ENCROCHMENT on FARMER's LANDS by the STATE & the Wild

Report of the “Centre for Kerala Studies” on ENCROCHMENT ON FARMER’S LANDS By the STATE & the Wild ANIMALS Part I

DIFFICULTIES FACED BY COMMON MAN AND FARMERS DUE TO THE PUBLICATION OF DRAFT NOTIFICATION FOR EARMARKING BUFFER ZONES/ECOSENSITIVE ZONES IN REVENUE LANDS OWNED BY FARMERS WITHOUT OFFERING DUE COMPENSATION – KASTHURIRANGAN / GADGIL COMMITTEES COMING THROUGH BACK DOOR - REQUEST TO FORM A HIGH LEVEL COMMITTEE TO FOLLOW UP GADGIL, KASTHURI RANGAN AND OOMMAN V OOMMAN COMMITTEE REPORTS AND THE CASES BEFORE THE SUPREME COURT & HIGH COURT LEVEL AND BEFORE THE MINISTRY OF ENVIRONMENT & FORESTS, GOVT OF INDIA and GOVT OF KERALA AND TO FREEZE THE DRAFT ESZ NOTIFICATIONS TILL A FINAL DECISION IS TAKEN Part II

MAN ANIMAL CONFLICT - PROTECTION OF HUMAN LIFE & CROPS – AMENDEMENT TO FOREST & WILF LIFE ACT – APPLICABILITY OF “STRICT LIABILITY PRINCIPLE” FOR ANIMAL ATTACKS – REVISION AND UPDATION OF COMPENSATION PAYABLE TO ANIMAL ATTACK VICTIMS AND CROPS – ESTABLISHMENT OF FOREST COURTS SIMILAR TO FAMILY COURTS or MACT COURTS

Rr. James Vadakkan

For Centre for Kerala Studies

Contents Chapter Subject Page Nos PART I – ESA – Ecologically Sensitive Area 01 2020 Draft Eco-Sensitive Zone Notifications 02 8 Draft Notifications in 2020 03 The affected people not informed 04 Restrictions on use of agricultural land & development 05 A “silent land acquisition” without any “compensation” 06 ESA originates from Sec 3 of the Environment (Protection) Act 1986 (EPA) and EP Rules 1986 07 The Pronab Sen Committee Report 2000 08 “Ecological Sensitivity /Fragility” as defined by Pronab Sen 09 Pronab Sen, ESA/ESZ and Protected Areas 10 National Board for Wildlife decision dated 17th March 2005 11 Forests, Farmer made Forests and Forest Cover – Kerala 12 “Compensate the Farmer” based on the “Polluter pay principle” 13 “Love of Nature” is love for Ecology, and it is a Love for Human Beings” 14 Doctrine of Strict Liability 15 “2020 ESA Draft” is “Gadgil Committee” through backdoor 16 WGEEP/Gadgil Committee 2010 17 Definition of ESA & assignment of Taluks by WGEEP 18 Restrictions on Land Use, Agriculture 19 Where the WGEEP/Prof Gadgil erred ? 20 Constitution of Dr Kasthurirangan Committee (HLWG) 21 81% against WGEEP/Prof Gadgil Report 22 Demarcation of “Western Ghats” by HLWG 23 Three Member Expert Committee on HLWG Report 24 World’s 1st EFL Act is from Kerala 25 IN Situ & EX Situ Conservation 26 Latest Developments need close follow up 27 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 28 The Prayer/findings PART II - Man Animal Conflict 29 Farmer, the protector of Mother Earth 30 The real picture of the Wild Animal Attacks 31 Over growth of Wild Animals 32 Increasingly dangerous human Animal Conflict 33 Compensation (?) offered to the Man animal Victims 34 Scale of Financing of Crops 2020 35 Revising the Compensation payable 36 Doctrine of Strict Liability 37 How to reduce the Causalities ? 38 Self Protection becomes a criminal Offence 39 The Prayer/Findings

Profile of the Expert Committee Members

Adv Johnson Manayani

7594826381, 9048028623, E Mail: [email protected]

A Practicing Advocate in the High Court of Kerala for the last 35 years . Handled so many public interested cases like the Pattayam Case ( for Idukki Farmers ) , Solid Waste Management cases , Harthal /Bundh case , Meeting on public roads etc and most of the Public Interest cases filed by Centre for Consumer Education

James Vadakkan

94973 40829, 9562856319, E mail: vadakkan.james @ gmail.com

A Management Consultant & Columnist, had contributed more than 2,800 published articles in the field of modern management, entrepreneurship, marketing, agriculture, public transport, state finance and environment . Was member of the State Level Bankers Committee of Kerala, Tamil Nadu and Pondicherry for 8 years, Ex Governing Body and executive Committee Member of Gulathi Institute for Finance & Taxation, Working Group Member, Road Transport, State Planning Board ,Chairman of several expert committees appointed by Centre for Consumer Education in subjects like Western Ghats ESA, Nelliyampathi Estate Issue, Agriculture and Development, State Finance, Public Bus Transport, Restructuring of KSRTC etc . Founder and Managing Trustee of Centre for Consumer Education, Farmers associations & Movements Co Ordination Council (FAMCC) , Centre for Kerala Studies and Farmers First

Major Documents Relied

01. Environment ( Protection) Act 1986 02. Pronab Sen Committee Report on identifying parameters for designating ecologically sensitive areas in India September 2000 03. Indian Forest Act 1927 04. The Forest ( Conservation) Act 1980 05. Wildlife (Protection) Act 1972 06. National Board for Wildlife Rules 2003 07. National Forest Policy 08. The Kerala Forests ( Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000 09. The Kerala Forests ( Vesting and Management of Ecologically Fragile Lands) Act 2003 10. Legal articles on Doctrine of Public Trust and Strict Liability 11. Philosophy of Tort Law: Between the Esoteric and the Banel, Fordham University of Law 12. Varying the Standard of Care in Negligence , The Cambridge Law Journal 13. “Mens Rea” in Tort Law, Oxford Journal of Legal studies. 14. Duties of Care – Do they really exist ? – Oxford Journal of Legal Studies 15. The Western Ghats Ecology Expert Committee- WGEEP Report – Prof Gadgil Report

16. The High Level Working Group - HLWG Report – Dr Kasthuri Rangan Report 17. Three Member Expert Committee ( Oomman V Ooman ) Report on western Ghats 18. India State of Forest Report (ISFR),2015,2017 and 2019 by Forest Survey of India

Highlights from the Report

This detailed petition has reference to the various draft notifications – issued in “semi privacy and confidential mode – not making available the notifications in government offices and for public scrutiny or publishing it in the newspapers” - on the “proposal for conservation and protection of revenue lands as Eco-sensitive Zones from ecological, environmental and biodiversity point of view” ( commonly called as BUFFER ZONE or ECO SENSITIVE ZONES ) thereby prohibiting industries or class of industries and their operations and processes in the said Eco-sensitive Zones” up to 10 kilometers from the existing forest boundaries encroaching on revenue lands owned by farmers vide powers conferred by sub-section (1) and clauses (v) and (xiv) of sub-section (2) and sub-section (3) of Section 3 of the Environment (Protection) Act 1986 (29 of 1986) read with sub-rule (3) of rule 5 of the Environment ( Protection) Rules, 1986 on several locations in the State of Kerala which directly affects the life and farming and daily livelihood activities on the agriculture lands of the farmers who have absolute right over such properties under various laws of the nation. (Para 01)

Several other restrictions are imposed on the agriculture land property owners which are not there in other areas of the state which restricts further development of the livelihoods of the farmers and is in a way encroaching on the fundamental rights of its citizens and is in a way acquiring the legitimately owned property rights of citizens which can be taken over by the government under the latest Land acquisitions Acts and Rules (Para 10)

“compensation” permitting just retention of the title deed of the revenue land with the farmer but slow and steady conversion of the farm land to forest land . Literally the Eco- sensitive area notifications are nothing but Land acquisition. (Para 15)

the ultimate effect of the draft notification is depriving the farmers their legitimate right on the land they own and the above notification is an indirect denial of land use rights without land acquisition followed by the payment of compensation as per “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act , 2013 (Para 16)

The notification takes away the fundamental rights of the inhabitants – the farmers – in those lands. The prohibitions/restrictions referred in the draft notifications are nothing but selective discrimination. The proposals of restrictions of carrying out normal livelihood and developmental activities deny the right to life under Article 21, Right to trade/business under Article 19(10(g)and right to property under Article 300A of the Constitution of India . (Para 17)

The Introduction paragraph of the Pronab Sen committee report reads as “The deliberations of this committee were consistently guided by the assumption that the ecologically sensitive areas identified by the parameters by the committee would receive protection under the Environment (Protection) Act, 1986 (EPA). This awareness had two major implications. First, a balance had to be struck between the protection of ecologically sensitive areas and the need of national development, particularly in the context of a country like India, with low levels of income and high levels of poverty. Therefore, the parameters had to be selected and defined in such a manner that they represented only the critical elements of ecological preservation and did not impinge unduly on the process of development and efforts at eradication of poverty . Second, it was clearly recognized that in view of the pressing demands of land and land-use patterns, areas designed as ecologically sensitive would become issues for litigation. Therefore, the parameters evolved by the committee and the

modes of application would have to be framed in such a manner that they could stand scrutiny in the courts of law” (Para 25)

Ecological sensitivity is defined as the imminent possibility of (a) permanent and irreparable loss of extant life forms from the world; or (2) significant damage to the natural processes of evolution and speciation. The committee has identified thirteen principal parameters of ecological sensitivity ( para 26)

According to Pronab Sen Committee “The nuances of ecological sensitivity are such that excessive rigidity on this count will defeat the very purpose of this exercise, which seek to strike a balance between preservation of our ecological endowments and the needs of development. Almost all committees which worked on Environmental issues stresses the importance of wide public consultation on the nature and manner of regulation of economic activities in the identified areas before notifying the areas under the EPA, 1986. In view of the limited knowledge base that exists at present, it is preferable to err on the side of caution and be liberal in notifying sensitive areas”. ( Para 28)

The National Board for Wildlife in its 2011 guidelines (9.2.2011) , vide Para 4 had stated that the width of the eco sensitive zone and type of regulations will differ from Protected Area to Protected Area . However, as a general principle the width of the Eco-Sensitive Zone could go upto 10 KMs around a protected area as provided in the Wildlife Conservation strategy 2002. (Para 31)

It is reported in the media that the Minister of Forests, Government of Kerala had directed the concerned to draft the ‘draft’ proposal on ESA by excluding all human habitats . We are yet to receive a copy of the above direction, but that is a very critical stand of the state government to protect the interests of the general public But the present draft notifications never took the above direction into consideration and thickly inhibited revenue agricultural lands are also included in the draft ESA notification . (Para 32)

When the total “forest cover” of the country is 21.67 percent only of the geographical area of the country, in Kerala it is 54.42 percent. The Kerala Farmer is the biggest tree planters ( without any government or All India or Foreign Non Governmental Support or foreign funds) than the so called Air Condition room sitting high tech Environmentalists and carbon sequestrationers in the world. (Para 40)

The Polluter pays principle as interpreted by the Supreme Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Using the same Polluter Pay Principle, the Central Government has the responsibility to pay full compensation for lands where future development is frozen by the government under the draft ESA notifications. It is as good as the Electricity Board paying compensation for laying the 11 KV/66KV lines and permitting retention of the ownership with the landlords ( Para 45)

The rule in Rylands v. Fletcher (supra) has resulted in the creation of a category of liability , for damage caused by ultra hazardous business or activity, which is justified on the basis that the person carrying them on should bear all the risks associated with them, and not merely those arising from their negligence. ( Para 50)

“ought a person who has caused injury to another person be held liable for the cost of compensating the victim’s injury, regardless of whether the one who caused injury acted on a faulty manner?”. ( Para 58)

“each who causes injury to another’s body is also liable to the other for the costs of injury inflicted ( at least where there is not a specific showing of excuse or justification). The purpose of the law is to protect each person’s holdings against the infringement of others. Whether those infringements are deliberate or negligent or without fault is largely irrelevant, just as it generally is for property infringements. One’s body is as precious as one’s real property, so invasions of bodily integrity trigger a right to compensation. ( Para 59)

So it is very important to discuss the Gadgil Committee, Kasrhuri Rangan Committee and Oomman V Oomman Committee Reports and its follow up actions , pending court cases at all levels before deciding on the present Buffer Zone/Eco Sensitive Zone draft notifications issued by the MoEF, Govt of India and its anti people/ anti farmer factors ( Para 60)

The WGEEP report in page no 27 of the report had raised severe objections on the manner in which the lands – forest and revenue – are earmarked or notified as ESA or ESZ. The report says that “ While the constitution of such ESZ/ESAs has had many positive consequences, there are also serious flaws in the system. The most serious problem is that the system depends heavily on bureaucratic regulation. With little or no meaningful participation by the local community, and given the absence of bureaucratic transparency and lack of accountability, this breeds corruption. The result is that the weaker sections suffer harassment and extortion, while the wealthy and the powerful successfully flout the regulations, leading to tremendous local resentment”. ( Para 66)

The geographical features of Kerala are distinct and dissimilar compared to the WG states of the Deccan plateau, making it possible to divide the state vertically into three natural geographic divisions, the Western Ghats ( High range) or highlands, Plains or Midlands and Coastal Area or lowlands. The zonation adopted by the WGEEP transcends the physiographic limits of the conventional Western Ghats and intrudes even into the entirely unrelated and peripheral costal plains in the form of ESZ3 grids. Actually the kind of zonation the WGEEP has recommended is not as mandated by the MoEF and as per the resolutions of the WGEEP itself in the matter of demarcation of areas within the Western Ghats to be notified as Ecologically Sensitive Areas under the Environmental Protection Act . The Kuttanad Paddy Lands also have been classified by the High Level Prof Gadgil Committee as ESZ under Western Ghats . This itself shows the shallowness of the intellectual thinking of the environmentalists . (Para 70)

The Government of Kerala in its response to the Secretary to Ministry of Environment and Forests, Govt of India dated 5.12.2012 on the WGEEP Report raised the following serious objections/findings “ Environmental Justice linked to human well being without compromising on environmental protection as mandated in the Constitution is an avowed policy of the state government. Environmental degradation that affects the life and livelihood of the poor and vulnerable sections of the society will be prevented, for which restrictions in residential areas of such groups may not be the appropriate step. While firmly upholding environmental justice the government has the constitutional obligation to ensure that no such individual or group is disproportionately burdened by arbitrary

environmental concerns . Environmental issues including conservation of the Western Ghats are critical. However these can be approached and handled only in the light of the ground realities of the state as to land requirement, development needs and priorities concerning human beings as well. Striking a balance between protection of the environment and sustainable development is called for and always practiced by the State

Government” ( Para 72)

The Government of Kerala through its response dated 05.12.2012 expressed its unhappiness to the Ministry of Environment and Forests about the approach of the panel in making a crucial recommendation based on incomplete scientific exposition. The zonation particularly ESZ-2 and ESZ-3 as has been made by the WGEEP cannot be accepted either as scientific, or in conformity with its mandate to that task and hence unacceptable to the State government” ( Para 72)

In Para 9.1 of the WGEEP Report it says “ Such an assignment of ESZ1,ESZ2 and ESZ3 can be done on two bases; namely (1) The existing Protected Area network and (2) systematic mapping and recording of base-line data as recommended by the Sen Committee. Indeed, as early as 2000, the Sen Committee had called for systematically mapping and recording base- line data for the entire country , as also to design and operationalise a comprehensive monitoring programme and network, involving not only government agencies but also other institutions, universities, NGOs , and individuals, particularly those living in pertinent areas. (But no such mapping or base data collection was done). WGEEP has done the development of a spatial database, for over 2200 grids of 5’ x 5’ or roughly 9 km x 9 km through compilation of all readily available information on topography, land cover and occurrence of biodiversity elements. ( Para 76)

Govt of Kerala, through its Principal Secretary to Government , Environment, Ports and Fisheries Dept in its letter dated 05.12.2012 titled “Response of the Government of Kerala to the recommendations of the Western Ghats Ecology Expert Panel” strongly objected the definition of ESA by Prof Gadgil ( Para 80)

Though the WGEEP excludes all villages with a “Density of Population of 100 or above per Sq Km” from classifying as ESZ1, ESZ2 or ESZ 3, it was not considered in the case of villages in Kerala, which is a great discrimination ( Para 82)

In the letter No 3527/A2/11/Envt dated 31.01.2012 referred above , the State Government took the stand that the proposals of the WGEEEP are bound to make the farmers and common man in the ESZ notified area losers on many development fronts for the sake of conservation of the Western Ghats and contiguous midlands traditionally not considered as WG regions. This is particularly notable in respect of vital sectors like land utilization, development etc. A land owner living in a particular piece of land would find that the value of his land is deflated because of WGEEP on a fine day. If environmental care especially biodiversity conservation ensures all basic needs of daily life and survival, and loss of biodiversity if a much greater threat to human survival than climate change (per Prof:Edward.O.Wilson, Harvard visionary on Biodiversity) , thus it being so indispensable for human survival, its utility shall equally be acknowledged by suitably compensating and incentivizing the WG people who are subjected to the regulations proposed by the WGEEP and are likely to suffer economic, social and personal comforts for the overall wellbeing of the rest of the society and the country. There should be 100% compensation payment for eco system services, to those who suffer for the whole state/country/even the Universe. ( Para 84)

Taking into account the adverse comments and mass agitations, continuous harthals, bundhs, lockdowns in many parts of the Western Ghat region against the WGEEP/Prof Gadgil Committee report, and considering the comments and suggestions made by different stake holders including state government and central ministries on WGEEP/Gadgil Committee Report, the Ministry of Environment and Forest (MoEF) constituted a 10 member High Level Working Group (HLWG) vide office order dated 17th August 2012 to suggest an all-round and holistic approach for sustainable and equitable development while keeping in focus the preservation and conservation of ecological systems in Western Ghats with Dr K Kasthurirangan as Chairman . ( Para 85)

The HLWG analysed the responses and were assigned under two major groups viz: “RESPONSES NOT IN FAVOUR” and “RESPONSES IN FAVOUR” of the WGEEP. Eightyone percent of the communication received expressed concerns regarding the recommendations and also the methodology followed. ( Para 86)

The WGEEP went wrong in its assumptions totally as it could not differentiate between forest and forest cover . WGEEP should have taken into consideration the Government forest land or recorded forest area only to mark the WG boundary. On the contrary WGEEP took forest cover which included lakhs of hectares of agriculture area of the farmers which are revenue land enjoyed by the farmers under valid title deeds for centauries. This grave mistake should not have happened from an expert committee like WGEEP. This created maximum opposition against WGEEP .Tree farming in the form of plantation crops like Rubber or farming under tree shades like Cardamom or Pepper also is included in tree cover and finds inclusion under forest which needs to be demarcated and excluded as this by no means is a forest. Even density of

the tree cover should not be taken as a mark of forest cover as density of planted tree cover in plantation sector is very high compared to ordinary government forests( Para 91)

HLWG , in the absence of geologically and geomorphologically sound criteria in demarcating WG, decided to adopt the criteria followed by the Western Ghats Development Programme of the Planning Commission which defined WG in terms of geology conceptually, but has taken altitude as the criterion for identification of talukas/blocks under Western Ghats Development Programme of Planning commission as recommended by the High Level Committee, because the Ghats are usually 760-915 M high. All those taluks/blocksat 600 M and above elevation that are contiguous to higher altitudes and formed part of the administrative boundaries of Western Ghats Development Programme are listed under the Western ghats Development Programme. ( Para 93)

Kasthuri Rangan Committee (HLWG) submitted its report on 15th April 2013. HLWG has considered the findings of the Pronab Sen Committee report while identifying the ESA . While Gadgil Committee demarcated the whole Western Ghats as ecologically Sensitive Areas and categorized into three ESA I, ESA II and ESA III, the Kasthuri Rangan Committee was of the opinion that only 40% of the Western Ghats area should be protected as ESA. For making their decisions logical, the HLWG committee divided Western Ghats into two; Natural Landscape and Cultural Landscape. Forests, protected areas and areas which were to be protected as forests were included in Natural Landscape while human inhibited areas, farm lands and plantations were included in Cultural landscapes ( Para 96)

“ The remote sensing derived vegetation maps are not without limitations. For instance Understory plantations (for eg Cardamom) or naturalized forest plantations cannot be discriminated . That means the committee approves the fact that certain defects may occur while using remote sensing for mapping ESA. ( Para 97 )

To facilitate sustainable development in the WG region, which is inhibited by about 50 million people, the non ESA comprising mostly cultural landscape is also demarcated. ( Para 98)

Kasthuri Rangan Committee also pointed out certain defects in demarcation of ESA put forward by Gadgil Committee Report. The HLWG divided Western Ghats into “Natural Landscape” and “Cultural Landscape”. The HLWG also adopted the policy that if at least 20 percent area of the village is found to be Ecologically Sensitive Area (ESA), the whole village will be considered as ESA. The HLWG declared 123 villages in Kerala as ESA.( Para 99)

In all states the ESA area is less than the natural landscape earmarked by HLWG, but in Kerala the ESA area is more than the Natural Landscape which means that a portion of the Cultural landscape including human inhibited area and agricultural land is also classified as ESA. ( Para 100)

Government of Kerala appointed a Three Member Expert Committee with a mandate to study the draft Office Memmorandum (Kasthuri Rangan Committee report) in detail, seek

the opinion of the people representatives, Farmer’s organizations, NGO’s and general public and to submit their opinions and suggestions to the State Government, which will be further conveyed to the Central Government. The Three Member Expert Committee was formed under the Chairmanship of Dr Oommen. V. Oomman ( chairman, Kerala Biodiversity Board) with Dr V N Rajasekharan Pillai (Former MG University Vice Chancellor and Member UGC) and P C Cyriac IAS ( retired Chief secretary, Tamil Nadu) as members.The Committee conducted 30 sittings in Kerala right from Kannur to Trivandrum. ( Para 101)

The Three Member expert Committee on HLWG Report appointed by the Government of Kerala ( Oomman V Oomman Committee) during their visit to Western Ghats found that many thickly populated areas and farm lands are included in the ESA. For clearly determining forests, human inhibited areas, farm lands, plantations and areas which are to be protected as forests, the only precise method is to conduct actual physical verification. So the Three Member expert Committee on HLWG Report recommended to conduct actual physical verifications in 123 villages identified as ESA by Kasthuri Rangan Committee and about 120 Panchayats that are identified as ESZ I, ESZ II by Gadgil committee, and find out the present status of these areas under natural or cultural landscape.It should be further followed up by verifying the population density of these areas ( Para 103)

Three Member expert Committee on HLWG Report recommended that in order to conduct the field level verification , a team may be constituted in all Panchayats with Panchayat President, Panchayat Members, BMC members, Village officer of Revenue Department, Representative of the Forest dept , representative from the Agriculture department as members and the Panchayat secretary as secretary to the Committee . This team has to visit all the ESA Villages (Kasthuri Rangan Committee ) and ESZI and ESZ II Panchayats (Gadgil Committee) during a fixed period and demarcate the areas as described above. Conflicts if any, regarding demarcation may be finalized according to the decision of the Revenue Department and mark accordingly . Three Member expert Committee on HLWG Report further directed that the Physical verification maps and data of the above committee will be part of the State Expert Committee report ( Para 104)

Three Member expert Committee on HLWG Report further found as “Since all the ecosystems like forests, sacred groves, grass lands etc which are outside the ESA will be demarcated through physical verification and protected as ESA, there is no further relevance in providing 10 Km buffer zones outside ESA. Hence Three Member expert Committee on HLWG Report recommends not to have buffer zones outside ESA . (Para 105)

Three Member expert Committee on HLWG Report in its report found that “Further the Kasthuri Rangan Committee identified whole villages as ecologically sensitive, if atleast 20% of ESA is contained in that village. Even if 80% of the remaining area is urbanized, the committee considered that the whole village is Ecologically Sensitive. This cannot be justified. ( Para 106)

restrictions put forward by forest and environment Acts and Rules is impracticable and unjustifiable. It will be natural that the inhabitants of this area wish to retain the material gains and standards that they have acquired. Plantations of Cardamom, Black Pepper, Rubber, Coffee and Garcinia ( Malabar Tamarind) are often mistaken as forests and wrongly marked in satellite maps as ESA in Kasthurirangan Report”. ( Para 107)

The HLWG recommendation, not to consider areas having less than 100 population density as ESA was not followed completely as far as Kerala was concerned. ( Para 108)

Three Member expert Committee on HLWG Report in its report found that “ the recommendation to demarcate an area of 10 km around ESAs as buffer zone and placing these areas under the purview of Environmental Protection act may lead to a condition where large towns (which were legally established ) may even be considered as ESAs. This may lead to apprehensions in the mind of the people living in this area that the basic developments will come to a standstill. (Para 109) The “Three Member Expert Committee on HLWG Report” recommended 9993.7 Sq KM of land in Kerala as ESA which comprises of 9107 sq KM of forest area and 886.7 Sq Km of barren revenue land including water bodies, marshes etc within the revenue land . These 886.7 Sq KM of Revenue Land is not contagious and is lying as scattered land areas which could not be declared as ESA. The MOEF published a Draft Notification dated 10th March 2014 based on the findings of the “Three Member Expert Committee on HLWG Report. Before that the draft notification dated 13.11.2013 had come into force. Since the Government felt that recommending 9993.7 Sq KM of land including the scattered 886.7 Sq Km of revenue land as ESA will create technical issues, the LDF government recommended only 8856.46 Sq Km of Forest Land only (in some Forest records it is 9107, but deducting CHR – Cardamom Hill Reserve – it is only 8856.46 Sq KM ) as ESA in Kerala . After the expiry of 6 months from the date of issue of the draft notification, a new Draft Notification dated 4th

Sept 2014 was issued. Another Draft Notification was issued on 5th September 2015. After 545 days, another draft notification was issued on 27th Feb 2017. Before that, the Chief Minister of Kerala had written to the MoEF on 23rd Feb 2017 informing that only 8856.46 Sq Km of Government Forests in Kerala only need to be declared as ESA. On 3rd October 2018, another Draft Notification was published and the limitation period of 545 days for the draft notification was withdrawn. Based on the recommendations of the “Three Member Expert Committee on HLWG Report”, through Remote Sensing and physical verification of the government forests in the 123 villages earlier identified by Gadgil and Kasthuri Rangan Committees as ESA, the Government of Kerala identified 8856.46 Sq Km of land in 92 villages as ESA and informed the same to the MoEF by its letter dated 16.06.2018 and the Ministry of Environment and Forests had confirmed the same by its public stand dated 20th July 2018.State of Kerala had taken the stand that the CHR – Cardamom Hill reserve is not forest. On 15th Feb 2019, MoEF had conducted a meeting with the Government of Kerala Officials at New Delhi and that meeting had decided to constitute a High Level Committee to decide on the proposal of the State of Kerala. MoEF had issued the order of constituting the High level Committee vide its order dated 23rg Aug 2019. Thereafter the New Public Interest Litigation was filed before the Supreme Court of India. Even in the existing Draft Notification of ESA by the MoEF based on the Gadgil and Kasthuri Rangan Reports, 123 villages of

Kerala including Revenue land, townships and agriculture land is included which need to be modified with 92 villages and 8856.46 Sq KMs of land as ESA. It is recommended that there should be separate villages for forest area and revenue land by bifurcating the existing 92 villages as “Village Name Revenue” and “Village Name Forest” like “Marayoor Forest Village” and “Marayoor Revenue Village” etc etc . Further the Government of Kerala should immediately constitute a High power Committee with Government Secretaries, Farmer Leaders, NGOs and Legal Experts to strictly follow up and advise the government officers on the follow up action before the MoEF and Supreme Court of India in the Gadgil, Kasthuri Rangan Committee Reports . ( Para 109)

Even before the Ministry of Environment, Forests and Climate Change of the Government of India thought of protecting Ecologically Sensitive Areas (ESA), and before the publication of the now famous “Pronab Sen Committee Report which submitted its report during September 2000, the Governor of Kerala on 27th July 2000, promulgated “The Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Ordinance , 2000 providing that ecologically fragile shall vest in the Government. This was the first such law in the entire world. The ordinance was repopulated on 27.01.2001 with effect from 2nd June 2000 and was subsequently replaced by The Kerala Forest (Vesting & Management of Ecologically Fragile Land) Act, 2003. ( Para 111)

There are serious allegations that many Non Governmental Organisations (NGOs) functioning in the areas of Environment and Forests in India are financed and influenced by Multi National Governmental Aid with vested interests to influence the policy making authorities and institutions in the area of forests and environment . Three major Environmental and Forest related NGO s working in India are the “ASHOKA TRUST” , “ATREE (Ashoka Trust for Ecology and Environment)” and the “CEPF – Critical Ecosystem Partnership Fund”. These NGOs and its functionaries found place in several governmental committees which worked for the World Heritage Project and similar projects . It is reported that the representatives of ATREE was a member in a Governmental Committee during 2010 which was constituted for evaluating the Western Ghats serial sites to be nominated on the World Heritage List. Government of India is a State Party to the UNESCO World Heritage Convention. The MOEF has prepared a nomination dossier for inscription of 39 Serial Sites in the Western Ghats on the World Heritage List . It is reported that Shri Jayaram Ramesh was

the Minister for Environment and Forests at that time. It was further reported that Shri Jayaram Ramesh was a Governing Body Member of Ashoka Trust which sponsored ATREE. ( Para 113)

It is reported that Dr V V Robin, son of Dr V S Vijayan who was a member of the WGEEP had received US $ 19,524.55 during 2014 for a project between 1st March 2011 to 30th June 2013 through “National Institute of Advanced studies” for a project titled “Assessing biodiversity value of production landscape and non protected forests on sky islands by establishing occurrence of cryptic, threatened birds”. This is just a sample and there can be many such incidents. It needs further enquiry at appropriate levels as we are not commissioned for such a work. But the same is mentioned here and a request made to get it investigated to expose the global connections behind the environmental initiatives in India and Kerala. ( Para 116)

The object and reason supporting the Kerala Forest (Vesting & Management of Ecologically Fragile Land) Bill introduced in the Kerala legislature reads as follows : “International Union for Conservation of Nature and Natural resources (IUCN) has declared the Western Ghats as one of the Biodiversity Hotsports in the World. As a signatory to the Convention of Biological Diversity (CBD) our nation has the responsibility to conserve the biological resources for the sustained economic and social development of the society and for the maintenance of ecological stability. The Hon supreme Court of India has ordered that natural resources such as forests, rivers etc shall be conserved as Public Trust for the welfare of the society at large. The Apex Court while laying down the principle and guidelines of the ‘ Public Trust Doctrine’ has stipulated that resources like air, sea, waters and the forest have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The Hon supreme Court has further ordered that the ‘Public Trust Doctrine’ as laid down by it shall be part of the law of the land, that the state government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation, and that, where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. It has been observed that many ecologically fragile areas in the State are under the private ownership. Over-exploitation and unsound management of the resources therein would lead to irreversible degradation of social, economic and ecological stability of the State. As a precautionary and preventive measure , the Government considers it necessary to enact a legislation to bring the ecologically fragile areas under the ownership of the State and to ensure their conservation for the welfare of the society and of the nation at large” ( Para 117)

The object and reason appended to the Bill specifically refers to ‘Public Trust doctrine’ and ‘Precautionary Principles’ – already discussed earlier . So the same principle should be applied in the case of declaration of BUFFER ZONES in Kerala. ( Para 118)

Under Section 8 of Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act,2003, titled “Compensation of Vesting” (1) In respect of land vested under sub-section (4) of Section 4, the owner thereof shall be eligible for compensation for the said land including the permanent improvement thereon , (2)……. (3) the compensation payable under sub-section (1) and the mode of payment shall be determined in such a manner as may be prescribed ( Para 129)

The critical question which need to be answered is when Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Amendment Act of 2009 and the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act,2003 and its rules are in force in the State of Kerala right from 2nd day of June 2000 in the matter of the “Ecologically Fragile Land” which later came to be knows as Ecologically Sensitive Area (ESA) as explained in detail by the WGEEP /Prof Gadgil Committee , and when various Ecology related high level experts group had declined the proposal of adding any more human inhibited revenue land as Buffer Zones or Egologically Fragile or Sensitive areas , why and how the Ministry of Environment and Forests can issue fresh notifications for creating Ecologically Sensitive Area ( Buffer Zones) in Kerala ? ( Para 132)

Another serious issue to be resolved is the Multiplicity of the Acts in the field of Ecologically Sensitive Area like (1) Section 3 of the Environment (Protection) Act 1986 , (2) Kerala EFL Ordinance of 2000 , (3) Pronab Sen Committee Report 2000, , (4) Kerala EFL Act of 2003, (5) National Board for Wildlife 2011, (6)Prof Gadgil Committee (WGEEP) Report of 2011, (7)Dr Kasthuri Rangan Committee (HLWG) Report of 2013 and the (8) Dr Oomman V Oomman Committee Report ( Para 133)

Even if revenue lands of the farmers where crops are raised as a livelihood of farmers are required for conserving the ecology and to be taken over by the government, it should be done as if land is acquired for any development purpose. There comes the “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013”. The Right to Fair Compensation and Transparency in Land Acquisition , Rehabilitation and Resettlement Act, 2013 enacted by the Parliament of India enacted during September 2013 and came into force with effect from 1st January 2014 ( Act No 30 of 2013) whose preamble reads as “ An act to ensure, in consultation with institutions of local self- government and Gram Sabha established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialization , development of essential infrastructural facilities and urbanization 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 or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto ( Para 134) The Prayer /The Findings 0f PART 1

Once a forest always a forest should not be a criteria of designating a land as forests .If the area is under plantation for some time though the nature of land shown in the records remains a forest it should be treated as agricultural land within the forest and no attempts should be made to change the character of such land or ownership deprived .

No tree other than trees naturally occurring in the forest should be treated as forest species and no seniorage or other levies should be imposed on the land or trees for species which has been planted or cultivated by the grower.

There is a tendency to increase lease rentals of cultivation land falling under the category of forests thereby making it uneconomical for the grower to cultivate a crop and push him out of the area .In no way should lease rentals of such land be very different from such revenue leases for similar land .

The Farmer’s land ( Revenue Land ) and Forest Land should be clearly demarcated and segregated and boundaries clearly marked and such a detailed survey plan be made available at all villages offices

Separate villages should be created for forest area and revenue land seperately by bifurcating the existing villages which has forest land and revenue lands in one village as “Village Name Revenue” and “Village Name Forest” like “Marayoor Forest Village” and “Marayoor Revenue Village” etc etc

If the Ministry of Environment and Forests, Govt of India and the Forest Department, Government of Kerala is of the opinion that patches of revenue lands are invariably required for future protection of the environment , such lands should be acquired by the government only through the process of land acquisition detailed in the “Right to Fair Compensation and Transparency in Land Acquisition , Rehabilitation and Resettlement Act, 2013” , the reasons for the same being already stated in the previous paragraphs . So all the 8 pending draft notifications referred in para 2 of this report be withdrawn immediately and fresh notification be issued under land acquisition process as detailed in Right to Fair Compensation and Transparency in Land Acquisition , Rehabilitation and Resettlement Act, 2013 and excluding all human habitations as recommended by various expert committees appointed by various governments to study the subject of “Ecologically Sensitive Area”.

PART II

With decreasing food, fodder, water and other items within the forests, wild animals started visiting farming areas and started destroying the crops developed/ created by farmers. The wrong decision of the Forest Department to cultivate the forests with commercial woods such as Teak, Acacia, eucalyptus etc eliminated so many fruit trees like mangoe, jackfruit etc etc whereby the wild animals are straved of the natural forest foods. It is reported that 13% of the entire forest area is “cultivated with commercial woods and Teak accounts for more than 50% of the forest plantations. It is further reported that several forest commercial trees like eucalyptus, acacia consumes maximum water from the earth and most of the natural water resources dry up wherever such plantations are made . Lack of natural forest foods from trees like Jack Fruit, Mangoe etc and total scarcity of water sources forces wild animals to enter the agriculture land where most of the crops are food crops and liked by wild animals. Because of the above and inaction from the Forest Dept to create a self sustaining forest with sufficient food producing trees and vegetations, wild animals started encroaching agricultural land. ( Para 138 )

Human- Wildlife conflict is the Forest department’s biggest challenge. Though we cannot put an end to this, we can control the conflict to a great extent. By cultivating fruit bearing trees inside the forests, we can try to solve the problem of food scarcity and control wild life incursions into human habitats. It is also an attempt to protect the wild animals from getting hurt”. ( Para 139)

For many years, there was equilibrium between wild animals and farmers. Due to various reasons, there is overgrowth of animals in the forests. Further the balance between various links in the food chain might have been jeopardized. Or protection measures might have become ineffective. Fodder and food availability in the forest have come down drastically. So far Forest department had not conducted any study on the food availability for animals in the forests. There is over growth of animals in the forests. Selective culling of animals is permitted in countries like Australia. There are scientific mechanisms to control wide animal population and there should be a mechanism to assess the carrying capacity of wild animals in the forests. ( para 140 )

The State of Kerala, which has only 1% of the geographic area of India has 20% of the total elephants of the nation in Kerala . There is over growth of elephant population in the State of Kerala . During January 2018 itself the Government of India has asked the Dehradun-based Wildlife Institute of India (WII) to develop contraceptives for wild animals, as states struggle to check growing man- animal conflict. According to WII, North Bengal, Kerala and Karnataka are reeling under elephant conflict and no states have so far taken steps to control the population of giant animal. Monkeys are a huge problem in Uttarkhand, Uttar Pradesh, Himachal Pradesh and Delhi. It is reported that the MOEFCC from time to time has declared them as vermin, allowing cull in some states for a limited period but not much has come out of it. Vermin are pests or nuisance animals that spread diseases or destroy crops or livestock. But no action has been initiated in Kerala to control the population growth of elephants. There is over population of elephants in Kerala forests which leads to elephant man conflict ( Para 141 )

Latest statistics reveals that Human Animal Interface is increasing at an alarming rate in our state. ( Para 145 )

Out of the total 6631 crop damage incidents, 4063 number of crop damages during 2018- 19 is contributed by elephants. ( Para 147 )

Tigers are the deadliest animals in man animal conflict . It is reported that the tiger population in Kerala has grown to 190 in 2018-19 from just 136 in 2014-15. “ nearly a third of India’s tigers are living outside tiger reserves and nearly 17 of the 50 reserves are approaching the peak of their capacity at sustaining their population. India hosts 70% of the world’s tiger population”. ( Para 148 )

On 11 th June 2020 an adivasi (schedule caste) youth was killed by a tiger and the tiger had consumed the full body of the youth except the head. A heart breaking photograph of the youth which got circulated through whastup shows the brutal cruelty by an animal on a human being . In the old “Roman Empire” human beings were thrown to the hungry animals like lion, tiger etc and the kinds and the lords watch the man animal war where the human being will be killed and consumed by the lions and tigers in no time . Now in Kerala we are having similar kings and lords in a democratic set up which hear similar stories are enjoy it. ( Para 149 )

The State government and the Forest Department in particular keep a discreet silence on the above issues including population control and never initiated any serious action to counter this menace taking into consideration the national and international experiences. On the other hand, People’s initiatives to protect their life, cattle and crops ends up in the farmer victims (human beings) being arrested and harassed for action against intruding wild animals. Forest Dept views farmers as forest encroachers rather than creators of food for the human beings. ( Para 152 )

The inadequacy or even the pittance offered as compensation by Forest Department can be understood from the latest order of the State Government on the cost on developing various crops in Kerala. “Scale of finance for growing crops” decided by the “State Level Technical Committee” in the Department of Cooperation, Government of Kerala decides the scale of financing of crops by commercial and cooperative banks which is a reasonable yardstick to find out the cost of cultivation of various crops. ( Para 160 )

When Rs 65,000 to Rs 75,000 is the cost of cultivating one hectare of paddy in Kerala, the compensation offered by the Forest Department is Rs 11,000 only which is just 1/6th of the cost. Same is the case of all other crops . ( Para 162 )

In WP(C ) 27355/2013 dated 21.11.2013, the Additional Chief secretary had stated that “Government have decided to prepare a comprehensive proposal for payment of compensation considering not only the cultivated area of the lost crop but also the age of

the destroyed crops in future” . But no such comprehensive proposal was submitted by the Government ( Para 163 ) Prayers/Findings of Part 2

Control the Growth of Wild Animals based on the carrying capacity of the forests

Introduce Selective culling of animals

Introduce Contraceptives for wild animals to control the population of wild animals

Maximise the fencing, elephant trench building, stone pitched trench etc

Ensure that farmer’s livelihood is protected from all sources of attack including wild animals

Compensation for Crop Loss to be at par with the “Scale of Finance” arrived by the “State Level Technical Committee”

Compensation for loss of human life in Man animal interface should be Rs 25 lakhs

For Speedy Disposal of Compensation Special Courts similar to Motor Accidents Claims Tribunals (MACT) or Family Courts be set up at all District Courts in those districts which has forest boundaries and all claims – both for life and crop or house damages – be settled in these courts

PART I

2020 Draft Eco-Sensitive Zone Notifications

One such sample notification is the SO 2393(E) published by the Ministry of Environment, Forest and Climate Change dated 20th July 2020 regarding the proposed creation of an Eco- sensitive Zone around the “Aralam Wildlife Sanctuary”. Aralam village with an areas of 117 Sq Km and population of 26,508 , Kelakam village with an areas of Sq Km and population of , Thirunelli village with an areas of Sq Km and population of are included in the Eco-Sensitive Zone . 02

8 Draft Notifications in 2020

On enquiry it is reported that 8 such draft notifications were issued by the Ministry of Environment, Forest and Climate Change and are in the various stages of processing. But no newspapers had carried any notice on such notifications and lakhs of affected farmers are even now kept in the darkness without giving any details or personal notices. Following are the drafts

Details of the 8 such draft notifications Name of the Wild Life Date of Issue Last date for filing Status of the Sanctuary objections notification Malabar 06.08.2020 05.10.2020 Stay for Malayalam copy Aralam 20.07.2020 19.09.2020 Do Kottiyoor 28.08.2020 27.10.2020 Do Idukki 13.08.2020 12.10.2020 Do Mathikettanshola 13.08.2020 12.10.2020 Mangalavanam 07.09.2020 06.11.2020 Thattekkad 29.09.2020 28.11.2020 Shendurani 24.08.2020 23.10.2020

It is reported that the proposal of the government is to notify revenue and agriculture lands up to 10Kms from the boundaries of all Wildlife sanctuaries and National Parks as Eco- Sensitive Zones to create a buffer zones. Following are the Wildlife Sanctuaries and National Parks in the State of Kerala

Wildlife sanctuaries and National Parks - Kerala Name District Area Name District Area Sq Sq KM KM Neyyar WLS Trivandrum 128 Peppara Trivandrum 53 Shendurani Kollam 172 Periyar TR Pathanamthitta 575 Periyar NP Idukki 350 Anamudi Shola Idukki 7.5 Kottayam NP Pathanamthitta Chinnar Idukki 90 Eravikulam Idukki 97 Idukki Idukki 105 Kurinjimala Idukki 32 Mathikettanshola Idukki 13 Pampadum Idukki 1.3 shola Mangalvanam Ernakulam 0.03 Thattekad Ernakulam 25 Chimmony Thrisoor 85 Choolannur Thrisoor 3.4 Peechi Vazani Thrisoor 125 Parambikulam Palakkad 643 Silent Valley Palakkad 238 Malabar Kozhikode 74 Kadalundi Kozhikode 1.5 Wayanad Wayanad 344 Community Reserve WLS Aralam Kannur 55 Kottiyoor Kannur 30 Number of Wildlife Sanctuaries and National Total Area in Sq KM 3245 sq KM – Parks in Kerala - 24 8,02,065 Acres

Following are the details of the Farmers land to be freezed/cornered for regular habitation and development

Details of the additional farming lands to be converted as “Forests” Name of the Wild Life District Present Area Proposed area of the Sanctuary Sq KM Eco-sensitive Area (sq KM) Malabar Kozhikode To be collected To be collected Aralam Kannur To be collected To be collected Kottiyoor Kannur To be collected To be collected Idukki WLS Idukki 105 88, Sq Km , of which 24 Sq Km Agri land Periyar TR Idukki 925 255 Mangalavanam Ernakulam To be collected To be collected Thattekkad Ernakulam To be collected To be collected Shendurani Kollam 172 116 Neyyar Peppara Trivandrum 181 30 WLS

The affected people not informed

When the government plans to restrict or control the otherwise permitted individual general activities of a citizen through a legal course, it is just legitimate that the government should inform the individual the details of the restrictions or controls which the government is going to introduce, its consequences, how it is going to affect the livelihood of the citizen thus affected and how the government is going to compensate it . If such actions are in public interest, the government should clarify as to who should bear the cost of such public actions and how the affected person should be compensated . The “polluter pay principle” and the “Strict Liability principle” are the 2 major streams of legal thinking and remedy on such public interest originating public decisions which takes away the otherwise permitted freedom of a citizen. As a part of the draft Eco-sensitive notifications, several details like 1) extent and boundaries of Eco-sensitive zones, 2)the boundary description of the Eco-sensitive zones, 3) the maps of the Protected Areas ( Wild life sanctuary, reserve forests etc ) demarcating the Eco-Sensitive Zone along with boundary details and latitudes and longitudes , 4) List of geo-coordinates of the boundary , 5) List of villages falling in the proposed Eco-Sensitive Zones, are provided in the draft notification. But there is no mention of the number of houses/dwelling places involved or the number of people residing in the proposed ESZ area and the compensation payable to the citizens on account of restricting their ordinary livelihood

As per detail No 2 (1) and (2) in the notification, the State Government shall, for the purposes of Eco-Sensitive Zone prepare a Zonal Master Plan within a period of two years from the date of publication of the notification in the Official Gazette, in consultation with local people and adhering to the stipulations given in the notifications for approval of the competent authority of State. The Zonal Master Plan for the Eco-Sensitive Zone shall be prepared by the State Government in such a manner as is specified in the draft notifications and also in consonance with the relevant Central and State laws and the guidelines issued by the Central Government, if any .

As per detail No 2 (3) in the notification, the Zonal Master Plan has to be prepared in consultation with the following Departments of the State Government, for integrating the ecological and environmental considerations into the said plan , 1) Environment, 2) Forest and Wild Life, 3) LSGD, PWD, 4) Agriculture, 5) Revenue, 6) Urban Development, 7) Tourism, 8) Rural Development, 9) Irrigation and Flood Control, 10) Municipal, 11) Panchatyati Raj, 12) Kerala State Pollution Control Board, and 13) Public Works Department.

09.

As per detail No 2 (4) in the notification, the Zonal Master plan shall not impose any restriction on the approved existing land use, infrastructure and activities, unless so specified in the draft notification and the Zonal Master plan should factor in improvement of all infrastructure and activities to be more efficient and eco-friendly. 04

Restrictions on use of agricultural land & development

10.

Under detail No 2(5), (6), (8) and (9) several other restrictions are imposed on the agriculture land property owners which are not there in other areas of the state which restricts further development of the livelihoods of the farmers and is in a way encroaching on the fundamental rights of its citizens and is in a way acquiring the legitimately owned property rights of citizens which can be taken over by the government under the latest Land acquisitions Acts and Rules

11.

Under detail 2(7) of the proposed Zonal Master Plan, the government shall regulate development in Eco-sensitive Zones and adhere to prohibited and regulated activities listed in the table and promote eco-friendly development for security of local communities’ livelihood . When the government, for some public purpose, regulate or restrict the livelihood activities of the citizens, it is duty bound to compensate the citizens. But that is not envisaged in the present draft notification on notifying buffer zones . Following are the details of the restrictions to be introduced

List of prohibited, regulated and promoted activities in Eco Snsitive Zones are narrated as under in one of the draft notifications

Prohibited Activities 01.Commercial Mining, stone quarrying and crushing units 02.Setting of industries causing pollution ( Water, air, Soil, Noise etc ) 03.Establishment of major hydro-electric projects 04.Use or production or processing of any hazardous substances 05.Discharge of untreated effluents in natural water bodies or land area 06.Setting up of new saw mills 07.Setting up of brick kilns Regulated Activities 08.Commercial establishment of hotels and resorts 09.Construction activities – New commercial construction of any kind shall not be permitted within one kilometer from the boundary of the protected area or upto extent of the Eco-sensitive Zone, whichever is nearer. Provided that local people shall be permitted to undertake construction in their land for their use including the activities mentioned in sub-paragraph (10 of paragraph 3 as per building by-laws to meet the residential needs of the local residents. Provided further that the construction activity related to small scale industries not causing pollution shall be regulated and kept at the minimum, with the prior permission from the competent authority as per applicable rules and regulations, if any Beyond one Km it shall be regulated as per the Zonal Master Plan 10.Small Scale non polluting industries 11.Felling of Trees – There shall be no felling of trees in the forest or government or revenue or private lands without prior permission of the competent Authority in the State Government The felling of trees shall be regulated in accordance with the provisions of the concerned central or state act and the rules made there under 12.Collection of forest produce or Non timber forest produce – Regulated as per applicable laws 13.Erection of electrical and communication towers and laying of cables and other infrastructures -Regulated under applicable laws (underground cabling may be promoted) 14.Infrastructure including civic amenities – Taking measures of mitigation as per the applicable laws, rules and regulations available guidelines 15.Widening and strengthening of existing roads and construction of new roads- Taking measures of mitigation as per the applicable laws, rules and regulations available guidelines 16.Undertaking other activities related to tourism 17.Protection of hill slopes and river banks – Regulated as per applicable laws 18.Movement of vehicular traffic at night / Regulated for commercial purpose under applicable laws 19.Ongoing agriculture and horticulture practices by local communities along with dairies, dairy farming, aquaculture and fisheries – Permitted as per the applicable laws for use of locals 20.Establishment of large-scale commercial livestock and poultry farms by firms, corporate and companies – Regulated (except otherwise provided) as per the applicable laws except for meeting local needs 21. Discharge of treated waste water or effluents in natural water bodies or land area 22.Commercial extraction of surface and ground water 23. Open well, bore well, etc for agriculture or other use – Regulated and the activity should be strictly monitored by the appropriate authority

24.Sold waste management – Regulated as per the applicable laws 25.Establishment of solid waste disposal site and common incineration facility for solid and bio-medical waste 26. Introduction of exotice species 27.Eco-tourism 28. Use of polythene bags 29.Commercial sign board and hoardings Promoted activities 30.Rain water harvesting 31.Organic farming 32.Adoptation of green technology for all activities 33.Cottage industries including village artisans etc 34. Use of renewable energy and fuels 35.Agro-Forestry 36.Plantation of Horticulture and herbals

Under Detail No 3 (1), there are severe restrictions on the land use pattern on the legally obtained and hitherto free use agriculture land owned by farmers. Under “Measures to be taken by the State Government” and (1) Land use, The State Government shall take the following measures for giving effect to the provisions of the notification, namely, forests, horticulture areas, agricultural areas, parks and open spaces earmarked for recreational purposes in the Eco-sensitive Zones shall not be used or converted into areas for commercial or residential or industrial activities. Provided that the conversion of agriculture and other lands, for the purpose other than that specified above , within the Eco-sensitive Zone may be permitted on the recommendation of the Monitoring Committee, and with the prior approval of the competent authority under Regional Town Planning Act and other rules and regulations of the Central Government or State Government as applicable and vide provisions of the Eco-Sensitive Zone notifications , to meet the residential needs of the local residents and for activities such as 1) widening and strengthening of existing roads and construction of new roads; 2) construction and renovation of infrastructure and civil amenities; 3) small scale industries not causing pollution; 4) cottage industries including village industries, convenience stores and local amenities supporting eco-tourism including home stay; and 5) promoted activities given in the table in the Eco-Sensitive Zone notifications.

Under “Measures to be taken by the State Government” and (1) Land use, the notification propose that any error appearing in the land records within Eco-Sensitive Zone shall be corrected by the State Government, after obtaining the views of the Monitoring Committee, once in each case and the correction of said error shall be intimated to the Central Government in the Ministry of Environment, Forest and Climate Change and further provided that the correction of error shall not include change of land use in any case except as provided above . The big question not answered by any government official so far is that without having the land details of all the affected farmers/individuals on whose land the draft is going to implement the restrictions through the draft notification, how they will know whether there is any mistakes in the land records which also supports the request that the drsaft notification should contain the full particulars of all the land holders who are going to be affected by

the draft notification. The Ministry of environment and Forest should follow the procedure and format used in general land acquisitions by the government over and above the MoEF format for declaring a land as Ecologically Sensitive Area/Zone 05

A “silent land acquisition” without any “compensation”

Various restrictions Under the “Measures to be taken by the State Government like Sub Section (2) natural water bodies, 3) Tourism or Eco-tourism, 4) Natural heritage, 5) Man-made heritage sites, 6) Noise pollution, 7) Air pollution, 8) discharge of effluents , 9) Solid Waste , 10) bio medical waste, 11) Plastic Waste Management, 12) construction and demolition waste management , 13)E-waste, 14) industrial units , all makes the revenue agriculture land with paccua legal title deeds as forest land . This is nothing but a “silent land acquisition” without any “compensation” permitting just retention of the title deed of the revenue land with the farmer but slow and steady conversion of the farm land to forest land . Literally the Eco- sensitive area notifications are nothing but Land acquisition.

It is very clear from the above facts that the ultimate effect of the draft notification is depriving the farmers their legitimate right on the land they own and the above notification is an indirect denial of land use rights without land acquisition followed by the payment of compensation as per “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act , 2013

As already stated the restrictions proposed in the table will stop animal husbandry or running a coffee shop or natural rubber sheeting process as it may originate effluent water, even when a rubber tree becomes dangerous to a neighbor it cannot be cut and removed as there is no permission to fell trees

ESA originates from Section 3 of the Environment

(Protection ) Act 1986 (EPA) and EP Rules 1986

Section 3 of the Environment (Protection ) Act 1986 (EPA) gives power to the Union Ministry of environment and Forests to take all measures that it feels n necessary for protecting and improving the quality of the environment and to prevent and control environmental pollution. Vide Sec 3(2)(v) of the EPA , to meet the above objective, the Central Government can restrict areas in which any industries, operations or processes, or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards .

Sec 3(2)(v) of the EPA read as

(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;

20.

Section 5 (1) of the Environment (Protection) Rules 1986 (EPR) states that the Central Government can prohibit or restrict the ‘ location of industries and carrying out certain operations or processes’ on the basis of considerations like the biological diversity of an area (clause v) , maximum allowable limits of concentration of pollutants for an area (clause ii) , environmentally compatiable land use (clause vi), or proximity to protected areas (clause viii) . Though the above provisions were primarily meant for controlling polluting industries, the same is now used against the “Farmers who only plant trees on earth without any government support and who are the real protectors of the Mother Earth”

21.

The above provisions were invoked in India for the first time in 1989 in the context of Murud-Janjira, a costal village of Maharastra. Subsequently, the term ‘ ECOLOGICALLY FRAGILE AREA (EFA)’ was used for the first time in 1991 in the context of Dahanu Taluka in costal Maharastra. This has been followed by declaration of a number other areas such as Mahabaleswar- Pachgani and Matheran hills in the Maharastra Western Ghats as ECOLOGICALLY SENSTIVE ZONES (ESZ)/AREAS . So far, these Ecologically Sensitive Zones/Areas have been established either as a result of initiatives of some civil society organizations wishing to protect a particularly vulnerable and significant area, or as a consequence of a resolution of the India Board for Wild Life dated 21st January 2002 to protect areas upto ten kilometers from the boundaries of Protected Areas, namely Wild Life Sanctuaries and National Parks.

22.

Afterwards the Hon Supreme Court of India in Case No 460/2004 filed by the Goa Foundation also directed the MoEF to come out with guidelines for demarcation of Ecologically Sensitive Zones

23.

Over the years, a variety of terms such as Ecologically Sensitive/Ecologically Fragile/Eco sensitive/Eco fragile Zones/Areas have been used in the context of programmes relating to Ecologically Sensitive Zones and Areas. The Western Ghats Ecologically Expert Panel (WGEEP) constituted by the Ministry of Environment and Forests , Govt of India under the Chairmanship of Professor Madhav Gadgil vide Order no F.No 1/1/2010-RE(ESZ) dated 23rd May 2012 in its report submitted to the Ministry of Environment and Forests dated 31st August 2011had used the term ‘Ecologically Sensitive Area’ as a common term to denote all terms like Ecologically Sensitive/Ecologically Fragile/Eco sensitive/Eco fragile Zones/Areas used so far . 07

The Pronab Sen Committee Report 2000

24.

The Pronob Sen Committee set up in 2000 by the Ministry of Environment and Forests ( Congress led UPA Government ) proposed a series of species, ecosystem and geo- morphology based parameters to decide upon ecologically sensitive areas in India. The Sen Committee’s foremost criterion for identification of an ESA is endemism, and the committee proposed that the area of occurrence of every endemic species need to be protected in its entirely. The Pronab Sen (Former Chairman, Planning Commission of India) Committee has given recommendations in 2000 September itself regarding the measures to be taken before declaring an area as ESA, which is relevant in this context. The “preface” of the Pronab Sen Committee Report written by Pronab Sen itself reads as “The very act of constitution of this committee to identify parameters for designating ecologically sensitive areas in the country is yet another reflection of the deep and abiding concern that the Government of India has consistently expressed regarding the rapid deterioration of the environment, both nationally and internationally”.

“Ecological Sensitivity/Fragility” as defined by Pronab Sen

26.

The Pronab Sen committee (2000) has identified “Ecological Sensitivity or Fragility” as follows ; Ecological sensitivity is defined as the imminent possibility of (a) permanent and irreparable loss of extant life forms from the world; or (2) significant damage to the natural processes of evolution and speciation. The committee has identified thirteen principal parameters of ecological sensitivity falling into three broad categories of ecological significance . The first of these factors is species related, and defines the characteristics of species which are or may become threatened with extinction. The second category relates to eco-systems. The third category includes geo-morphological conditions. In addition to these primary criteria, the Committee has also identified seven auxiliary criteria. Following are the criterias

PARAMETERS OF ECOLOGICAL SENSITIVITY Primary Criteria Auxiliary Criteria Species Based 01.Endemism 01.Areas or centres of less known food plants 02.Rarity 03.Endangered species 04.Centres of evolution of domesticated species Ecosystem based 05.Wildlife corridors 02.Wetlands 06.Specialised ecosystems 03.Grass lands 07.Special breeding site/area 08.Areas with intrinsically low resilience 09.Sacred groves 10.Frontier forests Geo-morphological features based 11.Uninhibited islands in the sea 04.Upper catchment areas 12.Steep slopes 05.Not so steep slopes 13.Origins of Rivers 06.High rainfall areas 07.Other uninhibited islands

Pronab Sen, ESA/ESZ and Protected Area

27.

The Pronab Sen Committee directed the government to move proactively in identifying and protecting areas . Pronab sen Committee made it clear that ESA should be declared only after detailed and deep analysis discussions. The committee recommended that a convenient starting point would be to consider such areas which are already known to be either ecologically important or under ecological stress like

01.National Parks and sanctuaries 02.Tiger reserves 03.Protected and reserve forests 04.Biosphere reserves 05.National Marine parks 06.Costal Regulation Zones I(i) 07.Hill stations

28.

National Board for Wildlife decision dated 17th March 2005

Government of India issued guidelines for identification of EFL through the decision of the National Board for Wildlife dated 9th Feb 2011 which was as under “ Para 1.3.1. Considering the constraints communicated by the states, the proposal was reexamined by the National Board for Wildlife in its 2nd meeting held on 17th March 2005 and it was decided that the ‘delineation of eco-sensitive zones would have to be site specific and relate to regulation, rather than prohibition, of specific activities . This decision was communicated to all the State Governments for compliance vide letter dated 27th May 2005 . Thereafter it was further communicated with subsequent reminders.

The National Board for Wildlife proposed a committee comprising the concerned Wildlife Warden, an Ecologist, an official from the Local Self Department and an official of the Revenue Department of the concerned area to be constituted and the said committee should suggest the areas for Eco Sensitive zones including 1) extent of eco-sensitive zones for the protected area being considered, 2)the requirement of such a zone to act as a shock absorber, 3) to suggest the best methods for management of the eco-sensitive zone so suggested and last ,4) to suggest broad based thematic activities to be included in the Master Plan for the Region . Based on the recommendations of this committee, the Chief Wildlife Warden could group the

activities under several indicative categories . But the above directions were not followed while preparing the draft ESA/ESZ notifications.

31.

The National Board for Wildlife in its 2011 guidelines (9.2.2011) , vide Para 4 had stated that the width of the ecosensitive zone and type of regulations will differ from Protected Area to Protected Area . However, as a general principle the width of the Eco-Sensitive Zone could go upto 10 Kms around a protected area as provided in the Wildlife Conservation strategy 2002.

32.

33.

Subsequently, vide SO 247 (E) dated 27th January 2016 , Government of Kerala issued a ‘draft’ notification for the Thattekkad Bird sanctuary, but nobody including the elected representatives were aware of it . All were done confidentially . Then came the latest notification of ESA for Thattekkad in Ernakulam district dated 29.09.2020 and consequential issues. The casual way these draft notifications – one after the another – are issued itself shows the casual way such a serious issue affecting lakhs of citizens are taken by the Forest Dept of Govt of Kerala and the MoEF . 11

Forests, Farmer made Forests and Forest Cover –Kerala

34.

Before going into further details on increasing the forest cover in Kerala through various initiatives like the 2020 ESA Buffer proposal, Gadgil/Kasthurirangan Reports and the Kerala Ecologically Fragile Land Act of 2000- all based on “Public Interest” , it will be worthwhile to go through the government information that 50% of the total Forest Cover in the State of Kerala is developed by the Farmers as a part of their livelihood without any support from the Government. The Hon Minister of State for Environment and Forests on 17th August 2010 in connection with a meeting with the Western Ghats Ecology Experts Panel assured the MPs of Kerala as under “ MoEF recognizes that the state of Kerala will need a special dispensation, as the area of forests in proportion to the land area is the highest in the State. We cannot wish away settlements where people have been living in the same areas for more than 100 years. Such settlements will be given special consideration” ( Page No 11 of the report of the Environment (A) Department of the Government of Kerala titled “ Response of the Government of Kerala to the recommendations of the Western Ghats Ecology Expert Panel”) .

Forest is a large area of land covered with trees. But forest is much more than trees. The living things and their environment along with trees together make up the forest system. Originally 60% of the earth’s land area was forests. Afterwards people began to clear the forests for farms and dwelling places, factories, cities etc. Today globally forests occupy 30% of the land. Almost all the dwelling places and urban centres were once forests. All the lands now owned by the Malayalees were once King/ Royal Government property which was donated/leased out to the citizens . As forest areas decrease, the amount of oxygen released into the air through photosynthesis also decreases. The renewal of oxygen supply is vital to the continuing survival of oxygen breathing organisms. Further more and more carbon dioxide is released into the air . As a result, more heat from the Sun is trapped in the earth’s surface instead of being reflected back into the space which is termed as “Green House Effect” which causes Global Warming . So protection of “forest cover” are vital for the existence and safety of mankind

According to the Ministry of Environment and Forests (MoEF) forest do not mean Government forests along and it includes the trees planted and grown by farmers and individuals also form a part of the forest cover and is considered as Forests . The Forest Cover includes all lands which have a free canopy density of more than 10 percent when projected vertically on the horizontal ground, with a minimum areal extent of one hectare. The Forest Cover reported in the ISFR does not make any distinction between the origins of the tree crops (whether natural or manmade) or tree species: and encompasses all types of lands irrespective of their ownership, land use and legal status. Thus, all the tree species along with bamboos, fruit bearing trees, rubber, Jack fruit trees, Mangoe trees, coconut, palm trees etc and all the areas including forest, private, community or institutional lands meeting the above defined criteria, have been termed as forest cover (Source: Forest Survey of India – India State of Forest Report –ISFR). Really Farmers are the creators of new and new forests which nobody is acknowledging

In order to understand the fallacy behind the arguments that Farmers destroy Forests, following definitions in the Forest Survey of the Govt of India need detailed study .

Canopy- The cover of branches and foliage formed by the crown of trees .

Canopy Density – The relative completeness of canopy usually expressed as a decimal coefficient, taking closed canopy as unity

Forest Cover – All lands , more than one hectre in area, with a tree canopy density of more than 10 percent irrespective of the ownership and legal status in called as Forest Cover.

Forest Area – The area recorded as forest in the Government records. It is also referred as to “recorded Forest Area”

Recorded Forest Area – Same as “forest Area”., ie geographical areas recorded as forests in Government records

Reserve Forest Area – As area so constituted under the provisions of the Indian Forest Act or other State Forest Acts, having full degree of protection. In reserved forests all activities are prohibited unless permitted

Tree Cover- It comprises tree patches outside the recorded forest area exclusive of forest cover and less than the minimum mappable are (1 ha)

Trees Outside Forests- Trees growing out side recorded forest area

The term ‘forest Area’ (or recorded forest area) refers to all the geographic areas recorded as ‘forests’ in government records. Recorded forest areas largely consist of Reserved Forests (RF) and Protected Forests (PF) , which have been constituted under the provisions of the Indian forest Act 1927. Besides RF and PF, the recorded forest area may also include all such areas which have been recorded as forests in revenue records or have been constituted so under any state act or local law. On the other hand the term ‘Forest Cover’ as used is ‘SFR’ refers to all lands more than one hectare in area with a tree canopy density of more than 10%. Thus ‘Forest Area’ denotes the legal status of the land, whereas ‘Forest Cover’ indicates presence of trees on any land irrespective of their ownership. The changes taking place in the country’s states’ forest cover are not necessarily due to the changes within the recorded forest area alone, but because of the changes occurring outside the recorded forest areas as well.

39.

Forest Cover of the country as per 2019 assessment is 7,12,249 Sq Km which is 21.67 percent of the geographical area of the country. Recorded Forest Area ( Government Forests) and Forest Cover of the Southern Indian States as per 2019 India State of Forest Report is as under

Govt Forest Area and Forest Cover including Agricultural land State Total Geographical Recorded Forest Area Forest Cover Area of the State – Sq ( Govt Forest) Sq KM (including agricultural lands) Sq KM KM Area % Area % Kerala 38852 11309 29.11 21144 54.42 TN 130060 22877 17.59 26364 20.27 Karnataka 191791 38284 19.96 38575 20.11 Telungana 112077 29604 24.0 20582 18.36 AP 162968 37258 22.86 29137 17.88 All India 3287469 767419 23.34 712249 21.67 Source: India State of Forest Report 2019 40

The National Forest Policy 1988 aims at 33% of the country’s geographical area under forest and tree cover. When the National Forest Cover is 21.67%, it is 54.42% in Kerala out of which 50% is the contribution of the farmers . So the interest of the farmers stand first in the case of Forest Cover protection or environmental protection or climate change . So Farmers are the Protectors of Forest and Tree Cover . This should be the principal point of argument in any discussions on increasing the forest area in Kerala. 12

“Compensate the FARMER” based on the “Polluter Pay Principle”

The need to protect the environment and to control the climate and ecology have found a place in the internationally known publication “Harvard Environmental Law Review” (Vol 12. 1988 pages 311) where an article by DAVID B HUNTER of the University of Michigan titled “An Ecological Perspective on Property – A call for judicial protection of the public’s interest in environmentally critical resources” . The following words from the above article prove the point. “Another major ecological tenet is that the world is finite. The earth can support only so many people and only so much human activity before limits are reached. This lesson was driven home by the Oil Crisis of the 1970s as well as by the Pesticide scare of the 1960s. The current deterioration of the ozone layer is another vivid example of the complex, unpredictable and potentially catastrophic effects posed by our disregard of the environmental limits to economic growth. The absolute finiteness of the environment, when coupled with human dependency on the environment, leads to the unquestionable result that human activities will at some point be constrained”.

The ancient Roman Empire developed a legal theory known as the “Doctrine of the Public Trust”. It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by the Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about “the environment” bears a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by NO ONE (res nullious) or by everyone in common (res communious). Under the English Common Law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners

Joseph L Sax, Professor of Law, University of Michigan in an erudite article titled “PUBLIC TRUST DOCTRINE IN NATURAL RESOURCE LAW : EFFECTIVE JUDICIAL INTERVENTION” published in the Michigan Law Review ( Vol 68, Part 1, page 473) – proponent of the Modern Public Trust Doctrine has given the historical background of Public Trust Doctrine

Supreme Court of India in the “M C Mehta Vs Kamalnath and Others” ( Writ Petition ( C ) No 182 of 1996) case had very elaborately discussed the Doctrine of Public Trust, Precautionary Principle and Polluters pay principle relying on another Supreme Court case ie Vellore Citizen’s Welfare Forum v. Union of India [(1996) 5 SCC 647:JT (1996) 7 SC 375). The Court had held that in the issues of environmental measure, the State Government and the Statutory Authorities must anticipate, prevent and attack the causes of environmental degradation. The Polluter pays principle as interpreted by the Supreme Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. The Precautionary Principle and the Polluter pays Principle have been accepted as part of the Law of the Land . All these highlight the responsibility of the Government in the matter of preservation of ecology including the climate change. Using the same Polluter Pay Principle, the Central Government has the responsibility to pay full compensation for lands where future development is frozen by the government under the draft ESA notifications. It is as good as the Electricity Board paying compensation for laying the 11 KV/66KV lines and permitting retention of the ownership with the landlords 13

“Love of Nature’ is love for Ecology, and it is a Love for Human Beings”

In the now famous “Pattayam Case” – Natures Lovers Movement V/s State of Kerala and others before the Supreme Court ( Civil Appeal No 2116 of 2000) the Supreme Court of India on 20th March 2000 disposed an appeal with the direction that “the policy decision taken by the Government of Kerala to assign 28,588.19 hectares of forest land to unauthorized occupants/encroachers after seeking approval from the Central Government does not suffer from any legal infirmity and the High court rightly declined to interfere with the said decision”. Adv Johnson Manayani ( one of the members of this expert committee)appeared in this case for the 15 farmers from Idukki district before the High Court of Kerala

47.

In the judgement in OP No 14276 of 1993 before the Full Bench of the High Court of Kerala dated 7th October 1999 – heard by Mr Justice P A Mohammed, Mr Justice G Sivarajan & Mr Justice M R Hariharan Nair and argued by none other than Adv M K Damodaran then Advocate General , Adv K Ramakumar, Adv S Ramesh Babu, Adv Johnson Manayani and Adv B Gopakumar – ( reported in ILR 2000 (1) 677-782) which led to the appeal before the Supreme Court referred above (2116 of 2000), the 2nd paragraph of the Judgement- is of critical importance which reads as under “ ‘Love of Nature’ is not a modern phenomenon. It existed from the beginning of the humanity itself. “Man is the measure of all things”, so said Plato. Man loves nature and nature in turn nourishes him. Man serves society and society in turn preserves him. Man and society are thus inter-dependent and the duty of the man to them is inherent. These basic percepts envisage the protection of environment and preservation of humanity . But “For the greenest of environmentalists, humans are of lesser importance than the abundant and diverse flora and fauna of the planet. Humans are defined as a recent addition to the livestock and are considered to have been a wholly disruptive

influence on a world which was paradise before their arrival ( from A Guide book to environmental law by Rosalind Malcolm). But the globalization of economic development as a result of constant endeavour of humans cannot be whittled down or destroyed for the sake of environment and preservation of ecology. Therefore when we say ‘love of nature’ it is love for ecology, it is a love for environment and above all it is a love for human beings” the court observed. 14

Doctrine of Strict Liability

Many legal experts are of the opinion that the anticipated future income loss of the farmers and the common man whose lands are going to be notified under the buffer zone ESA/ESZ draft notifications and where future growth prospectus and betterment of the existing livelihood activities will be totally controlled by the forest officers should also attract the “Doctrine of strict Liability” . There is no quarrel that in the case of attack by wild animals, the liability on the part of the State and its officers is based on the “Doctrine of Strict Liability”. That means that those who are responsible for any action should bear the consequences. This also supports the argument that the present and future development opportunities lost by the farmers whose land is notified as ESA or ESZ should be compensated by the beneficiaries who benefit out of such initiatives ( the general citizens) . The doctrine of strict liability has its origin from the celebrated decision in Rylands v. Fletcher(1868) L.R.3HL.330, which says “ If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been and whatever precautions he may have taken to prevent damage”

The celebrated decision in Rylands v. Fletcher(1868) L.R.3HL.330, further says “We think that the true rule of law is, that the person who for his own purpose brings on his land and collects and keeps there anything likely to do mischief , if it escapes , must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”. It was further held : “But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches”

carrying on such ultra hazardous activities are bound to bear all the risks associated with them, the proof of negligence is not required to prove their liability for damages

The Hon High court of Kerala in 2017(3) KHC 882 – State of Kerala and another v V V George rejected the propositions propounded by the government pleader that when the State or its officers have no control over the wild animals in reserve forest, the principle of strict liability cannot be fastened. Further an attempt has been made to argue that the state is only a trustee as far as the wild animals are concerned and the state has no control over it

The Hon High court of Kerala in 2017(3) KHC 882 – State of Kerala and another v V V George further held that the principle of strict liability is squarely applicable in the case of wild animals attack. According to the Court “ Reserve Forests are, no doubt, the property of the State . The State has been protecting wild life. As per section 9 and section 11 of the Wild Life Protection Act, 1972, nobody is permitted to carry out hunting of wild animals. Even for self defence , killing of wild animals is permitted only in case of attack on persons, and not on their properties . Therefore, when even the right of self defence to killing wild animals for avoiding loss or damage to property in the attack of wild animals is totally prohibited by the Wild Life Act of 1972, it is the duty of the State to see that the properties of persons should be protected from the attack of wild animals

The Hon High court of Kerala in 2017(3) KHC 882 – State of Kerala and another v V V George further held that “It is the duty of the State to install necessary fencing to the reserve forest for making it impossible for the wild animals to enter and wander in the private properties situated near the reserve forest.

As regards compensation The Hon High court of Kerala in 2017(3) KHC 882 – State of Kerala and another v V V George further held that “as regards compensation , even without a plea of negligence , the State is bound to compensate such persons when the principle of strict liability is applicable, especially when even self defence has not been permitted to preserve and protect one’s property from the attack of wild animals. It is the duty of the State to ensure that such wild animals do not trespass into human habitation or agricultural properties of other persons

In the decision in Raman v. Cochin Devaswam Board 2015 (3) KHC 182:2015(3) KLT 968: 2015(2) KLD 78 : 2015 (2) KLJ 791 : ILR 2015 (3) Ker. 609, a learned Single Judge of the High Court of Kerala has held that in the case of attack by elephants, the liability on its owner would be absolute liability.

The Hon High court of Kerala in 2017(3) KHC 882 – State of Kerala and another v. V V George further held that “ The learned Special Government Pleader has invited the attention of this Court to the decision of the Himachal Pradesh High court in State of Himachal Pradesh and Ors v. Smt Halli Devi, 2000 KHC 3470; AIR 2000 HP 118 wherin compensation was denied to a lady who has suffered 100% disability in the attack of a bear came out of the forest, on the ground that negligence was not pleaded and proved .When I have already held that in a case relating to strict liability, even if negligence is not pleaded or proved, the defendant is liable to pay damages is writ large because of the principle enunciated in Rylands v. Fletcher (supra) .

In a number of different domains of tort law during the twentieth century, judges ,lawyers, legislators, and academics engaged in a debate over whether governments, companies and individuals should be held strictly liable for the injuries they cause. There has been and continues to be a significant range of areas in which debates between a negligence principle and a strict liability principle remain energetic and nuanced.

Whether the strict- liability –versus-negligence debate had benefitted from major, and in some cases, central, contributions from economists, historians, and other analysts within the social sciences, it has from its inception presented a significant philosophical aspect. At first appearance, one might suppose that the philosophical question at issue has been : ought a person who has caused injury to another person be held liable for the cost of compensating the victim’s injury, regardless of whether the one who caused injury acted on a faulty manner?. In fact , this bald normative question has not been the primary target of philosophical analysis. Rather, the primary philosophical question has been one that presupposes a setting within legal doctrine, and an interpretation slant: to the extent that the imposition of liability under Anglo-American tort law embodies a set of legal principles that displays a defensible normative structure, does that normative structure permit the imposition of liability without fault, and if so , when ?

The results of this broad inquiry fall into a spectrum running from strict liability to negligence. Richard Epstein’s straightforwardly titled “ A Theory of Strict Liability” (1973) is a libertarian case for strict liability. Richard Epstein has taken the view that, just as each person infringes upon another’s property right is required by the law to compensate the property owner for the infringement, so each who causes injury to another’s body is also liable to the other for the costs of injury inflicted ( at least where there is not a specific showing of excuse or justification). The purpose of the law is to protect each person’s holdings against the infringement of others. Whether those infringements are deliberate or negligent or without fault is largely irrelevant, just as it generally is for property infringements. One’s body is as precious as one’s real property, so invasions of bodily integrity trigger a right to compensation. 15

“2020 ESA Draft” is “Gadgil Committee” through back door ?

60.

There is every reason to suspect that all the draft notifications referred in Para 3 of this petition , and may be several such draft notifications in the files of the Ministry of Environment and Forests and which the public has not been intimated so far, are nothing but bringing back the proposals/ suggestions made by Prof Gadgil Committee on Western Ghats (WGEEP) which have been cancelled/amended/revised by Kasthuri Ragan Committee Report (HLWG) and further scrutinized by the State of Kerala through the Oomman V Oomman Committee ( appointed by Govt of Kerala) Reports and further follow up actions on the above reports by the Ministry of Environment and Forests, Government of India . So it is very important to discuss the Gadgil Committee, Kasrhuri Rangan Committee and Oomman V Oomman Committee Reports and its follow up actions , pending court cases at all levels before deciding on the present Buffer Zone/Eco Sensitive Zone draft notifications issued by the MoEF, Govt of India and its anti people/ anti farmer factors

61.

In this connection, we invite your attention to the reports of the Madhav Gadgil (WGEEP), Kasthurigangan Committees )HLWG) on Western Ghats and the report of the Three Member Expert Committee on HLWG Report ( Oomman V Oomman Committee) appointed by the State of Kerala. We quote the relevant introductory paragraphs of the “Three Member Expert Committee” which as follows “ Various research reports revealed that the Western Ghats, which is the abode of a variety of eco systems and organisms is facing bio diversity loss due to the interferences by human beings. Subsequently, Government of India appointed a committee (WGEEP) headed by Prof. Madhav Gadgil. Prof Gadgil Committee started functioning in March 2010 and submitted their report to MoEF in August 2011. The committee divided Western Ghats area as Ecologically Sensitive Zones I, II and III and imposed various degrees of restrictions accordingly. But complaints and grievances were raised by various state governments as well as public and Govt of India decided to revaluate the report. Govt of India appointed a High Level Working group headed by Dr K Kasthuri Rangan…Government directed the Committee to take a consensus approach to protect the interests of people who has been living the Western Ghats area traditionally, while suggesting ways for conservation of ecology and biodiversity of western ghats . Kasthuri Rangan Committee submitted their report on 15th April 2013. Kasthuri Ragan Committee also pointed out certain defects in demarcation of ESA put forward by Gadgil Committee Report . The decision of the Kasthuri Rangan Committee was to solve the issue connected with demarcation of ESA by adopting a scientific as well as logical approach”.

WGEEEP/Gadgil Committee 2010

62.

Ministry of Environment and Forests, Govt of India vide No 1/1/2010-RE(ESZ) dated 4th March 2010 constituted in Western Ghats Ecology Expert Panel (WGEEP) under the Chairman ship of Prof Madhav Gadgil and the above office order contained the following “ The Western Ghats region runs to a length of 1600 KMs ….. The region covers an area of about 1.60 lac square kilometers …………… The ecological and environmental problems of the area include increasing pressure of population and industry including tourism on land and vegetation; submergence of forest areas under river valley projects , encroachment on forest lands; mining operations, clear felling of natural forests for raising tea, coffee, rubber, eucalyptus, wattle and other monoculture plantations; infrastructural projects such as railway lines and roads, soil erosion, landslides; habitat fragmentation and rapidly declining biodiversity ………… Given the environmental sensitivity and ecological significance of the region and the complex interstate nature of its geography, as well as the possible impacts of climate change in the region, it is proposed to constitute a Western Ghats Ecology Expert Panel (WGEEP). WGEEP consisted of the following members. The details and the background of the Chairman and members is of at most importance as the proposed ESA draft notifications 2020 issued by the MoEF is based on just “ officer’s findings” whereas the WGEEP finding are from the high ranking experts in the field

MEMBERS OF THE WGEEP /GADGIL COMMITTEE Prof Madhav Gadgil (Chairman) Ex-Chairman, Centre for Ecological Studies, Indian Institute of Science Shri B J Krishnan (Member) Senior Advocate, Nilgiris Centre, Ootacamund Dr Nandkumar Mukund Kamat (Member) Asst Professor, Department of Botony, Goa University , Goa Dr K N Ganeshaiah (Member) Ashok Trust for Research in Ecology & environment (ATREE) Bengaluru Dr V S Vijayan (Member) Chairman, Kerala Biodiversity Board, Kerala, Thiruvananthapuram Prof (Ms) Renee Borges (Member) Centre for Ecological Studies, Indian Institute of science, Bengaluru Prof. R Sukumar (Member) Chairman, Centre for Ecological Studies, Indian Institute of Science,Bengaluru Dr Ligia Noronha (Member) Director (Resources & Global Security Division), The Energy and Resources Institute (TERI), New Delhi Ms Vidya S Nayak (Member) Nagarika Seva Trust, Gurvayankere , Belthangadi, Dakshina Kannada Dt Dr D K Subramaniam (Member) Foundation for advancement of Education and Reserch, Bengaluru Dr P L Gautam (Member- Ex Officio) Chairman, National Biodiversity Authority (NBA), Chennai Prof S P Gautam (Member – Ex Officio) Chairman, Central Pollution Control Board, New Delhi Dr R R Navalgund (Member – Ex Officio) Director, Space Application Centre(SAC), Ahmedabad Dr G V Subramanyam, Member Secretary – Ex-officio Advisor (RE) MoEF, New Delhi

63.

The Gadgil Committee has its origin from the recommendations of Pronab Sen Committee Report dated September, 2000. (Refer Para 24 to 28 of this report) The biggest challenge before the Gadgil Committee (WGEEP) was to define the “Ecologically Sensitive Area or Zone (ESA/Z)”. The predecessor to the ESA definition was the Pronob Sen Committee definition of ESA. But Prof Gadgil was not happy with that definition. So he along with K N Ganeshaiah of Care Earth Trust, S Narendra Prasad of School of Ecology and Conservation, MSR Murthy and C S Jha of National Remote Sensing Centre, B R Ramesh of Institute Francies De Pondicherry and K A Subramanian of Zoological Survey of India with the financial support and funding of the Ministry of Environment and Forests developed a “research paper’ titled “Mapping Ecologically Significant and Sensitive Areas of Western Ghats: Proposed protocols and Methodology” and published it in the “Current Science” magazine . 2 of the authors of the above paper became members of the WGEEP Committee , Prof Gadgil and K N Ganeshaiah. 17

Definition of ESA & assignment of Taluks by WGEEP

Under the sub heading “A working definition of ESA”, Prof Gadgil itself wrote about ESA in his article in the “Current Science” magazine (January 2011) which was as under “ While there does not exist an unequivocally accepted definition, McMillan Dictionary defines environmentally sensitive area as “an area where the natural environment can easily be harmed”. Accordingly, for the present purpose, though, it may be convenient to define Ecologically Sensitive Areas as those “ecological units that may be easily affected or harmed” we wish to refrain from offering a specific definition. Nevertheless, for operational purposes, we wish to refer to ESAs as “those areas that are ecologically and economically very important, but, vulnerable to even mild disturbances and hence demand conservation”. Thus the authors themselves ( and 2 of whom became the Members of the Gadgil Committee, out which Gadgil itself became the Chairman of WGEEP) further found that there are repeated conflicts emerging between the native residents and the managers in several areas. So what constitutes an ESA could not be effectively answered even after the formation of the WGEEP.

65.

Prof Gadgil and others further commented in their article that “ There could be no immediate consensus on how to weigh each of the attributes but one simple way (but obviously unacceptable to all) would be to weigh the three criteria ( Abiotic, Biotic and socio-cultural) equally. We wish to continue such a process with the hope that once the results are out there could be further discussions revaluation, and revision of the ESAs. However for the time being we propose that all the three attributes viz: biological, geo-climatic and public perception are developed and graded as given in the table 1 below. Each of them is divided into three categories, based on the importance of biological component , environmental sensitivity and valuation by the public and are ranked accordingly. These attributes are later overlaid as shown in Table. The biological and geo-climatic layers are first combined and public perception layer is overlaid on this to arrive at the different grades of ESAs. Once these grids are assigned with these

grades/ranks, areas for demarcating ESAs are identified as set of consecutive grids with similar grading/ranking. However the more fine scale borders of the ESAs can be developed with local inputs from the forest managers and the stake holders before they are legally declared as ESAs.

66.

Another stream of ESZ – now ESA ( basis for constituting the Prof Gadgil Committee) - related activities has stemmed from a resolution of the Indian Board for Wildlife in 2002 to constitute areas upto ten kilometers from the boundaries of Protected Areas such as Wildlife sanctuaries and National Parks as ESZs/ESAs. In pursuance of this resolution, MoEF calls for proposals from state Governments, with Forest Departments to take the initiative . By 2002, the Pronob Sen (2000) committee report on identifying parameters for designating ecologically sensitive areas was available. This report has called for systematically mapping and recording base-line data , as also to design and operationalize a comprehensive monitoring programme and network, involving not only government agencies but also other institutions , universities, NGOs, and individuals, particularly those living in the pertinent areas. The WGEEP report in page 37 reveals that no such information referred above has been created . The WGEEP had brought the attention of the MoEF to the sorry state of affairs in notifying ESZ/ESAs in page no 37/38 of their report which reads follows “ The Forest Department has also gone about the business of formulating the management regime around these PAs in a most unsatisfactory fashion ………. While there are many …… there has been little or no dialogue of officials with local communities, and consequently there is much confusion as to the management regime that will be followed in these ESZs/ESAs. The WGEEP report in page no 27 of the report had raised severe objections on the manner in which the lands – forest and revenue – are earmarked or notified as ESA or ESZ. The report says that “ While the constitution of such ESZ/ESAs has had many positive consequences, there are also serious flaws in the system. The most serious problem is that the system depends heavily on bureaucratic regulation. With little or no meaningful participation by the local community, and given the absence of bureaucratic transparency and lack of accountability, this breeds corruption. The result is that the weaker sections suffer harassment and extortion, while the wealthy and the powerful successfully flout the regulations, leading to tremendous local resentment”.

67.

Prof Gadgil and his team of experts further confirmed that they are aware that the protocol and methodology provided here for mapping ESAs cannot be final and may not be directly adaptable without further discussions. However it is out hope that responses from a wider sections of the experts and the consequent discussions help significantly towards developing a more generic methodology on which there could be more consensus. In the meanwhile, however WGEEP has been compiling datasets required for this purpose for mapping the ESAs along Western Ghats using these steps. Any constructive suggestions during the process would be highly appreciated”

68.

Following were the number of Taluks assigned as ESZs in various states.

Taluks assigned as ESZ1, ESZ2 and ESZ 3 State No of Districts No of Taluks No of Taluks No of Taluks in the WG assigned to assigned to assigned to ESZ1 ESZ2 ESZ3 Gujarat 5 1 5 1 Maharastra 21 38 27 14 Goa 2 NA NA NA Karnataka 26 27 27 12 Kerala 12 out of 14 17 18 8 T Nadu 6 9 2 2 TOTAL 44 83 14 37

69.

Following were the taluks assigned as various ESZs in Kerala

Talukas with districts assigned as ESZ 1,2 and 3 in Kerala ESZ1 ESZ2 ESZ3 Thiruvananthapuram 1.Nedumangad 2.Thiruvananthapuram 3.Chirayinkil Kollam 4.Punalur 5.Kollam 6.Kottarakkara Pathanamthitta 7.Ranni 8.Mallapally Kottayam 9.Kanjirapally 10.Pala (Lalam) 11.Changanacherri Idukki 12.Thodupuzha 13.Udumpanchola 14.Devikulam 15.Peerumedu Ernakulam 16.Perumbavoor 17.Alwaye 18.Kothamangalam 19.Muvattupuzha Thrisoor 20.Irinjalakuda 21.Thrisoor 22.Vadakkancherri Palakkad 23.Mannarkkad 26.Alathur 24.Chittur 27.Ottappalam 25.Palakkad Malappuram 28.Perinthalmanna 30.Malappuram 29.Tirur Kozhikode 31.Kozhikode 32.Quilandi Mahe (?) Wayanad 33.Vythiri 34.Mananthavadi

35.Sulthanbathery Kannur 36.Thalasseri 37.Thaliparamba Kasargode 38.Kasargode 39.Hosdurg Source: Page 92 to 96 of WGEEP Report Part 1

70.

The stand of the WGEEP and its inference that the Western Ghats for the purpose of WGEEP as far as it relates to the State of Kerala has to be considered as the “Forest Hill Tracts” which is a distinct geographical entity as far as the state is concerned . In so far as the boundaries of the Kerala Western Ghats could have been distinctly differentiated and fixed with reference to biological, Geo-climatic attributes and stake-holder evaluations it was not necessary that arbitrary and irrational zonation methodology was adopted and the Western Ghats regions stretched to in appropriate areas where regulations are proposed to be clamped for conservation of the Ghats. The geographical features of Kerala are distinct and dissimilar compared to the WG states of the Deccan plateau, making it possible to divide the state vertically into three natural geographic divisions, the Western Ghats ( High range) or highlands, Plains or Midlands and Coastal Area or lowlands. The zonation adopted by the WGEEP transcends the physiographic limits of the conventional Western Ghats and intrudes even into the entirely unrelated and peripheral costal plains in the form of ESZ3 grids. Actually the kind of zonation the WGEEP has recommended is not as mandated by the MoEF and as per the resolutions of the WGEEP itself in the matter of demarcation of areas within the Western Ghats to be notified as Ecologically Sensitive Areas under the Environmental Protection Act . The Kuttanad Paddy Lands also have been classified by the High Level Prof Gadgil Committee as ESZ under Western Ghats . This itself shows the shallowness of the intellectual thinking of the environmentalists .

71.

Total area of the state of Kerala is 38,863 sq Km. Western Ghats is 21,856 sq Km which is 56% of the total area. Inland and Coastal Wetlands extends to 1279.30 sq km. About 300 kms is under Coastal Zone Regulation. Paddy Lands coming under the ambit of the Kerala Paddy Lands and Wet Lands ( Conservation) Act comprises of 3818.3 sq km . In all, the regulated areas in existence come to 26983.6 sq km which is 69.4%. Balance available for habitation , cultivation and development activities is just 11879.4 sq km which is just 30.6%, and that too subject to zonal restrictions under Municipal Laws and the Kerala Building Rules. Though the state is only 1.1% of the total area of the country, it supports 3.13% of the total population. The Density of population of Kerala is the highest in the Nation. A further regulatory regime or proposal – under whatever name be it grouped – on the effective land area for habitation and development would be grossly unjustifiable and unnecessary. Only 30% of the land is at present outside the purview of zoning under some laws and introduction of further zones would make life impossible

72.

The Government of Kerala in its response to the Secretary to Ministry of Environment and Forests, Govt of India dated 5.12.2012 on the WGEEP Report raised the following serious

objections/findings “ Environmental Justice linked to human well being without compromising on environmental protection as mandated in the Constitution is an avowed policy of the state government. Environmental degradation that affects the life and livelihood of the poor and vulnerable sections of the society will be prevented, for which restrictions in residential areas of such groups may not be the appropriate step. Whilw firmly upholding environmental justice the government has the constitutional obligation to ensure that no such individual or group is disproportionately burdened by arbitrary environmental concerns . Environmental issues including conservation of the Western Ghats are critical. However these can be approached and handled only in the light of the ground realities of the state as to land requirement, development needs and priorities concerning human beings as well. Striking a balance between protection of the environment and sustainable development is called for and always practiced by the State Government” The Government of Kerala through its response dated 05.12.2012 expressed its unhappiness to the Ministry of Environment and Forests about the approach of the panel in making a crucial recommendation based on incomplete scientific exposition. According to the Govt of Kerala “ It cannot but be said that the Panel has failed in identifying and demarcating the appropriate areas within the Western Ghats which need to be notified as ecologically sensitive to recommend for notification of such area as Ecologically Sensitive Zones under the Environmental (Protection) Act, 1986, as it had been specially mandated. Therefore the zonation particularly ESZ-2 and ESZ-3 as has been made by the WGEEP cannot be accepted either as scientific, or in conformity with its mandate to that task and hence unacceptable to the State government” 18

Restrictions on Land Use, Agriculture

Following were the proposed guidelines and summary recommendations of the WGEEP – Prof Gadgil Committee - for sector wise activities ( highlighted here only the farmer and farmer development sector guidelines only )

Proposed guidelines and summary recommendations for sector wise activities Sectors ESZ1 ESZ2 ESZ3 Land Use For all settlements and built areas/to be developed areas, certain types of areas would be no-go areas, including water courses, water bodies, special habitats, geological formations, biodiversity rich areas, and sacred groves Special economic Zones should not be permitted New Hill stations should not be allowed Public lands should not be converted to private lands Change in land use not permitted from forest to non forest uses or agricultural to non agricultural, except agriculture to forest (or tree crops) except when extension of existing village settlement areas to accommodate increase in population of local residents For existing built structures such as hotels, resorts, the tourism policy of the MoEF appropriately refined bt WGEA , to be followed

Road and other infrastructural expansion plans to be submitted for EIA scrutiny by the ULB/Local Planning Athority before execution of the projects , especially assessing the cost- benefits considering ecological costs and public benefits Building Codes A building code should be evolved by the WGEA which include inter-alia eco-friendly building material and construction methods, minimizing the use of steel, cement and sand, providing water harvesting methods, non-conventional energy and waste treatment Area treatment, Plot development, Landscaping in the open areas of plots Waste Treatment Waste water management Water Agriculture Promote organic agriculture practices; discourage cultivation of annual crops on slopes exceeding 30%, where perennial crops should be promoted; introduce incentive payments for sequestration of carbon in soils, introduce incentive payments for maintenance of select traditional cultivars, encourage participatory breeding programmes to improve productivity of traditional cultivars; encourage precision agricultural practices, No GMOs Phase out all use of chemical Phase out all use of chemical Phase out all use of chemical pesticides/ weedicides within pesticides/ weedicides within pesticides/ weedicides within five years eight years ten years Phase out , through a system Phase out , through a system Phase out , through a system of positive incentives ,use of of positive incentives ,use of of positive incentives ,use of chemical fertilizers within chemical fertilizers within chemical fertilizers within five years eight years ten years

Animal Husbandry Fishery Forestry - Government lands Forestry- Private lands Biodiversity Mining Quarry and sand mining Polluting Industry (Red/Orange) Non Polluting (Green/Blue) industry Power/Energy Dams and thermal projects that have crossed their viable life span (for dams the threshold is 30-50 years) to be decommissioned in phased manner Transport No new railway lines and No new railway lines and Essential railway lines and major roads, except where it major roads, except where it new roads may be allowed is highly essential (as is highly essential and subject to strict regulation perhaps in case of Goa) and subject to EIA, strict and social audit subject to EIA, strict regulation and social audit regulation and social audit Upgradation of roads Avoidance of new highways, possible/permitted subject to express ways EIAs, strict regulation and social audit Tourism Education Science & Technology Information Management

Where the WGEEP/Prof Gadgil erred ?

74.

In 12.2 of the WGEEP Report, the committee wrote as “WGEEP therefore believes that it is inappropriate to depend exclusively on Government agencies for constitution and management of ESZs. Instead, WGEEP suggests that the final demarcation of the zones taking micro-watershed and village boundaries into account, and fine tuning of the regulatory as well as promotional regimes, must be based on extensive inputs from local communities and local bodies,namely, Gram Panchayats, Taluka Panchayats, Zilla Panchayats and Nagarpailkas …….”. But none of these were considered while finalizing the Report.

75.

The first paragraph named “Summary” in Part 1 of the WGEEP Report states as “On the basis of careful and extensive compilation of information , and wide-ranging visits, consultations and analysis, the Western Ghats Ecology Expert Panel (WGEEP) has designated the entire Western Ghats as an Ecologically Sensitive Area (ESA) and, assigned three levels of Ecological Sensitivity to different regions of it. These are termed as Ecologically Sensitive Zone 1 (ESZ1), Ecologically Sensitive Zone 2(ESZ2) and Ecologically Sensitive Zone 3(ESZ3). WGEEP advocates a graded or layered approach, with regulatory as well as promotional measures appropriately fine-tuned to logical ecological and social contexts within the broad frame work of ESZ1, ESZ2 and ESZ 3.While we advocate this fine-tuning through a participatory process going down to gram sabhas, it is appropriate to provide a broad set of guidelines as a starting point. WGEEP has attempted to arrive at such a set of broad guidelines for the various sectors on the basis of extensive consultations with officials, experts, civil society groups and citizens at large”. But nothing on those lines happened.

But the WGEEP – majority of its members being “environmental hardliners” – lost their “judgment and balance” in identifying the real Ecologically Sensitive areas and simply included maximum areas under ESA or ESZ as is evident from the following findings of the WGEEP committee itself . In Para 9.1 of the WGEEP Report it says “ Such an assignment of ESZ1,ESZ2 and ESZ3 can be done on two bases; namely (1) The existing Protected Area network and (2) systematic mapping and recording of base-line data as recommended by the Sen Committee. Indeed, as early as 2000, the Sen Committee had called for systematically mapping and recording base- line data for the entire country , as also to design and operationalise a comprehensive monitoring programme and network, involving not only government agencies but also other institutions, universities, NGOs , and individuals, particularly those living in pertinent areas. (But no such mapping or base data collection was done). WGEEP has done the development of a spatial database, for over 2200 grids of 5’ x 5’ or roughly 9 km x 9 km through compilation of all readily available information on topography, land cover and occurrence of biodiversity elements.

According to WGEEP Report itself “Admittedly there still are serious lacunae. In particular, the database is yet to incorporate considerations of habitat continuity, other than in the special case of elephant corridors. It is also weak in terms of information on streams, rivers and other wetlands, as well as ground water, and further careful work is needed to identify , protect and sustainably manage aquatic habitat and water resources…… Nevertheless, we now have, for the first time in the country, a comprehensive, spatially-referenced database on a series of important ecological parameters, transparently available in the public domain that can serve as the basis of a systematic delineation of different levels of ecological significance/sensitivity for a sizable region”

78.

In Para 9.1 the WGEEP Committee confessed as “ WGEEP, of course, realizes that ecological sensitivity is not merely a scientific, but very much a human concern. In particular, a great deal of locality-specific understanding of what has been happening and what is desirable , is simply not part of any scientific databases and resides with local communities. WGEEP therefore invited all concerned people and institutions to share their own perceptions as to what specific areas on the Western ghats should be identified as being ‘Ecologically Sensitive Areas’, why they feel so, and what set of regulations tailored to the needs of the locality should be put in place if the area were to be formally declared as being ecologically sensitive” (But nothing was done by WGEEP to implement the above aspirations and they never invited the objections of the people, at least not from the 123 panchayats affected by ESZ Notification in Kerala)

How “crude” the WGEEP committee decided to assign the ESZ1 to ESZ3 reveals that there was no need for an “expert” committee. Para 10 of the WGEEP report gives the answer. “WGEEP proposes that the 2200 odd grids spanning the entire Western Ghats be assigned to (1) Protected areas, namely wild life sanctuaries and National Parks, and (2) ESZ1 (3) ESZ2 and (4) ESZ3 on the basis of the composite scores of ecological significance derived from the database generated by WGEEP. Since a long standing effort has gone into identification of Protected Areas and they represent both social and ecological values, we propose that grids with scores at the level of Protected Areas and above within the same state be assigned ESZ1 category, with the proviso that the total area under PAs and ESZ1 be limited to 60% to balance the development needs of the states. We propose that 25% of the grids with scores at the lower end be assigned to ESZ3 category, and the balance to ESZ2. This implies a decision to treat 75% of the grids as belonging to Pas, ESZ1 or ESZ2. Our national goal is to maintain 66% of area under forest cover in all hill tracts. Given that the Western Ghats is a hill region of special significance, we decided that it was appropriate to aim at 75% being treated as areas of high or highest significance”.

80.

definition of ESA by Prof Gadgil in the following words “ When the authors themselves have admitted that the purpose of the paper published in the ‘Current Science’ was first to invoke discussions and suggestions from a wider section of experts on the conceptual and methodological details arrived by the WGEEP and also conceded that ‘As the methodology described in Section 20 indicates we could not compile the full set of data indicated above, nor have we been able to cover all the criteria proposed by the Pronab Sen Committee, primarily due to the lack of time’. ( Vide Box 4, Section 9.1, page 18) . This limitation faced by the committee is also admitted in section 6 of the report on the boundaries of the Western ghats. In page 7 of the WGEEP the panel has revealed that ‘ We must however admit that the western Ghats Ecological Authority, when put in place, will have to take another look at the boundaries we suggest, since we have not been able to find time to examine and refine these without enough care’. According to the Govt of Kerala, “Again there are comments/findings by the same WGEEP on the methodology they used in identifying the ESAs( Section 10 of the report at page 25). Thus the WGEEP report perse reveals that it is merely based on the incomplete scientific exposition in Appendix 4 of the report and not based on the further improvements suggested in Box 4 thereof that the zonation has been done

The Government of Kerala had objected further “forestation” of revenue lands in Kerala under any pretext including the WGEEP/Gadgil Committee recommendations . In a letter addressed to the Secretary to Government of India, Ministry of Environment and Forests vide letter No 3527/A2/11/Envt dated 31.01.2012 in the matter of filing objections against the Gadgil Committee report, the Principal Secretary to Govt of Kerala , Environment Department had submitted a detailed report and it contained the following findings of the State Government before HLWG as under . “Total area of the state of Kerala is 38,863 sq Km. Western Ghats is 21,856 sq Km which is 56% of the total area. Inland and Coastal Wetlands extends to 1279.30 sq km. About 300 kms is under Coastal Zone Regulation. Paddy Lands coming under the ambit of the Kerala Paddy Lands and wet lands ( Conservation) Act comprises of 3818.3 sq km . In all, the regulated areas in existence come to 26983.6 sq km which is 69.4%. Balance available for habitation , cultivation and development activities is just 11879.4 sq km which is just 30.6%, and that too subject to zonal restrictions under Municipal Laws and the Kerala Building Rules. Though the state is only 1.1% of the total area of the country, it supports 3.13% of the total population. A further regulatory regime or proposal – under whatever name be it grouped – on the effective land area for habitation and development would be grossly unjustifiable and unnecessary. Only 30% of the land is at present outside the purview of zoning under some laws and introduction of further zones would make life impossible” .

In the letter No 3527/A2/11/Envt dated 31.01.2012 referred above , the Principal Secretary to Govt of Kerala , Environment Department further opined as “Over the last one century rural and urban population of Kerala increased by 4 and 18 times respectively registering a five fold increase on the whole. In 1901, the population of the state was only 6.4 million , which almost doubled in 40 years. The next doubling took only 30 years. The population density, a mere 165 persons per sq km in 1901 increased to 819 in 2001, exerting significant pressure on land , as per capita land availability dropped from 0.6 ha to 0.12 ha. Demand on land on housing and urbanization rose many times resulting in the decline of availability of

agriculture land. Kerala suffers far very high unemployment . Approximately 10 % of India’s unemployed population lives in Kerala. Unemployment fuels large scale migration both within and outside the state and country. This leads to migration to highlands in search of more agricultural land which paves way for encroachment of forests . Further regulation of any kind in midlands and lowlands, on land use would only catalyze such environmentally denigrating activities”. ( Page No 3). Though the WGEEP excludes all villages with a “Density of Population of 100 or above per Sq Km” from classifying as ESZ1, ESZ2 or ESZ 3, it was not considered in the case of villages in Kerala, which is a great discrimination

In the letter No 3527/A2/11/Envt dated 31.01.2012 referred above , the Principal Secretary to Govt of Kerala , Environment Department further opined as “All the WG states except Kerala have land east of their WG boundary, whereas the WG is the eastern boundary of Kerala with a land parcel of just 11 to 124 KM in breadth. Excepting the regulated areas, the free land would be a few islets sand witched between the regulated areas. If the proposed notification is accepted there would be further pressure on the existing revenue lands

Constitution of Kasthurirangan Committee (HLWG)

85.

Dr K Kasthurirangan (Chairman) Member (Science), Planning Commission, New Delhi Prof C R Babu (Member) Professor Emeritus, University of Delhi J M Mauskar (Member) Ex-Special Secretary, Ministry of Environment and Forests, New Delhi Prof Kanchan Chopra (Member) Ex-Director, Institute of Economic Growth, New Delhi Dr Jagdish Kishwan (Member) Additional Director General of Forests (Wildlife) MoEF, New Delhi Darshan Shankar (Member) Chairman, Institute of Ayurveda and Integrative Medicine, Bengaluru Sunita Narain (Member) Director General, Centre for Science & Development, New Delhi Dr P S Roy (Member) Director, Indian Institute of Remote sensing, New Delhi Dr Indrani Chandrasekharan (Special Invitee) Advisor (E&F) Planning Commission, New Delhi Ajay Tyagi (Member Convenor)

81% against WGEEP/Prof Gadgil Report

86.

To elicit the views of the Stakeholders, concerned State Governments and Central Ministries and to assess the implications of the WGEEP Report for the Western Ghats region both in terms of Conservation of Ecology and Sustainable Development , the MoEF hosted the WGEEP Report on the website on 23rd May 2012. The HLWG/Dr Kasthurirangan Committee evaluated the responses . Over 1750 responses were received from stakeholders including local self governments, Industry, Experts, local individuals etc . The HLWG analysed the responses and were assigned under two major groups viz: “RESPONSES NOT IN FAVOUR” and “RESPONSES IN FAVOUR” of the WGEEP. Eightyone percent of the communication received expressed concerns regarding the recommendations and also the methodology followed. All the responses were further classified under several heads as under

RESPONSES NOT IN FAVOUR RESPONSES IN FAVOUR Zoning Methodology Gundiya Hydropower project Moratorium on Lote Parshuram Implementation of the WGEEP Report Mining in Sindudurg Translation of the report to local languages Mining in Goa Extention of time limits for responses Establishment of WGEA General comments General Comments

87.

The responses received from the State Government were summarized to 23 issues/points ( page No 13 to 15 of the HLWG Report Vol 1). Following were the selected responses as far as it affect Kerala Farmers

Selected responses as far as it affect Kerala Farmers 4. The States of Maharashtra, Kerala and Gujarat have clearly indicated that restrictions on transport infrastructure recommended in the Western Ghats region is unacceptable 5. The States of Maharashtra, Kerala and Gujarat have indicated the need to set up solar and wind energy infrastructure which are sources of green energy 6. The embargo on new Hydroelectric projects and the conditions imposed on them are unacceptable to the states of Kerala, Maharashtra and Tamil Nadu 7. Restriction on dam height and thermal power projects has been strongly opposed by the States of Kerala, Maharashtra, Tamil Nadu and Gujarat. 8. Indicating that the recommendation on no inter basin diversion of water from rivers is against the Water Policy and suggesting that water needs to be allowed for human needs from water surplus to water deficit basin, the states of Maharashtra, Kerala and Tamil Nadu have strongly registered their objections to this recommendation. 18.The State of Kerala has also accepted the need for best practices for construction, top soil conservation, green building certification etc. regarding area treatment and development subject to legislation in the State and local conditions 19.The State of Kerala has stated that exclusive building code for Western Ghats region is unacceptable 21. The State of Kerala has indicated that the plastic bags are being managed and would be managed as per existing rules ‘The Recycled Plastic (Manufacture and Usage) Rules’ notified under the Environment Protection Act, 1986. 23. The recommendations on the establishment of Western Ghats Ecology Authority (WGEA) has not been accepted by all the State Governments

Demarcation of “Western Ghats” by HLWG

The Planning Commission initiated Hill Area Development Programme (HADP) during 1965 with the prime objective of promoting socio-economic development of the Hill people. The list of Hill areas were identified for the first time by the Committee of National Development Council (NDC) on hill areas in its meeting held on 12th March 1965. The states or Union Territories identified Hill areas in their jurisdiction. There is no records as to which all areas were identified in Kerala as hill areas in 1965. In this exercise, Tamil Nadu identified Nilgiris as a Hill area under the programme.

For the first time Western Ghats Development Programme (WGDP) was conceived at a meeting taken by the then Minister for Planning Shri C S Subramaniam on 31.05.1972 with Chief Ministers of Maharashtra, Karnataka and Planning Ministers of Goa, Tamil Nadu and Kerala were associated in subsequent meetings. In the delineation of Western Ghats, ‘Contiguous talukas/blocks along the Ghats having at least 20% of their area at an altitude of 600 M or above were included in WGDP and covered under HADP since 1974-75’. The unit of demarcation of Hill Areas in western Ghats is taluka.

Taking this area as the Western Ghats, the Committee (HLWG) imposed it on the administrative maps od talukas and districts of the same scale and thus led to the inclusion of all areas with an elevation of 600 M or above also which were contiguous to the higher altitudes and formed part of the administrative boundaries of the talukas. This led to the omission of talukas which were wholly costal or only marginally hilly ( having less than 20% of the taluka area) and inclusions of talukas which had high altitudes as defined above and actually constitute Western Ghats ( Source: Report of the Expert Group on Delineation of New Hill Areas, Planning Commission, 1986).

The HLWG found that parameters taken into consideration by the WGEEP to define Western Ghats also have severe drawbacks. “ WGEEP adopted the term Western Ghats in broad sense and included the entire tract of hills from the Papti to Kanyakumari. WGEEP also discussed the problems of boundary demarcation in relation to eastern ghats , which meet western ghats (Nilgiris) , and the presence of eastern and Western spurs. WGEEP also mentioned that there is no consensus among the different workers on the precise boundaries of western Ghats due to the differences in the drivers used for defining boundaries. WGEEP used the altitude and forest area or vegetation as drivers defining the boundaries and used forest area above a certain altitude as the operational definitions of Ghats. On the eastern side, the cut off elevation was above 500 M as the WG rise discretely from the Deccan plateau and on the west this cut off of forested area was at 150M and above or the coastline itself in case the forests spring from the edge of the coastline. Here the WGEEP went wrong in its assumptions totally as it could not differentiate between forest and forest cover . WGEEP should have taken into consideration the Government forest land or recorded forest area only to mark the WG boundary. On the contrary WGEEP took forest cover which included lakhs of hectares of agriculture area of the farmers which are revenue land enjoyed by the farmers under valid title deeds for centauries. This grave mistake should not have happened from an expert committee like WGEEP. Tree farming in the form of

plantation crops like Rubber or farming under tree shades like Cardamom or Pepper also is included in tree cover and finds inclusion under forest which needs to be demarcated and excluded as this by no means is a forest. Even density of the tree cover should not be taken as a mark of forest cover as density of planted tree cover in plantation sector is very high compared to ordinary government forests . Further Western Ghats as defined by WGEEP do not correspond exactly to particular administrative units such as districts and talukas. This created maximum opposition against WGEEP

92.

HLWG initially tried to define and delimit Western Ghats geologically and geomorphologically. After a one full day meeting with geologists and geomorphologists, the HLWG found that all geologists and geomorphologists confirmed that it is not possible to define Western ghats and demarcate its boundaries geologically or geomorphologically.

93.

94.

The Western Ghats as defined by HLWG Northern Limit 8 O’ N 22 26’ Eastern Limit 72 55” E 78 11’ Area 1,64,280 Sq KM Length 1500 KM Width 10KM narrowest/ 200 KM widest

Altitudinal Range (Min/Max) Zero to 2674 M Number of talukas 188 The merits of WG delineation by HLWG are ( i ) that taluka is taken as unit to demarcate WG, (ii) that the talukas identified as geological (scientific) connotations, and ( iii ) that talukas listed are based on criteria used by wGDP and HADP of Planning Commission .

Following were the talukas in Kerala identified as ESA by HLWG

Talukas in Kerala identified as ESA by HLWG District Taluka Taluka area ESA Area ESA Villages Trivandrum Nedumangad 957 457 4 Neyyatinkara 585 165 3 Kollam Pathanapuram 1271 942 8 Pathanamthitta Kozhencherry 958 616 2 Ranni 1097 924 4 Alapuzha NIL Kottayam Kanjirapally 429 51 1 Meenachil 689 106 3 Idukki Devikulam 1808 1808 12 (13) Peerumedu 1310 1146 8 Udumpanchola 1094 1094 23 Thodupuzha 888 463 4 Ernakulam NIL (1) Thrissur Mukundapuram 1326 708 1 Palakkadu Alathur 578 66 1 Chittur 1170 648 3 Mannarkad 1226 857 7 Palakkad 726 272 3 Malappuram Nilambur 1383 1012 10 Kozhikode Kozhikode 1031 234 5 Quilandy 745 170 2 Vadakara 580 112 2 Wayanad Mananthavady 749 364 4 Sulthanbathery 770 301 2 Vythiri 619 287 7 Kannur Thalaserry 1212 304 3 Kasargode NIL TOTAL 29,693 13,108 123 Page No 93/94 of HLWG Report Vol 1

making their decisions logical, the HLWG committee divided Western Ghats into two; Natural Landscape and Cultural Landscape. Forests, protected areas and areas which were to be protected as forests were included in Natural Landscape while human inhibited areas, farm lands and plantations were included in Cultural landscapes

97.

For demarcating the Natural Landscape and Cultural landscape, the Kasthuri Rangan Committee depended on remote sensing technology. But in remote sensing, coffee plantations and cardamom planations etc may often be considered as forests and hence classified as Natural Landscape. The Kasthuri Rangan Committee in page no 96 of their report said that “ The remote sensing derived vegetation maps are not without limitations. For instance Understory plantations (for eg Cardamom) or naturalized forest plantations cannot be discriminated . That means the committee approves the fact that certain defects may occur while using remote sensing for mapping ESA.

In the “Summary of Recommendations and Action Plan” , the HLWG observed as “Out of the estimated 1,64,280 sq km of the western ghats area, the natural landscape constitutes only 41 percent. The area identified as ecologically sensitive is about 37 percent i.e., about 90% of the natural landscape. …. The delimited area of 188 talukas in 6 states has been designed as Western Ghats region. The width of the WG is 10Km at the narrowest point and 200 Km at the widest point. About 60,000 sq km of natural landscape (approximately 37% of the total geographic area of Western Ghats region) has been identified as Ecologically Sensitive Area (ESA) by HLWG, which represents more or less a contiguous band of vegetation extending over a distance of 1,500 km across 6 states. The demarcation unit of ESA is the village. IRS LISS III derived spatial layers on vegetation type and landscape level indices ( with a fine spatial resolution of 24 m) were used as the basis for identification of ecologically sensitive areas . To facilitate sustainable development in the WG region, which is inhibited by about 50 million people, the non ESA comprising mostly cultural landscape is also demarcated. HLWG recommends that the Central Government should immediately notify the ESA area, demarcated by HLWG in public interest. The need for urgent action is evident. In this notified area, development restrictions as recommended in this report will apply”.

Three Member Expert Committee on HLWG Report

(Oomman V Oomman Committee)

Kathuri Rangan Committee (HLWG) submitted their report on 15th April 2013. In the report, the HLWG suggested to demarcate about 40 percent of Western Ghats area as ESA ( Ecologically Sensitive Area) and conserve it. HLWG committee found 123 villages in Kerala as ESA. Kasthuri Rangan Committee also pointed out certain defects in demarcation of ESA put forward by Gadgil Committee Report. The HLWG divided Western Ghats into “Natural Landscape” and “Cultural Landscape”. The HLWG also adopted the policy that if at least 20 percent area of the village is found to be Ecologically Sensitive Area (ESA), the whole village will be considered as ESA. The HLWG declared 123 villages in Kerala as ESA.

100.

101.

ESA in the Western Ghats in various states State Total Area Western No of Natural Village Ghats area Villages for Landscape sharpened ESA ESA Area Kerala 38,863 29,691 123 12,477 17,214 T Nadu 1,30,058 27,069 135 8,947 3,369 Karnataka 1,91,791 44,484 1576 21,529 20,668 Maharastra 3,07,713 55,345 2,159 21,185 17,340 Goa 3,702 1,749 99 1,558 1,461 Gujarat 1,96,024 5,977 64 2,553 449 TOTAL 8,68,151 1,64,280 4,156 68,249 59,940

102.

When the Kasthurirangan Report was published, many complaints were raised against it by the public, especially farmers. They were of the apprehensions that if the areas are declared as ESA, they will be forced to live under strict regulations and developmental activities will become stand still. Subsequently when agitations began in various parts of the state, Government of Kerala appointed a Three Member Expert Committee with a mandate to study the draft Office Memmorandum (Kasthuri Rangan Committee report) in detail, seek the opinion of the people representatives, Farmer’s organizations, NGO’s and general public and to submit their opinions and suggestions to the State Government, which will be further conveyed to the Central Government. The Three Member Expert Committee was formed under the Chairmanship of Dr Oommen. V. Oomman ( chairman, Kerala Biodiversity Board) with Dr V N Rajasekharan Pillai (Former MG University Vice Chancellor and Member UGC) and P C Cyriac IAS ( retired Chief secretary, Tamil Nadu) as members.The Committee conducted 30 sittings in Kerala right from Kannur to Trivandrum.

103.

104

Three Member expert Committee on HLWG Report recommended that the human inhibited areas, farm lands and forests in the 123 villages and about 120 panchayats must be demarcated . The sacred groves, ponds, meadows and hills in these villages and panchayats should be considered as ESA and protected along with the forest. At the same time, human inhibited areas, farm lands and plantations should be exempted from ESA. Three Member expert Committee on HLWG Report recommended that in order to conduct the field level verification , a team may be constituted in all Panchayats with Panchayat President, Panchayat Members, BMC members, Village officer of Revenue Department, Representative of the Forest dept , representative from the Agriculture department as members and the Panchayat secretary as secretary to the Committee . This team has to visit all the ESA Villages (Kasthuri Rangan Committee ) and ESZI and ESZ II Panchayats (Gadgil Committee) during a fixed period and demarcate the areas as described above. Conflicts if any, regarding demarcation may be finalized according to the decision of the Revenue Department and mark accordingly . Three Member expert Committee on HLWG Report further directed that the Physical verification maps and data of the above committee will be part of the State Expert Committee report

105.

106.

states villages are separate cultural and social entities . As far as other states are concerned, considering villages as basic units for demarcation of ESAs can be justified. In those states there is good detachment between villages, towns and forest areas. But Kerala is a rural urban continuum, which occur intermittently.

107.

Three Member Expert Committee on HLWG Report in its report found that “In many of the villages in Kerala identified by Kasthuri Rangan committee as ESA, there are many large educational institutions including engineering Colleges and many hospitals also. Many villages are particularly urbanized. Towns like Kattappana, Nedumkandam, Kumily, Munnar etc are examples of this . Living in this area according to the conditions and restrictions put forward by forest and environment Acts and Rules is impracticable and unjustifiable. It will be natural that the inhabitants of this area wish to retain the material gains and standards that they have acquired. Plantations of Cardamom, Black Pepper, Rubber, Coffee and Garcinia ( Malabar Tamarind) are often mistaken as forests and wrongly marked in satellite maps as ESA in Kasthurirangan Report”.

108

Three Member Expert Committee on HLWG Report in its report found that “ Even though Kasthuri Rangan Committee has demarcated villages having population of less than 100 per km square as ESA, several villages that fall in this criteria has been excluded by the Kasthurirangan Committee. Wagamon, Kodaserry, Malayatoor, Peechi, Vazani are some examples. Among the Western Ghat states, Kerala has the highest population density. Even in Idukki District which is having maximum number of ESAs, according to 2011 census the population density is 250/kn sq area. During 2001 it was 259/km sq. The HLWG recommendation, not to consider areas having less than 100 population density as ESA was not followed completely as far as Kerala was concerned. Three Member expert Committee on HLWG Report in its report found that “ the recommendation to demarcate an area of 10 km around ESAs as buffer zone and placing these areas under the purview of Environmental Protection act may lead to a condition where large towns (which were legally established ) may even be considered as ESAs. This may lead to apprehensions in the mind of the people living in this area that the basic developments will come to a standstill.

109 The “Three Member Expert Committee on HLWG Report” recommended 9993.7 Sq KM of land in Kerala as ESA which comprises of 9107 sq KM of forest area and 886.7 Sq Km of barren revenue land including water bodies, marshes etc within the revenue land . These 886.7 Sq KM of Revenue Land is not contagious and is lying as scattered land areas which could not be declared

as ESA. The MOEF published a Draft Notification dated 10th March 2014 based on the findings of the “Three Member Expert Committee on HLWG Report. Before that the draft notification dated 13.11.2013 had come into force. Since the Government felt that recommending 9993.7 Sq KM of land including the scattered 886.7 Sq Km of revenue land as ESA will create technical issues, the LDF government recommended only 8856.46 Sq Km of Forest Land only (in some Forest records it is 9107, but deducting CHR – Cardamom Hill Reserve – it is only 8856.46 Sq KM ) as ESA in Kerala . After the expiry of 6 months from the date of issue of the draft notification, a new Draft Notification dated 4th Sept 2014 was issued. Another Draft Notification was issued on 5th September 2015. After 545 days, another draft notification was issued on 27th Feb 2017. Before that, the Chief Minister of Kerala had written to the MoEF on 23rd Feb 2017 informing that only 8856.46 Sq Km of Government Forests in Kerala only need to be declared as ESA. On 3rd October 2018, another Draft Notification was published and the limitation period of 545 days for the draft notification was withdrawn. Based on the recommendations of the “Three Member Expert Committee on HLWG Report”, through Remote Sensing and physical verification of the government forests in the 123 villages earlier identified by Gadgil and Kasthuri Rangan Committees as ESA, the Government of Kerala identified 8856.46 Sq Km of land in 92 villages as ESA and informed the same to the MoEF by its letter dated 16.06.2018 and the Ministry of Environment and

Forests had confirmed the same by its public stand dated 20th July 2018.State of Kerala had taken the stand that the CHR – Cardamom Hill reserve is not forest. On 15th Feb 2019, MoEF had conducted a meeting with the Government of Kerala Officials at New Delhi and that meeting had decided to constitute a High Level Committee to decide on the proposal of the State of Kerala. MoEF had issued the order of constituting the High level Committee vide its order dated 23rg Aug 2019. Thereafter the New Public Interest Litigation was filed before the Supreme Court of India. Even in the existing Draft Notification of ESA by the MoEF based on the Gadgil and Kasthuri Rangan Reports, 123 villages of Kerala including Revenue land, townships and agriculture land is included which need to be modified with 92 villages and 8856.46 Sq KMs of land as ESA. It is recommended that there should be separate villages for forest area and revenue land by bifurcating the existing 92 villages as “Village Name Revenue” and “Village Name Forest” like “Marayoor Forest Village” and “Marayoor Revenue Village” etc etc . Further the Government of Kerala should immediately constitute a High power Committee with Government Secretaries, Farmer Leaders, NGOs and Legal Experts to strictly follow up and advise the government officers on the follow up action before the MoEF and Supreme Court of India in the Gadgil, Kasthuri Rangan Committee Reports .

110

VILLAGES IN THE ESA with area and POPULATION THIRUVANANTHAPURAM District Taluk : Nedumangad Name of the Village Area Popul Name of the Village Area Popul Peringamala 120 21477 Thennur 111 12972 Vidura 118 18239 Mannurkkara 91 18273 Taluk : Neyyattinkara Vazhichal 105 10606 Amboori 38 9839 Kallikad 15 9515 Total Area 598 Sq Km . Population 100921. Density of Population KOLLAM District Taluk : Pathanapuram Punnala 63 12558 Piravanthur 74 23336 Edamon 91 12453 Thenmala 101 13339 Aryankavu 156 12125 Thingal karikkam 72 19627 Kulathupuzha 326 14749 Chennapettah 28 8211 Total Area 911 Sq Km . Population 116398. Density of Population PATHANAMTHITTA District Taluk:Kozencherry Thannithodu 146 14352 Aruvappalam 454 16183 Taluk:Ranni Chittar-Seethathodu 649 33977 Kollumala 67 22765 Perunad 189 16620 Vadaserrikara 42 22577 Total Area 1547 Sq Km . Population 126474. Density of Population KOTTAYAM District Taluk : Kanjirapally Koottickal 50 10393 Taluk : Meenachil (Pala) Melukav 27 9352 Thekkoy 36 9617 Poonjar thekkekara 43 19710 Total Area 156 Sq Km . Population 49072. Density of Population ERNAKULAM District Taluk : Kothamangalam Kuttampuzha 647 25436 Total Area 647 Sq Km . Population 25436. Density of Population IDUKKI District Taluk : Devikulam Marayoor 108 11027 Keezhanthoor 68 3359 Kannandevan Hills 477 68205 Kottakamboor 36 2209 Kanthaloor 47 7626 Vattavada 31 2893 Mankulam 76 9607 Mannamkandam 183 36314 Pallivasal 40 11759 Anaviratti 22 5006 Kunjithannai 19 12253 Vellathooval 31 14845 Taluk : Udumbachola Chinnakanal 68 12949 Baisonvalley 46 12761 Rajakumari 40 15243 Pooppara 45 9950 Rajakkadu 26 16378 Konnathaday 74 31529 Santhanpara 36 8425 Kathipara 27 10584 Chadurangappara 29 5325 Vathikudy 51 24623 Udumbanchola 40 10868 Upputhodu 32 10615 Parathod 58 21525 Kalkunthal 57 41103 Thankamany 50 23448 Ayyappankovil 112 33700

Pampadumpara 36 16600 Kattappana 78 39608 Karunapuram 53 31981 Vandanmedu 21 10009 Anakkara 38 23934 Anavilasam 30 6870 Chakkupallam 25 12242 Taluk : Thodupuzha Kanjikuzhy 69 28504 Udumbanoor 84 23340 Idukki 270 13320 Arakkulam 35 12633 Taluk : Peerumedu Upputhara 31 20596 Kumily 187 28652 Manjumala 87 22629 Periyar 69 26326 Kokkayar 55 12876 Peerumed 44 20808 Mlapra 569 1125 Peruvanthanam 78 16301 Total Area 3788 Sq Km . Population 842483. Density of Population THRISOOR District Taluk : Mukundapuram Pariyaram 697 31615 Total Area 697 Sq Km . Population 31615. Density of Population PALAKKAD District Taluk : Alathur Kizhakkancherry 1 49 22400 Taluk : Chittur Muthalamada 1 264 18488 Muthalanada II 95 15679 Nelliyampathy 274 8718 Taluk : Mannarkkad Puthur 128 5798 Padavayal 251 6764 Agali 85 20142 Koottathara 36 10862 Sholayar 159 7526 Kallamala 62 15493 Palakkayam 115 9354 Taluk : Palakkad Malampuzha 93 11782 Puduppariyaram 73 8201 Puduserri East 101 13651 Total Area 1785 Sq Km . Population 174858. Density of Population MALAPPURAM District Taluk : Nilambur Chungathara 78 30726 Kurumbalangod 158 20017 Vazhikadavu 136 44083 Akampadam 91 15758 Karulai 293 24336 Amarambalam 77 31928 Chokkod 61 16850 Kalikavu 38 25861 Kerala Estate 33 10299 Karuvarakkundu 40 26657 Total Area 1005 Sq Km . Population 246515. Density of Population KOZHIKODE District Taluk : Kozhikode Kedavoor 49 23283 Puthuppadi 37 22655 Nellipoyil 33 11721 Kodencheri 27 18461 Thirvampadi 87 26623 Taluk : Quilandy Chembanoda 52 5718 Chakkittapara 117 12168 Taluk : Vadakara Thinur 30 4714 Kavilumpara 82 19423 Total Area 514 Sq Km . Population 144766. Density of Population WAYANAD District Taluk:Mananthavady

Thirunelli 150 11719 Thrissilleri 54 15731 Periya 63 11469 Thondarnad 97 11092 Taluk:Sulthan Bathery Kidangad 176 9157 Nulpuzha 123 12978 Taluk:Vythiri Theriyod 54 1859 Achooranam 21 9754 Pozhuthana 50 7643 Kottappady 55 21833 Chundel 16 8989 Kunnathidavaka 32 8831 Vellarimala 58 8730 Total Area 949 Sq Km . Population 139785. Density of Population KANNUR District Taluk:Thalassery Aralam 117 26508 Kottiyur 84 17809 Cheruvancherry 110 9048 Total Area 311 Sq Km . Population 53365. Density of Population STATE TOTAL Number of Taluks affected : 25/ Number of villages : 123 Total Area 12908 Sq Km . Population 2051688. Density of Population Source : Review of HLWG Report in Malayalam published by Kerala State Biodiversity Board, Thiruvananthapuram Page 35 to 38

World’s 1st EFL Act is from Kerala – The Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Ordinance 2000 – How the International agencies influence State Legislation – Jayaram Ramesh , The “Weekilics” Leaked information etc

111.

112.

The Pronab Sen (Former Chairman, Planning Commission of India) Committee has given recommendations in 2000 September itself regarding the measures to be taken before declaring an area as ESA, which is relevant in this context. The “preface” of the Pronab Sen Committee Report written by Pronab Sen itself reads as “The very act of constitution of this committee to identify parameters for designating ecologically sensitive areas in the country is yet another

reflection of the deep and abiding concern that the Government of India has consistently expressed regarding the rapid deterioration of the environment, both nationally and internationally”.

113

114

There was a Weekilics Report (US) that Shri Jayaram Ramesh (former Union Minister for Environment & Forests) had pleaded for REDD Funds ( Reducing Emissions from Deforestation and Forest Degradation) to India . One statement of Shri Jayaram Ramesh which was leaked from Weekilics Report and published by on-line media reads as “ He stated that the Indian system will find it infinitely easier to accept something legislated domestically than imposed internationally. Ramesh said that he would look at legislating various mitigation plans found in India’s National Action Plan on Climate Change in order to give them the force of law. S/E Stern welcomed the proposal and asked whether it would be possible to use executive regulation as opposed to legislation. Ramesh affirmed that while it was possible, legislation was necessary in order to gain credibility, because “there is sanctity to a law”. Ramesh also raised the issue of REDD and India’s plan to spend 3 billion dollars on reforestation. He asked for US support for India’s proposal for reforestation in the UNFCCC talks. S/E Stern suggested a technical meeting between the two countries experts to review the proposal”. If these leakout information is true, the entire Gadgil Committee Report , its orign, the connection of the Gadgil Committee members to the interntionally funded NGO’s and their vested interest, if any, need to the investigated at the highest level.

115

The Governing Board of Ashoka Trust as of Oct 2012 had the following people as members along with others .

Dr K S Bawa, Distinguished Professor of Dr N K Ganeshaiah, Professor, Unty of Biology, University of Massachusets Agriculture Sciences, Banalore (Trustee) USA ( Trustee)

Dr R Umasankar , Professor, Unty of Mr Darshan Sankar (Member , GB) Agriculture Sciences, Banalore (Trustee) Dr Surinder M Sehgal Dr S N Rai, Former Principal Chief Conservator of Forests , Karnataka Ms Rohini Nilekani, Chairperson, Ms Seema Paul, The Climate Works Arghyam Foundation, Bangalore Foundation

116

From the website of Ashoka Trust, it can be seen that there are more than 20 inter connected NGOs related to Ashoka Trust through which it is alleged that “Research Money” is flowing to experts. It is reported that Dr V V Robin, son of VV Vijayan who was a member of the WGEEP had received US $ 19,524.55 during 2014 for a project between 1st March 2011 to 30th June 2013 through “National Institute of Advanced studies” for a project titled “Assessing biodiversity value of production landscape and non protected forests on sky islands by establishing occurrence of cryptic, threatened birds”. This is just a sample and there can be many such incidents. It needs further enquiry at appropriate levels as we are not commissioned for such a work. But the same is mentioned here and a request made to get it investigated to expose the global connections behind the environmental initiatives in India and Kerala.

117.

The object and reasons for the EFL Act is very much important to understand the purpose of the Act. The object and reason supporting the Kerala Forest (Vesting & Management of Ecologically Fragile Land) Bill introduced in the Kerala legislature reads as follows : “International Union for Conservation of Nature and Natural resources (IUCN) has declared the Western Ghats as one of the Biodiversity Hotsports in the World. As a signatory to the Convention of Biological Diversity (CBD) our nation has the responsibility to conserve the biological resources for the sustained economic and social development of the society and for the maintenance of ecological stability. The Hon supreme Court of India has ordered that natural resources such as forests, rivers etc shall be conserved as Public Trust for the welfare of the society at large. The Apex Court while laying down the principle and guidelines of the ‘ Public Trust Doctrine’ has stipulated that resources like air, sea, waters and the forest have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The Hon supreme Court has further ordered that the ‘Public Trust Doctrine’ as laid down by it shall be part of the law of the land, that the state government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation, and that, where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. It has been observed that many ecologically fragile areas in the State are under the private ownership. Over-exploitation and unsound management of the resources therein would lead to irreversible degradation of social, economic and ecological stability of the State. As a precautionary and preventive measure , the Government considers it necessary to enact a legislation to bring the ecologically fragile areas under the ownership of the State and to ensure their conservation for the welfare of the society and of the nation at large”

118.

From the object and reasons for introducing the Kerala Forest (Vesting & management of Ecologically Fragile Land) Bill, it can be seen that EFL Act is meant to give effect to the provisions of Convention on Biodiversity and also give effect to various Supreme Court decisions with regard to prevention and conservation of forest, biodiversity, wildlife and environment . The object and reason appended to the Bill specifically refers to ‘Public Trust doctrine’ and ‘Precautionary Principles’ – already discussed earlier . So the same principle should be applied in the case of declaration of BUFFER ZONES in Kerala.

119.

Prior to the EFL Act, there was a common law, international law and judge made law, which provided for regulation of the user of ecologically fragile land but did not provide for take over of the land for the purpose of ‘in-situ’ conservation. It is evident from the preamble of the Act and the Object and Reasons appended to the Bill that the provisions for take over is to provide for ‘in situ’ conservation 25 In situ & Ex situ conservation – It is ACQUISITION only – The Kerala EFL Act

120.

In situ conservation is one of the methods of the conservation of generic resources in natural populations of plant or animal species. In other words, it is a set of conservation techniques involving the designation, management and monitoring of biodiversity in the same area where it is encountered . It is applied to conservation of agricultural biodiversity in agro forestry by farmers, especially those using unconventional farming practices

121

Ex situ Conservation is one of the methods of the conservation of living organism outside their natural habitat through generic conservation. It includes both captive propagation of species and their eventual release into natural or restored ecosystem

In Situ Conservation Ex situ Conservation Ex-situ conservation is the preservation of In-situ conservation is components of biological diversity outside being done by declaring their natural habitats area as protected area In means conservation of biodiversity on site It means conservation of biodiversity from their site of occurrence

Protected areas are sanctuaries and national Artificial conditions are created to make their parks habitat almost like a natural habitat It aims to enable biodiversity to maintain It involves the maintenance of genetic itself within the context of the ecosystem variation ( Genetic conservation) away from its original location Establish protected area network , with Establish botanical and zoological gardens, appropriate management practices, corridors conservation stands; banks of germ plasm, to link fragments restore degraded habitats pollen, seed, seedlings, tissue culture, gene within and outside and DNA etc. It involves in the reduction of biotic pressure It identifies and rehabilitates threatened rehabilitation species; launched augumentation, reintroduction or introduction programmes It helps in the multiplication of the species Thois method will enhance the probability of through the process of evolution and reproductive success for endangered species. adaptation It maintains the ecological integrity It creates artificial natural habitat for endangered species and also protect the species from the external threat like predation and poaching

122

The preamble of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act , 2003 ( Act 21 of 2005) reads as “ Whereas the earth’s biological resources with their intrinsic ecological, genetic, economical, social, cultural, scientific, educational, recreational and aesthetic value are global assets and public trust vital to the sustained economic and social development, maintenance of ecological balance and the very existence of humanity, And whereas the fundamental requirement for the conservation of biological diversity is the INSITU conservation of ecosystems and natural habitat and the maintenance and recovery of viable populations of species in their natural surroundings, and whereas the tropical forests in the western ghts which have been declared a bio-diversity hotspot by the International Union for Conservation of Nature and Natural resources are very rich repositories of bio-diversity extremely susceptible to rapid irreversible degradation, and whereas it has become inevitiable to conserve effectively the Ecologicaly Fragile Lands, minimizing the reduction or degradation of these ecosystems and biological diversity therein, which evolved through millions of years , and whereas it is considered necessary to manage such lands in an integrated and uniform manner within the ecological boundaries in accordance with the management plans based on sound scientific principles”

123

Under Sec 2(b) of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act,2003. ecologically fragile land means any forestland or any portion thereof held by any person and lying contiguous to or encircled by a reserve forest or a vested forest or any other forestland owned by the Government and predominantly supporting natural vegetation; and (ii) any land declared to be an ecologically fragile land by the government by notification in the Gazette under Section 4.

124

What the EFL Act provides for is vesting of ‘forest land’ automatically and ‘land’ if necessary for ‘in situ’ conservation on declaration by the Government. The intention of the EFL Act is to make available to the Government forest land and land for in situ conservation. These lands are vested only for the purpose of conservation of natural resources as per management plan to be formulated in accordance with Sec 16 of the Act. All ecologically fragile land which satisfies the criteria mentioned in Sec 2(b) whether state owned or owned by private persons can only be used for in situ conservation as per the Management Plan under Sect

125

Under Section 3 of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act,2003 the ownership and possession of all Ecologically fragile land held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumberances and the right, title and interest of the owner or any other person thrreon shall stand extinguished from the said date

126

Under Sec 4 of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act,2003 The Government shall have the power to declare by notification in the Gazatte, any land to be Ecologically fragile land on the recommendations of the Advisory Committee appointed for the purpose under Section 15 of the Act

127

Under Section 15 of Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act,2003, (1) the Government may by notification in the Gazette, constitute an Advisory Committee to identify lands which are ecologically fragile and recommend to Government the said land for declaration as ecologically fragile lands , (2) The Advisory Committee shall consist of the following members , namely

The Principal Chief conservator of Forests - Chairman Two Members of the Legislative assembly nominated by the Government The Secretary, Forest Department The Law Secretary The Revenue secretary The Director, Scheduled Tribes Department The Director, Kerala Forest Research Institute The Director, Tropical Botanical Garden and Research Institute, Palode The Director, Centre for Earth Science Studies The Director, Centre for Water Resource Development and Management, Kozhikode One representative of leading NGO working in the field of conservation of nature or foresr nominated by the Government

128

Under Section 15 (3) and (4) of Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act,2003, the Committee shall identify lands which are ecologically fragile land recommended to the Government for the declaration of such lands under Section 4 as ecologically fragile (3), and the Committee shall take into consideration (4)

(i) The abundance of flora and fauna; (ii) Therare and endemic flora and fauna (iii) The role in conserving the water resource (iv) Functions as corridors connecting two or more wildlife habitats (v) Functions as breeding grounds for wild life; and (vi) Such other ecological parameters as may be prescribed ; and make specific findings on the ecological sensitivity and significance of such land before making its recommendation to the Government under sub section (3)

129

130

Section 10A, 10B were newly added as per Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Amendment Act of 2009 which reads as , Section 10A “Dispute redressal in respect of lands having an extent of not more than two hectares (1) Notwithstanding anything contained in Section 10, if any owner of the land which has been notified under section 3 and having an extent of not more than to hectares as on 2nd day of June, 2000hase as to whether such land is an ecologically fragile land or not, may file an application before the Principal Chief Conservator of Forests for the settlement of such dispute;

131

Section 10 B of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Amendment Act of 2009 provides for Constitution of the Ecologically Fragile Land Claim Dispute Redressal Committee and vide subsection (2) such committee shall consist of Local Divisional Forest Officer/Wildlife Warden as Chairman, Working Plan Officer, Two scientists, the member of the concerned Legislative Assembly constituency, the president of the concerned Village Panchayat, the Agricultural Officer and Revenue Officer as members

132

3 of the Environment (Protection) Act 1986 , (2) Kerala EFL Ordinance of 2000 , (3) Pronab Sen Committee Report 2000, , (4) Kerala EFL Act of 2003, (5) National Board for Wildlife 2011, (6)Prof Gadgil Committee (WGEEP) Report of 2011, (7)Dr Kasthuri Rangan Committee (HLWG) Report of 2013 and the (8) Dr Oomman V Oomman Committee Report 26 Latest Developments needs close follow up

133

During June 2020, a public interest petition had been filed before the Supreme Court of India by 8 school students from Tamil Nadu and 26 Environment NGOs demand implementation of the Gadgil Committee Report with immediate effect. State of Kerala is also a party to the above case . 27 Right to Fair Compensation and Transparency in Land Acquisition , Rehabilitation and Resettlement Act, 2013

134

The Prayer /The Findings

135 The “Three Member Expert Committee on HLWG Report” recommended 9993.7 Sq KM of land in Kerala as ESA which comprises of 9107 sq KM of forest area and 886.7 Sq Km of barren revenue land including water bodies, marshes etc within the revenue land . These 886.7 Sq KM of Revenue Land is not contagious and is lying as scattered land areas which could not be declared as ESA. The MOEF published a Draft Notification dated 10th March 2014 based on the findings of the “Three Member Expert Committee on HLWG Report. Before that the draft notification dated 13.11.2013 had come into force. Since the Government felt that recommending 9993.7 Sq KM of land including the scattered 886.7 Sq Km of revenue land as ESA will create technical issues, the LDF government recommended only 8856.46 Sq Km of Forest Land only (in some Forest records it is 9107, but deducting CHR – Cardamom Hill Reserve – it is only 8856.46 Sq KM ) as ESA in Kerala . After the expiry of 6 months from the date of issue of the draft notification, a new Draft Notification dated 4th Sept 2014 was issued. Another Draft Notification was issued on 5th September 2015. After 545 days, another draft notification was issued on 27th Feb 2017. Before that, the Chief Minister of Kerala had written to the MoEF on 23rd Feb 2017 informing that only 8856.46 Sq Km of Government Forests in Kerala only need to be declared as ESA. On 3rd October 2018, another Draft

Notification was published and the limitation period of 545 days for the draft notification was withdrawn. Based on the recommendations of the “Three Member Expert Committee on HLWG Report”, through Remote Sensing and physical verification of the government forests in the 123 villages earlier identified by Gadgil and Kasthuri Rangan Committees as ESA, the Government of Kerala identified 8856.46 Sq Km of land in 92 villages as ESA and informed the same to the MoEF by its letter dated 16.06.2018 and the Ministry of Environment and Forests had confirmed the same by its public stand dated 20th July 2018.State of Kerala had taken the stand that the CHR – Cardamom Hill reserve is not forest. On 15th Feb 2019, MoEF had conducted a meeting with the Government of Kerala Officials at New Delhi and that meeting had decided to constitute a High Level Committee to decide on the proposal of the State of Kerala. MoEF had issued the order of constituting the High level Committee vide its order dated 23rg Aug 2019. Thereafter the New Public Interest Litigation was filed before the Supreme Court of India. Even in the existing Draft Notification of ESA by the MoEF based on the Gadgil and Kasthuri Rangan Reports, 123 villages of Kerala including Revenue land, townships and agriculture land is included which need to be modified with 92 villages and 8856.46 Sq KMs of land as ESA. It is recommended that there should be separate villages for forest area and revenue land by bifurcating the existing 92 villages as “Village Name Revenue” and “Village Name Forest” like “Marayoor Forest Village” and

“Marayoor Revenue Village” etc etc . Further the Government of Kerala should immediately constitute a High power Committee with Government Secretaries, Farmer Leaders, NGOs and Legal Experts to strictly follow up and advise the government officers on the follow up action before the MoEF and Supreme Court of India in the Gadgil, Kasthuri Rangan Committee Reports .

Once a forest always a forest should not be a criteria of designationg a land as forests .If the area is under plantation for some time though the nature of land shown in the records remains a forest it should be treated as agricultural land within the forest and no attempts should be made to change the character of such land or ownership deprived .

There is a tendency to increae lease rentals of cultivation land falling under the category of forests therby making it uneconomical for the grower to cultivate a crop and push him out of the area .In no way should lease rentals of such land be very different from such revenue leases for similar land .

by the government only through the process of land acquisition detailed in the “Right to Fair Compensation and Transparency in Land Acquisition , Rehabilitation and Resettlement Act, 2013” , the reasons for the same being already stated in the previous paragraphs . So all the 8 pending draft notifications referred in para 2 of this report be withdrawn immediately and fresh notification be issued under land acquisition process as detailed in Right to Fair Compensation and Transparency in Land Acquisition , Rehabilitation and Resettlement Act, 2013 and excluding all human habitations as recommended by various expert committees appointed by various governments to study the subject of “Ecologically Sensitive Area”.

##########################

Part 2

“Farmer, the protector of Mother Earth” called as “Environmental Destroyers”

136

The second part of this report relates to the ever increasing attack on human beings and their livelihood including agricultural crops, cattle’s etc by the wild animals coming out from forests and the silent support of the forest department for these illegal acts of the wild animals which the forest department uses as a free weapon to illegally evict the farmers from their agriculture land and then convert it as forest land and thereby increase the area of forest in Kerala and to get the support of the International Environmental Organization’s international financial aid . Human Animal Interface is not new for Kerala due to its geography but the concern is that it is increasing year after year. But the tragedy is that the farmers who are the victims of the Human animal Interface are presented before the public as “forest encroachers” and “Tree Thieves” and “Wild Animal poachers” by the environmentalists and the intelligentsia of the state and a portion of the electronic, on line and print media. This gives a total distorted picture and undermines the public service the farmers provide to the very existence of the human beings. Recently Indian Council for Agricultural Research (ICAR) made the following “POST CORONA” message which is very relevant “When lockdown was announced none of us rushed to buy gold, land, cars or expensive phones. But, all of us rushed to buy fruits, vegetables, bread and milk. FARMERS ARE THE SOUL OF OUR PLANET. THANK YOU FARMERS.” This statement explains the relevance the “Ordinary Farmer” has on our lives .

137

Human Animal Interface occurs when the wildlife requirement overlap with those of human population, creating costs and loss of life for human beings. Human Animal Interface increases in areas where the forests form the boundary of agriculture lands . Out of the total geographic area of Kerala, 28% is forests and 66% is agriculture area. The Land use pattern of Kerala is as under

Area in Hectare % to total Total 3886287 100 Forest 1081509 28 Agriculture Area 2568304 66 Others 236474 6 Source: Economic Review, 2019 - Vol 2 , Page 8

138

Out of the 14 districts in Kerala, except Alapuzha , 13 districts have forest as the border for revenue and agriculture lands . This aggravates the Human Animal Interface. With decreasing food, fodder, water and other items within the forests, wild animals started visiting farming areas and started destroying the crops developed/ created by farmers. The wrong decision of the Forest Department to cultivate the forests with commercial woods such as Teak, Acacia, eucalyptus etc eliminated so many fruit trees like mangoe, jackfruit etc etc whereby the wild animals are straved of the natural forest foods. It is reported that 13% of the entire forest area is “cultivated with commercial woods and Teak accounts for more than 50% of the forest plantations. It is further reported that several forest commercial trees like eucalyptus, acacia consumes maximum water from the earth and most of the natural water resources dry up wherever such plantations are made . Lack of natural forest foods from trees like Jack Fruit, Mangoe etc and total scarcity of water sources forces wild

animals to enter the agriculture land where most of the crops are food crops and liked by wild animals. Because of the above and inaction from the Forest Dept to create a self sustaining forest with sufficient food producing trees and vegetations, wild animals started encroaching agricultural land. 30 The Real Picture of the Wild Animal Attacks

139

Recently the oldest Malayalam daily “Deepika” has published a 9 part series of articles from 25th June 2020 to 4th July 2020 describing in detail the state of affairs of man animal conflict in the State of Kerala . Another article named “Plantations in Forests, Wild Animals in Agriculture Lands” published on 06.06.2020 in Deepika daily points out the major reason for the fleeing of wild animals from forests in search of food. “Planting fruit trees to keep wildlife in forest” is the heading of a news item in The Hindu daily dated 3rd July 2020 where the Forest range Officer of Achenkovil stated as “ Human- Wildlife conflict is the Forest department’s biggest challenge. Though we cannot put an end to this, we can control the conflict to a great extent. By cultivating fruit bearing trees inside the forests, we can try to solve the problem of food scarcity and control wild life incursions into human habitats. It is also an attempt to protect the wild animals from getting hurt”. 31 Over growth of Wild Animals

140

The concept of fight between wild animals and human beings should be looked into from a modern and different perspective which is totally different when the Forest and Wild Life Protection laws were enacted . First of all, it is not a fight. It is attack of wild animals into agricultural territory, where 2 or 3 generations of farmers were cultivating on properties which they own legally. For many years, there was equilibrium between wild animals and farmers. Due to various reasons, there is overgrowth of animals in the forests. Further the balance between various links in the food chain might have been jeopardized. Or protection measures might have become ineffective. Fodder and food availability in the forest have come down drastically. So far Forest department had not conducted any study on the food availability for animals in the forests. There is over growth of animals in the forests. Selective culling of animals is permitted in countries like Australia. There are scientific mechanisms to control wide animal population and there should be a mechanism to assess the carrying capacity of wild animals in the forests.

141

The State of Kerala, which has only 1% of the geographic area of India has 20% of the total elephants of the nation in Kerala . There is over growth of elephant population in the State of Kerala . During January 2018 itself the Government of India has asked the Dehradun-based Wildlife Institute of India (WII) to develop contraceptives for wild animals, as states struggle to check growing man- animal conflict. The Ministry of environment, forest and climate change (MOEFCC) has asked the institute to focus on four animals – elephants, monkeys, wild boars and blue bulls, or nilgais as they are known in northern India. WII Director VB Mathur stated that WII will develop drugs , test them in controlled conditions and thereafter use them on the identified animals . According to WII, North Bengal, Kerala and Karnataka are reeling under elephant conflict and no states have so far taken steps to control the population of giant animal. Monkeys are a huge problem in Uttarkhand, Uttar Pradesh, Himachal Pradesh and Delhi. It is reported that the MOEFCC from time to time has declared them as vermin, allowing cull in some states for a limited period but not much has come out of it. Vermin are pests or nuisance animals that spread diseases or destroy crops or livestock. But no action has been initiated in Kerala to control the population growth of elephants. There is over population of elephants in Kerala forests which leads to elephant man conflict

142

According to newspaper report dated 4th December 2017, Karnataka Forest Department has decided to regulate the increasing population of wild elephants in the western ghats, by sterilizing them on the lines of what is followed in Kruger National Park in south Africa . It is further reported that Karnataka state has decided to use this method in Hassan district in Karnataka where crop raiding and conflict has increased many folds.

143

Bihar has killed wild elephants ( Rogue elephants) in Bihar taking assistance from Tamil Nadu (Nilgiris) expert shooters. According to a report in Times of India dated Feb 2, 2016 , the shooter Sri Shafath Ali was invited by the forest department of the Bihar Government requesting him to proceed to Gaya district to control the rouge tusker as efforts from West Bengal and the state forest officials failed. While Khan, an authorized culler, was trying to control the jumbo and tranquilize it, the distressed elephant killed four people in the district in just three days and in a bid to curb further loss of human beings, Khan was forced to shoot it down on January 23 on government orders.

144

According to the Ministry of Environment, Forest and Climate Change (MOEFCC), Human- animal conflict has emerged as a major challenge in managing wildlife in the country and human-elephant conflict causes the maximum number of causalities every year . According to the reply tabled in the Parliament on June 28, 2019, nearly 494 persons were killed by elephants last year alone. Between 2014 and March 2019, 2398 people died in elephant attack in the country. Ministry of Environment, Forest and Climate Change (MOEFCC),has launched a project for undertaking ‘immunocontraceptive measures’ for population management of four species of wild animals – elephant, wild boar, monkeys and blue bull (Nilgai) . 32

Increasingly Dangerous human Animal Conflict

145

The Human Animal Interface in increasing year after year. This human animal conflict is reflected in the form of human causalities, injuries, crop damage, cattle lifting, damage to houses and property. Latest statistics reveals that Human Animal Interface is increasing at an alarming rate in our state. The Farmers organization’s data on loss of human being in man animal interface in Kerala is very alarming and is as under

Loss of human lives due to man animal conflict in Kerala Year 2009 2010 2011 2013 2014 2015 2016 2017 2018 No 13 20 69 169 159 149 104 145 168 Source: Economic Review , State Planning Board, various years

146

Official data published in the Economic Review of State Planning Board , Govt of Kerala during Feb 2020 reveals the alarming state of affairs

Yearly Human Animal Interface conflicts Details – Kerala Incidents 2014-15 2015-16 2016-17 2017-18 2018-19 Human Death NA NA NA 119 146 Human Injured NA NA NA 846 765 Cattle Death NA NA NA 561 348 Crop Damage NA NA NA 5703 6631 Total NA 6022 7765 7229 7890 Compensation Paid (Rs NA 681.00 963.00 1018.69 1115.03 in Lakhs) Source: Economic Review of State Planning Board, Govt of Kerala

147

In the case of crop damage, cattle damage and even in human death, Elephant attack stands first which means that Elephants stands as a major contributor for the human animal interface. Out of the total 6631 crop damage incidents, 4063 number of crop damages during 2018-19 is contributed by elephants. Following are the details

Elephant Attacks Incidents 2014-15 2015-16 2016-17 2017-18 2018-19 Human Death NA NA NA 21 17 Human Injured NA NA NA 45 46 Cattle Death NA NA NA 166 29 Crop Damage NA NA NA 3236 4063 Total NA NA NA 3468 4155

148

Tigers are the deadliest animals in man animal conflict . It is reported that the tiger population in Kerala has grown to 190 in 2018-19 from just 136 in 2014-15. Another news item in the Hindu dated 29th July 2020 states that “ nearly a third of India’s tigers are living outside tiger reserves and nearly 17 of the 50 reserves are approaching the peak of their capacity at sustaining their population. India hosts 70% of the world’s tiger population”.

149

150

Wild Boar (Kattupanni) are the second biggest creator of man animal conflicts. The official data published by the Government of Kerala reveals the same

Wild Boar ( Kattu Panni) Attacks Incidents 2014-15 2015-16 2016-17 2017-18 2018-19 Human Death NA NA NA 3 5 Human Injured NA NA NA 103 169 Cattle Death NA NA NA 1 24 Crop Damage NA NA NA 1194 1230 Total NA NA NA 1301 1428

151

Other Human Animal interface’s contributed the following causalities

Other Human Animal Incidents 2014-15 2015-16 2016-17 2017-18 2018-19 Human Death NA NA NA 95 124 Human Injured NA NA NA 702 550 Cattle Death NA NA NA 394 295 Crop Damage NA NA NA 1273 1338 Total NA NA NA 2464 2307

152

153

Kerala is having one of the longest Forest revenue land boundaries estimated roughly to have a linear distance of 6,000 KMs. In Kerala, human-animal interface is common among the fringes of the forest. The villages near the forests are most densely populated villages . The conflict takes various forms such as human-elephant, human-tiger, human –wild board (kattupanni) etc. The major cause for the conflict includes degradation of forest and its fruits producing trees, habitat fragmentation, shortage of water is rivers and streams passing through forests etc.

154

The conflict is at an alarming stage at several pockets. The incidence of crop damage and human causalities due to the attack of wild animals especially wild elephants is frequent in Wyanad, Palakkad, Idukki and Pathanamthitta districts and in the high ranges of Kottayam, Kannoor, Kozhikode districts. The amount of money being paid as compensation – though nominal based on the value of the crop- is increasing year after year , thereby reflecting the intensity of the situation 33 The COMPENSATION (?) Offered to the Man- Animal Victims

155

The Economic Review had taken up the issue of man animal interface under the heading “Human – Animal Conflict: Causes, magnitude and Remedial Measures” in Page No 89 of the Economic Review 2017. In that the details of the Relief offered to the victims were reported as under

Reliefs to victims of Man Animal Conflicts in Kerala Area/Causes Relief Amount Injury to person Rs 75,000 Maximum Injury to Tribals Full amount of treatment expense

Incapacitated Permanently Rs 75,000 Maximum Loss of cattle, crop, house Rs 75,000 maximum Loss of Human Life Rs 5 lakhs Loss of human life due to snake bite outside Rs 1 lakh the forest area

156

The above data indicates the pittance offered as compensation in the case of man animal conflicts . The real statistics compiled by the affected farmers shows a further bitter picture. Though the Government of Kerala has decided to pay Rs 10 lakh as compensation to those killed in man animal conflict during 2016, the affected farmers (killed in man animal interface) received just Rs 1.18 lakhs as compensation for the lost life

157

The official data regarding the compensation paid to victims of wild life attach during 2017-18 highlights the plight of the farmers who were killed by wild animals. 168 farmers were killed in man animal interface and the total compensation paid is Rs 198.21 lakhs which works out to Rs 1.18 lakhs only. The victims in the recent Coimbatore KSRTC Volvo Bus accidents were paid Rs 20 lakhs each. The victims of the Munnar Pettimudi landslide incident were paid Rs 5 lakhs each along with the assurance to construct houses for the affected people which will raise the compensation amount to a minimum of Rs 15 lakhs . The amount paid by the state government from the Chief Minister’s Relief Fund to some families of people who met natural death varies from Rs 5 lakhs to Rs 25 lakhs . When such is the case, the compensation of Rs 1.18 lakh for a farmer who was killed in Man animal Interface in his legitimate land by the encroached wild animals is very cruel and a mockery of justice on the poor farmers who “FEED THE PEOPLE” .

158

Compensation paid to victims of Wild life attack during 2017-18 ABP SC HRC CC EC, WL NC TVm Kollam Kottayam Trisoor Palakkad Kannur Human Death No 1 39 9 44 52 23 Amount 5.25 49.00 16.50 35.90 67.56 24.00 Human Injury No 1 154 55 165 177 401 Amount 0.44 46.39 16.86 60.70 65.97 80.40 Cattle Loss No 0 34 32 44 162 171 Amount 0 4.19 6.92 6.17 14.52 31.47 Crop Damage No 33 592 322 444 2085 4293 Amount 4.11 41.12 40.48 29.01 178.78 192.96 GRAND TOTAL No 35 819 418 697 5948 4888 Amount 9.79 140.70 80.75 131.78 406.84 328.83 Amount Rs in lakhs

159

Though the rate of compensation was revised by the Forest Department, Govt of Kerala during 2015 , it is far below than the value of the agricultural produces destroyed . Following are the rate of compensation payable for the loss of crops

Forest Department Compensation Rates Name of Crop & Rate of compensation to be payable for loss Unit of measurement of crops (Rs) Paddy (Per Hectre) 11,000 Bearing Cocunut ( 1 No) 770 Coconut ( Not bearing) 385 Coconut tree upto 1 year old 110 Banana ( bunched) per no 110 Banana ( non bunched) per no 83 Rubber tapping per Number 330 Rubber non tapping per Number 220 Cashew Bearing per tree 165 Cashew non Bearing per tree 110 Arecanut bearing per tree 165 Arecanut non bearing per tree 110 Cocoa Bearing per plant 110 Cocoa non Bearing per plant nil Coffee Bearing per plant 110 Pepper Bearing per plant 83 Ginger 10 cents 165 Turmeric 10 cents 132 Tapioca above two months/10cent 165 Groundnut (per Hec) 2200 Seasamum 50 cents 1320 Vegetables 10 cents 220 Nutmeg bearing per number 440 Nutmeg non bearing per number 165 Clove bearing per tree 220 Clove non bearing per tree 110 Cardamom per Hec 2750 Betel vine 1 cent 330 Pulses 1100 Tuber Crops for 10 cents 165

34 Scale of Financing of Crops 2019

160

161

Following are the Scale of Finance for the major crops in Kerala

Name of Crop & Scale of Finance for crops Unit of measurement is 1 Hec Rs/Hectare Paddy 65,000 to 75,000 Coconut 1,50,000 to 2,00,000 Banana 4,20,000 to 6,10,000 Rubber tapping 1,50,000 to 3,50,000 Cashew 70,000 to 1,00,000 Arecanut 1,25,000 to 2,00,000 Cocoa 1,50,000 to 1,75,000 Coffee 1,20,000 to 1,50,000 Pepper 1,50,000 to 3,00,000 Ginger 3,00,000 to 4,50,000 Turmeric 2,50,000 to 3,50,000 Tapioca 1,25,000 to 2,50,000 Groundnut 45,000 to 50,000 Vegetables 3,50,000 to 4,50,000 Nutmeg 1,60,000 to 2,00,000 Clove 1,60,000 to 2,00,000 Cardamom 6,25,000 to 7,00,000 Betel vine 10 cent 30,000 to 50,000 Pulses 65,000 to 70,000 Tuber Crops 1,00,000 to 2,00,000

162

Revising the Compensation Payable

163

During 2014, Government of Kerala , Forest & Wild Life (D) Department in response to a direction of the Hon. High Court of Kerala in Judgment in WP(C ) 27355/2013 dated 21.11.2013 issued a Government Order No GO(Rt) No 101/2014/F&WLD dated 3rd March 2014 wherein the Additional Chief secretary had stated that “Government have decided to prepare a comprehensive proposal for payment of compensation considering not only the cultivated area of the lost crop but also the age of the destroyed crops in future” . But no such comprehensive proposal was submitted by the Government. In this connection we reproduce below para No 48 to para no 55 of this report itself on the subject of “Strict Liability”, which reads as under 36 Doctrine of Strict Liability

164 (48)

165/49

166/50

The rule in Rylands v. Fletcher (supra) has resulted in the creation of a category of liability , for damage caused by ultra hazardous business or activity, which is justified on the basis

that the person carrying them on should bear all the risks associated with them, and not merely those arising from their negligence. Therefore, in short, the principle of proof of negligence always is not an ingredient to invite the principle of strict liability. When persons carrying on such ultra hazardous activities are bound to bear all the risks associated with them, the proof of negligence is not required to prove their liability for damages

167/51

168/52

169/53

170/54

171/55

172

Though Kerala Forest and Wildlife Department is attempting several measures to curb the problem of human-animal conflict, casualities are increasing year after year. According to Forest Dept in the year 2017-18, the major preventive measures attempted includes erecting solar fencing of 2094 KMs, elephant proof tranches of 618 KMs, elephant proof walls of 177 KMs , biofencing of 27 KMs, stone pitched trench of 6 KMs and Kayyalas of 249 KMs . Many of these initiatives have become areas for wasteful expenditure and most of these preventive measures are not functioning at present .

Forest Solar Elephant Elephant Stone Bio Kayyala Circles/ Power Proof Proof wall pitched Fence Units Fence Trench trench SC Kollam 269.51 75.41 6.44 1.33 2.45 155.02 HRC 118.52 5.41 0.45 0.00 24.22 13.09 Kottayam CC Thrisoor 218.48 12.58 0.34 1.08 0.00 6.45 EC Palakkad 381.34 26.95 6.99 1.18 0.00 49.29 NC Kannur 589.85 196.57 149.27 0.26 0.00 5.12 ABP Tvm 79.65 10.11 0.00 0.00 0.00 1.64 FD-PT 104.35 41.71 1.14 0.27 o.oo 18.17 Kottayam WL Palakkad 331.91 249.66 12.38 2.18 0.00 0.04 TOTAL 2093.61 618.40 177.01 6.3 26.67 248.82

38 Self Protection becomes a Criminal Offence

173

Now when farmers try to avoid the animal human interface , they are locked up criminal cases. The right of self defence to protect property in case of attack by wild animals is prohibited under the Wild Life (Protection) Act 1972. As per Section 9 and Section 11 of the Wild Life Protection

Act 1972, nobody is permitted to carry out hunting of wild animals. Even for self defense, killing of wild animal is permitted only in case of attack on persons, and not on their properties or crops. When the right of self defense of killing wild animals for avoiding loss or damage to property in the attack of wild animals is totally prohibited by the Wild Life Protection Act 1972 , it is against the fundamental right to live enshrined in Article 26 of the Constitution.

174

Treating the farmers as Criminals and Wild Life encroachers originate from the thinking of the Forest Department that Farmers are anti environment and they destroy the forests and wild life. But the human settlements near the Forest boundary are legally permitted and even vetted by the Supreme Court of India in Civil Appeal No 2116 of 2000 decided on 20th March 2009 . The Hon Minister of State for Environment and Forests on 17th August 2010 in connection with a meeting with the Western Ghats Ecology Experts Panel assured the MPs of Kerala as under “ MoEF recognizes that the state of Kerala will need a special dispensation, as the area of forests in proportion to the land area is the highest in the State. We cannot wish away settlements where people have been living in the same areas for more than 100 years. Such settlements will be given special consideration” ( Page No 11 of the report of the Environment (A) Department of the Government of Kerala titled “ Response of the Government of Kerala to the recommendations of the Western Ghats Ecology Expert Panel”) .

39 Prayers/Findings

 Control the Growth of Wild Animals based on the carrying capacity of the forests  Introduce Selective culling of animals  Introduce Contraceptives for wild animals to control the population of wild animals  Maximise the fencing, elephant trench building, stone pitched trench etc  Ensure that farmer’s livelihood is protected from all sources of attack including wild animals  Compensation for Crop Loss to be at par with the “Scale of Finance” arrived by the “State Level Technical Committee”  Compensation for loss of human life in Man animal interface should be Rs 25 lakhs  For Speedy Disposal of Compensation Special Courts similar to Motor Accidents Claims Tribunals (MACT) or Family Courts be set up at all

District Courts in those districts which has forest boundaries and all claims – both for life and crop or house damages – be settled in these courts

The END