Dear Friends,
A couple of years ago, the Nicobar Youth Association, active in Nancowry
group of Islands in Central Nicobar had filed a Public Interest Litigation
(PIL) in the Calcutta High Court, Port Blair Circuit Bench praying for
eviction and removal of illegal non-tribal encroachers on tribal land in
the Nicobars.
Pasted below is an update on the entire issue that has been reported in
'SANE News', July 2004


The Nicobar PIL

Nicobar Youth Association, active in Nancowry group of Islands in Central
Nicobar had filed a Public Interest Litigation (PIL) in the Calcutta High
Court, Port Blair Circuit Bench praying for eviction and removal of
illegal non-tribal encroachers on tribal land. The whole of Nicobar group
of Islands (except 7 revenue villages in Great Nicobar) is legally a
tribal area. A special law titled “Andaman & Nicobar Protection of
Aboriginal Tribes Regulation” (ANAPTR) prohibits any non-tribal from
taking up residence, acquiring land, carrying on business or acquiring any
interest in any resources of the tribal area except with a special license
granted by the Administrator (Lt. Governor). And yet, the population of
the non-tribals grew alarmingly, in some cases even exceeding that of the
tribals! (See chart below)

Bar Chart

Nicobar Youth Association, in their PIL (SANE News Nov. 2002 and Sept.
2003) brought out all these issues and more before the Hon’ble
Calcutta
High Court. Unfortunately the case was listed on 12th Dec. 2002 when all
the Advocates of Calcutta High Court were on a strike. The High Court,
heard the case ex-parte and directed the Lt. Governor, A&N Islands
to “consider by himself the representation of the petitioner, being
Annexure P 11 of the Writ Petition, if not already disposed of, by passing
any order. The office bearers of the association shall be entitled to a
reasonable opportunity of hearing before any order is passed or decision
taken by Lt. Governor on the said representation, if however the
representation is allowed then effective steps shall be taken in
accordance with Law. This exercise must be completed within a period of
eight weeks from the date of communication of this order.”

Since this Union Territory (A&N Islands), while de.jure. is a part of the
Union of India, de-facto remains a colony, rule of law rarely prevails
here. So, Mr. NN Jha, the then Lt. Governor could find time to dispose the
representation only on the 1st August 03, eight months later, instead of
the eight weeks as ordered. The Court had ordered that “ The order
that be
passed, shall be communicated in writing to the writ Petitioner within a
fortnight from the date of passing the order or taking the decision
thereon”. In the meantime, on 26th June 03, 24 weeks after the order
and
16 weeks after the deadline, the Lt. Governor had summoned the Counsel for
the Petitioner (but not the office bearers of the Association as ordered
by the Hon’ble Court), heard him and then passed the order. (See
Excerpts from Lt. Governor’s order).

LIEUTENANT GOVERNOR’S SECRETARIAT
RAJ NIWAS

F.No.39-292/2003-Revenue

In the matter of W.P. No.110 of 2002 – Nicobar Youth
Association –Vs-Union of India and others.

ORDER

In their representation dated 1202,the main contention of the
representationist (Tribal Council, Kamorta and Nancowry) are:

“… (i) Removal of illegal encroachment of land, by outsiders
(non tribals)
in Tribal area; occupation of land by non-tribal, without consultation of
the Island Council, is now a big issue in the tribal area and it is
getting out of hand unless the matter is seriously tackled, jointly, both
by the tribal council of concerned islands and the Administration;

(ii) The main reason for such encroachment is overstay of staff of Govt.
Department, particularly labour class/water supplier incharge specially in
APWD, who clean the backyard of their residence for a kitchen garden and
slowly convert coconut kitchen garden into growing coconut plants and
other fruit trees, which they later claim as theirs. This occupation is
done taking advantage of the innocence and mild nature of the tribals.
Illegal encroachment is also by retired Govt. Servants;

(iii) The Tribal land allotted to the Temple in Kamorta was meant for
worship only. The tribals are secular minded but, unfortunately, the non-
tribals occupy huge adjacent land of the tribals illegally and without
their approval and built thereon shops/residences for their individual
benefits. This land adjacent to the Temple of the tribals may kindly be
given back to the tribals concerned;

(iv) There are retired Government servants/non-tribals settling down at
Kamorta and some government servants are not transferred even after
completion of their actual tenure. They have started their own business
and also cultivation in tribal area. They exploit innocent tribal people.
This is in violation of A&N Protection of Aboriginal Tribe Regulation,
1956.”

In their representation they have appealed for urgent action to
correct this injustice by shifting the non-tribals out of tribal areas and
to help preserve the traditional way of life. During the hearing, the
representationists reiterated their demand and requested for proper
implementation of the A&N (PAT) Regulations of 1956 & 1057. The Counsel
for the representationists stated that they are not keen to press for the
adherence of the time limit given by the Court as long as the
Administration can evolve a long term strategy for a solution for this
long pending issue. They further stated that they are prepared to wait for
a solution to be evolved by the Administration.

During the hearing, the representationists also brought out the
problems faced in securing contracts by the tribal unemployed youth. They
also mentioned some cases of exploitations of tribals by the non-tribals.
Quoting the census figures of 1999, they brought out that the number of
non-tribals living in some of the tribal areas are more than the tribals,
Kamorta and Katchal are some examples. They re-iterated their requests for
the implementation of the A&N (PAT) Rules and Regulations. They have even
gone on to add that tribal people are not against the non-tribals as a
whole, but they are against their superior attitude, their lion share in
the workforce and also against their unholy invasion into their own eco-
cultural field. The tribals only aspire for peaceful living. They have
reiterated that they are prepared to wait for a solution to be evolved by
the Administration and they are also prepared to render their active
support and assistance in the making of a well-thought out Action Plan.

During, the hearing, the Deputy Commissioner (Nicobars) explained
the background of this case as under:

The entire area of Nicobar District, except the 7 villages of
Campbell Bay which is a revenue area, as governed by the Andaman and
Nicobar Islands (Protection of Aboriginal Tribes) Regulation, 1956 and
Rules of 1957.

In the past, when there was almost no contact with the tribals in
the Nicobar group of islands. M/s Akhooje Trading Co. was formed in
Nancowry group of islands, subsequently re-named as Nancowry Mercantile
Co. It was managed by non-tribal Gujarati Muslims. They used to procure
Copra and Beetlenut and in turn used to supply general goods and cloth.
Barter system was prevalent at that time. These agencies were doing
business without having any trade licences. Some of the non-tribal traders
got married with local tribal ladies also.

This Company was later renamed as Nancowry Trading Co. (NTC). In
the year 1978, Manula Mathai Limited (MML) was constituted and most of the
employees of Nancowry Trading Co. were absorbed in MML. MML. Has provided
services in Nancowry group of islands about two decades before it was
closed in the year 1998. Majority of the employees of MML were non-tribals
who were engaged as labourers, salesman, etc. to whom tribal passes were
issued and renewed regularly by the office of the Assistant Commissioner,
Nancowry.

Because of these non-tribals, engaged in NTC and MML, local
population were able to sell their agricultural produce like Copra and
Beetlenut and in exchange got essential commodities for their day-to-day
requirements.

Due to closure of MML in 1998, a vacuum was created in the
business circle and AC, Nancowry issued trading licences /tribal pass in
order to maintain regular supply of essential commodities in that area. It
is also a fact that many non-tribal workers of MML are still staying in
tribal reserved area for want of refund of provident fund, etc. which are
being delayed due to the liquidation process.

MML, a Central Co-operative Society, was constituted in the year
1978 and it was procuring Copra and Betel nut from tribal population till
it became defunct in the year 1998 and is now under liquidation. Further,
ANCOFED has appointed TDCS (Tribal Development Co-operative Society),
which is a tribal co-operative society, as its sub agent for the
procurement of the same in the year 2002 for Nancowry group of islands.
The petitioner (Mr. Rashid) himself is the secretary of this society
(TDCS).

With regard to the allotment of land to Shree Shree Radhakrishna
(SSKR) Temple, Deputy Commissioner, A&N Islands vide order dated 4th
January, 1954 had granted five acres of land at Kamorta for the purpose of
construction of temple and garden. The temple could not get the entire 5
acres of land and after various correspondences by the Temple Committee,
Deputy Commissioner, A&N Islands confirmed an area of 2.64 acres for the
Temple in 1969. However, in due course, the SSRK Temple Committee allotted
portions of this Temple land to various persons for commercial and
residential purpose.

Since the past 50 years, Govt. has initiated major developmental
works in the Nicobar group of islands, through its various Plan and Non-
Plan Schemes. During the time when these schemes were initiated, the
tribal population were not equipped to either carry out these
developmental works themselves or through their tribal councils. In order
to carry out the developmental works, various Govt. agencies had to carry
out these developmental activities through contractors. Earlier the
tribals did not want to work as labourers. To ensure that development of
Nicobar group was undertaken unhindered both skilled and non-skilled was
imported from the non-tribal areas by the contractors. As the process of
development is a continuous one, contractors have been getting different
development oriented works. They either continued to use the labour
imported earlier or had imported more labour. This continued for
subsequent works also. This continuous stay of labour in the Nicobar group
of islands now appears to be the home of contention for the tribal
population.

As Nicobars is a part of the administrative territory of the
country, Govt. servants have been posted to various islands for
maintaining the essential support commodities and services. Due to the non-
existence of essential services in the tribal locations, there has been an
inherent reluctance of the Govt. servants to go and work in these remote
areas; the lack of facilities for education of children, accommodation,
etc. at that point of time were some of them. This may have resulted in
some of the Govt. servants, who were either willing to go or had gone and
joined despite protests and had settled down with time, to stay in these
island longer than their normal tenure. Some of these officials may have
retired from service and continued to stay in these islands
subsequently.

With time, the non-tribals, who have been staying in these areas
for long time, have settled in the Nancowry group of islands; most of the
encroachments by the non-tribals at Kamorta area are 25 to 30 years old
and majority of them are labourers of APWD and Forest dept. who have been
continuously rendering service since the late 60’s. They were allowed
by
the then APWD and Forest dept. to construct their own hutments on Govt.
land at various locations in Kamorta since there were no govt. quarters
available to them. These labourers, who were non-tribals, subsequently
developed gardens by planting coconut trees and other fruit bearing trees
in the backyard of their hutments. These labourers are now staying in
these hutments with their children and in some cases, grand children, even
after their retirement from the services they have no place to go, either
at Port Blair or on the mainland.

DC (Nicobar) further informed that in the year 1960, the then
Chief Commissioner had issued orders relaxing the provisions of the Rules
of 1957 through Notification No. 10/60 dated 18.1.1960, permitting the
Govt. servants on duty to work and stay in these islands, on being
transferred to the Nicobar Group of Islands. Vide this notification, the
Govt. servants while proceeding on duty towards a reserved tribal area and
the families of such Govt. servants were exempted from taking a pass or
passes for entering a reserved area in the Andaman and Nicobar Islands.
This order is still valid and exempts the Govt. servants on duty to obtain
a pass.

On perusal of the above facts, I find that the existence of non-
tribals in Tribal reserved areas has been since long and non-tribals and
the tribals have co-existed in these islands. The existence of the non-
tribals was more due to the need to develop the tribal areas and to
provide other economic and essential needs of this backward area; to help
the tribals merge in the main stream. It is only now that the tribal
population, perhaps because of a better understanding due to education and
other developmental inputs, have started appreciating the importance of
economic benefits and their rights. The feeling of exploitation of tribals
by non-tribals has also disturbed the equilibrium.

Keeping the above background in mind and provisions of the
Regulations of 1956 and the Rules of 1957, it is evident that the stay of
non-tribals in the tribal areas is irregular. However, this situation has
been existing since more than 4 to 5 decades; because of the economic and
other developmental needs, for provision of essential commodities and
services:

In view of the above, an immediate administrative intervention or
remedial measures need to be taken. Before an action plan is drawn out, it
is also imperative to understand the extent of the problem. Also that the
Administration needs to implement the rules & regulations more effectively
for controlling the influx of non-tribal areas. Keeping this in mind, the
following actions needs to be taken on priority:

(i) A survey to be undertaken by the Deputy Commissioner, Nicobars to
assess the details of non-tribals staying in the tribal areas, with or
without a valid permit and the details of land under their control. This
survey should be completed within a period of 6 months is by 1st February,
2004.

(ii) After the completion of the survey, discussions should be held with
the Tribal Council on the methodology and an action plan be adopted for
the repatriation of these persons without adversely affecting the economy
or other interests or needs of the tribals. The preparation and submission
of this action plan of the Administration be done within a period of 3
months is 1st May, 2004.

(iii) On receiving approval from the Administration, Deputy Commissioner
(N) may implement the action plan in a time bound manner.

(iv) The issue of permit to a non-tribal new comer should be strictly as
per the regulations and rules and should only be for the period specified
in the Rules, 1957. Under no circumstances should the Extension beyond the
permissible time limit be given by the Deputy Commissioner or the
Assistant Commissioner. Only in exceptional cases, the relaxation of this
condition could be done with the approval of the LG.

(v) The Govt. servants on duty will continue to be governed by the
Notification No. 10/60 dated 8th January, 1960 for working in a tribal
area. However, the Administration may, as far as possible, ensure that the
transfer policy for Govt. servants to these islands is properly
implemented. On their retirement, they must leave the tribal areas, else
their retirement benefits be withheld. A suitable mechanism be devised by
the Administration.

The application is disposed of accordingly,
Given under my hand and seal on this Court, this 1st day of August, 2003.

(N.N. JHA)
LIEUTENANT GOVERNOR)

The simple (simpletons, thought Jha) tribals of Nicobar were blissfully
ignorant of the fact that their fate was decided by the Great Satrap of
the Union of India entrusted with “development” of the
“backward” tribals,
(among other important tasks) in the “colony” that India
acquired on 15th
August 1947. (Madhusree Mukherjee in the Land of Naked People). By the
time they managed to smell the rotten rat, they approached the Tehsildar,
Nicobar for a copy of the order. The copy was made available to them only
on the 8th July 2004. – Editor

The NYA submitted a strong protest to the Hon’ble Lt. Governor by a
representation on the 24th July ’04. The full text of the letter is
given
as NYA representation.

Your Excellency,

We have just been provided with a copy of the order file No. 39-292/2003-
Revenue dated the 1st August, 2003 in the matter of WP No. 110 of 2002, by
the Tahsildar, Nicobar District. It pains us to note that your
Excellency’s order in such an important tribal matter was never
brought to
our notice. Is it too much to expect that an applicant deserves to be
given a copy of the order passed on his application?

We noticed a number of factual errors in the order passed by the
Hon’ble
Lt. Governor. We submit below our objections and reservations.

a) At page, 3, para IV, it has been recorded that the
representationists “are not keen to press the adherence of the time
limit
given by the Court” and that “they are prepared to wait for a
solution to
be evolved by the Administration”. We wait only when we are forced
to, in
absence of any positive action. We emphatically deny that we had made
such a statement.

b) At page 4 much has been made of the presence of M/S. Akoojee
Trading Co. and their successors in Nicobars. But since these incidents
took place long before the ANPATR was promulgated, we do not see the
relevance.

It is totally wrong that “Majority of the employees of MML were non-
tribals” as stated in page 5. In fact, most of MML employees were
tribals. Page 5 also records, “Because of these non-tribal engaged in
NTC
and MML, local population were able to sell their agricultural produce----
and in exchange got essential commodities for day to day requirement”.
All experts in the subject agree that Nicobars had a thriving barter and
trade at least since the last 800 years. Now because of the presence of
the shrewd non-tribals, the tribals never stand a chance of marketing
their own produce.

In the same page the presence of non- tribal former employees of these
concerns are being justified by recording “many non-tribal workers of
MML
are still staying in tribal reserved area for want of refund of provident
fund, etc. which are being delayed due to the liquidation process.”
All
over the country hundreds of thousands of oustees at sites of dams and
mines from their legal possession were and are removed first and
compensations given much later, or sometimes not given at all.

In page 6, it is stated that the DC had allotted some land for SSRK temple
for construct their of temple and garden. It also records, “However,
in
due course, the SSRK temple committee allotted portions of this temple
land to various persons for commercial and residential purpose.” The
order does not go any further. Are we to believe that Your Excellency
considers the SSRK Temple Committee competent to allot land for commercial
and residential purposes in a tribal reserve?

At page 6, a most unfortunate postulation reads, “During the time when
these schemes were initiated the tribal population were not equipped to
either carry out the development works themselves or through their tribal
councils.” The British colonial rulers also are on record having
declared
that the Indians are incapable of governing themselves. It is sheer
colonial mentality that produces such a comment. A whole tribe and their
traditional leadership is shown such contempt.

It is sad to note that even after passage of 8 months from the date of the
court order; the Administration has no clue to the extent of the problem.
At page 7, such ambiguous statements as the following are on record.

i) “Some of these officials may have retired from service and
continued to stay in the Islands subsequently.”
ii) “Most of the encroachments by non- tribals at Kamorta are 25-30
years old.” It is not true. Since it is a matter of record, we
submit
the numbers as per the Census Report.

Census Year Tribal
Non-tribal
1971 915
443
1981 1269
960
1991 1393
1580


In the same page it is stated that the labourers of APWD and Forest
Department were allowed to construction their own hutments on “Govt.
land.” There was no Govt. land. They were allowed, even encouraged
illegally to occupy tribal land. It is admitted in the same page that
“
these hutments with their children and in some cases, grandchildren, even
after their retirement from service as they have no place to go, either at
Port Blair or in the mainland.”

Your Excellency, the order under reference does not address the burning
problems brought out by us in the Court at all. We urge you to kindly
hold a second hearing and modify the order suitably so that justice is
done.

Thanking you,

Yours sincerely,
Sd/-
(Rasheed Yousoof)
Vice President
Nicobar Youth Association

The NYA is believed to be hoping that Prof. Ram Kapse the present LG will
do something positive. After all, her gave them a sympathetic hearing. If
nothing happens, the tribals of Nicobar will, once again, go the Court.

The readers will notice that at the end of the LG’s Order the
following
appear “Given under my hand and seal of this Court, this 1st day of
August
2003.”

Mr. Jha is probably unaware that to break away from the Colonial British
Tradition and in accordance with spirit our Constitution, the Judiciary
was separated from the Executive in 1974. In olden days, the C.C. used to
have the powers of a District & Sessions Judge. Today, no LG can have a
Court, whatever else he may have. But then, Andamans is still a colony.
So, perhaps, the LG continues to live in the bygone era presiding over a
Kangaroo or a make-belief Court. – Editor