Orissa Mining Corporation (OMC), a State of Orissa Undertaking, has approached this Court seeking a Writ of Certiorari to quash the order passed by the Ministry of Environment and Forests ...
No Acts & Articles mentioned in this case
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 180 OF 2011
Orissa Mining Corporation Ltd. .. Petitioner
Versus
Ministry of Environment & Forest & Others .. Respondents
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1.Orissa Mining Corporation (OMC), a State of Orissa
Undertaking, has approached this Court seeking a Writ of
Certiorari to quash the order passed by the Ministry of
Environment and Forests (MOEF) dated 24.8.2010 rejecting the
Stage-II forest clearance for diversion of 660.749 hectares of
forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in
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Kalahandi and Rayagada Districts of Orissa and also for other
consequential reliefs.
2.OMC urged that the above order passed by the MOEF has the
effect of neutralizing two orders of this Court passed in I.A. Nos.
1324 and 1474 in Writ Petition (C) No. 202 of 1995 with I.A. Nos.
2081-2082 (arising out of Writ Petition No. 549 of 2007) dated
23.11.2007 reported in (2008) 2 SCC 222 [hereinafter referred to
as ‘Vedanta case’] and the order passed by this Court in I.A. No.
2134 of 2007 in Writ Petition No. 202 of 1995 on 08.08.2008
reported in (2008) 9 SCC 711 [hereinafter referred to as the
‘Sterlite case’]. In order to examine the issues raised in this writ
petition, it is necessary to examine the facts at some length.
FACTS:
3. M/s. Sterlite (parent company of Vedanta) filed an application
on 19.3.2003 before MOEF for environmental clearance for the
purpose of starting an Alumina Refinery Project (ARP) in Lanjigarh
Tehsil of District Kalahandi, stating that no forest land was
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involved within an area of 10 kms. The 4
th
respondent – Vedanta,
in the meanwhile, had also filed an application on 6.3.2004 before
this Court seeking clearance for the proposal for use of 723.343
ha of land (including 58.943 ha of reserve forest land) in Lanjigarh
Tehsil of District Kalahandi for setting up an Alumina Refinery.
Noticing that forest land was involved, the State of Orissa
submitted a proposal dated 16.08.2004 to the MoEF for diversion
of 58.90 hectare of forest land which included 26.1234 hectare of
forest land for the said ARP and the rest for the conveyor belt and
a road to the mining site. The State of Orissa, later, withdrew that
proposal. The MoEF, as per the application submitted by M/s
Sterlite, granted environmental clearance on 22.9.2004 to ARP on
1 million tonne per annum capacity of refinery along with 75 MW
coal based CPP at Lanjigarh on 720 hectare land, by delinking it
with the mining project. Later, on 24.11.2004, the State of Orissa
informed MOEF about the involvement of 58.943 ha of forest land
in the project as against “NIL” mentioned in the environmental
clearance and that the Forest Department of Orissa had, on
5.8.2004, issued a show-cause-notice to 4
th
respondent for
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encroachment of 10.41 acres of forest land (out of 58.943 ha for
which FC clearance proposal was sent) by way of land breaking
and leveling.
4.The State of Orissa, on 28.2.2005 forwarded the proposal to
MOEF for diversion of 660.749 ha of forest land for mining bauxite
ore in favour of OMC in Kalahandi and Rayagada Districts. The
Central Empowered Committee (CEC), in the meanwhile,
addressed a letter dated 2.3.2005 to MOEF stating that pending
the examination of the project by CEC, the proposal for diversion
of forest land and/or mining be not decided.
5.Vedanta, however, filed an application I.A. No. 1324 of 2005
before this Court seeking a direction to the MoEF to take a
decision on the application for forest clearance for bauxite mining
submitted by the state Government on 28.2.2005 for the Refinery
project. The question that was posed by this Court while
deciding the above-mentioned I.A. was whether Vedanta should
be allowed to set up its refinery project, which involved the
proposal for diversion of 58.943 ha. of forest land. CEC had,
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however, objected to the grant of clearance sought by Vedanta on
the ground that the Refinery would be totally dependent on
mining of bauxite from Niyamgiri Hills, Lanjigarh, which was the
only vital wildlife habitat, part of which constituted elephant
corridor and also on the ground that the said project would
obstruct the proposed wildlife sanctuary and the residence of
tribes like Dongaria Kondha.
6.The Court on 03.06.2006 directed the MoEF to consult the
experts/organizations and submit a report. MoEF appointed
Central Mining Planning and Design Institute (CMPDI), Ranchi to
study the social impact of ground vibration on hydro-geological
characteristics, including ground propensity, permeability, flow of
natural resources etc. CMPDI submitted its report on 20.10.2006.
MoEF appointed the Wildlife Institute of India (WII), Dehradun to
study the impact of the Mining Project on the bio-diversity. WII
submitted its report dated 14.06.2006 and the supplementary
report dated 25.10.2006 before the MOEF. Reports of CMPDI, WII
were all considered by the Forest Advisory Committee (FAC) on
27.10.2006 after perusing the above mentioned reports approved
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the proposal of OMC, for diversion of 660.749 ha. of forest land for
the mining of bauxite in Kalahandi and Rayagada Districts subject
to the conditions laid down by WII.
7.The State of Orissa had brought to the notice of this Court
about the lack of basic infrastructure facilities in the Tribal areas
of both the districts, so also the abject poverty in which the local
people were living in Lanjigarh Tehsil, including the tribal people,
and also the lack of proper housing, hospitals, schools etc. But
this Court was not agreeable to clear the project, at the instance
of Vedanta, however, liberty was granted to M/s. Sterlite to move
the Court if they would agree to comply with the modalities
suggested by the Court. Following were the modalities suggested
by the Court, while disposing of the Vedanta case on 23.11.2007:
“(i) State of Orissa shall float a Special Purpose
Vehicle (SPV) for scheduled area development of
Lanjigarh Project in which the stakeholders shall be
State of Orissa, OMC Ltd. and M/s SIIL. Such SPV shall
be incorporated under the Companies Act, 1956. The
accounts of SPV will be prepared by the statutory
auditors of OMC Ltd. and they shall be audited by the
Auditor General for State of Orissa every year. M/s SIIL
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will deposit, every year commencing from 1-4-2007, 5%
of its annual profits before tax and interest from
Lanjigarh Project or Rs 10 crores whichever is higher for
Scheduled Area Development with the said SPV and it
shall be the duty of the said SPV to account for the
expenses each year. The annual report of SPV shall be
submitted to CEC every year. If CEC finds non-utilisation
or misutilisation of funds the same shall be brought to
the notice of this Court. While calculating annual profits
before tax and interest M/s SIIL shall do so on the basis
of the market value of the material which is sold by
OMC Ltd. to M/s SIIL or its nominee.
(ii) In addition to what is stated above, M/s SIIL
shall pay NPV of Rs 55 crores and Rs 50.53 crores
towards Wildlife Management Plan for Conservation and
Management of Wildlife around Lanjigarh bauxite mine
and Rs 12.20 crores towards tribal development. In
addition, M/s SIIL shall also bear expenses towards
compensatory afforestation.
(iii) A statement shall be filed by M/s SIIL with CEC
within eight weeks from today stating number of
persons who shall be absorbed on permanent basis in
M/s SIIL including land-losers. They shall give categories
in which they would be permanently absorbed. The list
would also show particulars of persons who would be
employed by the contractors of M/s SIIL and the period
for which they would be employed.
(iv) The State Government has the following
suggestions on this issue:
1. The user agency shall undertake
demarcation of the lease area on the ground using
four feet high cement concrete pillars with serial
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number, forward and back bearings and distance
from pillar to pillar.
2. The user agency shall make arrangements
for mutation and transfer of equivalent non-forest
land identified for compensatory afforestation to
the ownership of the State Forest Department.
3. The State Forest Department will take up
compensatory afforestation at Project cost with
suitable indigenous species and will declare the
said area identified for compensatory afforestation
as “protected forest” under the Orissa Forest Act,
1972 for the purpose of management.
4. The user agency shall undertake
rehabilitation of Project-affected families, if any, as
per the Orissa Rehabilitation and Resettlement
Policy, 2006.
5. The user agency shall undertake phased
reclamation of mined-out area. All overburden
should be used for back-filling and reclamation of
the mined-out areas.
6. The user agency shall undertake fencing of
the safety zone area and endeavour for protection
as well as regeneration of the said area. It shall
deposit funds with the State Forest Department for
the protection and regeneration of the safety zone
area.
7. Adequate soil conservation measures shall
be undertaken by the lessee on the overburdened
dumps to prevent contamination of stream flow.
8. The user agency should undertake
comprehensive study on hydrogeology of the area
and the impact of mining on the surrounding water
quality and stream flow at regular interval and
take effective measures so as to maintain the pre-
mining water condition as far as possible.
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9. The user agency should undertake a
comprehensive study of the wildlife available in
the area in association with institutes of repute like
Wildlife Institute of India, Dehradun, Forest
Research Institute, Dehradun, etc. and shall
prepare a site specific comprehensive wildlife
management plan for conservation and
management of the wildlife in the Project impact
area under the guidance of the Chief Wildlife
Warden of the State.
10. The user agency shall deposit the NPV of
the forest land sought for diversion for
undertaking mining operations.
11. The user agency shall prepare a
comprehensive plan for the development of tribals
in the Project impact area taking into consideration
their requirements for health, education,
communication, recreation, livelihood and cultural
lifestyle.
12. As per the policy of the State
Government, the user agency shall earmark 5% of
the net profit accrued in the Project to be spent for
the development of health, education,
communication, irrigation and agriculture of the
said scheduled area within a radius of 50 km.
13. Controlled blasting may be used only in
exigencies wherever needed to minimise the
impact of noise on wildlife of the area.
14. The user agency shall undertake
development of greenery by way of plantation of
suitable indigenous species in all vacant areas
within the Project.
15. Trees shall be felled from the diverted
area only when it is necessary with the strict
supervision of the State Forest Department at the
cost of the Project.
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16. The forest land diverted shall be non-
transferable. Whenever the forest land is not
required, the same shall be surrendered to the
State Forest Department under intimation to
Ministry of Environment and Forests, Government
of India.
If M/s SIIL, State of Orissa and OMC Ltd. jointly agree to
comply with the above rehabilitation package, this
Court may consider granting of clearance to the Project.
Conclusion
12. If M/s SIIL is agreeable to the aforestated
rehabilitation package then they shall be at liberty to
move this Court by initiating a proper application. This
Court is not against the Project in principle. It only
seeks safeguards by which we are able to protect
nature and subserve development. IAs are disposed of
accordingly.
However, we once again reiterate that the
applications filed by M/s VAL stand dismissed.”
The Court opined that if Sterlite, State of Orissa and OMC jointly
agree to comply with the “Rehabilitation Package”, the Court
might consider granting clearance to the project. Stating so, all
the applications were disposed of, the order of which is reported
in (2008) 2 SCC 222.
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8.M/s. Sterlite, 3
rd
respondent herein, then moved an
application – being I.A. No. 2134 of 2007 – before this Court,
followed by affidavits, wherein it was stated that M/s. Sterlite,
State of Orissa and OMC had unconditionally accepted the terms
and conditions and modalities suggested by this Court under the
caption “Rehabilitation Package” in its earlier order dated
23.12.2007. Siddharth Nayak, who was the petitioner in WP No.
549/07, then filed a Review Petition No. 100/2008 and sought
review of the order dated 23.11.2007 passed by this Court stating
that this court had posed a wrong question while deciding I.A. No.
2134 of 2007 and pointed out that Alumina Refinery was already
set up by Vedanta and production commenced and the principal
question which came up before this Court was with regard to the
ecological and cultural impact of mining in the Niyamgiri Hills.
Further, it was also pointed out that if Sterlite was allowed to mine
in the Niyamgiri Hills, it would affect the identity, culture and
other customary rights of Dongaria Kondh. Review Petition was,
however, dismissed by this Court on 07.05.2008.
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9.This Court then passed the final order in Sterlite case on
8.8.2008, the operative portion of which reads as follows:
“13. For the above reasons and in the light of the
affidavits filed by SIIL, OMCL and the State of Orissa,
accepting the rehabilitation package, suggested in our
order dated 23-11-2007, we hereby grant clearance to
the forest diversion proposal for diversion of 660.749 ha
of forest land to undertake bauxite mining on Niyamgiri
Hills in Lanjigarh. The next step would be for MoEF to
grant its approval in accordance with law.”
10.MOEF, later, considered the request of the State of Orissa
dated 28.2.2005 seeking prior approval of MOEF for diversion of
660.749 ha of forest land for mining of bauxite ore in Lanjigarh
Bauxite Mines in favour of OMC, in accordance with Section 2 of
the Forest (Conservation) Act, 1980. MOEF, after considering the
proposal of the State Government and referring to the
recommendations of FAC dated 27.10.2006, agreed in principle
for diversion of the above mentioned forest land, subject to
various conditions which are as follows:
(i)The Compensatory Afforestation shall be raised
over non-forest land, equal in extent to the forest
land proposed to be diverted, at the project cost.
The User Agency shall transfer the cost of
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Compensatory Afforestation to the State Forest
Department.
(ii)The non-forest land identified for Compensatory
Afforestation shall be declared as Reserved Forests
under Indian Forest Act, 1927.
(iii)The User Agency shall create fence and maintain a
safety zone around the mining area. The User
Agency will deposit fund with the Forest
Department for creation, protection and
regeneration of safety zone area and also will have
to bear the cost of afforestation over one and a half
time of the safety zone area in degraded forest
elsewhere.
(iv)The reclamation of mines shall be carried out
concurrently and should be regularly monitored by
the State Forest Department.
(v)RCC pillars of 4 feet height shall be erected by the
User Agency at the project cost to demarcate the
area and the pillars will be marked with forward and
back bearings.
(vi)The State Government shall charge Net Present
Value (NPV) from the User Agency for the entire
diverted forest land, as directed by Hon’ble
Supreme Court and as per the guidelines issued
vide Ministry of Environment and Forests letters No.
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5-1/98-FC(Pt.II) dated 18
th
September 2003 and 22
nd
September 2003.
(vii)As per Hon’ble Supreme Court’s order dated
23.11.2007 and 08.08.2008, M/s SIIL shall pay NPV
of Rs.55 crores.
(viii)An undertaking from the User Agency shall also be
obtained stating that in case the rates of NPV are
revised upwards, the additional/differential amount
shall be paid by the User Agency.
(ix)As per Hon’ble Supreme Court’s order dated
23.11.2007 and 08.08.2-008, M/s SIIL shall pay
Rs.50.53 crores towards Wildlife Management Plan
for Conservation and Management of Wildlife
around Lanjigarh bauxite mine.
(x)As per Hon’ble Supreme Court’s order dated
23.11.2007 and 08.08.2-008, M/s SIIL is required to
contribute Rs.12.20 crores towards tribal
development apart from payment of NPV and apart
from contribution to the Management of Wildlife
around Lanjigarh Bauxite Mine. Moreover, while
allocating CAMPA Funds the said amount of
Rs.12.20 crores shall be earmarked specifically for
tribal development.
(xi)The State Government shall deposit all the funds
with the Ad-hoc Body of Compensatory Afforestation
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Fund Management and Planning Authority (CAMPA)
in Account No. CA 1585 of Corporation Bank (A
Government of India Enterprise) Block-II, Ground
Floor, CGO Complex, Phase-I, Lodhi Road, New Delhi-
110 003, as per the instructions communicated vide
letter N.5-2/2006-PC dated 20.05.2006.
(xii)As per Hon’ble Supreme Court’s order dated
23.11.2007 and 08.08.2-008, M/s SIIL shall deposit
5% of its annual profits before tax and interest from
Lanjigarh Project of Rs.10 crores whichever is higher
as contribution for Scheduled Area Development.
The contribution is to be made every year
commencing from 01.04.2007. The State of Orissa
shall float a Special Purpose Vehicle (SPV) for
scheduled area development of Lanjigarh Project in
which the stake-holders shall be State of Orissa,
OMC Ltd. and M/s SIIL. Such SPV shall be
incorporated under the Companies Act, 1956. The
Accounts of SPC shall be prepared by the Statutory
auditors of OMC Ltd and they shall be audited by
the Auditor General for State of Orissa every year.
(xiii)The permission granted under FC Act shall be co-
terminus with the mining lease granted under
MMRD Act or any other relevant Act.
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(xiv)Tree felling shall be done in a phased manner to
coincide with the phasing of area to be put to
mining with a view to minimizing clear felling. The
felling will always be carried out under strict
supervision of State Forest Department.
(xv)All efforts shall be made by the User Agency and
the State Government to prevent soil erosion and
pollution of rivers/nallas/streams etc.
(xvi)The Wildlife Management Plan (WMP) shall be
modified accordingly as suggested by the Wildlife
Institute of India (WII), Dehradun and shall be
implemented by the State Government/User Agency
at the project cost. The progress of implementation
of the WMP shall be regularly monitored by the WILL
and Regional Office, Bhubaneshwar.
(xvii)Any other condition that the CCF (Central), Regional
Office, Bhubaneshwar / the State Forest Department
may impose from time to time for protection and
improvement of flora and fauna in the forest area,
shall also be applicable.
(xviii) All other provisions under different Acts,
rules, and regulations including environmental
clearance shall be complied with before transfer of
forest land.
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(xix)The lease will remain in the name of Orissa Mining
Corporation (OMCL) and if any change has to be
done, it will require prior approval of the Central
Government as per guidelines.
(xx)The present forest clearance will be subject to the
final outcome of the Writ petition No. 202 of 1995
from the Hon’ble Supreme Court and Court’s order
dated 23.11.2007 and 08.08.2008.
(xxi)Other standard conditions as applicable to
proposals related to mining shall apply in the
instant case also.”
MOEF, then, vide its letter dated 11.12.2008 informed the State of
Orissa that it had, in principle, agreed for diversion of 660.749 ha.
of forest land for mining bauxite in favour of OMC, subject to
fulfillment of the above mentioned conditions, and after getting
the compliance report from the State Government. Order dated
11.12.2008 was slightly modified on 31.12.2008. It was further
ordered that the transfer of forest land to the user agency should
not be effected by the State Government till formal orders
approving diversion of forest land were issued.
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11.MoEF then granted environmental clearance to OMC vide its
proceedings dated 28.04.2009 subject to various conditions
including the following conditions:
“(iii)Environmental clearance is subject to grant of
forestry clearance. Necessary forestry clearance
under the Forest (Conservation) Act, 1980 for
diversion of 672.018 ha forest land involved in the
project shall be obtained before starting mining
operation in that area. No mining shall be
undertaken in the forest area without obtaining
requisite prior forestry clearance.”
The State Government then forwarded the final proposal to the
MoEF vide its letter dated 10.08.2009 stating that the user
agency had complied with all the conditions stipulated in the
letter of MoEF dated 11.12.2008. On the Forest Rights Act, the
Government letter stated as follows:
“Provisions of Scheduled Tribes and other
Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006.
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The Govt. of India, MOEF vide their letter dated
28.04.2009 have accorded environmental clearance to
Lanjigarh Bauxite Mining Project. This letter of Govt. of
India, MOEF puts on record that there is no habitation in
the mining lease area on the plateau top and no
resettlement and rehabilitation is involved. Public
hearing for the project was held on 07.02.2003 for
Kalahandi District and on 17.03.2003 for Rayagada
District. In both the cases, the project has been
recommended. Copies of the public hearing
proceedings have already been submitted to Govt. of
India, MOEF along with forest diversion proposal. This
project was also challenged in the Hon’ble Supreme
Court of India on the ground that it violates the
provisions of the Scheduled Tribes & Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006
WP (C) No. 549 of 2007 was filed in the Hon’ble
Supreme Court of India by one Sri Siddharth Nayak
challenging the project on the above issue. After
examining different aspects of the writ petition in IA No.
2081-2082 in WP (C) No. 549/2007, the Hon’ble
Supreme Court of India had cleared the project by way
of disposing the Writ Petition vide their order dated
23.11.2007. Subsequently, Hon’ble Supreme Court had
finally cleared the project vide their order dated
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08.08.2008. In view of the above position and orders of
Hon’ble Supreme Court of India, no further action in this
regard is proposed.”
12.State of Orissa’s final proposal was then placed before the
FAC on 4.11.2009. FAC recommended that the final clearance
would be considered only after ascertaining of the community
rights on forest land and after the process for establishing such
rights under Forest Rights Act was completed. FAC also decided
to constitute an Expert Group to carry out a site inspection.
Consequently, on 1.1.2010, a three-member Team composed of
Dr. Usha Ramanathan and two others, was constituted to consider
and make recommendations to MOEF on the proposal submitted
by OMC. The Team carried out the site inspection during the
months of January and February, 2010 and submitted three
individual reports to MOEF on 25.2.2010 which were not against
the project as such, but suggested an in-depth study on the
application of the Forest Rights Act. FAC also, on 16.4.2010,
considered all the three reports and recommended that a Special
Committee, under the Ministry of Tribal Affairs, be constituted to
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look into the issues relating to the violation of Tribal rights and the
settlement of Forest rights under the Forest Rights Act.
13.MOEF then met on 29.6.2010 and decided to constitute a
team composed of specialists to look into the settlement of rights
on forest dwellers and the “Primitive Tribal Groups” under the
Forest Rights Act and the impact of the Project on wildlife and
biodiversity in the surrounding areas. Consequently, a 4-member
Committee was constituted headed by Dr. Naresh Saxena to study
and assess the impacts of various rights and to make a detailed
investigation. The Committee, after conducting several site visits
and making detailed enquiries submitted its report to MOEF on
16.8.2010.
14.The State Government then submitted their written objection
on 17.08.2010 to the MoEF on the Saxena Committee Report and
requested that an opportunity of hearing be given to it before
taking any decision on the report. MoEF, however, called a
meeting of FAC on 20.8.2010 and placed the Saxena Committee
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report before FAC, for consideration. Minutes of the Committee
meeting was released on 23.8.2010, stating that the Primitive
Tribal Groups were not consulted in the process of seeking project
clearance and also noticed the violation of the provisions of Forest
Rights Act, the Forest (Conservation) Act, 1980, Environmental
Protection Act, 1986 and also the impact on ecological and
biodiversity values of the Niyamgiri hills upon which the Dongaria
Kondh and Kutia Kondh depend. FAC opined that it was a fit case
for applying the precautionary principle to obviate the irreparable
damage to the affected people and recommended for the
temporary withdrawal of the in-principle/State I approval
accorded. FAC recommended that the State Government be
heard before a final decision is taken by the MoEF.
15.The recommendations of the FAC dated 23.8.2010 and
Saxena Committee report were considered by MOEF and the
request for Stage-II Clearance was rejected on 24.8.2010, stating
as follows:
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“VIII. Factors Dictating Decision on Stage-II
Clearance
I have considered three broad factors while arriving at
my decision.
1.The Violation of the Rights of the Tribal
Groups including the Primitive Tribal
Groups and the Dalit Population.
The blatant disregard displayed by the project
proponents with regard to rights of the tribals
and primitive tribal groups dependant on the
area for their livelihood, as they have
proceeded to seek clearance is shocking.
Primitive Tribal Groups have specifically been
provided for in the Forest Rights Act, 2006 and
this case should leave no one in doubt that they
will enjoy full protection of their rights under
the law. The narrow definition of the Project
Affected People by the State Government runs
contrary to the letter and spirit of the Forest
Rights Act, 2006. Simply because they did not
live on the hills does not mean that they have
no rights there. The Forest Rights Act, 2006
specifically provides for such rights but these
were not recognized and were sought to be
denied.
Moreover, the fate of the Primitive Tribal Groups
need some emphasis, as very few communities
in India in general and Orissa in particular come
under the ambit of such a category. Their
dependence on the forest being almost
complete, the violation of the specific
protections extended to their “habitat and
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habitations” by the Forest Rights Act, 2006 are
simply unacceptable.
This ground by itself has to be foremost in
terms of consideration when it comes to the
grant of forest or environmental clearance. The
four-member committee has highlighted
repeated instances of violations.
One also cannot ignore the Dalits living in the
area. While they may technically be ineligible to
receive benefits under the FRA 2006, they are
such an inextricable part of the society that
exists that it would be impossible to disentitle
them as they have been present for over five
decades. The Committee has also said on p.40
of their report that “even if the Dalits have no
claims under the FRA the truth of their de facto
dependence on the Niyamgiri forests for the
past several decades can be ignored by the
central and state governments only at the cost
of betrayal of the promise of inclusive growth
and justice and dignity for all Indians”. This
observation rings true with the MoE&F and
underscores the MoE&F’s attempt to ensure
that any decision taken is not just true to the
law in letter but also in spirit.
2.Violations of the Environmental
Protection Act 1986:
(i) Observations of the Saxena
Committee and MoE&F Records:
In additional to its findings regarding the
settlement of rights under the FRA 2006, the
four-member Committee has also observed,
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with reference to the environmental clearance
granted for the aluminum refinery, on p.7 of its
Report dated 16
th
August 2010 that:
“The company/s Vedanta Alumina Limited
has already proceeded with construction
activity for its enormous expansion
project that would increase its capacity
six fold from 1 Mtpa to 6 Mtpa without
obtaining environmental clearance as per
the provisions of EIA Notification, 2006
under the EPA. This amounts to a serious
violation of the provisions of the
Environment (Protection) Act. This
expansion, its extensive scale and
advanced nature, is in complete violation
of the EPA and is an expression of the
contempt with which this company treats
the laws of the land.”
I have reviewed the records of the MoE&F
and have found no documentation which
establishes such activity to have been
granted clearance. Nor is there any
evidence to suggest that such requirement
was waived by the Ministry. The TORs for
the expansion of the project from 1 million
tones to 6 million tones were approved in
March 2008. No further right has been
granted in any form by the Ministry to the
project proponents to proceed with the
expansion. While any expansion without
prior EC is a violation of the EIA
Notification/EPA 1986 this, itself, is not a
minor expansion and is therefore a most
serious transgression of the EPA 1986.
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There also appear to have been other acts of
violation that emerge from a careful perusal
of the evidence at hand. This is not the first
act of violation. On March 19
th
, 2003 M/s
Sterlite filed an application for environmental
clearance from the MoE&F for the refinery.
In the application it was stated that no forest
land is involved in the project and that there
was no reserve forest within a radius of 10
kms of the project site.
Thereafter on September 22
nd
, 2004,
environment clearance was granted by the
MoE&F for the refinery project. While
granting the environmental clearance, the
MoE&F was unaware of the fact that the
application for forest clearance was also
pending since the environmental clearance
letter clearly stated that no forest land was
involved in the project.
In March 2005, in proceedings before itself,
the Central Empowered Committee (CEC) too
questioned the validity of the environmental
clearance granted by the MoE&F and
requested the Ministry to withhold the forest
clearance on the project till the issue is
examined by the CEC and report is
submitted to the Hon’ble Supreme Court.
(ii)Case before the MEAA by the
Dongaria Kondhs:
After the grant of Environment Clearance,
the local tribals and other concerned
persons including the Dongaria Kondhs
Page 27 27
challenged the project before the National
Environment Appellate Authority (NEAA).
[Kumati Majhi and Ors Vs Ministry of
Environment. and Forest, Srabbu Sikka and
Ors. Vs Ministry of Environment and
Forests, R Sreedhar Vs. Ministry of
Environment and Forest, Prafulla
Samantara Vs. Ministry of Environment and
Forests and Ors Appeal No. 18, 19, 20 and
21 of 2009].
It is brought to my attention that this is the
first time that the Dongaria Kondha have
directly challenged the project in any Court
of law. The Appeals highlighted the several
violations in the Environmental Clearance
process. Some of the key charges raised
were that the full Environmental Impact
Assessment Report was not made available
to the Public before the public hearing,
different EIA reports made available to the
public and submitted to the Ministry of
Environment and Forests, the EIA conducted
was a rapid EIA undertaken during the
monsoon months. The matter is reserved
for judgment before the NEAA.
(iii)Monitoring Report of the
Eastern Regional Office dated
25
th
May, 2010:
On 25
th
May 2010, Dr. VP Upadhyay
(Director ‘S’) of the Eastern Regional Office
of the Ministry of Environment and Forests
submitted his report to the MoE&F which
listed various violations in para 2 of the
monitoring report. They observed:
Page 28 28
a.“M/s Vedanta Alumina Limited
has already proceeded with
construction activity for
expansion project without
obtaining environmental
clearance as per provisions of
EIA Notification 2006 that
amounts to violation of the
provisions of the Environment
(Protection) Act.”
b.“The project has not established
piezometers for monitoring of
ground water quality around red
mud and ash disposal ponds;
thus, the condition no. 5 of
Specific Condition of the
clearance letter is being
violated.”
c.“The condition no. Ii of General
Condition of environmental
clearance has been violated by
starting expansion activities
without prior approval from the
Ministry.”
Furthermore all bauxite for the refinery was
to be sourced from mines which have
already obtained environmental clearance.
The Report listed 14 mines from which
Bauxite was being sourced by the project
proponents. However out of these 11 had
not been granted a mining license while 2
had only received TORs and only 1 had
received clearance.
Page 29 29
3.Violations under the Forest
Conservation Act:
The Saxena Committee has gone into great
detail highlighting the various instances of
violations under the Forest (Conservation) Act
1980. All these violations coupled with the
resultant impact on the ecology and
biodiversity of the surrounding area further
condemn the actions of the project proponent.
Not only are these violations of a repeating
nature but they are instances of willful
concealment of information by the project
proponent.
IX. The Decision on Stage-II Clearance
The Saxena Committee’s evidence as reviewed by the
FAC and read by me as well is compelling. The
violations of the various legislations, especially the
Forest (Conservation) Act, 1980, the Environment
(Protection) Act, 1986, and the Scheduled Tribes and
Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006, appear to be too egregious to be
glossed over. Furthermore, a mass of new and
incriminating evidence has come to light since the Apex
court delivered its judgment on August 8
th
, 2008.
Therefore, after careful consideration of the facts at
hand, due deliberation over all the reports submitted
and while upholding the recommendation of the FAC, I
have come to the following conclusions:
1.The Stage II forest clearance for the OMC
and Sterlite bauxite mining project on the
Niyamgiri Hills in Lanjigarh, Kalahandi and
Rayagada districts of Orissa cannot be
Page 30 30
granted. Stage-II Forest Clearance
therefore stands rejected.
2.Since forest clearance is being rejected,
the environmental clearance for this mine
is inoperable.
3.It appears that the project proponent is
sourcing bauxite from a large number of
mines in Jharkhand for the one million
tonne alumina refinery and are not in
possession of valid environmental
clearance. This matter is being examined
separately.
4.Further, a show-cause notice is being
issued b y the MOE&F to the project
proponent as to why the environmental
clearance for the one million tonnes per
annum alumina refinery should not be
cancelled.
5.A show-cause notice is also being issued to
the project proponent as to why the terms
of reference (TOR) for the EIA report for the
expansion from one million tones to six
million tones should not be withdrawn.
Meanwhile, the TOR and the appraisal
process for the expansion stands
suspended.
Separately the MoE&F is in the process of examining
what penal action should be initiated against the
project proponents for the violations of various laws as
documented exhaustively by the Saxena Committee.
On the issues raised by the Orissa State Government, I
must point out that while customary rights of the
Primitive Tribal Groups are not recognized in the
National Forest Policy, 1988 they are an integral part of
the Forest Rights Act, 2006. An Act passed by
Page 31 31
Parliament has greater sanctity than a Policy
Statement. This is apart from the fact that the Forest
Rights Act came into force eighteen years after the
National Forest Policy. On the other points raised by the
State Government officials, on the procedural aspects
of the Forest Rights Act, 2006, I expect that the joint
Committee set up by the MoE&F and the Ministry of
Tribal Affairs would give them due consideration. The
State Government officials were upset with the
observations made by the Saxena Committee on their
role in implementing the Forest Rights Act, 2006.
Whether State Government officials have connived with
the violations is a separate issue and is not relevant to
my decision. I am prepared to believe that the State
Government officials were attempting to discharge their
obligations to the best of their abilities and with the
best of intentions. The State Government could well
contest many of the observations made by the Saxena
Committee. But this will not fundamentally alter the
fact that serious violations of various laws have indeed
taken place.
The primary responsibility of any Ministry is to enforce
the laws that have been passed by Parliament. For the
MoE&F, this means enforcing the Forest (Conservation)
Act, 1980, the Environmental (Protection) Act, 1986, the
Scheduled Tribes and Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 and other laws.
It is in this spirit that this decision has been taken.”
The order dated 24.8.2010 was communicated by MOEF to the
State of Orissa vide its letter dated 30.8.2010, the legality of
those orders are the subject matter of this writ petition.
Page 32 32
16.Shri K.K. Venugopal, learned senior counsel appearing for
OMC, referred to the earlier judgments of this Court in Vedanta
as well as Sterlite and submitted that those judgments are
binding on the parties with regard to the various questions raised
and decided and also to the questions which ought to have been
raised and decided. Learned senior counsel also pointed out that
MOEF itself, after the above mentioned two judgments, had
accorded Stage-I clearance vide its proceeding dated 11.12.2008
and that the State of Orissa vide its letter dated 10.8.2009 had
informed MOEF of the compliance of the various conditions
stipulated in the Stage-I clearance dated 11.12.2008.
Consequently, there is no impediment in the MOEF granting
Stage-II clearance for the project. Learned senior counsel also
submitted that the reasons stated by the FAC as well as the
Saxena Committee are all untenable and have nothing to do with
Bauxite Mining Project (BMP) undertaken by OMC. Learned senior
counsel also submitted that the constitution of, initially, a 3-
Member Committee and, later, a 4-Member Committee, was
intended only to cancel the Stage-I clearance granted to the BMP
Page 33 33
in compliance with the judgment of this Court. Learned counsel
also pointed out that the claim under the Forest Rights Act was
also raised by Sidharth Nayak through a review petition, which
was also rejected by this Court on 7.5.2008. Consequently, it
would not be open to the parties to again raise the issues which
fall under the Forest Rights Act.
17.Shri C.A. Sundaram, learned senior counsel appearing for the
State of Orissa, submitted that various reasons stated by the
MOEF for rejecting the Stage-II clearance are unsustainable in law
as well as on facts. Learned senior counsel pointed out that
reasons stated by the Saxena Committee as well as MOEF alleging
violation of the Environmental Protection Act, 1986, are totally
unrelated to the BMP. Learned senior counsel pointed out that
Alumina Refinery is an independent project and the violation, if
any, in respect of the same ought not to have been relevant
criteria for the consideration of the grant of Stage-II clearance to
the BMP, being granted to OMC. Referring to the Monitoring
Report of Eastern Regional Office dated 25.5.2010, learned senior
counsel pointed out that the findings recorded in that report are
Page 34 34
referable to 4
th
respondent and not to the mining project granted
to OMC. Learned senior counsel also submitted that Saxena
Committee as well as MOEF has committed a factual error in
taking into account the alleged legal occupation of 26.123 ha of
village forest lands enclosed within the factory premises which
has no connection with regard to the mining project, a totally
independent project. Learned senior counsel also submitted that
in the proposed mining area, there is no human habitation and
that the individual habitation rights as well as the Community
Forest Resource Rights for all villages located on the hill slope of
the proposed mining lease area, have already been settled.
Learned senior counsel also pointed out that the Gram Sabha has
received several individual and community claims from Rayagada
and Kalahandi Districts and they have settled by giving alternate
lands.
18.Shri Sundaram also submitted that the Forest Rights Act
deals with individual and community rights of the Tribals which
does not, in any manner, expressly or impliedly, make any
Page 35 35
reference to the religious or spiritual rights protected under
Articles 25 and 26 of the Constitution of India and does not
extend to the property rights. Learned senior counsel also
submitted that the State Government continues to maintain and
have ownership over the minerals and deposits beneath the
forests and such rights have not been taken away by the Forest
Rights Act and neither the Gram Sabha nor the Tribals can raise
any ownership rights on minerals or deposits beneath the forest
land.
19.Shri C.U. Singh, learned senior counsel appearing for the 3
rd
respondent – Sterlite, submitted that various grounds stated in
Saxena report as well as in the order of MOEF dated 24.8.2010,
were urged before this Court when Vedanda and Sterlite cases
were decided and, it was following those judgments, that MOEF
granted Stage-I approval on 11.12.2008 on the basis of the
recommendation of FAC. In compliance of the Stage-I clearance
accorded by MOEF, SPV (OMC and Sterlite) undertook various
works and completed, the details of the same have been
furnished along with the written submissions filed on 21.1.2013.
Page 36 36
Learned senior counsel submitted that the attempt of the MOEF is
to confuse the issue mixing up the Alumina Refinery Project with
that of the Bauxite Mining Project undertaken by Sterlite and OMC
through a SPV. The issues relating to expansion of refinery and
alleged violation of the Environmental Protection Act, 1986, the
Forest Conservation Act, 1980 etc. have nothing to do with the
mining project undertaken by OMC and Sterlite. Learned senior
counsel, therefore, submitted that the rejection of the Stage-II
clearance by MOEF is arbitrary and illegal.
20.Shri Mohan Parasaran, Solicitor General of India, at the
outset, referred to the judgment of this Court in Sterlite and
placed considerable reliance on para 13 of the judgment and
submitted that while granting clearance by this Court for the
diversion of 660.749 ha of forest land to undertake bauxite mining
in Niyamgiri hills, left it to the MOEF to grant its approval in
accordance with law. Shri Parasaran submitted that it is in
accordance with law that the MOEF had constituted two
Committees and the reports of the Committees were placed
before the FAC, which is a statutory body constituted under
Page 37 37
Section 3 of the Forest Conservation Act. It was submitted that it
was on the recommendation of the statutory body that MOEF had
passed the impugned order dated 24.8.2010. Further, it was
pointed out that, though MOEF had granted the Stage-I clearance
on 11.12.2008, it can still examine as to whether the conditions
stipulated for the grant of Stage-I clearance had been complied
with or not. For the said purpose, two Committees were
constituted and the Saxena Committee in its report has noticed
the violation of various conditions stipulated in the Stage-I
clearance granted by MOEF on 11.12.2008. Shri Parasaran also
submitted that the petitioner as well as 3
rd
respondent have also
violated the provisions of the Forest Rights Act, the violation of
which had been specifically noted by the Saxena Committee and
accepted by MOEF. Referring to various provisions of the Forest
Rights Act under Section 3.1(i), 3.1(e) and Section 5 of the Act, it
was submitted that concerned forest dwellers be treated not
merely as right holders as statutory empowered with the
authority to protect the Niyamgiri hills. Shri Parasaran also
pointed out that Section 3.1(e) recognizes the right to community
Page 38 38
tenures of habitat and habitation for “primitive tribal groups” and
that Dongaria Kondh have the right to grazing and the collection
of mineral forest of the hills and that they have the customary
right to worship the mountains in exercise of their traditional
rights, which would be robed of if mining is permitted in Niyamgiri
hills.
21.Shri Raj Panjwani, learned senior counsel appearing for the
applicants in I.A. Nos. 4 and 6 of 2012, challenged the
environmental clearance granted to OMC on 28.4.2009 by MOEF
before the National Environment Appellate Authority (NEAA)
under Section 4(1) of the NEAA Act, 1997, by filing Appeal Nos. 20
of 2009 and 21 of 2009 before NEAA. NEAA vide its order dated
15.5.2010 allowed the appeals and remitted the matter to MOEF
to revisit the grant of environmental clearance to OMC on
28.4.2009. Later, MOEF by its order dated 11.7.2011 has
withdrawn the environmental clearance dated 28.4.2009 granted
in favour of OMC and that OMC, without availing of the statutory
remedy of the appeal, filed I.A. No. 2 of 2011 in the present writ
petition.
Page 39 39
22.Shri Sanjay Parekh, learned counsel appearing for the
applicants in I.A. Nos. 5 and 6 of 2011, referred to the various
provisions of the Forest Rights Act and the Rules and submitted
that the determination of rights of scheduled tribes (STs)/other
traditional forest dwellers (TFDs) have to be done by the Gram
Sabha in accordance with the machinery provided under Section 6
of the Act. Learned counsel also submitted that the forest wealth
vests in the STs and other TFDs and can be diverted only for the
purpose mentioned in Section 3(3). Learned counsel also referred
to the Saxena Committee report and submitted that the report
clearly reveals the community rights as well as the various rights
and claims of the primitive traditional forest dwellers. Learned
counsel also submitted that if the mining is undertaken in
Niyamgiri hills, it would destroy more than 7 sq. Km. of
undisturbed forest land on the top of the mountain which is the
abode of the Dongaria Kondh and their identity depends on the
existence of Niyamgiri hills.
Page 40 40
Judicial Evaluation
23.We may, at the outset, point out that there cannot be any
doubt that this Court in Vedanta case had given liberty to Sterlite
to move this Court if they were agreeable to the “suggested
rehabilitation package” in the order of this Court, in the event of
which it was ordered that this Court might consider granting
clearance to the project, but not to Vedanta. This Court in
Vedanta case had opined that this Court was not against the
project in principle, but only sought safeguards by which the
Court would be able to protect the nature and sub-serve
development.
24.The Sterlite, State of Orissa and OMC then unconditionally
accepted the terms and conditions and modalities suggested by
this Court in Vedanta under the caption “Rehabilitation Package”
and they moved this Court by filing I.A. No. 2134 of 2007 and this
Page 41 41
Court accepted the affidavits filed by them and granted clearance
to the diversion of 660.749 ha of forest land to undertake the
bauxite mining in Niyamgiri Hills and ordered that MOEF would
grant its approval in accordance with law.
25.MOEF, then considered the proposal of the State
Government made under Section 2 of the Forest (Conservation)
Act, 1980 and also the recommendations of the FAC and agreed in
principle for the diversion of 660.749 ha of forest land for mining
of bauxite ore in Lanjigarh Bauxite Mines in favour of OMC,
subject to 21 conditions vide its order 11.12.2008. One of the
conditions was with regard to implementation of the Wildlife
Management Plan (WMP) suggested by WII and another was with
regard to the implementation of all other provisions of different
Acts, including environmental clearance, before the transfer of the
forest land. Further, it was also ordered that after receipt of the
compliance report on fulfilment of the 21 conditions from the
State of Orissa, formal approval would be issued under Section 2
of the Forest (Conservation) Act, 1980.
Page 42 42
26.MOEF examined the application of the OMC for
environmental clearance under Section 12 of the EIA Notification,
2006 read with para 2.1.1(i) of Circular dated 13.10.2006 and
accorded environmental clearance for the “Lanjigarh Bauxite
Mining Project” to OMC for an annual production capacity of 3
million tonnes of -bauxite by opencast mechanized method
involving total mining lease area of 721.323 ha, subject to the
conditions and environmental safeguards, vide its letter dated
28.4.2009. 32 special conditions and 16 general conditions were
incorporated in that letter. It was ordered that failure to comply
with any of the conditions might result in withdrawal of the
clearance and attract action under the provisions of the
Environment Protection Act, 1986. It was specifically stated that
the environmental clearance would be subject to grant of forestry
clearance and that necessary clearance for diversion of 672.018
ha. Of forest land involved in the project be obtained before
starting operation in that area and that no mining be undertaken
in the forest area without obtaining prior forestry clearance.
Condition No. XXX also stipulated that the project proponent shall
Page 43 43
take all precautionary measures during mining operation for
conservation and protection of flora and fauna spotted in the
study area and all safeguards measures brought out by the WMP
prepared specific to the project site and considered by WII shall
be effectively implemented. Further, it was also ordered that all
the recommendations made by WII for Wildlife Management be
effectively implemented and that the project proponent would
also comply with the standards prescribed by the State and
Central Pollution Control Boards. Later, a corrigendum dated
14.7.2009 was also issued by MOEF adding two other conditions –
one special condition and another general condition.
27.State of Orissa vide its letter dated 10.8.2009 informed
MOEF that the user agency had complied with the stipulations of
Stage-I approval. Specific reference was made point by point to
all the conditions stipulated in the letters of MOEF dated
11.12.2008 and 30.12.2008 and, in conclusion, the State
Government has stated in their letter as follows:
“In view of the above position of compliance by the
User Agency to the direction of Hon’ble Supreme Court of
India dated 8.8.2008 and stipulations of the Government
Page 44 44
of India, MOEF vide their Stage-I approval order dated
30.12.2008, the compliance is forwarded to the
Government of India, MOEF to kindly examine the same
and take further necessary steps in matters of according
final approval for diversion of 660.749 ha of forest land for
the project under Section 2 of the Forest Conservation Act,
1980.”
MOEF, it is seen, then placed the letter of the State Government
dated 10.8.2008 before the FAC and FAC on 4.11.2009
recommended that the final clearance be considered only after
ascertaining the community rights of forest land and after the
process for establishing such rights under the Forest Rights Act is
completed. Dr. Usha Ramanathan Committee report was placed
before the FAC on 16.4.2010 and FAC recommended that a Special
Committee under the Ministry of Tribal Affairs be constituted to
look into the issue relating to violation of tribal rights and the
settlement of various rights under the Forest Rights Act, which led,
as already indicated, to the constitution of the Saxena Committee
report, based on which the MOEF passed the impugned order
dated 24.8.2010.
28.FAC, in its meeting, opined that the final clearance under the
Forest (Conservation) Act would be given, only after ascertaining
Page 45 45
the “Community Rights” on forest land and after the process of
establishing such rights under the Forest Rights Act. After
perusing the Usha Ramanathan report, FAC on 16.4.2010
recommended that a Special Committee be constituted to look
into the issues relating to the alleged violation of rights under the
Forest Rights Act. MOEF, then on 29.6.2010 constituted the
Saxena Committee and the Committee after conducting an
enquiry submitted its report which was placed before the FAC on
20.8.2010 and FAC noticed prima facie violation of the Forest
Rights Act and the Forest (Conservation) Act.
29.Petitioner has assailed the order of MoEF dated 24.08.2010
as an attempt to reopen matters that had obtained finality.
Further, it is also submitted that the order wrongly cites the
violation of certain conditions of environmental clearance by
“Alumina Refinery Project” as grounds for denial of Stage II
clearance to OMC for its “Bauxite Mining Project”. The contention
is based on the premise that the two Projects are totally separate
and independent of each other and the violation of any statutory
Page 46 46
provision or a condition of environmental clearance by one cannot
be a relevant consideration for grant of Stage II clearance to the
other.
30.Petitioner’s assertion that the Alumina Refinery Project and
the Bauxite Mining Project are two separate and independent
projects, cannot be accepted as such, since there are sufficient
materials on record to show that the two projects make an
integrated unit. In the two earlier orders of this Court (in the
Vedanta case and the Sterlite case) also the two Projects are seen
as comprising a single unit. Quite contrary to the case of the
petitioner, it can be strongly argued that the Alumina Refinery
Project and Bauxite Mining Project are interdependent and
inseparably linked together and, hence, any wrong doing by
Alumina Refinery Project may cast a reflection on the Bauxite
Mining Project and may be a relevant consideration for denial of
Stage II clearance to the Bauxite Mining Project.
In this Judgment, however, we do not propose to make any
final pronouncement on that issue but we would keep the focus
Page 47 47
mainly on the rights of the Scheduled Tribes and the “Traditional
Forest Dwellers” under the Forest Rights Act.
STs and TFDs:
31.Scheduled Tribe, as such, is not defined in the Forest Rights
Act, but the word “Traditional Forest Dweller” has been defined
under Section 2(o) as any member or community who has at least
three generations prior to the 13
th
day of December, 2005
primarily resided in and who depend on the forest or forests land
for bona fide livelihood needs. Article 366(25) of the Constitution
states that STs means such tribes or tribal communities or parts of
or groups within such tribes or tribal communities as are defined
under Article 342 to be the Scheduled Tribes. The President of
India, in exercise of the powers conferred by Clause (1) of Article
342 of the Constitution, has made the Constitution (Schedule
Tribes) Order, 1950. Part XII of the Order refers to the State of
Orissa. Serial No. 31 refers to Dongaria Kondh, Kutia Kandha etc.
32.Before we examine the scope of the Forest Rights Act, let us
examine, how the rights of indigenous people are generally
Page 48 48
viewed under our Constitution and the various International
Conventions.
Constitutional Rights and Conventions:
33.Article 244 (1) of the Constitution of India which appears in
Part X provides that the administration of the Scheduled Areas
and Scheduled Tribes in States (other than Assam, Meghalaya and
Tripura) shall be according to the provisions of the Fifth Schedule
and Clause (2) states that Sixth Schedule applies to the tribal
areas in Assam, Meghalaya, Tripura and Mizoram. Evidently, the
object of the Fifth Schedule and the Regulations made thereunder
is to preserve tribal autonomy, their cultures and economic
empowerment to ensure social, economic and political justice for
the preservation of peace and good Governance in the Scheduled
Area. This Court in Samatha v. Arunachal Pradesh (1997) 8
SCC 191 ruled that all relevant clauses in the Schedule and the
Regulations should be harmoniously and widely be read as to
elongate the Constitutional objectives and dignity of person to the
Page 49 49
Scheduled Tribes and ensuring distributive justice as an integral
scheme thereof. The Court noticed that agriculture is the only
source of livelihood for the Scheduled Tribes apart from collection
and sale of minor forest produce to supplement their income.
Land is their most important natural and valuable asset and
imperishable endowment from which the tribal derive their
sustenance, social status, economic and social equality,
permanent place of abode, work and living. Consequently, tribes
have great emotional attachments to their lands.
34.Part B of the Fifth Schedule [Article 244(1)] speaks of the
administration and control of Schedules Areas and Scheduled
Tribes. Para 4 thereof speaks of Tribes Advisory Council. Tribes
Advisory Council used to exercise the powers for those Scheduled
Areas where Panchayat Raj system had not been extended. By
way of the Constitution (73
rd
Amendment) Act, 1992, Part IX was
inserted in the Constitution of India. Article 243-B of Part IX of the
Constitution mandated that there shall be panchayats at village,
intermediate and district levels in accordance with the provisions
Page 50 50
of that Part. Article 243-C of Chapter IX refers to the composition
of Panchayats. Article 243-M (4)(b) states that Parliament may,
by law, extend the provisions of Part IX to the Scheduled Areas
and the Tribal areas and to work out the modalities for the same.
The Central Government appointed Bhuria Committee to
undertake a detailed study and make recommendations as to
whether the Panchayat Raj system could be extended to
Scheduled Areas. The Committee submitted its report on
17.01.1995 and favoured democratic, decentralization in
Scheduled Areas. Based on the recommendations, the Panchayat
(Extension to Scheduled Areas) Act, 1996 (for short ‘PESA Act’)
was enacted by the Parliament in the year 1996, extending the
provisions of Part IX of the Constitution relating to Panchayats to
the Scheduled Areas. The Statement of Objects and Reasons of
the Act reads as follows:
“There have been persistent demands from
prominent leaders of the Scheduled Areas for
extending the provisions of Part IX of the
Constitution to these Areas so that Panchayati Raj
Page 51 51
Institutions may be established there. Accordingly, it
is proposed to introduce a Bill to provide for the
extension of the provisions of Part IX of the
Constitution to the Scheduled Areas with certain
modifications providing that, among other things,
the State legislations that may be made shall be in
consonance with the customary law, social and
religious practices and traditional management
practices of community resources;….. The offices of
the Chairpersons in the panchayats at all levels shall
be reserved for the Scheduled Tribes; the
reservations of seats at every panchayat for the
Scheduled Tribes shall not be less than one-third of
the total number of seats.”
35.This court had occasion to consider the scope of PESA Act
when the constitutional validity of the proviso to section 4(g) of
the PESA Act and few sections of the Jharkhand Panchayat Raj
Act, 2001 were challenged in Union of India v. Rakesh Kumar,
(2010) 4 SCC 50 and this Court upheld the Constitutional validity.
Page 52 52
36.Section 4 of the PESA Act stipulates that the State legislation
on Panchayats shall be made in consonance with the customary
law, social and religious practices and traditional management
practices of community resources. Clause (d) of Section states
that every Gram Sabha shall be competent to safeguard and
preserve the traditions and customs of the people, their cultural
identity, community resources and the customary mode of
dispute resolution. Further it also states in clause (i) of Section 4
that the Gram Sabha or the Panchayats at the appropriate level
shall be consulted before making the acquisition of land in the
Scheduled Areas for development projects and before re-settling
or rehabilitating persons affected by such projects in the
Scheduled Areas and that the actual planning and implementation
of the projects in the Scheduled Areas, shall be coordinated at the
State level. Sub-clause (k) of Section 4 states that the
recommendations of the Gram Sabha or the Panchayats at the
appropriate level shall be made mandatory prior to grant of
prospective licence or mining lease for minor minerals in the
Scheduled Areas. Panchayat has also endowed with the powers
Page 53 53
and authority necessary to function as institutions of Self-
Government.
37.The customary and cultural rights of indigenous people have
also been the subject matter of various international conventions.
International Labour Organization (ILO) Convention on Indigenous
and Tribal Populations Convention, 1957 (No.107) was the first
comprehensive international instrument setting forth the rights of
indigenous and tribal populations which emphasized the necessity
for the protection of social, political and cultural rights of
indigenous people. Following that there were two other
conventions ILO Convention (No.169) and Indigenous and Tribal
Peoples Convention, 1989 and United Nations Declaration on the
rights of Indigenous Peoples (UNDRIP), 2007, India is a signatory
only to the ILO Convention (No. 107).
38.Apart from giving legitimacy to the cultural rights by 1957
Convention, the Convention on the Biological Diversity (CBA)
adopted at the Earth Summit (1992) highlighted necessity to
Page 54 54
preserve and maintain knowledge , innovation and practices of
the local communities relevant for conservation and sustainable
use of bio-diversity, India is a signatory to CBA. Rio Declaration
on Environment and Development Agenda 21 and Forestry
principle also encourage the promotion of customary practices
conducive to conservation. The necessity to respect and promote
the inherent rights of indigenous peoples which derive from their
political, economic and social structures and from their cultures,
spiritual traditions, histories and philosophies, especially their
rights to their lands, territories and resources have also been
recognized by United Nations in the United Nations Declaration on
Rights of Indigenous Peoples. STs and other TFDs residing in the
Scheduled Areas have a right to maintain their distinctive spiritual
relationship with their traditionally owned or otherwise occupied
and used lands.
39.Many of the STs and other TFDs are totally unaware of their
rights. They also experience lot of difficulties in obtaining
effective access to justice because of their distinct culture and
Page 55 55
limited contact with mainstream society. Many a times, they do
not have the financial resources to engage in any legal actions
against development projects undertaken in their abode or the
forest in which they stay. They have a vital role to play in the
environmental management and development because of their
knowledge and traditional practices. State has got a duty to
recognize and duly support their identity, culture and interest so
that they can effectively participate in achieving sustainable
development.
40.We notice, bearing in mind the above objects, the Forest
Rights Act has been enacted conferring powers on the Gram
Sabha constituted under the Act to protect the community
resources, individual rights, cultural and religious rights.
The Forest Rights Act
41.The Forest Rights Act was enacted by the Parliament to
recognize and vest the forest rights and occupation in forest land
Page 56 56
in forest dwelling STs and other TFDs who have been residing in
such forests for generations but whose rights could not be
recorded and to provide for a framework for recording the forest
rights so vested and the nature of evidence required for such
recognition and vesting in respect of forest land. The Act also
states that the recognized rights of the forest dwelling STs and
other TFDs include the responsibilities and authority for
sustainable use, conservation of bio-diversity and maintenance of
ecological balance and thereby strengthening the conservation
regime of the forests while ensuring livelihood and food security
of the forest dwelling STs and other TFDs. The Act also noticed
that the forest rights on ancestral lands and their habitat were not
adequately recognized in the consolidation of State forests during
the colonial period as well as in independent India resulting in
historical injustice to them, who are integral to the very survival
and sustainability of the forest ecosystem.
42.The Statement of Objects and Reasons of the Act states that
forest dwelling tribal people and forests are inseparable and that
the simplicity of tribals and their general ignorance of modern
Page 57 57
regulatory framework precluded them from asserting their
genuine claims to resources in areas where they belong and
depended upon and that only recently that forest management
regimes have initiated action to recognize the occupation and
other right of the forest dwellers. Of late, we have realized that
forests have the best chance to survive if communities participate
in their conservation and regeneration measures. The Legislature
also has addressed the long standing and genuine felt need of
granting a secure and inalienable right to those communities
whose right to life depends on right to forests and thereby
strengthening the entire conservation regime by giving a
permanent stake to the STs dwelling in the forests for generations
in symbiotic relationship with the entire ecosystem.
43.We, have to bear in mind the above objects and reasons,
while interpreting various provisions of the Forest Rights Act,
which is a social welfare or remedial statute. The Act protects a
wide range of rights of forest dwellers and STs including the
customary rights to use forest land as a community forest
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resource and not restricted merely to property rights or to areas
of habitation.
44.Forest rights of forest dwelling STs and other TFDs are dealt
with in Chapter II of the Act. Section 3 of that chapter lists out
what are the forest rights for the purpose of the Act. Following
are some of the rights which have been recognized under the Act:
(a) Right to hold and live in the forest land
under the individual or common occupation for
habitation or for self-cultivation for livelihood by
a member or members of a forest dwelling
Scheduled Tribe or other traditional forest
dwellers;
(b) Community rights such as nistar, by
whatever name called, including those used in
erstwhile Princely States, Zamindari or such
intermediary regimes;
(c) Right of ownership access to collect, use,
and dispose of minor forest produce which has
been traditionally collected within or outside
village boundaries;
(d) Other community rights of uses or
entitlement such as fish and other products of
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water bodies, grazing (both settled or
transhumant) and traditional seasonal resource
access of nomadic or pastoralist communities;
(e) Rights, including community tenures of
habitat and habitation for primitive tribal groups
and pre-agricultural communities
(f)----------
(g) -----------
(h) Rights of settlement and conversion of all
forest villages, old habitation, unsurveyed
villages and other villages in forests, whether
recorded, notified or not into revenue villages;
(i)Right to protect, regenerate or conserve or
manage any community forest resource which
they have been traditionally protecting and
conserving for sustainable use;
(j)Rights which are recognized under any State law
or laws of any Autonomous District Council or
Autonomous Regional Council or which are
accepted as rights of tribals under any traditional
or customary law of the concerned tribes of any
State;
(k) Right of access to bio-diversity and
community right to intellectual property and
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traditional knowledge related to bio-diversity and
cultural diversity;
(l)Any other traditional right customarily enjoyed
by the forest dwelling Scheduled Tribes or other
traditional forest dwellers, as the case may be,
which are not mentioned in clauses (a) to (k) but
excluding the traditional right of hunting or
trapping or extracting a part of the body of any
species of wild animal.
45.The above section has to be read along with a definition
clause. Section 2(a) defines “community forest resource”:
“(a)“Community Forest Resource” means customary
common forest land within the traditional or customary
boundaries of the village or seasonal use of landscape in
the case of pastoral communities, including reserved
forests, protected forests and protected areas such
Sanctuaries and National Parks to which the community
had traditional access.”
“Critical wildlife habitat” is defined under Section 2(b) of the Act,
which reads as follows:
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“(b)“critical wildlife habitat” means such areas of
National Parks and Sanctuaries where it has been
specifically and clearly established, case by case, on the
basis of scientific and objective criteria, that such areas
are required to be kept as inviolate for the purposes of
wildlife conservation as may be determined and notified
by the Central Government in the Ministry of Environment
and Forests after open process of consultation by an
Expert Committee, which includes experts from the
locality appointed by that Government wherein a
representative of the Ministry of Tribal Affairs shall also be
included, in determining such areas according to the
procedural requirement arising from sub-sections (1) and
(2) of Section 4.”
“Forest dwelling Scheduled Tribes” is defined under Section 2(c) of
the Act, which reads as follows:
“(c)“Forest dwelling Scheduled Tribes” means the
members or community of the Scheduled Tribes who
primarily reside in and who depend on the forests or
forest lands for bona fide livelihood needs and includes
the Scheduled Tribe Pastoralist communities.”
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“Forest land” is described under Section 2(d), which reads as
follows:
“(d)“forest land” means land of any description falling
within any forest area and includes unclassified forests,
undemarcated forests, existing or deemed forests,
protected forests, reserved forests, sanctuaries and
National Parks.”
“Gram Sabha” is defined under Section 2(g), which reads as
follows:
“(g)“Gram Sabha” means a village assembly which
shall consist of all adult members of a village and in case
of States having no Panchayats, Padas, Tolas and other
traditional village institutions and elected village
committees, with full and unrestricted participation of
women.”
“Habitat” is defined under Section 2(h), which reads as follows:
“(h)“habitat” includes the area comprising the
customary habitat and such other habitats in reserved
forests and protected forests of primitive tribal groups
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and pre-agricultural communities and other forest
dwelling Scheduled Tribes.”
“Scheduled Areas” is described under Section 2(m), which reads
as follows:
“(m)“Scheduled Areas” means the Scheduled Areas referred
to in clause (1) of Article 244 of the Constitution.”
“Sustainable use” is described under Section 2(n), which reads as
follows:
“(n)“sustainable use” shall have the same meaning as
assigned to it in clause (o) of Section 2 of Biological Diversity
Act, 2002 (18 of 2003).”
46.Chapter III of the Act deals with recognition, restoration and
vesting of forest rights and related matters. Section 4 of that
chapter deals with recognition of, and vesting of, forest rights in
forest dwelling STs and other TFDs. Section 5 lists out duties in
whom the forest rights vests and also the holders of forest rights
Page 64 64
empowers them to carry out duties. Those duties include
preservation of habitat from any form of destructive practices
affecting their cultural and natural heritage.
47.The definition clauses read with the above mentioned
provisions give emphasis to customary rights, rights to collect,
use and dispose of minor forest produce, community rights like
grazing cattle, community tenure of habitat and habitation for
primitive tribal groups, traditional rights customarily enjoyed etc.
Legislative intention is, therefore, clear that the Act intends to
protect custom, usage, forms, practices and ceremonies which are
appropriate to the traditional practices of forest dwellers.
48.Chapter IV of the Act deals with the authorities and
procedure for vesting of forest rights. That chapter has only one
section i.e. Section 6, which has to be read along with The
Scheduled Tribes and Other Traditional Forest Dwellers
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(Recognition of Forest Rights) Amendment Rules, 2007 and the
Amendment Rules 2012.
49.Ministry of Tribal Affairs has noticed several problems which
are impeding the implementation of the Act in its letter and spirit.
For proper and effective implementation of the Act, the Ministry
has issued certain guidelines and communicated to all the States
and UTs vide their letter dated 12.7.2012. The operative portion
of the same reads as follows:
“GUIDELINES:
i)Process of Recognition of Rights:
(a)The State Governments should ensure that
on receipt of intimation from the Forest
Rights Committee, the officials of the Forest
and Revenue Departments remain present
during the verification of the claims and the
evidence on the site.
b) In the event of modification or rejection of a
claim by the Gram Sabha or by the Sub-
Divisional Level Committee or the District
Level Committee, the decision on the claim
should be communicated to the claimant to
enable the aggrieved person to prefer a
petition to the Sub Divisional Level
Committee or the District Level Committee,
Page 66 66
as the case may be, within the sixty days
period prescribed under the Act and no such
petition should be disposed of against the
aggrieved person, unless he has been given a
reasonable opportunity to present his case.
c) The Sub-Divisional Level Committee or the
District Level Committee should, if deemed
necessary, remand the claim to the Gram
Sabha for reconsideration instead of rejecting
or modifying the same, in case the resolution
or the recommendation of the Gram Sabha is
found to be incomplete or prima-facie
requires additional examination.
d) In cases where the resolution passed by the
Gram Sabha, recommending a claim, is
upheld by Sub-Divisional Level committee,
but the same is not approved by the District
Level Committee, the District Level
Committee should record the reasons for not
accepting the recommendations of the Gram
Sabha and the Sub-Divisional Level
Committee, in writing, and a copy of the order
should be supplied to the claimant.
e) On completion of the process of settlement of
rights and issue of titles as specified in
Annexures II, III & IV of the Rules, the
Revenue / Forest Departments shall prepare a
final map of the forest land so vested and the
concerned authorities shall incorporate the
forest rights so vested in the revenue and
forest records, as the case may be, within the
prescribed cycle of record updation.
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f) All decisions of the Sub-Divisional Level
Committee and District Level Committee that
involve modification or rejection of a Gram
Sabha resolution/ recommendation should be
in the form of speaking orders.
g) The Sub-Divisional Level Committee or the
District Level committee should not reject any
claim accompanied by any two forms of
evidences, specified in Rule 13, and
recommended by the Gram Sabha, without
giving reasons in writing and should not insist
upon any particular form of evidence for
consideration of a claim. Fine receipts,
encroacher lists, primary offence reports,
forest settlement reports, and similar
documentation rooted in prior official
exercises, or the lack -thereof, would not be
the sole basis for rejection of any claim.
h) Use of any technology, such as, satellite
imagery, should be used to supplement
evidences tendered by a claimant for
consideration of the claim and not to replace
other evidences submitted by him in support
of his claim as the only form of evidence.
i) The status of all the claims, namely, the total
number of claims filed, the number of claims
approved by the District Level Committee for
title, the number of titles actually distributed,
the number of claims rejected, etc. should be
made available at the village and panchayat
levels through appropriate forms of
communications, including conventional
methods, such as, display of notices, beat of
drum etc.
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j) A question has been raised whether the four
hectare limit specified in Section 4(6) of the
Act, which provides for recognition of forest
rights in respect of the land mentioned in
clause (a) of sub-section (1) of section 3 of
the Act, applies to other forest rights
mentioned in Section 3(1) of the Act. It is
clarified that the four hectare limit specified
in Section 4(6) applies to rights under section
3(1)(a) of the Act only and not to any other
right under section 3(1), such as conversion
of pattas or leases, conversion of forest
villages into revenue villages etc.
ii) Minor Forest Produce :
(a) The State Government should ensure that the
forest rights relating to MFPs under Section
3(1)(c) of the Act are recognized in respect of
all MFPs, as defined under Section 2(i) of the
Act, in all forest areas, and state policies are
brought in alignment with the provisions of
the Act. Section 2(i) of the Act defines the
term “minor forest produce” to include "all
non-timber produce of plant origin, including
bamboo, brush wood, stumps, cane, tussar,
cocoons, honey, wax, lac, tendu or kendu
leaves, medicinal plants and herbs, roots,
tubers, and the like".
(b) The monopoly of the Forest Corporations in
the trade of MFP in many States, especially in
case of high value MFP, such as, tendu patta,
is against the spirit of the Act and should
henceforth be done away with.
c) The forest right holders or their cooperatives/
federations should be allowed full freedom to
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sell such MFPs to anyone or to undertake
individual or collective processing, value
addition, marketing, for livelihood within and
outside forest area by using locally
appropriate means of transport.
d) The State Governments should exempt
movement of all MFPs from the purview of the
transit rules of the State Government and, for
this purpose, the transit rules be amended
suitably. Even a transit permit from Gram
Sabha should not be required. Imposition of
any fee/charges/royalties on the processing,
value addition, marketing of MFP collected
individually or collectively by the
cooperatives/ federations of the rights holders
would also be ultra vires of the Act.
(e) The State Governments need to play the
facilitating role in not only transferring
unhindered absolute rights over MFP to forest
dwelling Scheduled Tribes and other
traditional forest dwellers but also in getting
them remunerative prices for the MFP,
collected and processed by them.
iii)Community Rights :
(a) The District Level Committee should ensure
that the records of prior recorded nistari or
other traditional community rights (such as
Khatian part II in Jharkhand, and traditional
forest produce rights in Himachal and
Uttarakhand) are provided to Gram Sabhas,
and if claims are filed for recognition of such
age-old usufructory rights, such claims are
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not rejected except for valid reasons, to be
recorded in writing, for denial of such
recorded rights;
(b) The District Level Committee should also
facilitate the filing of claims by pastoralists
before the concerned Gram Sabha (s) since
they would be a floating population for the
Gram Sabha(s) of the area used traditionally.
(c) In view of the differential vulnerability of
Particularly Vulnerable Tribal Groups (PTGs)
amongst the forest dwellers, District Level
Committee should play a pro-active role in
ensuring that all PTGs receive habitat rights
in consultation with the concerned PTGs’
traditional institutions and their claims for
habitat rights are filed before the concerned
Gram Sabhas.
(d) The forest villages are very old entities, at
times of pre-independent era, duly existing in
the forest records. The establishment of these
villages was in fact encouraged by the forest
authorities in the pre-independent era for
availability of labour within the forest areas.
The well defined record of each forest village,
including the area, number of inhabitants,
etc. exists with the State Forest Departments.
There are also unrecorded settlements and
old habitations that are not in any
Government record. Section 3(1)(h) of the Act
recognizes the right of forest dwelling
Scheduled Tribes and other traditional forest
dwellers relating to settlement and
conversion on forest villages, old habitation,
un-surveyed villages and other villages and
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forests, whether recorded, notified or not into
revenue villages. The conversion of all forest
villages into revenue villages and recognition
of the forest rights of the inhabitants thereof
should actually have been completed
immediately on enactment of the Act. The
State Governments may, therefore, convert
all such erstwhile forest villages, unrecorded
settlements and old habitations into revenue
villages with a sense of urgency in a time
bound manner. The conversion would include
the actual land-use of the village in its
entirety, including lands required for current
or future community uses, like, schools,
health facilities, public spaces etc. Records of
the forest villages maintained by the Forest
Department may thereafter be suitably
updated on recognition of this right.
iv) Community Forest Resource Rights:
(a) The State Government should ensure that the
forest rights under Section 3(1)(i) of the Act
relating to protection, regeneration or
conservation or management of any
community forest resource, which forest
dwellers might have traditionally been
protecting and conserving for sustainable use,
are recognized in all villages and the titles are
issued as soon as the prescribed Forms for
claiming Rights to Community Forest
Resource and the Form of Title for Community
Forest Resources are incorporated in the
Rules. Any restriction, such as, time limit, on
use of community forest resources other than
what is traditionally imposed would be
against the spirit of the Act.
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b) In case no community forest resource rights
are recognized in a village, the reasons for
the same should be recorded. Reference can
be made to existing records of community
and joint forest management, van
panchayats, etc. for this purpose.
c) The Gram Sabha would initially demarcate the
boundaries of the community forest resource
as defined in Section 2(a) of the Act for the
purposes of filing claims for recognition of
forest right under Section 3(1)(i) of the Act.
d) The Committees constituted under Rule 4(e) of
the Forest Rights Rules, 2008 would work
under the control of Gram Sabha. The State
Agencies should facilitate this process.
e) Consequent upon the recognition of forest
right in Section 3(i) of the Act to protect,
regenerate or conserve or manage any
community forest resource, the powers of the
Gram Sabha would be in consonance with the
duties as defined in Section 5(d), wherein the
Gram Sabha is empowered to regulate access
to community forest resources and stop any
activity which adversely affects the wild
animals, forest and the bio-diversity. Any
activity that prejudicially affects the wild-life,
forest and bio-diversity in forest area would
be dealt with under the provisions of the
relevant Acts.
v) Protection Against Eviction, Diversion of
Forest Lands and Forced Relocation :
(a) Section 4(5) of the Act is very specific and
provides that no member of a forest dwelling
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Scheduled Tribe or other traditional forest
dwellers shall be evicted or removed from the
forest land under his occupation till the
recognition and verification procedure is
complete. This clause is of an absolute nature
and excludes all possibilities of eviction of
forest dwelling Scheduled Tribes or other
traditional forest dwellers without settlement
of their forest rights as this Section opens
with the words “Save as otherwise provided”.
The rationale behind this protective clause
against eviction is to ensure that in no case a
forest dweller should be evicted without
recognition of his rights as the same entitles
him to a due compensation in case of
eventuality of displacement in cases, where
even after recognition of rights, a forest area
is to be declared as inviolate for wildlife
conservation or diverted for any other
purpose. In any case, Section 4(1) has the
effect of recognizing and vesting forest rights
in eligible forest dwellers. Therefore, no
eviction should take place till the process of
recognition and vesting of forest rights under
the Act is complete.
(b) The Ministry of Environment & Forests, vide
their letter No.11-9/1998-FC(pt.) dated
30.07.2009, as modified by their subsequent
letter of the same number dated 03.08.2009,
has issued directions, requiring the State/ UT
Governments to enclose certain evidences
relating to completion of the process of
settlement of rights under the Scheduled
Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006, while
formulating unconditional proposals for
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diversion of forest land for non-forest
purposes under the Forest (Conservation) Act,
1980. The State Government should ensure
that all diversions of forest land for non-forest
purposes under the Forest (Conservation) Act,
1980 take place in compliance with the
instructions contained in the Ministry of
Environment & Forest’s letter dated
30.07.2009, as modified on 03.08.2009.
(c) There may be some cases of major diversions
of forest land for non-forest purposes under
the Forest (Conservation) Act, 1980 after the
enactment of the Scheduled Tribes and other
Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006 but before the issue
of Ministry of Environment & Forests’ letter
dated 30.07.2009, referred to above. In case,
any evictions of forest dwelling Scheduled
Tribes and other traditional forest dwellers
have taken place without settlement of their
rights due to such major diversions of forest
land under the Forest (Conservation) Act,
1980, the District Level Committees may be
advised to bring such cases of evictions, if
any, to the notice of the State Level
Monitoring Committee for appropriate action
against violation of the provisions contained
in Section 4(5) of the Act.
(d) The Act envisages the recognition and vesting
of forest rights in forest dwelling Scheduled
Tribes and other traditional forest dwellers
over all forest lands, including National Parks
and Sanctuaries. Under Section 2(b) of the
Act, the Ministry of Environment & Forests is
responsible for determination and notification
of critical wildlife habitats in the National
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Parks and Sanctuaries for the purpose of
creating inviolate areas for wildlife
conservation, as per the procedure laid down.
In fact, the rights of the forest dwellers
residing in the National Parks and Sanctuaries
are required to be recognized without waiting
of notification of critical wildlife habitats in
these areas. Further, Section 4(2) of the Act
provides for certain safeguards for protection
of the forest rights of the forest rights holders
recognized under the Act in the critical
wildlife habitats of National Parks and
Sanctuaries, when their rights are either to be
modified or resettled for the purposes of
creating inviolate areas for wildlife
conservation. No exercise for modification of
the rights of the forest dwellers or their
resettlement from the National Parks and
Sanctuaries can be undertaken, unless their
rights have been recognized and vested
under the Act. In view of the provisions of
Section 4(5) of the Act, no eviction and
resettlement is permissible from the National
Parks and sanctuaries till all the formalities
relating to recognition and verification of their
claims are completed. The State/ UT
Governments may, therefore, ensure that the
rights of the forest dwelling Scheduled Tribes
and other traditional forest dwellers, residing
in National Parks and Sanctuaries are
recognized first before any exercise for
modification of their rights or their
resettlement, if necessary, is undertaken and
no member of the forest dwelling Scheduled
Tribe or other traditional forest dweller is
evicted from such areas without the
settlement of their rights and completion of
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all other actions required under section 4 (2)
of the Act.
(e) The State Level Monitoring Committee should
monitor compliance of the provisions of
Section 3(1)(m) of the Act, which recognizes
the right to in situ rehabilitation including
alternative land in cases where the forest
dwelling Scheduled Tribes and other
traditional forest dwellers have been illegally
evicted or displaced from forest land without
receiving their legal entitlement to
rehabilitation, and also of the provisions of
Section 4(8) of the Act, which recognizes their
right to land when they are displaced from
their dwelling and cultivation without land
compensation due to State development
interventions.
vi) Awareness-Raising, Monitoring and Grievance
Redressal:
a)Each State should prepare suitable
communication and training material in
local language for effective
implementation of the Act.
b) The State Nodal Agency should ensure that
the Sub Divisional Level Committee and the
District Level Committee make district-wise
plans for trainings of revenue, forest and
tribal welfare departments' field staff,
officials, Forest Rights Committees and
Panchayat representatives. Public meetings
for awareness generation in those villages
where process of recognition is not complete
need to be held.
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c) In order to generate awareness about the
various provisions of the Act and the Rules,
especially the process of filing petitions, the
State Government should organize public
hearings on local bazaar days or at other
appropriate locations on a quarterly basis till
the process of recognition is complete. It will
be helpful if some members of Sub Divisional
Level Committee are present in the public
hearings. The Gram Sabhas also need to be
actively involved in the task of awareness
raising.
d) If any forest dwelling Scheduled Tribe in case
of a dispute relating to a resolution of a Gram
Sabha or Gram Sabha through a resolution
against any higher authority or Committee or
officer or member of such authority or
Committee gives a notice as per Section 8 of
the Act regarding contravention of any
provision of the Act or any rule made
thereunder concerning recognition of forest
rights to the State Level Monitoring
Committees, the State Level Monitoring
Committee should hold an inquiry on the
basis of the said notice within sixty days from
the receipt of the notice and take action, if
any, that is required. The complainant and
the Gram Sabha should be informed about
the outcome of the inquiry.”
Forest Rights Act and MMRD Act:
Page 78 78
50.State of Orissa has maintained the stand that the State has
the ownership over the mines and minerals deposits beneath the
forest land and that the STs and other TFDs cannot raise any
claim or rights over them, nor the Gram Sabha has any right to
adjudicate such claims. This Court in Amritlal Athubhai Shah
and Ors. v. Union Government of India and Another (1976)
4 SCC 108, while dealing with the scope of Mines and Minerals
(Regulation and Development) Act, 1957 held as follows:
“3.……the State Government is the “owner of
minerals” within its territory, and the minerals “vest” in it.
There is nothing in the Act or the Rules to detract from
this basic fact. That was why the Central Government
stated further in its revisional orders that the State
Government had the “inherent right to reserve any
particular area for exploitation in the public sector”. It is
therefore quite clear that, in the absence of any law or
contract etc to the contrary, bauxite, as a mineral, and
the mines thereof, vest in the State of Gujarat and no
person has any right to exploit it otherwise then in
accordance with the provisions of the Act and the
Rules……….”
Page 79 79
The Forest Rights Act, neither expressly nor impliedly, has taken
away or interfered with the right of the State over mines or
minerals lying underneath the forest land, which stand vested in
the State. State holds the natural resources as a trustee for the
people. Section 3 of the Forest Rights Act does not vest such
rights on the STs or other TFDs. PESA Act speaks only of minor
minerals, which says that the recommendation of Gram Sabha
shall be made mandatory prior to grant of prospecting licence or
mining lease for minor minerals in the Scheduled Areas.
Therefore, as held by this Court in Amritlal (supra), the State
Government has the power to reserve any particular area for
Bauxite mining for a Public Sector Corporation.
Gram Sabha and other Authorities:
51.Under Section 6 of the Act, Gram Sabha shall be the
authority to initiate the process for determining the nature and
extent of individual or community forest rights or both and that
may be given to the forest dwelling STs and other TFDs within the
Page 80 80
local limits of the jurisdiction. For the said purpose it receive
claims, and after consolidating and verifying them it has to
prepare a plan delineating the area of each recommended claim
in such manner as may be prescribed for exercise of such rights.
The Gram Sabha shall, then, pass a resolution to that effect and
thereafter forward a copy of the same to the Sub-Divisional Level
Committee. Any aggrieved person may move a petition before the
Sub-Divisional Level Committee against the resolution of the
Gram Sabha. Sub-section (4) of Section 6 confers a right on the
aggrieved person to prefer a petition to the District Level
Committee against the decision of the Sub-Divisional Level
Committee. Sub-section (7) of Section 6 enables the State
Government to constitute a State Level Monitoring Committee to
monitor the process of recognition and vesting of forest rights and
to submit to the nodal agency. Such returns and reports shall be
called for by that agency.
52.Functions of the Gram Sabha, Sub-Divisional Level
Committee, District Level Committee, State Level Monitoring
Page 81 81
Committee and procedure to be followed and the process of
verification of claims etc. have been elaborately dealt with in
2007 Rules read with 2012 Amendment Rules. Elaborate
procedures have therefore been laid down by Forest Rights Act
read with 2007 and 2012 Amendment Rules with regard to the
manner in which the nature and extent of individual or customary
forest rights or both have to be decided. Reference has already
been made to the details of forest rights which have been
conferred on the forest dwelling STs as well as TFDs in the earlier
part of the Judgment.
Individual/Community Rights
53.Forest Rights Act prescribed various rights to tribals/forest
dwellers as per Section 3 of the Act. As per Section 6 of the Act,
power is conferred on the Gram Sabha to process for determining
the nature and the extent of individual or community forests read
with or both that may be given to forest dwelling STs and other
TFDs, by receiving claims, consolidate it, and verifying them and
preparing a map, delineating area of each recommended claim in
Page 82 82
such a manner as may be prescribed. The Gram Sabha has
received a large number of individual claims and community
claims from the Rayagada District as well as the Kalahandi
District. From Rayagada District Gram Sabha received 185
individual claims, of -which 145 claims have been considered and
settled by granting alternate rights over 263.5 acres of land. 40
Individual claims pending before the Gram Sabha pertain to areas
which falls outside the mining lease area. In respect of Kalahandi
District 31 individual claims have been considered and settled by
granting alternate rights over an area of 61 acres.
54.Gram Sabha has not received any community claim from the
District of Rayagada. However, in respect of Kalahandi District 6
community claims had been received by the Gram Sabha of which
3 had been considered and settled by granting an alternate area
of 160.55 acres. The balance 3 claims are pending consideration.
Customary and Religious Rights (Sacred Rights)
Page 83 83
55.Religious freedom guaranteed to STs and the TFDs under
Articles 25 and 26 of the Constitution is intended to be a guide to
a community of life and social demands. The above mentioned
Articles guarantee them the right to practice and propagate not
only matters of faith or belief, but all those rituals and
observations which are regarded as integral part of their religion.
Their right to worship the deity Niyam-Raja has, therefore, to be
protected and preserved.
56.Gram Sabha has a role to play in safeguarding the customary
and religious rights of the STs and other TFDs under the Forest
Rights Act. Section 6 of the Act confers powers on the Gram
Sabha to determine the nature and extent of “individual” or
“community rights”. In this connection, reference may also be
made to Section 13 of the Act coupled with the provisions of PESA
Act, which deal with the powers of Gram Sabha. Section 13 of the
Forest Rights Act reads as under:
“13. Act not in derogation of any other law . –
Save as otherwise provided in this Act and the
Page 84 84
provisions of the Panchayats (Extension of the
Scheduled Areas) Act, 1996 (40 of 1996), the
provisions of this Act shall be in addition to and not in
derogation of the provisions of any other law for the
time being in force.”
57.PESA Act has been enacted, as already stated, to provide for
the extension of the provisions of Part IX of the Constitution
relating to Panchayats to the Scheduled Areas. Section 4(d) of
the Act says that every Gram Sabha shall be competent to
safeguard and preserve the traditions, customs of the people,
their cultural identity, community resources and community mode
of dispute resolution. Therefore, Grama Sabha functioning under
the Forest Rights Act read with Section 4(d) of PESA Act has an
obligation to safeguard and preserve the traditions and customs
of the STs and other forest dwellers, their cultural identity,
community resources etc., which they have to discharge following
Page 85 85
the guidelines issued by the Ministry of Tribal Affairs vide its letter
dated 12.7.2012.
58.We are, therefore, of the view that the question whether STs
and other TFDs, like Dongaria Kondh, Kutia Kandha and others,
have got any religious rights i.e. rights of worship over the
Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the
hill top known as Niyam-Raja, have to be considered by the Gram
Sabha. Gram Sabha can also examine whether the proposed
mining area Niyama Danger, 10 km away from the peak, would in
any way affect the abode of Niyam-Raja. Needless to say, if the
BMP, in any way, affects their religious rights, especially their
right to worship their deity, known as Niyam Raja, in the hills top
of the Niyamgiri range of hills, that right has to be preserved and
protected. We find that this aspect of the matter has not been
placed before the Gram Sabha for their active consideration, but
only the individual claims and community claims received from
Rayagada and Kalahandi Districts, most of which the Gram Sabha
has dealt with and settled.
Page 86 86
59.The Gram Sabha is also free to consider all the community,
individual as well as cultural and religious claims, over and above
the claims which have already been received from Rayagada and
Kalahandi Districts. Any such fresh claims be filed before the
Gram Sabha within six weeks from the date of this Judgment.
State Government as well as the Ministry of Tribal Affairs,
Government of India, would assist the Gram Sabha for settling of
individual as well as community claims.
60.We are, therefore, inclined to give a direction to the State of
Orissa to place these issues before the Gram Sabha with notice to
the Ministry of Tribal Affairs, Government of India and the Gram
Sabha would take a decision on them within three months and
communicate the same to the MOEF, through the State
Page 87 87
Government. On the conclusion of the proceeding before the
Gram Sabha determining the claims submitted before it, the MoEF
shall take a final decision on the grant of Stage II clearance for
the Bauxite Mining Project in the light of the decisions of the Gram
Sabha within two months thereafter.
61.The Alumina Refinery Project is well advised to take steps to
correct and rectify the alleged violations by it of the terms of the
environmental clearance granted by MoEF. Needless to say that
while taking the final decision, the MoEF shall take into
consideration any corrective measures that might have been
taken by the Alumina Refinery Project for rectifying the alleged
violations of the terms of the environmental clearance granted in
its favour by the MoEF.
62.The proceedings of the Gram Sabha shall be attended as an
observer by a judicial officer of the rank of the District Judge,
nominated by the Chief Justice of the High Court of Orissa who
Page 88 88
shall sign the minutes of the proceedings, certifying that the
proceedings of the Gram Sabha took place independently and
completely uninfluenced either by the Project proponents or the
Central Government or the State Government.
63.The Writ Petition is disposed of with the above directions.
Communicate this order to the Ministry of Tribal Affairs, Gram
Sabhas of Kalahandi and Rayagada Districts of Orissa and the
Chief Justice of High Court of Orissa, for further follow up action.
…………………… ...……J.
(Aftab Alam)
…………………… .……..J.
(K.S. Radhakrishnan)
……………… .……..……J.
(Ranjan Gogoi)
New Delhi,
April 18, 2013
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