

In this paper an attempt is made to analyse the historical as well as recent

developments with regard to “forests” and to highlight various contemporary issues in the

context of forest land tenures in India.

*****

Presented at the International Conference on “Conclusive Land Tilling System: a need for

Reforms in Land Administration” organised by the Centre for Rural Studies LBSNAA, 9-10

September, 2013, New Delhi

1

Forest Land Tenures

Arun K. Bansal

Former Addl. DG Forests,

Ministry of environment & Forests

Government of India, New Delhi

bansalka@yahoo.in

Forests - a Unique Resource

Forest is a natural resource which is unique in more than one ways. It is a renewable

resource which taps the energy from the eternal source of energy in our solar system i.e. the

Sun, and is important not only for ecological stability on the Earth, the only known green

planet supporting life, but also in providing livelihood support to a sizable tribal and other

forest dependent population. Moreover, unlike other natural resources like minerals, coal,

natural gases, which are largely underground - buried under the earth surface, forest is a land

based resource which requires a portion of land which cannot be used generally for other

activities. And thus it requires regulations similar to those for landed properties. Another

unique feature of forest is that it is considered as a “common property resource” benefits

of/from which are to flow not only to people living close to forests but also to the people at

large. In recent years, with greater realization of adverse environmental/climatic impacts of

deforestation and forest degradation, bio-diversity rich forest ecosystems are being

rediscovered all over the world as important resource, natural and renewable, not only to

provide shelter, food, jobs, water, medicine and security to more than one billion people but

also to regulate global climate. Forest are being seen as essential resource for “green

economy” and that investment in forest maintenance and reforestation activities could make

significant contribution to the transition to green economy, while reducing vulnerability and

risks posed by increasing climate change. Forests are a critical link in the transition to a green

economy – one that promotes sustainable development and poverty eradication as we move

towards a low carbon and more equitable future.1

Forests in India

In Indian context, investment in forests is even more important since with about 23%

of the total geographical area under forests India is one of the twelve mega biodiversity

countries of the world, and is home of 7.7% of world’s bio-diversity of which 80% is in

forests accounting for 10.9% of global flora and 7.31% of global. The Indian forest are under

huge pressure evident from the fact that with only 2.3 % of world’s total geographical area

India supports 17% of the world’s population and 18% of world’s livestock population. Per

capita forest area in the country is 0.06 hectare (ha) against the world average of 0.59 ha. It is

estimated that India’s forests meet 40 % of the energy needs and 30 % of total fodder supply

in the country. They provide livelihood support to over 275 million people living in and

around forests – with 173,000 villages located inside or on forest fringe areas.

According to the latest forest cover assessment by the Forest survey of India (State of

Forest Report, 2011) through interpretation of satellite data forest and tree cover is reported

1 Forests in a GREEN economy – A Synthesis, UNEP, 2011, 25p.

2

to be 78.29 Million Hectares (MHa) which is about 23.81% (21.05% forest cover, 2.76% tree

cover) of the total geographical area of the country. However, it is not known whether this

forest cover is actually over the lands which are legally “Forests”2 due to non-availability

of digitised boundaries (GIS compatible3) of all forest areas. Although, the forest/tree cover

is far below the goal of 33% set in the National Forest Policy 1988, and the quality of forest

cover4 and the productivity

5 of the forests continues to be a matter of national concern, it is

heartening to note that in spite of severe biotic pressures, India is one of the few countries in

the world which have been able arrest/reverse the declining trend in forest area/cover.

Forest Tenure

To put the discussion in right perspective, it is to be clearly understood that contrary

to commonly misunderstood as “ownership” the term “tenure” is related to and means

regulation of ‘access to’ and ‘use of’ resources. Thus any discussion on forest land tenure is

not about ownership but includes tenancy and other arrangements for the use of forests. It is a

combination of legal and customary rights, and arrangements to manage and use of forest

resources. Moreover, rights rarely come without obligations or restrictions. Forest tenure

determines who can use what resources, for how long and under what conditions, and

prescribes responsibilities (generally to ensure conservation and sustainability).

While land tenure issues have been investigated and debated for a long time, forest

tenure is gaining global importance only recently, particularly in the context of various

initiatives including Forest Law Enforcement, Governance and Trade and Reducing

Emissions from Deforestation and Forest Degradation (REDD) Plus. It is also theorized that

secure tenure of forest resources may contribute to poverty alleviation of forest dependent

people while achieving the goal of sustainable forest management (SFM). However, a recent

FAO review of various studies titled Reforming Forest Tenures (FAO, 2011) found that

although security of tenures may be necessary for achieving SFM and improved livelihoods,

it is not sufficient by itself. Other factors, including interactions among tenure, enabling

regulatory frameworks and good governance are equally important.

Majority of worlds’ forests, including in developing countries, are under public

ownership and state control, diversification of forest tenure is taking place under recent

policies and laws aimed at improving forest management. In India also assignment of forest

lands to communities under Joint Forest Management (JFM) approach, regulation of

diversion of forest lands for non-forest uses under FCA 1980, ownership of minor forest

produces (MFPs) under the Panchayats Extension to Scheduled Areas (PESA) Act, 1996, and

2 Total recorded forest area was 769,626 Sq. Km. ~ 23.4% of total geographical area of the country. (State of Forests Report,

FSI 2009)

3 Two important aspects are (i) the need for digitized maps of the notified forest blocks and other forest areas including

deemed forests in view of the definition of the term “forest” by the Apex Court in their order of 12th December 1996, and

(ii) that such maps need to be based on latest DGPS boundary surveys, since the “map preparation” have evolved a lot due

to scientific advancement in mapping techniques since the period of notification of forest blocks and need for

accurate/precise maps of all lands. 4 Of the total forest cover only 8.347 MHa. is very dense forest (crown density more than 0.7, and 32.073 MHa. is

moderately dense forest (crown density between 0.4 and 0.7. Remaining forest cover is open forest (crown density below

0.4).

5 Total growing stock of the forest in the country is estimated to be 6047.15 Million Cubic Meters, which works to only

77cum per ha. Total carbon stock was estimated to be 6663 M tons or 85 tons per ha.

3

giving titles over forest lands and recognition of rights to community forest resources (CFR)

under FRA 2006 are important evolutionary developments in this direction.

Forests and their management – historical perspective

It is well known that dense forests once covered a large part of India. The changing

forest composition and cover can be closely linked to the growth and change of civilizations,

as has been the case all over the globe. In fact, since the dawn of human civilization, natural

forest areas have undergone change due to various causes - proximate (or direct – including

agriculture expansion, infrastructure development, wood extraction, climate changes, fire,

invasive species) and underlying (or indirect including population pressure and poverty,

policy and institutional failures), creating tenure rights over forest lands.

Ancient Indian texts mention about forests being revered by the people and that

various religious ceremonies centred on trees and plants. Many forest areas were conserved

as sacred groves. Chanakya, the astute advisor to Chandra Gupta Maurya who established a

fairly large empire around 300 BC, realized the importance of the forests and a high officer

was appointed to look after the forests, and classified forests on functional basis. Ashok

ordered that wild animals and forests should be preserved and protected, and launched

programmes to plant trees on a large scale. Similar activities were continued during Gupta

period. During Mughal period, an elaborate land revenue system in India was created during

the period of Akbar, also known as Todarmal's bandobust or settlement which is basically the

system of land tenure during 1526 to 1707, under which a systematic measurement of land

was made as a preliminary to settlement. The Zabt system was widely prevalent and it formed

the core of Todarmal's land settlement system. Under this system land was measured

annually, and assessment was determined with reference to the area cultivated and the nature

of the crop grown and equitable rate of assessment. There is not much information about

forest lands except that forest areas were cleared for agriculture, and being keen hunters the

Mughals established hunting reserves in forests.

Under the British rule, initially forests were cleared for agriculture and then for

shipbuilding and steamship fuel. However, in the 19th

century, first efforts for “conservation

and management, and legal classification of forests” were made by the British albeit with the

prime motive to reverse the threat of shortage of timber for shipbuilding and railway

construction and fuel which the British apprehended to be imminent. A ‘Charter of Indian

Forests’ was issued by Lord Dalhousie in 1855 outlining the objectives and principles of

forest conservation. The administration of India’s forests was codified for the first time in

1865, when the Indian Forest Act (IFA; VII of 1865) was placed on the statute book. This

was the first legislative step towards the rule of property for forests in British India, which

provided for only a limited degree of state intrusion and control. Local state governments

were empowered to draft their own rules to enforce the Act. The main purpose of the act was

to establish the claims of the state over forests required for railway supplies, subject to the

proviso that existing rights would not be abridged. The Act was replaced by the IFA of 1978

which provided for removing the ambiguity about the "absolute property right of the state"

because villagers had become accustomed to graze cattle and cut wood wherever they

wished, even in the areas where the State retained absolute proprietorship. It provided for the

constitution of Reserved Forests (RF) and Protected Forests (PF). A more absolute nature of

property (as a hierarchy of user rights) was applied than in the past: Grazing, illegal tree-

felling and cultivation, and forest fires were curbed to enhance reproduction of valuable

species. In some areas in Punjab even access was regulated. No rights could be acquired in

RFs unless explicitly ceded by the Provincial Government under the Act. In PFs rights were

4

recorded but not settled. It may be interesting to note that forests were initially reserved from

areas which were earlier classified as 'waste lands6’ and “protection and consolidation” was

the primary task. During such reservation, considerable forest areas were left out for the use

of people and these were placed under the Revenue Department. The Forest Act of 1878 also

provided for ensuring that reservation of forests did not affect the existing rights of

individuals or communities, and the reservation was a very slow process. The British were

conscious of future conflicts with tribals and villagers as a consequence of bringing forests

under public administration, and the Government had been mindful of the need to reconcile

the requirements of sound forest management with the traditional rights of the rural people

and their changing needs. The Indian Forest Act 1927 actually started the process of

demarcation, measurement and mapping of forest areas and their notification as RF or PF for

which the Act prescribed elaborate processes which includes looking into the individual or

community rights and the same were to be duly recorded, in details with regard to

nature/extent and the right holders, wherever they were admitted/recognised. In a RF

everything was 'prohibited' unless 'permitted', whereas in a PF everything was 'permitted'

unless 'prohibited'. Apart from these village forests and un-demarcated forests were also

recognized.

In summary, at the time of Independence following forest tenure types existed:

a) State owned forests:

i. Notified as RF or PF under IFA, 1927 after settling and recording the rights of

individual villagers or village communities.

ii. Un-demarcated and undeclared forests with associated traditional rights, village

forests etc.

b) Zamindari /Malguzari Forests which were largely un-surveyed/un-demarcated and were

burdened with varying degrees of customary community rights.

c) Forests in the Princely States: notified or otherwise for different uses and management.

d) Forests managed under Community/Customary Tenure (in NE and Central India):

Examples of forest-mosaics in shifting cultivated areas, reserves around villages in NE

India, Sacred Groves in Western and Eastern Ghats, Tree Tenure systems etc.

The first five year plan document mentions that “Accurate statistics regarding the area

under forests are not available. ‘Indian Forest Statistics’ puts the area under forests in 1949-

50 at 147-7 million acres (59.5 Million ha. ~ 18.22 % of the total land area). This figure

includes a considerable area of un-wooded waste land, but no account is taken of tree lands,

and there are gaps in coverage in respect of many States”.

Development after Independence (1947 -1980)

With the independence of India in 1947, a great upheaval occurred in all walks of life

including forests. The princely states were managed variably with different types and extent

of concessions to the local people. With the merger of these states in the Indian Union, large

chunks of forests, which have been managed on ad-hoc basis either as a source of revenue or

as hunting grounds, came to be vested in the Government. But in the process large scale tree

felling and conversion of forest areas into cultivation, homesteads and other purposes also

took place. Moreover, with Zamindari and Malguzari abolition in the mid fifties additional

6 There were also hunting reserves, reserve lands under different tenure systems in princely states, which were subsequently

declared as Reserved Forests.

5

forests areas came to be vested in the Government along with nistar and/or other rights,

concessions or privileges. Some of these forest areas also were neither surveyed nor

demarcated on ground, and in many cases temporary pattas have been given for cultivation.

Both these types of areas came to be treated legally as forests by virtue of provisions omnibus

declarations, and subsequently the process of survey and demarcation was taken up along

with their notification under the IFA. In the process sizable forest areas were left out and

were also distributed among landless people settled under various schemes. Rights,

concessions and privileges are recorded in the working plans and compartment history

documents that are prepared and updated every ten years. The management of large part of

the forest lands that got vested in the Government by virtue of various omnibus orders

continues to be in a state of confusion with regards to actual boundaries, rights and

concessions etc. due to the fact they have not yet been surveyed and demarcated and/or not

covered by management plans and consequently have lot of tenure issues7.

Under the Constitution of India adopted in 1951, both “Land8” and “Forest” were put

in the State List in the seventh schedule. However, considering the uniqueness of “forest” as

an important land based natural resource a uniform public policy for the entire country was

thought to be essential. The National Forest Policy (NFP) of 1952, enunciated within few

months of unanimous adoption of a resolution on “Principles of Forest Policy” at the sixth

FAO conference held in Rome in December 19519, identified six vital needs of the country

indicating functions fulfilled by forests, and specially recognized the protective functions of

the forests and aimed at maintaining one-third of India’s land area under forests. Forest

administration continued with more emphasis on preparation of Management Plans, and

Survey & Demarcation of remaining forest areas, and bringing more areas under legal

notifications. However, the work of demarcation and preparation of boundary maps of all the

notified forests is still to be completed. Several states enacted their own forest acts which

generally have provision similar to the IFA 1927. Some states continued to follow the IFA,

1927, with state specific amendments.

Distribution of land to landless had a major impact on forests, since large forested

areas close to habitations were cut and brought under the plough, resulting in enhanced

pressure on remaining forests areas to meet the increasing needs of growing population and

developing economy. Large tracts of forests were diverted by the states for non-forest uses,

including extension of agriculture, and also requirement of industries at a rate of about 1.5

lakh ha. per annum till 1980 when the union government put restrictions on diversion of

forest lands by State Government through promulgation of an Ordinance called the "Forest

(Conservation) Ordinance, 1980" on the 25th

October, 1980, followed by an Act called "The

Forest Conservation Act, 1980. Before that, in 1976, through the 42nd

constitutional

amendment “Forest” was brought on to the concurrent list in the Constitution giving the

7 However, as per the decision of the Apex Court all such lands are “Forests” for the purposes of the Forest Conservation

Act 1980 and their diversion for non-forest uses by the State Government necessarily requires prior approval of the

Government of India (MoEF) and consent of the concerned Gram Sabhas.

8 Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of

rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.

9 The FAO resolution on Principles of Forest Policy deals with the fundamental principles which must necessarily be

interpreted in the light of social and economic conditions prevailing in each country, and provided a framework on which

each and every country can elaborate its Forest Policy. The principles included determination and setting aside areas to be

dedicated to forests, application of best practical techniques to derive maximum benefits available from protective,

productive and accessory values of its forests to the greatest number of its people, development of public consciousness of

forest values.

6

Union Government power to legislate in matters relating to forests. The National

Commission on Agriculture in its report (1976) emphasised the need for a new National

Forest Policy.

Thus, in summary, sizable forest areas accrued to the State through omnibus orders

and were declared to be RF/PFs or other categories without following the process prescribed

under the Forest Acts complicating tenure issues. A large part of these areas continues even

today with overlapping “ownership” of the revenue departments and a confused state with

regard to responsibility of their management. Only some of these areas were subsequently

surveyed & demarcated, and notified after settling/recording individual/community rights.

Moreover, forest lands were given for various purposes including extension of agriculture,

“land to landless” and also for establishment of industries creating new tenures without

much regard for settling customary/traditional individual/community rights. In many cases

although the land use changed, the classification in Record of Rights continued to be

“forest” albeit by different local terms. In some cases even RFs were diverted without de-

reservation consequently the areas continue as RFs in the Forest Department Records

although their actual land use is non-forest.

Forest Conservation Act 1980:

FCA 1980 regulates the powers of the State Governments relating to de-reservation of

RFs and diversion of forest land for non-forest purposes, which can be ordered by the

concerned State Government only after prior approval of the Central Government (MoEF).

While giving prior approval MoEF also prescribes mitigation measures in the form of

“conditions” for the proposed non-forest use, safety zone/green belt/avenue plantations,

compensatory afforestation, catchment area treatment, and Net Present Value10

. Since the

enactment of FCA forest area approved for diversion by MoEF till 2012, including both final

approval and in-principal approvals, is about 1.15 MHa. (including 5.2 lakh ha. towards

regularization of encroachments, delisting of Punjab Land Preservation Act, conversion of

forest villages etc.) which averages to about 23000 ha. per annum – almost one sixth of the

average annual diversion prior to FCA. Thus, the act has been very effective in bringing

down diversions of forest lands although monitoring of compliance to prescribed conditions

is rather week (Bansal, 2013), and there is need for comprehensive analysis the overall

impact of diversions, including on the enjoyment of rights and concessions by the project

affected people.

The guidelines issued by MoEF under the FCA provide for resolutions of Aam

Sabha/Gram Sabha of the concerned villages supporting diversions of forest lands for non-

forest purposes before such diversions are finally approved, giving the people living in and

around forests, a say in non-forest use of forest lands, through the concerned Gram Sabhas.

National Forest Policy 1988

NFP was revised in 1988 brought in a paradigm shift in the management of forests

from “regulatory” to “participatory” and states that conservation includes preservation,

maintenance, sustainable utilization, restoration and enhancement of the natural

environment. The primary objective is ecological security with a focus on meeting livelihood

10

It is important to note that the legal status of diverted forest lands remains unchanged, i.e. it continues to be forest, and

consequently the diversions do ne result in reduction in recorded forest area. Also forest lands diverted for mining and

other similar activities are required to be returned to the forest department after project completion (i.e. closure of mining

etc.) after appropriate reclamation and can be used by the people for exercising their rights and concessions.

7

needs of the forest dependent communities. Other objectives include preservation of natural

forests, checking erosion, increasing substantially the forest cover, meeting the requirements

of the rural and tribal populations, increasing the productivity of forests to meet essential

national needs, encouraging efficient utilization of forest produce and maximizing

substitution of wood and creating a massive people's movement for achieving these

objectives. The 1988 NFP resolution emphasizes the fact that derivation of economic benefit

must be subordinated to the principal aim of ensuring environmental stability.

The policy makes several provisions that are relevant in the context of forest land

tenures. These include: rights and concessions, including grazing, to be primarily for bona

fide use of communities living in and around forests areas and to be related to carrying

capacity of forests; optimization of capacity itself by increased investments, silvicultural

research and development of the area; encouraging stall feeding of cattle; promotion of

Social Forestry outside RFs to meet the requirements of the communities which cannot be

met by the rights and concession in forests; motivating the customary right and concession

holders in forest areas to identify themselves with the protection and development of forests

from which they derive benefits; arresting the trend of encroachment on forest lands and no-

regularization of existing encroachments. It is important to note that consecutive various

National Forest Policies have adopted the principles of Doctrine of Public Trust and kept the

forest resource being gift of nature under the trusteeship of Government, so that they should

be made freely available to everyone and the policy makers right from 1894 to 1988 have no

intension to convert forest ownership into private ownership (Upadhyay, 2011).

Joint Forest Management

An important outcome of 1988 NFP was the beginning of formal community

participation in management of forests –

through Joint Forest Management (JFM)

approach which created new rights of local

communities in the adjoining forests.

MoEF issued a circular on 1st June 1990,

popularly known as JFM Resolution, for

involvement of village communities in

protection and development of degraded

forests, and usufructory benefits (MFPs –

now called NTFPs/NWFP, grasses, lops

and tops etc. and share in proceeds from

sale of trees at maturity) to the members

organised into village institutions (JFM

Committees) specifically for forest regeneration and protection. The forest areas are to be

selected so that anyone who has a claim to any forest produce claims for the area (including

existing rights, privileges, and concessions) is not left out without being given full

opportunity of joining. Gradually JFM became a nationwide movement with State

Governments issuing their own JFM resolutions. JFM approach followed in India is a typical

example of adaptive/incremental process since it has gradually evolved over time and is still

evolving towards the achievement of its goal (SFM) as is evident from the issuance of

revised/re-revised State JFM resolutions based on field experiences11

. As an illustration the

11

Important changes in JFM resolutions include: extension for degraded areas to good areas, eligibility criteria for

memberships, representation of women on Executive Committees, representation of local Panchayati Raj representatives,

and devolution of powers from Forest Department officials to community members.

It may be pertinent to note that many states

including Odisha, Uttar Pradesh, West Bengal were

already having systems of community participation

in forest management and resolution of Government

of India was in recognition of these and other

similar initiatives in different parts of the country,

and the realization of the fact that giving the unique

situation in the country, relating to dependence of

people on forests for sustenance, willing and active

participation of forest fringe communities is

necessary for any forest regeneration programme to

be successful.

8

evolution of JFM resolutions of Odisha is given in the Annexure. The Government of India

also revised their guidelines in 2000/2002 (which among other things laid emphasis on legal

support to JFMCs, promotion of women’s participation, extension of JFM to good areas,

preparation of site specific micro plans, synergy between Gram Panchayats and JFMCs etc.)

for strengthening the JFM. MoEF has issued advisory to the States (in 2010) that the JFMCs

are to function under overall guidance and supervision of the Gram Sabhas, they be

recognised as organs of the Gram Sabha – standing committees of GP for social forestry and

farm forestry, and item 7 (MFPs) listed in the 11th

Schedule of the Constitution12

. By 2011

there were 1.20 lakh JFMCs although known by different names such as Van Panchayat, Van

Samrakshyan Simiti, Van Surakshya Samiti, Village Forest Protection Committee; involving

about 145 lakh families (of which around 50% are SC & ST families) managing 229.38 lakh

hectares of forest land.

However, the JFMCs are in various stages of

evolution with regard to their activities, performance,

inclusiveness, participation of women, and participatory

decision making. The table indicates growth of JFM in the

country during last decade (Bansal, 2013). The JFM areas are

required to be managed in accordance with Micro Plans

prepared through participatory rural appraisal involving the

community along with details of rights, concessions and

privileges. Gradual increase in the number of JFMCs is a

good indicator of acceptance of JFM approach by the people.

In lieu of protection, conservation and management of assigned forest areas, the

members of JFMCs13

are entitled to usufructs in terms of free collection of NTFPs, fuel

wood, fodder, bamboos, thinning yields and a share in income from timber harvested during

main felling according the approved management/micro plans. All forest produces (MFPs,

fuel wood, small timber, bamboo etc.) collected from the forests managed under JFM are

required to be recorded in the respective micro plans. At the National Workshop on JFM

(Status of JFM in India, Proceeding of National Workshop on JFM held on 27-28 June 2011

at Forest Research Institute, ICFRE, Dehradun) it was assessed that based on the information

provided by 15 states in respect of 77262 JFMCs, benefit per JFMC in term of fuel wood,

fodder, NTFP etc. works out to Rs. 2.50 lakh per annum. (FRI, 2011)

The experiences under recent forestry projects being implemented in the country with

assistance from Japan International Cooperation Agency indicate that for JFM to be more

effective in achieving the goal of SFM it is essential that the livelihood needs of the forest

dependent communities are addressed positively through specific investments in community

development activities and creation of additional livelihood opportunities around not only

forests but also other natural resources, and enhancing the entrepreneurial capacities of

communities organized as Self Help Groups, Common Interest Groups comprising of forest

dependent people, particularly the women. There is an urgent need to dovetail various

developmental programmes/schemes at the village level and develop synergy of JFMC with

12

Letter dated 29th October 2010 form the Union minister for Environment & Forests to the State Chief Ministers.

. 13

In most of the States, with the exception of Uttrakhand, Karnataka, the JFMCs are constituted on the basis government

resolution and therefore lack legal strength. This lacuna has become even more critical after the enactment of FRA which

recognises CFRs.

Year No. of

JFMCs

Forest area

under JFM in

Million Ha.

2001 62,980 14.25

2006 1,06,482 22.00

2011 1,19,712 22.94

9

other village level Institutions, so that the forest dependent people, who continue to remain

poor due to inadequate reach of various development programmes to the remote forest fringe

areas, get the benefit of public funded developmental activities. Efforts of bringing

convergence and synergies, wherever adopted, have resulted in encouraging initial results14

.

These aspects have been factored into in the design of the Green India Mission, one of the

eight missions under the National Action Plan under Climate Change, and in formulating the

12th

Five Year Plan (Planning Commission 2012).

Panchayats (Extension to the Scheduled Areas) Act 1996

73rd

amendment to the Constitution mandated that resources, responsibility and

decision making be passed on from central government to the lowest unit of the governance,

the Gram Sabha or the Village Assembly. A three tier structure of local self government was

envisaged under this amendment. Since the provisions do not automatically apply to

scheduled area, PESA [Panchayats (Extension to the Scheduled Areas) Act] enacted in

December 1996 extended the provisions of Panchayats to the tribal areas of nine states that

have Fifth Schedule areas, Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh,

Jharkhand, Maharashtra, Madhya Pradesh, Odisha, and Rajasthan. Amongst other

provisions, PESA

provides that a State

Legislature shall ensure

that the Panchayats at the

appropriate level and the

Gram Sabha are endowed

specifically with the

ownership of minor

forest produce.

Consequent to this the

states brought out

rules/regulations for its

implementation and

practically all MFPs

except those which have

been nationalised earlier

were deregulated.

Although, the panchayats

have been given the

responsibility and

authority of managing

non-nationalized NTFP,

but this has not yielded substantial benefits to the poor MFP collectors due to lack of capacity

with the panchayats. Now Government of India is actively considering providing Minimum

Support Price (MSP) for some selected MFPs. But unless there is effective local capacity

14 The Author has been Project Director, JICA assisted Odisha Forestry Sector Development Project (from its inception in

2006 to December 2010), and also had been associated with all the JICA assisted forest projects in the country between

(2011-2012) as Addl. Director General Forests, MoEF, GOI, New Delhi.

Implementation of PESA in Odisha

In Odisha, Orissa Gram Panchayats (Minor Forest Produce

Administration) Rules were promulgated in November 2002, through which

the responsibility of fixing the minimum procurement price (MPP) is vested

with the Panchayat Samiti. The MPP so fixed by Panchayat Samiti is to be

rectified by Gram Sabha and the Gram Panchayat has been empowered to

modify the MPP if needed. Prospective traders have to register himself as a

dealer with the concerned Panchayat and to abide by the conditions including

payment at the MPP or higher, and intimate the quantity bought to the

panchayat office and the Forest Range Office. There is no restriction on

movement of produce inside the state. However, the concerned

Administrative Department i.e. the Panchayati Raj Department did very little

to build capacities of Panchayats or supervise implementation of OGPR

which also required coordination with the State Forest Department which

administers/manage most MFPs producing forest areas.

In Odisha 68 MFPs, which were earlier leased by the Government,

were freed from the requirement of transit permit under the Odisha Forest Act

in 2000, and one more item was added to the list subsequently. Recently, on

May 2103, Govt of Odisha has deregulated Kendu Leaves working in One

Division, Nowrangpur, and decided that the people are free to sale KL to

anybody of their Choice and the Gram Sabha concerned has been authorised

to issue transit permits to enable transport. To prevent exploitation of people,

KL organisation has also been directed to continue to operate collection

centres and to accept KL from the people (Notification no. F&E 9791 dt

8.5.2013). However, by the time this order was issued advance sale of KL has

already taken place, and now there are no purchasers of KL either form the

people or form the KL organization. The provision of transfer of ownership

over KL without any viable alternative to the existing institutions would have

serious risk of sustenance.

10

building and adequate investment in enhancing the productivity of the forest areas where tree

species producing MFPs grow, there is very little chance of achieving intended long term

benefits.

The Scheduled Tribes and Other Traditional Forest Dwellers (recognition of forest

rights) Acts, 2006:

Commonly known as the Forest Rights Act (FRA), it provides for recognition of

rights over forest land in cultivation before 13th

December 2005 in favour of the tribals and

other traditional forest dwellers, and rights to Community Forest Resources (CFRs) following

the process prescribed under FRA and Rules made there under, for deciding on the claims

after due verification of the claims based on required evidence(s). The land titles given to

individuals under FRA are heritable but not alienable or transferable. It also gives prime role

to the collective wisdom of “Gram Sabha”. The FRA makes a major shift in ownership of

forest land from government ownership to private (individual) ownership although it done

not give absolute ownership since the titles given are not alienable. In addition to individual

rights, FRA also provides for community rights. Till June 2013 about 1.3 million titles,

mainly individual rights, have been given involving an area of 1.987 million ha. of forest

lands15

.

FRA also recognises community rights such as nistar, including those used in

erstwhile Princely states, Zamindari or such intermediary regimes; and right to ownership,

access to collect use, and dispose of minor forest produce traditionally collected within or

outside village boundaries, right to protect, regenerate or conserve or manage any community

forest resource which they have been traditionally protecting and conserving for sustainable

use. The customary boundaries of the CFRs are also required to be delineated by the Gram

Sabha along with preparation of a map of CFR before being claimed. From the information

available on the website of the Administrative Ministry of Tribal Affairs (MOTA), it is seen

that 4188 CFR titles cover an area of 254276 ha. averaging to about 60 ha per CFR.

However, state wise details reveal wide variation in average area per CFR – ~296 ha. in

Maharashtra, ~53 ha. in Odisha, ~7 ha. in Chattishgarh & Rajasthan. Moreover, actual

effectuation of these titles is yet to start in most cases. It is felt that the rights recognized in

Odisha, Chhatishgarh and Rajasthan could be more around development rights [Section 3(2)]

and not Community Forest Rights per se defined under Section 3(1) (i).

The Act creates new land titles in forest lands - ownership and use rights, and also

management right for sustainable use, but there is very little real emphasis on actual

exercising of the rights by the concerned title holders. The hurry in implementation of FRA

as a result of social and political pressures lead to compromise in process of detailed survey

and rights recognition through use of appropriate available technology (GPS survey etc.). The

September 2012 amendment in rules under FRA provide the on completion of the process of

settlement of rights the Revenue and Forest Department shall prepare a final map of forest

lands so vested and the shall incorporate the forest rights so vested in the revenue and forest

records as the case may be. The ambiguous situation that it has lead to, threatens to bring on

conflicts around ownership and uses of FRA allotted lands to individuals, and rights and

responsibilities of communities and the state forest departments (as any dual

control/responsibility will be unviable in the long run and leads to conflicts).

15

Website of Ministry of Tribal affairs - Status report on implementation of the Scheduled Tribes and Other Traditional

Forest Dwellers (Recognition of Forest Rights) Act, 2006 [for the period ending 30st June, 2013]

11

The rights to CFRs are actually least understood and needs lot more understanding

and clarifications amongst all the stakeholders. In needs no emphasis that under the evolving

JFM approach covering about 30% of the total forest area with communities already enjoying

(similar) rights defined under various state resolutions for more than 20 years. There is a need

to strengthen JFM further to continue the trust of the local communities in the Government

which have invested considerable time and efforts.

Similarly the “ownership right over MFPs” needs abundant clarification in view of the

experience in implementation of PESA Act which also has similar provisions. Yet another

important aspect is ensuring “sustainability” of community forest resources that are sought to

be protected, regenerated, conserved and managed by the forest dwelling scheduled tribes and

other forest dwellers recognised under the FRA.

FRA also provides for diversion of forest land under FCA 1980 up to one ha. each for

13 specified facilities managed by the Government provided such development projects are

recommended by the Gram Sabha. However, in spite of guidelines that states have to furnish

quarterly reports to the Ministry of Tribal Affairs in respect of diversion of forest land for 13

specified categories of facilities, no information is forth coming in this regard.

From the perspective of “forests”, while putting in efforts to address the above

mentioned and other similar issues, important aspects that need also to be critically looked

into is the efficacy in achievement of the objectives of FRA and the impact on remaining

forest resources – demand shift – conservation of CFRs areas and meeting demands from

other forest areas leading to their continued deterioration; honey combing the forests – and

snow balling effects - impact on forests & wild life, long term sustainability etc.

Important Issues

In the background of the above discussion, following issues are very relevant and

require immediate attention of the Government of India and the State/UT Governments:

a. Boundary maps of the forest areas: for clarity of tenure rights over any forest area, in

addition to detailed description of rights, concessions, or privileges of different stakeholders,

accurate maps of all areas that are legally “forests” is absolutely necessary. In fact the Apex

Court in a order of 6th

July 2011 (known as Lafarge Order) have directed for “completion of

exercise undertaken by State/UT in compliance of Apex court’s order dated 12th

December,

1996 for identification of areas which are ‘forests’ irrespective of whether they are so

notified, recognised or classified under any law, and irrespective of the land of ‘forests’ and

the areas which were earlier ‘forests’ but stand degraded, denuded and cleared, culminating

in preparation of Geo-reference district forest-maps containing the details of the location and

boundary of each plot of land that may be defined as ‘forest’ for the purpose of FCA 1980.”

It is a matter of serious concern that in spite of the importance of forest resources being

rediscovered under the global climate change debate/discussions, and despite repeated orders

of Apex court, we do not have reliable geo-reference maps of all the ‘forests’ in our country.

While preparing such forest boundary maps, followed by notification/re-notification

under the forest act, it is essential that there is reconciliation with revenue maps of all the

adjoining villages. In the absence of such reconciliation there is a possibility of forest block

boundaries intersecting with village boundaries/cultivated lands or having un-surveyed land

between forest and village boundaries giving rise to potential conflicts. Various aspects have

12

been elaborately discussed in a recent publication titled “Demarcation, Survey and Geo-

referencing of forest boundaries using Differential GPS” brought out by SPARC (SPARC,

2013). What is required is issuance of guidelines containing Standard Operating Procedure by

MoEF in consultation with the Forest Survey of India and/or other survey organizations

having relevant experience addressing various issues that are bound to come up in the course

of proper survey/resurvey of the forest areas along with demarcation wherever necessary, so

as to complete the preparation of geo-referenced boundary map of all forest areas in the

country.

b. Rights and Privileges: Enjoyment of rights, concessions and privileges by their

holders requires that the same are properly and unambiguously defined and recorded in terms

of their nature and extent in the concerned records along with associated duties,

responsibilities and obligations. The right holders need also be provided with some

documents for the same both with respect to the rights, concessions or privileges and their

duties/obligations. Unfortunately, most the rights and privileges etc. in respect of forest lands

are neither appropriately documented in detail (they are rather vaguely mentioned in working

plans of compartment histories) nor any details are given to the right holders. Moreover, there

are no specific processes for fulfilling the obligations, if any, by the right holders. There is

also a need for clarity about the meaning of “ownership of MFPs” and harmonisation of

various acts impacting on administration/development/ movement of MFPs.

c. Evolution of JFM: Recognising the important and strategic role of JFM in

development of forests, the Steering Committee on Environment, Forests, Wild Life and

Climate Change for the 12th

Five Year plan has recommended to broad-basing of JFM by

making JFMCs as Standing Committees of the Gram Sabha, and for evolving them into a

higher platform “JFM Plus” where the livelihood promotion of the communities, especially

women Self Help Groups (SHGs) formed for such activities, gets increased importance in the

conservation and development of forests. To achieve this, JFMCs are required to be

adequately and strategically revitalized and empowered. Involvements of women, who are

the major gatherers of forest produce, are to be prioritized in forest management and

regeneration operations16

(Planning Commission, 2012).

In addition to above developments, following important aspects should/need also be

addressed to ensure that tenure created under JFM result in achievement of the goal of SFM: i. Bringing JFMCs under legal regime (from MoUs under various resolutions) and harmonising to

ensure that the rights given under JFM are not taken away or changed unilaterally and to

facilitate long term involvement of communities.

ii. Clear definition of usufructory and other rights and associated responsibilities to the JFMC

members.

iii. Clear eligibility criteria for membership of JFMCs, and maintenance of membership lists.

iv. Clear boundary demarcation & maps of the forest area, and assessment of resource to which the

rights apply. Technically feasibility of using remotely sensed satellite data has been analysed in

recent paper based on the experiences in the course of execution of JICA assisted Odisha

Forestry Sector Development project (Bansal et al. 2013).

v. Systematic assessment of learning from across the States to facilitate further strengthening the

community participation in management of forests.

16 The author has also contributed in the formation of these recommendations as a Co-chairman/ member of various groups,

and sub-groups.

13

vi. Harmonising JFM with existing legal/constitutional provisions around FRA (Forest Rights

Committee and CFR area) and Biodiversity Acts and Rules (Village Biodiversity Management

Committee)

Moreover there is a dichotomous situation developing due to recognition of right over

CFRs side by side with JFMCs which ought to be reconciled for the development of forests

and forest dependent communities. This is all the more important and urgent in view of

ongoing global negotiations on REDD Plus (the “Plus” signifies incentives for positive

changes in forests due to forest conservation, sustainable forest management, and

enhancement of carbon stock, which is highly relevant for countries like India with lot of

efforts focussed on conservation and development of forests), and the fact that India is

committed to pass on the carbon benefits under REDD Plus to the concerned communities

(Bansal et al. 2012).

d. Sustainability: Sustainability of such a unique natural and renewable resource is

absolutely essential not only for the enjoyment of right of individual or communities but also

for long term survival of mankind and other living organisms on the Earth, the only known

living planet in the entire universe. It need no emphasis that adequate investment, in terms of

finances, capacity building of all stakeholders, and required policy initiatives, in maintaining

this natural capital is absolutely essential so that the local and national needs of various forest

products can be met adequately while keeping its potential for providing ecological services

including water, air and environmental amelioration. In the absence of adequate investments

the various tenure reforms as discussed above are not yielding intended results. It is

unfortunate that in spite of greater global and national understanding about the

significance/contribution of forests investments continue to be abysmally low ~ around 0.5%

till the sixth five year plan (1980-85) and around 1% in the subsequent five year plans. Such a

situation continues since “contribution of various sectors to the GDP” is a primary factor in

sectoral allocations. By the very nature of Forest Resource - which is like an open treasury,

and the National Forest Policy focus on “ecological security and meeting livelihood needs of

local people”, the contribution of forests continue to be out of the purview of markets and

marketing systems, and hence largely non-monetised.

14

References:

Bansal A.K., Madhu Verma, Rajesh Kumar, Swapan Meheta, Priyanka Batra, 2012, REDD + manual

for Practitioners, Indian Institute of Forest Management, 20p.

Bansal, A.K., 2013, Forest Conservation Act – Applications and Implications, One India One People

March 2013, pp:12-14.

Bansal, A.K., 2013, Evolution of JFM to JFM+ for Sustainable forest Management, A dialogue on

Ecology and Environment – V, Swadhina, June, pp: 3-7.

Bansal, A.K., Vinod Kumar, Subhdarshi Mishra, 2013, GIS based planning and monitoring of JFM

treatment areas under JICA assisted Odisha Forestry Sector Development Project, Indian

Forester Volume 139(8):674-682.

FAO, 2011, Reforming forest tenures – Issues, Principles and Processes, FAO Forestry paper 165,

92p.

Forest Research Institute, 2011, Status of Joint Forest management in India, Proceedings of National

workshop on JFM, 27-28 June 2011, 63p..

Planning Commission, Government of India, 2012, Report of the Steering Committee on Forests,

Environment, Wildlife and Climate Change, March, 110p.

SPARC 2013, Demarcation, Survey and Geo-referencing of Forest Boundary Using Differential GPS

– Development of GIS based DSS for Forest Divisions, 28p.

Upadhyay, R.K, 2011, Policy changes in status of forest ownership from 1865 to 2006 –

Journey from Government owned to private ownership – An analysis, Indian Forester,

Vol. 137, No 8, pp:21-26

15

Annexure

Evolution of JFM Resolutions in Odisha

1988 - Odisha (earlier called Orissa) is one of the few states of India with a number of self-initiated community

groups protected forest patches and issued a formal resolution in 1988, two years before the resolution of

Govt of India, introducing a scheme of protection of peripheral reserved forests (RFs) with the

participation of adjoining villages.

1990- The scope enlarged to include protected forests (PFs), and also introduced formation of Village Forest

Protection Committees. VFPC members to get small timber & fuel wood free of royalty for bonafide use.

1993 – Launched a comprehensive scheme of Joint Forest Management with equal partnership of the forest

department and the adjoining villages involving degraded RFs and PFs (other than National Parks &

Sanctuaries) having potential for regeneration. Two adults per family can join as member to form the

Vana Samrakshyan Samiti (VSS) with an Executive Committee (EC) comprising of Naib Sarapanch as

Chairperson, ward members of the concerned villages, and six to eight elected/selected village

representatives including at least three women, the concerned forester and Forest Guard and a NGO

nominated by the DFO as members. Duties and responsibilities of VSS and EC and role of the FD, and

usufructory benefits to which the members entitled in lieu of discharge of duties and responsibilities were

also defined. The benefits included collection of leaves/fodder grasses, brush wood, lops and tops used as

fuel wood, collection of leased MFPs for being sold to the respective lessees at rate prescribed by the

Govt., small wood, poles and fuel wood produced as intermediate yield in silvicultural operations as per

working plans, 50% share in timber and poles during final felling or major harvest, provision for

memorandum of understanding (MoU) between the VSS and the DFO. The implementation of the

scheme was to be overseen by a steering committee headed by the Forest Minister.

2008 - After extensive consultations during 2005 to 2008, JFM resolution was revised. Role of the JFMCs and

FD was defined more comprehensively, including provisions for establishing market linkage for NTFP,

mechanism for inter-village and inter village conflict resolution, demarcation of the area assigned to the

VSS/EDC, and process for preparation of ten year micro plan to be agreed by the with the General Body

of the JFMC and to be approved by the DFO. Other important changes included:

(i) Extended to Village Forests & Revenue Forests, and also Protected Areas (National parks and

Sanctuaries) excluding core areas and Mangroves called JFMC (EDC for protected areas, & VSS

for other areas) in addition to RFs and PFs.

(ii) JFMC for hamlets in a village with minimum 60% of all adults as members,

(iii) EC comprising of elected Chairperson, Vice Chairperson, treasurer, and 8 other elected

representative of members of whom 5 are to be women, and SC/ST representation on EC

proportionate to their membership, and the concerned Forester as member secretary,

(iv) Either Chairperson or Vice Chairperson to be a woman.

(v) Provision for funding implementation of the Micro Plan and detailed accounting procedure

including provision for bank account for each JFMC, maintenance of accounts at by the JFMC,

annual audit of JFMC accounts.

2011 - The JFM resolution was revised again with following major changes:

(i) EC to work as a sub-committee of the Palli Sabha (or Gram Sabha),

(ii) Member secretary to be elected from amongst the members rather than the concerned forester,

(iii) Representation of group of community who do not have any livelihood support other than

depending on forest on the EC,

(iv) Efforts by the VSS/EDC for protection of adjoining catchment areas/water resources and other

ecologically sensitive areas.