TRIBAL CELL

Introduction:

The Fifth Schedule of the Constitution contains provisions about the special responsibilities and role of the Hon’ble Governor in the Scheduled Areas.

The provisions of the Fifth Schedule [Article 244(1)] also mentions about the special responsibilities and role of the Governor in Scheduled Areas of the State, which are as follows:

1. The Governor of the State having Scheduled Areas therein shall annually, or whenever so required by the President, make a report to the President regarding the Administration of the Scheduled Areas in that State and executive power of the Union shall extend to giving directions to the State as to the administration of the said areas.
2. The Governor has to refer certain issues to the Tribes Advisory Council for deliberation and advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State.
3. The Governor may make rules prescribing or regulating, as the case may be —
   • The number of the members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and the officers and servants thereof;
   • Conduct of its meetings and its procedure in general, and
   • All other incidental matters.
4. The Governor may by public notification direct that any particular Act of Parliament or State Legislature shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to the exceptions and modifications specified in the notification.
5. The Governor may make regulations for the peace and good government of scheduled area in the State such as prohibiting or restricting transfer of land in scheduled areas, carrying on of business as money lenders in scheduled areas etc.
6. The Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law applicable to the scheduled areas.
7. All such regulations made shall be submitted forthwith to the President to assent.

 

In order to help the Governor in the discharge of these responsibilities under the Fifth Schedule of the Constitution, the Ministry of Tribal Affairs had proposed to set up a Tribal Cell in Governor’s Secretariat. Accordingly, by General Administrative Department Government Resolution dated 31^st January 2012, a Tribal Cell has been set up in Governor’s Secretariat at Mumbai. By Government Resolution dated 05.03.2013, the Government of Maharashtra issued orders to strengthen and streamline the functioning of the Tribal Cell. Deputy Secretary (Development Boards) is the Head of the Branch.

Following are some of the initiatives taken through Tribal Cell for welfare of tribals in Scheduled Areas.

A. Change in Village definition in Maharashtra Village Panchyats Act:

By Notification dated 25/06/2014, in chapter III-A of the Maharashtra Village Panchayats Act, special provisions relating to Village and Gram Sabha have been inserted.  Before section 54-A, the following sections have been inserted.

“54-1A. Notwithstanding anything contained in sections 4, 5 or any other provisions of this Act, in the Scheduled Areas, – (a) a habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs, and which is declared as a village in the prescribed manner shall be the village for the purposes of this chapter;

(b) every village, so declared under clause (a), shall have a ‘Gram Sabha’ consisting of persons whose names are included in the electoral rolls for the Panchayat at the Village level and a Panchayat may comprise of one or more than one of such villages.”

B. Issuance of PESA Rules for Maharashtra:

The Parliament has by enacting the provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 extended the provisions of the Part IX of the Constitution of India, as inserted by the Constitution (73rd amendment) Act.  However, the Government of Maharashtra had to make the rules, for effective implementation of PESA, 1996 in the Scheduled Areas.  To safeguard the interests of the people living in the Scheduled Areas, by Notification dated 04/03/2014 the Maharashtra Village Panchayats Extension to Scheduled Areas (PESA) Rules, 2014, have been published.  There are in all 12 chapters in the said Rules.  The Rules have defined composition and function of Gram Sabha; Gram Sabha Accounts; Role of Gram Sabha in maintaining Peace, Security and dispute resolution; Gram Sabha’s role to safeguard natural resources, agriculture and land; power of Gram Sabha to plan for minor minerals; manpower; intoxication control; management of minor forest produce; management of markets; money lending; identification of beneficiaries; approval of plans and supervision etc.

C. Notifications issued by the Governor:

Under sub-paragraph (1) of paragraph 5 of the Fifth Schedule of the Constitution of India, the Governor may by Public Notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the state subject to the exceptions and modifications specified in the notification.  In exercise of these powers, the Governor has issued various notifications for welfare of tribals in Scheduled Areas.  The directions issued to the Government of Maharashtra through the notifications are briefly described as follows.

• (i) Notifications for recruitment of certain posts reserved for local Scheduled Tribe candidates in Scheduled Areas:
• As per the reference made by Tribes Advisory Committee of Maharashtra, in exercise of the powers conferred by sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India, the Governor of Maharashtra directed that section 4 of the Maharashtra State Public Services [Reservation for Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimmukta Jatis), Nomadic Tribes, Special Backward Category and other Backward Classes] Act, 2001 (Maharashtra Act No. VIII of 2004)” and any other Rules or Orders made in this regard, shall apply to the appointment to the posts specified in the APPENDIX to the said Notification that all such posts which are to be filled in by direct recruitment for the Scheduled Areas of the districts which have Scheduled Areas, in the State of Maharashtra shall be filled in by the local Scheduled Tribe candidates only, having requisite qualification, notwithstanding anything contained in any other law or rule or order for the time being in this regard.  Following posts are reserved for local Scheduled Tribe candidates in Scheduled Areas by Notifications issued on the dates under reference column.

Sr. No.	Name of the Posts	Department	Reference
1	Talathi	Revenue	Notification of the Hon’ble Governor dated 9th June 2014
2	Surveyor	Revenue
3	Gram Sevak	Rural Development
4	Anganwadi Supervisor	Women & Child Development
5	Teacher	(i)Rural Development (ii)Tribal Development
6	Adiwasi Vikas Nirikshak	Tribal Development
7	Agriculture Assistant	ADF
8	Livestock Supervisor	Rural Development
9	Auxiliary Nurse Midwife (ANM)	Rural Development
10	Multipurpose Health Worker	(i)Rural Development (ii)Public Health
11	Forest Guard	Forests	Notification dated 14th August 2014
12	Kotwal	Revenue	Notification dated 31st October 2014
13	Forest Watcher	Forests	Notification dated 3rd June 2015
14	Cook (Swayampaki)	Tribal Development	Notification dated 9th August 2016
15	Laboratory Attendant	Tribal Development
16	Kamathi	Tribal Development
17	Police Patil	Home	Notification dated 23rd November 2016

 

(ii) Notification regarding change in definition of minor forest produce:

The definition of Minor Forest Produce under the Maharashtra Transfer of Ownership of Minor Forest Produce in the Scheduled Areas and the Maharashtra Minor Forest Produce (Recognition of Trade) (Amendment) Act, 1997 has been found to be not comprehensive and failed to take into account some of the minor forest produce recognized under the subsequent the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, thus denying the fruits of ownership over many MFPs to the Scheduled Area Gram Sabha.  This anomaly has led to denial of livelihood opportunities to Village Communities in the Scheduled Areas, Primarily the members of the Scheduled Tribes.  For these reasons, the Governor of Maharashtra has decided that the scope of the minor forest produce needs to be redefined to ensure economic up-liftment and empowerment of the Gram Sabhas.  Therefore, in exercise of the powers conferred by sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India, by Notification dated 19/08/2014, the Governor of Maharashtra made modifications to the Maharashtra Transfer of Ownership of Minor Forest Produce in the Scheduled Areas and the Maharashtra Minor Forest Produce (Regulation of trade) (Amendment) Act, 1997; and modifications to the Indian Forest Act, 1927, in its application to the State of Maharashtra.

(iii) Notification of the Governor bringing certain State Acts in consonance with PESA

The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (40 of 1996) has been enacted with the intent to extend the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas and to ensure a large degree of self-governance to the appropriate Panchayats and the Gram Sabhas in the Scheduled Areas.  Since the provisions of the PESA also require that all the State Acts shall ensure that the appropriate Panchayats and Gram Sabhas are endowed with a number of powers outlined in the said Act, it is expedient to bring certain State Acts in consonance with the PESA.  Therefore, in the exercise of the powers conferred by sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India, by Notification dated 30/10/2014, the Governor of Maharashtra directed that the Markets and Fairs Act, 1862 (Bom. IV of 1862), Indian Forest Act, 1927 (16 of 1927), in its application to the State of Maharashtra, the Maharashtra Village Panchayats Act (III of 1959), the Maharashtra Land Revenue Code, 1966 and the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) in its application to the State of Maharashtra, shall apply to the Scheduled Areas referred to clause (1) of Article 244 of the Constitution with the exceptions and modifications mentioned in the said Notification.

 

(iv) Direct devolution of 5% of Tribal Sub Plan fund to Gram Panchayats

By Notification dated 30/10/2014, the Maharashtra Village Panchayats Act (III of 1959) has been modified.  A new clause (o) in section 54 B is inserted: ” be competent to exercise control over local plans and resources for such plan including the Tribal Sub Plan, provided that not less than 5% of the total Tribal Sub Plan funds of the respective annual plan shall be devolved to the Gram Panchayats in Scheduled Areas in proportion to their population.”   In pursuance of this Notification, a Government Resolution has been issued on 21st April 2015 and then on 21st August 2015 by the Tribal Development Department regarding the direct devolution of 5% of Tribal Sub Plan funds to Gram Panchayats in Scheduled Areas of Maharashtra State.

(v) Notification regarding the purchase, transport and disposal of Tendu and Apta leaves:

In exercise of the powers conferred by sub-paragraph (1) of  5 of the Fifth Schedule to the Constitution of India, by Notification dated 09/01/2015, the Governor of Maharashtra modified the Maharashtra Transfer of Ownership of Minor Forest Produce in Scheduled Areas and the Maharashtra Minor Forest Produce (Regulation of Trade) (Amendment) Act, 1997 (Mah. III of 1998) directing to add the proviso to sub-section (1) of section 4 of the said Act with regard to purchase, transport and dispose of Tendu and Apta leaves.

 

(vi) Notification regarding modification to the Maharashtra Land Revenue Code, 1966:

Various steps are required to be taken to ensure that in Scheduled Areas, tribal land alienation does not take place due to economic duress, fraud or forgery.  The PESA also recognizes the centrality of Gram Sabha in decision-making about the various rights guaranteed under the PESA.  Section 4(m)(iii) of PESA also gives Gram Sabha the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe.  In order to bring the state revenue laws in line with section 4(m)(iii) of PESA, 1996, in the exercise of powers conferred by sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution, by Notification dated 14/06/2016, the Governor of Maharashtra directed that section 36 A of the Maharashtra Land Revenue Code, 1966, in its application to the Scheduled Areas of the State of Maharashtra shall apply with the modifications mentioned in the said Notification.

(vii) Notification dated 15th October 2016: The ownership of Minor Forest Produce by Gram Sabha entails, inter-alia, the right of the Gram Sabha to collect, use and dispose of minor forest produce in the Scheduled Areas, and the use of income from sale proceeds. Any decision about access, use and disposal of MFP, and the use of income from sale proceeds, necessarily has to be done by the Gram Sabha or by a committee made solely of the members of the Gram Sabha. In order to do this, the Governor issued a notification on 15th October 2016 and modified the Maharashtra Transfer of Ownership of Minor Forest Produce in the Scheduled Areas and the Maharashtra Minor Forest Produce (Regulation of Trade) (Amendment) Act 1997.

(viii) Notification dated 5th November 2016: As far as Scheduled Areas of Maharashtra are concerned, there is a need to provide sufficient supplementary food to ensure that the incidents of malnutrition are eliminated and children in Scheduled Areas are not subjected to stunting, ill-health and child mortality. Pregnant and lactating women in those areas also need to be given adequate nutrition to address the root cause of child malnutrition. Through the “Bharatratna Dr. APJ Abdul Kalam Amrut Ahar Yojana – Phase I & II, the Maharashtra Government has provided “one full meal” per day to pregnant and lactating women, and one egg 4 times a week to children aged seven months to six years, respectively, in tribal sub-plan areas. It was felt that to ensure continuity in the implementation of the above schemes, the same may be incorporated in the National Food Security Act, 2013 in its application to the Scheduled Areas of Maharashtra. As section 32 of the National Food Security Act, 2103 permits the State Government from continuing or formulating other food-based welfare schemes with benefits higher than the benefits provided under the Act, from its own resources, the Governor issued a notification on 5th November 2016, directing the State government to make provision for a hot cooked meal to pregnant and lactating mothers and eggs to Anganwadi children aged about 7 months and up to 6 years in Scheduled Areas.

(ix) Notification dated 23rd February 2017: A number of demands from villages in Scheduled Areas were about building godowns, purchasing centres, Haats and cold storages in Tribal Areas for the purposes of value-adding and storage of Minor Forest Produce and the like. Also, a large number of demands have originated regarding the provision of burial grounds/ cremation grounds in the forested regions of the Scheduled Areas. Though, sub-section (2) of section 3 of theScheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 provides for diversions of forest land for 13 facilities managed by the Government, it does not provide for godowns, warehouses, cold storages, Haats and burial or cremation ground. Considering the need of the Scheduled Area villages in this context, the Governor issued a notification on 23rd February 2017, and modified section 3 of the FRA – 2006 by adding godowns, warehouses, cold storages, Haats (Markets) to be operated by the Government of Maharashtra or its subsidiaries and cremation or burial grounds, in the list under sub-section (2) of section 3 of FRA -2006, in its application to the State of Maharashtra.

(x) Notification regarding Gairan land in Scheduled Areas:

As per section 4 (d) of Panchayats (Extension to the Scheduled Areas) Act (PESA) 1996, every Gram Sabha is competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution. By Notification dated 9th May 2017, the Maharashtra Land Revenue Code, 1966 has been modified mentioning that, no Gairan land in the Scheduled Areas shall be diverted or disposed of without the prior informed consent of the concerned Gram Sabhas.

(xi) Notification dated 18 May 2020: It was observed by the Governor that a large number of applications under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act relating to the recognition of rights had been rejected by the District Level Committees under the said Act.  There was no provision in the Act for appeal against the decision of the District Level Committees. The Governor made certain modifications to the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, in its application to the Scheduled Area of the State of Maharashtra for the larger benefit of tribals in the scheduled areas. In a notification issued on 18^th May 2020 under Schedule V of the Constitution, the Governor modified Section 6 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, in its application to the Scheduled Area of the State of Maharashtra.  According to the modification, a provision was incorporated enabling the rightful claimants of the forest rights to appeal against the order of the District Level Committee. The notification states that Divisional Level Committees under the chairmanship of Divisional Commissioners will hear the appeals against the decision of the District Level Committee.

(xii) Notification dated 23rd September 2020: During the visits to remote Scheduled Areas of the State, the Governor noticed the need to provide housing areas for the extended Forest Dwelling Scheduled Tribe families and other traditional forest dwelling families in those areas which will stop the migration of the extended families outside their native habitats. He also noted that a large number of demands originated regarding the extension of the village site, hamlet, and habitation area in the Scheduled Area villages. The Governor also observed that almost all the villages in the Scheduled Areas of the State were notified as Revenue Villages. It was reported that most of the areas outside the recognized village site/hamlet/ habitation of the said villages are treated as situated in the Forest Land. The Governor considered it expedient to make provision for the housing of Forest Dwelling Scheduled Tribe families and Other Traditional Forest Dwelling families by making provision for the extension of village site/hamlet/ habitation Land. In view of this, the Governor under the powers entrusted by the Fifth Schedule of the Constitution issued a Notification on 23^rd September 2020 by making modifications in sub-section 2 of section 3 of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

 

D. Guidelines regarding Bamboo cutting and selling through Gram Sabha:

As per the Notification dated 19/08/2014, Bamboo has been added to the list of Minor Forest Produce in Scheduled Areas.  In pursuance of this Notification, the Rural Development Department by Government Resolution dated 31/03/2015 and dated 23/11/2015 has issued guidelines regarding Bamboo cutting and selling through Gram Sabhas.

 

E. Seed capital from Manav Vikas Mission to ensure meaningful access to Minor Forest Produce:

Minor Forest Produce has been traditionally accessed by a large mass of Scheduled Tribe (ST) and other Traditional Forest Dwellers (OTFDs) living primarily in forest areas, not only in Fifth Schedule Areas but also in forest areas outside the Scheduled Areas.  The provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) and the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) gave over rights of minor forest produce (MFP) to either the Village Communities (FRA) or Gram Sabha (PESA).  Merely handing over rights to access MFP to communities and/or Gram Sabha is the first step in empowerment while ensuring access to MFP involves a certain degree of expertise.  It also necessitates a number of activities such as the organsiation of people, provision of wages to gatherers, storage, transport, value addition structures, record keeping etc.  Also, since there is a time lag between the collection of MFP and disposal because of various factors such as seasonality, peculiar markets, remoteness etc., the need for working capital/seed capital to tide over this time lag is essential.  The absence of this working capital would lead to an inability of the communities to take organized action to access MFP. It would also lead to the reduced bargaining power of the communities against purchases leading to the eventual exploitation of the people.  The Manav Vikas Mission (MVM) focuses on blocks with low Human Development Indicators.  The HDI in most Scheduled Blocks is among the lowest.  STs and OTFDs rely largely on Minor Forest Produce and other gifts of nature as their asset base.  It is thus felt that support from MVM to local communities within the structure of FRA and PESA will lead to a substantial increase in income for such communities.  As these structures have been designed keeping in mind a decentralized model of governance, it will also lead to an increase in participation of the people in bottom-up planning.  Accordingly, the planning Department by Government Resolution dated 21/08/2014 and 01/08/2016 has issued instructions to make available the one-time seed capital to the Gram Sabhas for this purpose through MVM.

F. Adoption of Villages to build Model Villages

The concept of rural development of Mahatma Gandhi revolved around creating model villages for transforming swaraj (self-rule) into su-raj (good governance), three villages in three tribal districts of Maharashtra, village Mangurda in district Yavatmal, village Bhagdari in district Nandurbar and village Jawarla in district Nanded were adopted. The objective was to create a holistic development of these adopted villages in all aspects —human, personal, social, economic and environmental development, including the provision of basic amenities, services, security and good governance. The initiative as a whole was meant to have a demonstrative impact on other villages in the Scheduled Areas, as the large majority of those outside the Scheduled Areas.

Since the basic strategy behind this initiative is based on the principles of convergence of all governmental schemes, active participation, and involvement of villagers in planning, as well as implementation and close interactions between the administration and the people, the development achieved so far is going to be sustainable with the willing and active participation of all stakeholders.

G. Minor Forest Produce (MFP)

This office has given instructions to the district administration to ensure that in accessing MFPs no obstructions shall arise to the Gram Sabhas in the access, use, disposal of MFP and sharing of revenue from MFPs. A one-time financial assistance as a Seed Capital to the Gram Sabhas under Human Development Mission is also being provided for accessing and regenerating the MFP. The instructions have been given to ensure that the Minimum Support Price (MSP) mechanism for the 10 MFPs identified by the Union Government is implemented properly.

H. Transfer of subjects listed in the Eleventh Schedule of the Constitution to Panchayati Raj Institutions.

The Eleventh Schedule of the Constitution (with reference to Article 243 G) has laid down 29 subjects that may be transferred to the Panchayati Raj Institutions. As per the Provisions of the PESA, a number of subjects have been mandatorily placed in the domain of the Panchayati Raj Institutions (PRIs) and the Gram Sabhas. The State has devolved 14 subjects so far to the PRI. The State Government has been insisted to take necessary steps for transfer of remaining 15 subjects along with the funds, functions, and functionaries to the appropriate PRIs, in a time-bound manner. Tribal Cell is continuously following up on this issue.

I. Providing Homes to Katkaris: The issue of regularizing Homestead Land for artisans and landless labourers especially those belonging to Katkari Community, which falls under the Group of Vulnerable Communities in the Konkan division, had been a long pending issue. Various meetings with the officials of the Revenue Department were taken by the Governor. It was observed that the encroachments of homesteads were on government land, gaothans, forest lands, gairan and private lands. On the initiatives and directives of the Governor, these encroachments of homesteads on government land, gaothans were regularized with the help of Revenue Officials.  On the initiatives of the Governor, the State Government was asked to first create a record of the rights of homesteads in the name of the Community people. As per section 17 B (1) of the Bombay Tenancy and Agricultural Lands Act (BTAL), 1948, the Government needed to notify/define the procedure in which the Record of Rights needs to be created and maintained. The Revenue Department after the pro-active follow-up by the Governor’s Secretariat issued a Notification on 23rd November 2017, under section 17 B (1) of the BTAL, 1948, by inserting Rule 11A in the Bombay Tenancy and Agricultural Lands Rules, 1956, detailing draft format for preparing the record of rights for dwelling houses of agricultural labourers and artisans.

At the instance of the Governor, the Governor’s Secretariat was able to serve the last person of the society and enable the Governor to fulfil his constitutional responsibility.
 

• Tribal Cell GR_5 March 2013
• Tribal Cell GR_23 jan 2013