Tribal leaders seek to be party to forest-rights case; Centre and Nicobar authorities say ‘too late’

The chairperson and members of the Little and Great Nicobar Tribal Council have moved the Calcutta High Court’s Port Blair bench seeking to be made party to an ongoing public interest litigation challenging the Forest Rights Act (FRA) proceedings to divert 166 sq km of forest land for the Great Nicobar mega project. The Centre — through the Environment Ministry and the Tribal Affairs Ministry — and the Andaman and Nicobar Island administration have opposed the impleadment plea, saying it is delayed and seeks to expand the scope of the ongoing litigation.

Council chairperson Barnabas Manju, two village captains and one member of the Nicobarese community have stated that they want to be made party to the case as the Nicobarese community has never consented to the diversion of the land, no gram sabha of the tribals was ever conducted under the FRA, and they have always wanted to return to their ancestral land on the southeastern and western coast.

As part of the Rs 81,000-crore project, the Centre wants to build an integrated township, a transshipment container port at Galathea Bay, a solar and gas-based power plant, and a greenfield military and civilian-use airport. A recent draft master plan also cited tourism as the backbone of Great Nicobar Island while developing a greenfield coastal city, supported by a service industry and a port-linked finance hub.

The bench is hearing a clutch of petitions by former Union secretary Meena Gupta. Key among them is a plea challenging the validity of proceedings under the FRA — the process followed to convene three gram sabhas, the composition of a sub-divisional level committee (SDLC) that examines resolutions passed by gram sabhas, and the eventual Record of Forest Rights (RoFR) certificate issues for land diversion.

The petitioners said they were constrained to approach the HC as their demands seeking withdrawal of the RoFR certificate remained unaddressed. The RoFR, issued on August 18, 2022, states that the forest rights settlement under FRA was complete to divert forest land for the project.

“The certificate falsely states that the concerned gram sabhas have consented to the diversion of forest land and cites meetings of the gram sabhas of the settled community in which no Nicobarese was present,” the plea stated.

The petitioners have called into question the SDLC’s endorsement of the gram sabha resolution bearing a no-objection signature from Manju. The plea alleges that the chairperson was not even aware of his membership of the SDLC until he arrived at the meeting and was also not aware of its purpose. The chairperson, the plea said, was not given adequate facts to make an informed decision, and that he was not authorised to consent alone on behalf of the entire community.

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“…On 13.8.2022, the 1st applicant (chairperson) attended the meeting only in a routine manner like many of the other meetings regarding tribal welfare, etc. that the administration would invite him to attend, and he had received no notice regarding his appointment in the SDLC,” the plea stated.

Under the Forest Rights Act, the SDLC’s mandate is to verify and examine claims of forest rights forwarded by the Gram Sabha, and prepare a draft of the RoFR, which is forwarded to the district level committee. Following his no-objection signature on the SDLC’s August 13, 2022, proceedings, the chairperson had subsequently written a detailed letter on November 22, 2022, withdrawing the NOC for forest diversion, the plea said.

On return of the Nicobarese community to their ancestral land, the applicants said the tribal council has sent several letters to the administration, made oral pleas during visits by various authorities, including during the Environmental Impact Assessment public hearing held for the mega project.

In their response, the Centre and the UT administration want the plea to be dismissed, citing delay and enlargement of the litigation’s scope as the chief grounds in an affidavit filed in late September.

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On the issue of the SDLC proceedings, the Directorate of Tribal Welfare, Andaman and Nicobar administration, invoked the ‘approbate and reprobate’ principle, saying that the tribal council chairperson cannot withdraw his consent to the SDLC decision. The revocation of the consent, the directorate stated, was “procedurally untenable”.

In its counter affidavit, the Centre said the RoFR certificate is nearly four years old and the pending PIL two years old and thus, impleadment at this “belated stage” would delay the hearing of the PIL, and enlarge its scope. The issues raised in the plea, the Centre said, are already being heard as part of the pending PIL. Moreover, it added that if at all the HC is inclined to hear the applicants, it should be limited to submissions on issues already raised in the PIL and that they should not be made party to the case, or allowed to file pleadings, as “it would irretrievably complicate and protract the proceedings”.

Earlier, the Centre and the UT administration had objected to Meena Gupta’s PIL, challenging her locus on grounds that she was not a resident of the Andaman and Nicobar Islands. However, the Calcutta HC circuit bench had overruled those objections and agreed to hear the matter.