Case Summary
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Full Case Details
K.S. Panicker Radhakrishnan, J.:
- 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 involved within an area of 10 kms. The 4th 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 4th Respondent
for 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. - 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…
249 - 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 obtainedbefore starting
mining operation in that area. No mining shall be undertaken in the forest area
without obtaining requisite prior forestry clearance. - 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:
VIII. Factors Dictating Decision on Stage-II Clearance
I have considered three broad factors while arriving at my decision. - 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 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
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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. - 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, with reference to the environmental
clearance granted for the aluminum refinery, on p.7 of its Report dated 16th 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.
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 19th,
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 22nd, 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
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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 challenged the project before the National
Environment Appellate Authority (NEAA). [Kumati Majhi and Ors. v. Ministry of
Environment and Forest, Srabbu Sikka and Ors. v. Ministry of Environment and
Forests, R. Sreedhar v. Ministry of Environment and Forest, Prafulla Samantara v.
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 25th May, 2010:
On 25th 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:
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 theproject proponents.
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However out of these 11 had not been granted a mining license while 2 had
only received TORs and only 1 had received clearance. - 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 8th, 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 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 by 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.
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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 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. - 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
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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 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. - 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
referable to 4th 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. - 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 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.
255 - Shri C.U. Singh, learned senior counsel appearing for the 3rd 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. 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. - 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 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 3rd 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 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
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customary right to worship the mountains in exercise of their traditional rights, which
would be robed of if mining is permitted in Niyamgiri hills. - 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. - 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.
Judicial Evaluation - 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. - 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 Court accepted the affidavits filed by them and granted clearance to the
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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. - 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. - 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 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. - 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
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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 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 ofaccording
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. - FAC, in its meeting, opined that the final clearance under the Forest
(Conservation) Act would be given, only after ascertaining 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. - 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 provision or a condition of environmental clearance by one cannot be a
relevant consideration for grant of Stage II clearance to the other. - 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
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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 mainly on the rights of the Scheduled Tribes
and the “Traditional Forest Dwellers” under the Forest Rights Act.
STs and TFDs: - 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 13th 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. - Before we examine the scope of the Forest Rights Act, let us examine, how the
rights of indigenous people are generally viewed under our Constitution and the
various International Conventions.
Constitutional Rights and Conventions: - 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 MANU/SC/1325/1997 : (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
Scheduled Tribes and ensuring distributive justice as an integral scheme thereof. The
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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. - 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 (73rd 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 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 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 onethird of the total number of seats. - 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.
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Rakesh Kumar MANU/SC/0021/2010 : (2010) 4 SCC 50 and this Court upheld the
Constitutional validity. - 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. Subclause
(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 and authority necessary to function as institutions of SelfGovernment. - 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). - 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 preserve and maintain knowledge, innovation and practices of
the local communities relevant for conservation and sustainable use of biodiversity,
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
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to maintain their distinctive spiritual relationship with their traditionally owned or
otherwise occupied and used lands. - 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 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. - 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 - The Forest Rights Act was enacted by the Parliament to recognize and vest the
forest rights and occupation in forest land 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. - 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 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
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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. - 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 resource and not restricted merely to
property rights or to areas of habitation. - 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… - 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 empowers
them to carry out duties. Those duties include preservation of habitat from any form
of destructive practices affecting their cultural and natural heritage. - 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. - 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.
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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, 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.
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
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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.
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 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
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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 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 preindependent 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 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
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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;
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 Scheduled Tribe or other traditional forest dw ellers shall be
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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 diversion of forest land for nonforest
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 forestdwellers 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
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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 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 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
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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.
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: - 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 Anr. MANU/SC/0037/1976 : (1976) 4 SCC 108, while
dealing with the scope of Mines and Minerals (Regulation and Development) Act,
1957 held as follows: - …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….
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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: - 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
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 SubDivisional 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. - Functions of the Gram Sabha, Sub-Divisional Level Committee, District Level
Committee, State Level Monitoring 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 - 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
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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 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. - 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) - 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. - 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: - Act not in derogation of any other law.- Save as otherwise provided in this
Act and the 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. - 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
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other forest dwellers, their cultural identity, community resources etc., which they
have to discharge following the guidelines issued by the Ministry of Tribal Affairs
vide its letter dated 12.7.2012. - We are, therefore, of the view that the question whether STs and other TFDs, like
Dongaria Kondh, Kutia Kandha and Ors. 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. - 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. - 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 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. - 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. - 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 shall sign the minutes of the proceedings, certifying that the
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proceedings of the Gram Sabha took place independently and completely
uninfluenced either by the Project proponents or the Central Government or the State
Government. - 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
