Supreme Court of India
ORISSA MINING CORPORATIONversusMINISTRY OF ENVIRONMENT & FOREST & OTHERS
- Citation
- 2013 INSC 267
- Decided
- 18 April 2013
- Disposal
- Disposed off
- Bench
- AFTAB ALAM
Holding
The Court held that the Gram Sabha must first determine the individual and community forest rights, including cultural and religious rights of the Scheduled Tribes and Traditional Forest Dwellers, before the Ministry of Environment and Forests can grant Stage‑II clearance for the bauxite mining project.
Summary
The Supreme Court considered a writ petition filed by Orissa Mining Corporation (OMC) seeking to quash the Ministry of Environment and Forests' (MoEF) order rejecting Stage‑II forest clearance for diversion of 660.749 hectares of forest land for a bauxite mining project in the Niyamgiri hills. The Court examined whether the Alumina Refinery Project and the Bauxite Mining Project constitute a single integrated unit and whether violations in the former can affect clearance of the latter. It held that the rights of the Scheduled Tribes and other Traditional Forest Dwellers under the Forest Rights Act, including their cultural and religious rights to worship Niyam‑Raja, must be determined by the Gram Sabha before any clearance can be granted. Accordingly, the Court directed the State of Orissa to refer the pending community, individual, cultural and religious claims to the Gram Sabha, which must decide within three months and forward its decision to MoEF. The Ministry shall then decide on Stage‑II clearance within two months, and the petition was disposed with these directions.
Issues considered
- The legality of rejecting Stage‑II forest clearance on the ground of alleged violations of the Forest Rights Act, Environmental Protection Act and Forest Conservation Act
- Whether the Alumina Refinery Project and the Bauxite Mining Project are separate and independent or constitute an integrated unit for the purpose of environmental clearance
- The authority of the Gram Sabha under the Forest Rights Act and PESA Act to determine individual and community forest rights, including cultural and religious rights of Scheduled Tribes and Traditional Forest Dwellers
- The extent of State ownership over minerals under the Mines and Minerals (Regulation and Development) Act vis‑à‑vis the rights of forest‑dwelling tribes
- The procedural propriety of MoEF's order in light of earlier Supreme Court judgments in the Vedanta and Sterlite cases
Legislation cited
- Environmental Protection Act, 1986
- Forest (Conservation) Act, 1980s. 2
- Mines and Minerals (Regulation and Development) Act, 1957s. 3
- Panchayat (Extension to Scheduled Areas) Act, 1996s. 4(d)
- Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006s. 13, s. 2(a), s. 2(b), s. 2(c), s. 2(d), s. 2(g), s. 2(h), s. 2(m), s. 2(n), s. 2(o), s. 3, s. 4, s. 5, s. 6
Subjects
Forest Rights ActScheduled TribesTraditional Forest DwellersGram SabhaEnvironmental clearanceBauxite miningAlumina refineryPrimitive Tribal GroupsReligious rightsPESA ActForest Conservation ActEnvironmental Protection ActMining and Minerals Regulation
Judgment
[2013) 6 S.C.R. 881
ORISSA MINING CORPORATION A
v.
MINISTRY OF ENVIRONMENT & FOREST & OTHERS
(Writ Petition (Civil) No. 180 of 2011)
APRIL 18, 2013
B
[AFTAB ALAM, K.S. RADHAKRISHNAN AND
RANJAN GOGOi, JJ.]
Scheduled Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 - Primitive Tribal C
Groups - Specific protections extended to their "habitat and
habitations" - Bauxite Mining Project (BMP) - Ministry of
Environment and Forests (MOEF) rejecting Stage-II forest
clearance for diversion of 660. 749 hectares of forest land for
mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi D
and Rayagada Districts of Orissa - Alleged violation of the
rights of the Scheduled Tribes (STs) and the "Traditional
Forest Dwellers" (TFDs) - Held: STs and other TFDs have a
vital role to play in the environmental management and
development because of their knowledge and traditional E
practices - The State has a duty to recognize and duly
support their identity, culture and interest so that they can
effectively participate in achieving sustainable development
- STs and other TFDs residing in the Scheduled Areas have
a right to maintain their distinctive spiritual relationship with F
their traditionally owned or otherwise occupied and used lands
- Central role of Gram Sabha in determining the nature and
extent of "individua/"/'community rights" of the STs and other
TFDs and in safeguarding their customary and religious rights
under the Forest Rights Act - In the instant case, question G
whether STs and other TFDs, like Dongaria Kondh, Kutia
Kandha and others, had 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, to be
881 H
882 SUPREME COURT REPORTS [2013] 6 S.C.R.
A considered by the Gram Sabha - Gram Sabha to 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 - Gram Sabha also free to consider all the
community, individual as well as cultural and religious claims,
B over and above the claims already received from Rayagada
and Kalahandi Districts - The State Government as well as
the Ministry of Tribal Affairs, Government of India, to assist
the Gram Sabha for settling of individual as well as community
claims - Gram Sabha to take decision on them within 3
C months and communicate the same to the MOEF, through the
State Government - MoEF to then take a final decision on
the grant of Stage II clearance for the Bauxite Mining Project
in light of the decision of the Gram Sabha within 2 months
thereafter - Environmental Law.
D
Scheduled Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 - Enactment of -
Object and purpose - Discussed - Held: The Act is a social
welfare or. remedial statute - It intends to protect custom,
usage, forms, practices and ceremonies which are appropriate
E to the traditional practices of forest dwellers - The Act protects
a wide range of rights of forest dwellers and STs including
customary rights to use forest land as a community forest
resource and not restricted merely to property rights or to
areas of habitation.
F
Scheduled Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 - s.6 - Nature and
extent of "individua/''!'community rights" of the Scheduled
Tribes (STs) and other ''Traditional Forest Dwellers" (TFDs)
G and their customary and religious rights - Determination of
- Role of Gram Sabha - Discussed - Held: Gram Sabha is
the authority to initiate the process for determining the nature
and extent of individual or community forest rights or both that
may be given to the forest dwelling STs and other TFDs within
H the local limits of their jurisdiction - Gram Sabha functioning
ORISSA MINING CORPORATION v. MINISTRY OF 883
ENVIRONMENT & FOREST
under the Forest Rights Act rlw s.4(d) of PESA Act has an A
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 the guidelines issued by the Ministry of
Tribal Affairs vide its letter dated 12.7.2012 - Scheduled B
Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Amendment Rules, 2007 read with the 2012
Amendment Rules - Panchayat (Extension to Scheduled
Areas) Act, 1996 - s.4(d).
Mines and Minerals (Regulation and Development) Act,
c
1957 - Right of the State over mines or minerals lying
underneath the forest land - Held: The State holds the natural
resources as a trustee for the people - s.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 . D
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 - State
Government has the power to reserve any particular area for
Bauxite mining for a Public Sector Corporation - Scheduled E
Tribes and other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006 - s.3 - Panchayat (Extension to
Scheduled Areas) Act, 1996.
The Orissa Mining Corporation (OMC), a State of F
Orissa Undertaking, 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 G
bauxite ore in Lanjigarh Bauxite Mines in Kalahandi and
Rayagada Districts of Orissa and for other consequential
reliefs.
The Stage II forest clearance for the OMC and Sterlite
bauxite mining project on the Niyamgiri Hills in Lanjigarh, H
884 SUPREME COURT REPORTS [2013] 6 S.C.R.
A Kalahandi and Rayagada districts of Orissa was rejected
by the MOEF on grounds of:- 1) violation of the rights of
the Tribal Groups including the Primitive Tribal Groups
and the Dalit Population, more particularly with reference
to the specific protections extended to their "habitat and
B habitations" under the Scheduled Tribes and other
Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006 [the Forest Rights Act]; 2) violations of the
Environmental Protection Act, 1986 and 3) violations
under the Forest Conservation Act, 1980 coupled with
c the resultant impact on the ecology and biodiversity of
the surrounding area.
The Petitioner assailed the order of MoEF dated
24.08.2010 as an attempt to reopen matters that had
obtained finality and further submitted that the order
D wrongly cited 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 was based on
the premise that the two Projects were totally separate
E 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.
F Disposing of the writ petition, the Court
HELD: 1. The 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
G show that the two projects make an integrated unit. In
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, the Alumina Refinery Project and Bauxite
H Mining Project are interdependent and inseparably linked
ORISSA MINING CORPORATION v. MINISTRY OF 885
ENVIRONMENT & FOREST
together and, hence, any wrong doing by Alumina A
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.
However, in this Judgment, this Court, does not propose
to make any final pronouncement on that issue but B
would keep the focus mainly on the rights of the
Scheduled Tribes (STs) and the "Traditional Forest
Dwellers" (TFDs) under the Forest Rights Act. [Para 30]
(921-G-H; 922-A-C]
STs and TFDs:
c
2. 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 D
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 E
communities as are defined under Article 342 to be the
Scheduled Tribes. [Para 31] (922-D-E]
Constitutional Rights and Conventions:
3.1. Article 244 (1) of the Constitution of India which F
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 G
Assam, Meqhalaya, 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 H
886 SUPREME COURT REPORTS [2013] 6 S.C.R.
A good Governance in the Scheduled Area. [Para 33] [922-
H; 923-A-B]
3.2. Section 4 of the Panchayat (Extension to
Scheduled Areas) Act, 1996 [PESA Act] stipulates that the
State legislation on Panchayats shall be made in
8
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
C cultural identity, community resources and the customary
mode of dispute resolution. [Para 36] [924-H; 925-A-B]
3.3. The customary and cultural rights of indigenous
people have also been the subject matter of various
o 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
E emphasized the necessity for the protection of social,
political and cultural rights of indigenous people. India is
a signatory to the ILO Convention (No. 107). [Para 37]
[925-E-G]
3.4. Apart from giving legitimacy to the cultural rights
F 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
G 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
H indigenous peoples which derive from their political,
ORISSA MINING CORPORATION v. MINISTRY OF 887
ENVIRONMENT & FOREST
economic and social structures and from their cultures, A·
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 B
a right to maintain their distinctive spiritual relationship
with their traditionally owned or otherwise occupied and
used lands. [Para 38] [925-G-H; 926-A-C]
3.5. STs and other TFDs have a vital role to play in
the environmental management and development C
because of their knowledge and traditional practices. The
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. [Para
39] [926-E-F] D
Samatha v. Arunachal Pradesh (1997) 8 SCC 191: 1997
(2) Suppl. SCR 305 and Union of India v. Rakesh Kumar
(2010) 4 SCC 50: 2010 (1) SCR 483 - referred to.
The Forest Rights Act E
4.1. 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 F
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 G
the forest rights so vested and the nature of evidence
required for such recognition and vesting in respect of
forest land. [Paras 40, 41] [926-G-H; 927-A-B]
4.2. The Forest Rights Act is a social welfare or
remedial statute. The Act protects a wide range of rights H
888 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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. [Para 43] [928-A-B]
4.3. Legislative intention is clear that the Act intends
8
to protect custom, usage, forms, practices and
ceremonies which are appropriate to the traditional
practices of forest dwellers. [Para 47] [932-B]
Forest Rights Act and MMRD Act:
c 5. 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. The State
holds the natural resources as a trustee for the people.
D 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
E in the Scheduled Areas. Therefore, as held by this Court
in Amritlal case while dealing with the scope of Mines and
Minerals (Regulation and Development) Act, 1957, the
State Government has the power to reserve any particular
area for Bauxite mining for a Public Sector Corporation.
F [Para 50] [944-B-D]
Amritlaf Athubhai Shah and Ors. v. Union Government
of India and Another (1976) 4 SCC 108: 1977 (1) SCR 372
- relied on.
G Gram Sabha and other Authorities:
6. Under Section 6 of the Forest Rights Act, Gram
Sabha shall be the authority to initiate the process for
determining the nature and extent of individual or
H community forest rights or both and that may be given to
ORISSA MINING CORPORATION v. MINISTRY OF 889
ENVIRONMENT & FOREST
the forest dwelling STs and other TFDs within the local A
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. [Para 51] [944-E-F] B
6.2. 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 the Scheduled Tribes and Other C
Traditional Forest Dwellers (Recognition of Forest Rights)
Amendment Rules, 2007 read with the 2012 Amendment
Rules. [Para 52] [945-B-C]
Individual/Community Rights D
7. The 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 E
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 such a manner as may be
prescribed. [Para 53] [945-E-F] F
Customarv and Religious Rights !Sacred Rights)
8.1. Religious freedom guaranteed to STs and the
TFDs under Articles 25 and 26 of the Constitution is G
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 H
890 SUPREME COURT REPORTS [2013] 6 S.C.R.
A to worship the deity Niyam-Raja has, therefore, to be
protected and preserved. [Para 55] [946-C-D]
8.2.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
8
powers on the Gram Sabha to determine the nature and
extent of "individual" or "community rights". [Para 56]
[946-E]
8.3. Gram Sabha functioning under the Forest Rights
C 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 the guidelines issued by the Ministry of Tribal
D Affairs vide its letter dated 12.7.2012. [Para 57] [947-B]
9.1. In the instant case, therefore, the question
whether STs and other TFDs, like Dongaria Kondh, Kutia
Kandha and others, have got any religious rights i.e.
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. If the
F 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. This aspect of the
matter has not been placed before the Gram Sabha for
G 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. [Para 58] [947-C-F]
H 9.2. The Gram Sabha is also free to consider all the
ORISSA MINING CORPORATION v. MINISTRY OF 891
ENVIRONMENT & FOREST
community, individual as well as cultural and religious A
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. The State
Government as well as the Ministry of Tribal Affairs, B
Government of India, would assist the Gram Sabha for
settling of individual as well as community claims. [Para
59] [947-G]
9.3. Direction is given to the State of Orissa to place C
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 conclusion of the proceeding
before the Gram Sabha determining the claims submitted D
before it, the MoEF shall take a final decision on the grant
of Stage II clearance for the Bauxite Mining l'roject in the
light of the decisions of the Gram Sabha within two
months thereafter. [Para 60] [947-H; 948-A-B]
E
9.4. 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. While taking the final decision, the MoEF shall take
into consideration any corrective measures that might F
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. [Para 61] [948-C-D]
9.5. The proceedings of the Gram Sabha shall be G
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 proceedings of the
Gram Sabha took place independently and completely H
892 SUPREME COURT REPORTS [2013] 6 S.C.R.
A uninfluenced either by the Project proponents or the
Central Government or the State Government. [Para 62]
(948-E-F]
Case Law Reference:
B 1997 (2) Suppl. SCR 305 referred to Para 33
2010 (1) SCR 483 referred to Para 35
1977 (1) SCR 372 relied on Para 50
c CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
180 of 2011.
Under Article 32 of the Constitution of India.
Mohan Parasaran, Solicitor General, Sidharth Luthra,
D ASG, K.K. Venugopal, C.U. Singh, C.A. Sundaram, Raj
Panjwani, Prashanto Chandra Sen, P.S. Sudneer, Sara
Sundram, Rishi Maheshwari, Anne Mathew, Abu John Mathew,
Ekta Kapil, Anubha Singh, Atishree Sood, Vijayalakshmi
Menon, R.S. Jena, Rohini Musa, A.D.N. Rao, Siddhartha
E Chouhdary, D.L. Chidananda, Haris Beeran, Asha G. Nair,
Aditya Singla, Gurmohan Bedi, Amer Musthaq Salim, Zoheb
Hossain, Alok Prasanna Kumar, Aarthi Rajan (for S.N. Terdal),
Binu Tamta, Rahul Chaudhary, Ritwick Dutta, Anitha Shenoy,
Sanjay Parikh, Marnia Saxena, Bushra Parveen, AN. Singh for
F the appearing parties.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. Orissa Mining Corporation
(OMC), a State of Orissa Undertaking, has approached this
G Court seeking a Writ of Certiorari to quash the order passed
by the Ministry of Environment and Forests (MOEF) dated
24.8.201 O 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 Kalahandi and Rayagada Districts
H of Orissa and also for other consequential reliefs.
ORISSA MINING CORPORATION v. MINISTRY OF 893
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J ]
2. OMC urged that the above order passed by the MOEF A
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 sec 222
[hereinafter referred to as 'Vedanta case'] and the order B
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. c
FACTS:
3. Mis. 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 D
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 E
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 F
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 Mis
Sterlite, granted environmental clearance on 22.9.2004 to ARP
on 1 million tonne per annum capacity of refinery along with 75 G
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 H
894 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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.
B 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
C 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
D 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
E the proposal for diversion of 58.943 ha. of forest land. CEC had,
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
F 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
G 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
H of India (Wll), Dehradun to study the impact of the Mining
ORISSA MINING CORPORATION v. MINISTRY OF 895
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
Project on the bio-diversity. Wll submitted its report dated A
14.06.2006 and the supplementary report dated 25.10.2006
before the MOEF. Reports of CMPDI, Wll were all considered
by the Forest Advisory Committee (FAC) on 27.10.2006 after
perusing the above mentioned reports approved the proposal
of OMC, for diversion of 660.749 ha. of forest land for the B
mining of bauxite in Kalahandi and Rayagada Districts subject
to the conditions laid down by Wll.
7. The State of Orissa had brought to the notice of this
Court about the lack of basic infrastructure facilities in the Tribal C
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 Mis. Sterlite to move the Court if they would agree to comply D
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:
"(1) State of Orissa shall float a Special Purpose E
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 F
of OMC Ltd. and they shall be audited by the Auditor
General for State of Orissa every year. M/s Siil will deposit,
every year commencing from 1-4-2007, 5% of its annual
profits before tax and interest from Lanjigarh Project or Rs
1O crores whichever is higher for Scheduled Area G
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 H
896 SUPREME COURT REPORTS (2013] 6 S.C.R.
A calculating annual profits before tax and interest Mis Sill
shall do so on the basis of the market value of the material
which is sold by OMC Ltd. to Mis Sill or its nominee.
(ii) In addition to what is stated above, M/s Sill shall
B 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 Sill shall also bear expenses towards
compensatory afforestation.
c
(iit) A statement shall be filed by M/s Sill with CEC
within eight weeks from today stating number of persons
who shall be absorbed on permanent basis in Mis Sill
including land-losers. They shall give categories in which
. D they would be permanently absorbed. The list would also
show particulars of persons who would be employed by
the contractors of Mis Sill and the period for which they
would be employed.
(iv) The State Government has the following
E
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 number, forward and back
F 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
G 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
H
ORISSA MINING CORPORATION v. MINISTRY OF 897
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
foresf' under the Orissa Forest Act, 1972 for the purpose A
of management.
4. The user agency shall undertake rehabilitation of
Project-affected families, if any, as per the Orissa
Rehabilitation and Resettlement Policy, 2006. 8
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.
c
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. o
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 E
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.
F
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 G
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
H
898 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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,
B
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
c 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
D 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.
E
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.
16. The forest land diverted shall be non-
F
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.
G If Mis Sill, 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
H 12. If Mis Sill is agreeable to the aforestated rehabilitation
ORISSA MINING CORPORATION v. MINISTRY OF 899
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
package then they shall be at liberty to move this Court by A
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.
8
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 C
the applications were disposed of, the order of which is reported
in (2008) 2 sec 222.
8. M/s. Sterlite, 3rd respondent herein, then moved an
application - being I.A. No. 2134 of 2007 - before this Court,
0
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 E
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. Nci. 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 F
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 G
on 07.05.2008.
9. This Court then passed the final order in Sterlite case
on 8.8.2008, the operative portion of which reads as follows:
H
900 SUPREME COURT REPORTS [2013] 6 S.C.R.
A "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
B 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
C 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,
D 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
E land proposed to be diverted, at the project cost.
The User Agency shall transfer the cost of
Compensatory Afforestation to the State Forest
Department.
(ii) The non-forest land identified for Compensatory
F 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
G 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.
H
ORISSA MINING CORPORATION v. MINISTRY OF 901
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.)
(iv) The reclamation of mines shall be carried out A
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
B
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 c
Supreme Court and as per the guidelines issued
vide Ministry of Environment and Forests letters No.
5-1/98-FC(Pt.il) dated 18th September 2003 and
22nd September 2003.
D
(vii) As per Hon'ble Supreme Court's order dated
23.11.2007 and 08.08.2008, Mis Sill 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 E
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 Sill shall pay F
Rs.50.53 crores towards Wildlife Management Plan
for Conservation and Management of Wildlife
around laniigarh bauxite mine.
(x) As per Hon'ble Supreme Court's order dated
23.11.2007 and 08.08.2-008, Mis Sill is required G
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 H
902 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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 Fund Management and Planning
B
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/
c 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
D Lanjigarh Project of Rs.1 O 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)
E for scheduled are!l development of Lanjigarh Project
in which the stake-holders shall be State of Orissa,
OMC Ltd. and Mis Siil. Such SPV shall be
incorporated under the Companies Act, 1956. The
Accounts of SPC shall be prepared by the Statutory
F 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.
G
(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
H State Forest Department.
ORISSA MINING CORPORATION v. MINISTRY OF 903
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J)
(xv) All efforts shall be made by the User Agency and A
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
8
Institute of India (Wll), 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, C
B.hubaneshwar.
(xvii) Any other condition that the CCF (Central), Regional
Office, Bhubaneshwar I the State Forest
Department may impose from time to time for
protection and improvement of flora and fauna in the D
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.
E
(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.
F
{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 G
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 H
904 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B ager.cy should not be effected by the State Government till
formal orders approving diversion of forest land were issued.
11. MoEF then granted environmental clearance to OMC
vide its proceedings dated 28.04.2009 subject to various
C 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
D 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."
E 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:
F "Provisions of Scheduled Tribes and other
Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006.
The Govt. of India, MOEF vide their letter dated
G 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
H
ORISSA MINING CORPORATION v. MINISTRY OF 905
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
District and on 17.03.2003 for Rayagada District. In both A
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 B
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 c
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 D
the project vide their order dated 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 FAG on 4.11.2009. FAG recommended that the final E
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. FAG also decided to constitute an Expert Group
to carry out a site inspection. Consequently, on 1.1.2010, a F
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 G
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. FAG also, on
16.4.2010, considered all the three reports and recommended
that a ,special Cq_mrQittee, under the Ministry of Tribal Affairs, H
906 SUPREME COURT REPORTS [2013] 6 S.C.R.
A be constituted to 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
8 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
C 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
D 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 report before FAC, for consideration.
E 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
F 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
G withdraVi(al 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
H
ORISSA MINING CORPORATION v. MINISTRY OF 907
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
the request for Stage-II Clearance was rejected on 24.8.2010, A
stating as follows:
"VIII. Factors Dictating Decision on Stage-II Clearance
I have considered three broad factors while arriving at my
decision. B
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
c
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 0
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 E
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 F
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 G
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. H
908 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B 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
c promise of inclusive growth and ju$tice 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 Jetter but also
in spirit.
D 2. Violations of the Environmental Protection Act
1986:
(i) Observations of the Saxena Committee and
MoE&F Records:
E
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:
F
"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
G 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
H complete violation of the EPA and is an expression
ORISSA MINING CORPORATION v. MINISTRY OF 909
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
of the contempt with which this company treats the A
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 8
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 grantee 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 C
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 D
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 E
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
F
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.
G
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
H
910 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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:
B 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 Vs Ministry of Environment. and Forest, Srabbu
c 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].
D 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
E
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.
F
(iii) Monitoring Report of the Eastern Regional
Office dated 25th May, 2010:
On 25th May 2010, Dr. VP Upadhyay (Director 'S') of the
G 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. "Mis Vedanta Alumina Limited has already
H proceeded with construction activity for expansion
ORISSA MINING CORPORATION v. MINISTRY OF 911
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
project without obtaining environmental clearance A
as per provisions of EIA [\lotification 2006 that
amounts to violation of the provisions of the
Environment (Protection) Act."
b. ''The project has not established piezometers for
8
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 C
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 0
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 E
clearance.
3. Violations under the Forest Conservation Act:
The Saxena Committee has gone into great detail
highlighting the various instance.s of violations under the F
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 G
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 H
912 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B 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
c 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
D 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
E
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.
F 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.
G 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.
H
ORISSA MINING CORPORATION v. MINISTRY OF 913
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
Separately the MoE&F is in the process of examining what A
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 B
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, 200q. An Act passed by Parliament has greater
sanctity than a Policy Statement. This is apart from the fact C
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 D
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 E
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 nof F
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 G
MoE&F, Jhis 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."
H
914 SUPREME COURT REPORTS [2013] 6 S.C.R.
A The order dated 24.8.201 O 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.
16. Shri K.K. Venugopal, learned senior counsel appearing
for OMC, referred to the earlier judgments of this Court in
8
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
C 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
D granting Stage-II clearance for the project. Learned senior
counsel also submitted that the reasons stated by the FAG 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
E 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
F 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
G 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, 1g35, are totally unrelated to the BMP. Learned senior
H
ORISSA MINING CORPORATION v. MINISTRY OF 915
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.)
counsel pointed out that Alumina Refinery is an independent A
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 B
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 c
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
0
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 E
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 reference to the religious or spiritual rights protected under F
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 G
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 3rd respondent - Sterlite, submitted that various grounds H
916 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B 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
C 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
0
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
E 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
F 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
G 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
H were constituted and the Saxena Committee in its report has
ORISSA MINING CORPORATION v. MINISTRY OF 917
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
noticed the violation of various conditions stipulated in the A
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 B
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 c
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 customar)I right to worship the
mountains in exercise of their traditional rights, which would be 0
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 E
(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 F
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.
G
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
H
918 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B 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
c the mountain which is the abode of the Dongaria Kondh and
their identity depends on the existence of Niyamgiri hills.
Judicial Evaluation
23. We may, at the outset, point out that there cannot be
-
D 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.
E 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
F 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 diversion
G 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
H Government made under Section 2 of the Forest (Conservation)
ORISSA MINING CORPORATION v. MINISTRY OF 919
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
Act, 1980 and also the recommendations of the FAC and A
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 Wll and B
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 c
would be issued under Section 2 of the Forest (Conservation)
Act, 1980.
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 D
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 E
safeguards, vide its letter dated 28A.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, F
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 G
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 H
920 SUPREME COURT REPORTS [2013] 6 S.C.R.
A WMP prepared specific to the project site and considered by
Wll shall be effectively implemented. Further, it was also
ordered that all the recommendations made by Wll for Wildlife
Management be effectively implemented and that the project
proponent would also comply with the standards prescribed by
B 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
c 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·
D
"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
E 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,
F 1980."
MOEF, it is seen, then placed the letter of the State Government
dated 10.8.2008 before the FAG 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
G process for establishing such rights under the Forest Rights Act
is completed. Dr. Usha Ramanathan Committee report was
placed before the FAG 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
H rights and the settlement of various rights under the Forest
ORISSA MINING CORPORATION v. MINISTRY OF 921
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
,_Rights Act, which led, as already indicated, to the constitution A
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 B
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
16.4.201 O recommended that a Special Committee be
constituted to look into the issues relating to the alleged C
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. D
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 E
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 F
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 G
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 H
922 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B Mining Project.
In this Judgment, however, we do not propose to make
any final pronouncement on that issue but we would keep the -
c
focus 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
D defined under Section 2(o) as any member or community who
I-
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
E
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.
F Serial No. 31 refers to Dongaria Kondh, Kutia Kandha etc.
32. Before we. examine the scope of the Forest Rights Act,
let us examine, h,ow the rights of indigenous people are
generally viewed 11nder our Constitution and the various
G 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
H Scheduled Areas and Scheduled Tribes in States (other than
ORISSA MINING CORPORATION v. MINISTRY OF 923
ENVIRONMENT.& FOREST (K.S. RADHAKRISHNAN, J.]
Assam, Meghalaya and Tripura) shall be according to the A
provisions of the Fifth Schedule and Clause (2) states that Sixth
Schedule applies to the tribal areas in Assam, Meghalaya,
Tripura and Mizor~m. Evidently, the object of the Fifth Schedule
and the Regulations made thereunder is to preserve tribal
autonomy; their cultures and economic empowerment to ensure B
social, economic and political justice for the preservation of
peace and good Governance in the Scheduled Area. This Court
in Samatha v. Arunacha/ 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 c
Constitutional objectives and dignity of person to the 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
0
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.
E
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 F
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. G
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 H
924 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
1? .01.1995 and favoured democratic, decentralization in
Scheduled Areas. Based on the recommendations, the
B 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
c
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
D 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
E 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
F 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
G 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.
36. Section 4 of the PESA Act stipulates that the State
legislation on Panchayats shall be made in consonance with
H the customary law, social and religious practices and traditional
ORISSA MINING CORPORATION v. MINISTRY OF 925
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
management practices of community resources. Clause (d) of A
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 B
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 c
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
0
endowed with the powers 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 E
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 F
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
(NQ1~. G
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 preserve and maintain knowledge , innovation and H
926 SUPREME COURT REPORTS [2013) 6 S.C.R.
A practices of the local communities relevant for conservation and
sustainable use of bio-diversity, India is a signatory to CSA.
Rio Declaration on Environment and Development Agenda 21
and Forestry principle also encourage the promotion of
customary practices conducive to conservation. The necessity
8 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
c 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.
D 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
limited contact with mainstream society. Many a times, they do
not have the financial resources to engage in any legal actions
E 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
F 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
G resources, individual rights, cultural and religious rights.
The Forest Rights Act
41. The Forest Rights Act was enacted by the Parliament
H to recognize and vest the forest rights and occupation in forest
ORISSA MINING CORPORATION v. MINISTRY OF 927
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.)
land in forest dwelling STs and other TFDs who have been, A
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 B
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 live.lihood
and food security of the forest dwelling STs and other TFDs. c
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
0
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 regulatory framework precluded them E
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 F
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 G
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
H
928 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B 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.
C 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
D 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;
E
(c) Right of ownership access to collect, use, and
dispose of minor forest produce which has been
traditionally collected within or outside village
boundaries; ·
F
(d) Other community rights of uses or entitlement such
as fish and other products of water bodies, grazing
(both settled or transhumant) and traditional
seasonal resource access of nomadic or
G pastoralist communities;
(e) Rights, including community tenures of habitat and
habitation for primitive tribal groups and pre-
agricultural communities
H (f) -----
ORISSA MINING CORPORATION v. MINISTRY OF 929
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN. J.]
(g) A
(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; B
(i) Right to protect, regenerate or conserve or manage
any community forest resource which they have
been traditionally protecting and conserving for
sustainable use;
c
(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 D
State;
(k) Right of access to bio-diversity and community right
to intellectual property and traditional knowledge
related to bio-diversi!y and cu:turnl diversity;
E
(I) 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 F
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":
G
"(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 H
930 SUPREME COURT REPORTS [2013] 6 S.C.R.
,, A 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:
B "(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
c 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
D 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."
E "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
F lands for bona fide livelihood needs and includes the
Scheduled Tribe Pastoralist communities."
"Forest land" is described under Section 2(d), which reads as
follows:
G "(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."
H
ORISSA MINING CORPORATION v. MINISTRY OF 931
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
"Gram Sabha" is defined under Section 2(g), which reads as A
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
B
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:
c
"(h) "habitat" includes the area comprising the customary
habitat and such other habitats in reserved forests and
protected forests of primitive tribal groups and pre-
agricultural communities and other forest dwelling
Scheduled Tribes." o
"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." E
"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 F
Diversity Act, 2002 (18 of 2003) ."
46. Chapter Ill 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 G
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. H
932 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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.
B 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
C section i.e. Section 6, which has to be read along with The
Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Amendment Rules, 2007 and
the Amendment Rules 2012.
D 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
E operative portion of the same reads as follows: .
"GUIDELINES:
(i) Process of Recognition of Rights:
F (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.
G (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
H prefer a petition to the Sub Divisional Level
ORISSA MINING CORPORATION v. MINISTRY OF 933
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
Committee or the District Level Committee, as the A
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. B
(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 C
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- D
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 E
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, Ill &
F
IV of the Rules, the Revenue I 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. G
(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 H
934 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B
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
c 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,
D 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
E
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
F forms of communications, including conventional
methods, such as, display of notices, beat of drum
etc.
0) A question has been raised whether the four
G 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.
H It is clarified that the four hectare limit specified in
ORISSA MINING CORPORATION v. MINISTRY OF 935
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
Section 4(6) applies to rights under section 3(1 )(a) 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.
B
(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 c
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, D
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
E
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/ F
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. G
(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
H
936 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B 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
c getting them remunerative prices for the MFP,
collected and processed by them.
(iii) Community Rights:
D (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
E
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
F 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.
G (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
H
ORISSA MINING CORPORATION v. MINISTRY OF 937
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
claims for habitat rights are filed before the A
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 B
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 C
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 D
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 E
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 F
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 G
may thereafter be suitably updated on recognition
of this right.
(iv) Community Forest Resource Rights:
(a) The State Government should ensure that the forest H
938 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B 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,
c 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
D 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
E 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
F 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
G 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
H regulate access to community forest resources and
ORISSA MINING CORPORATION v. MINISTRY OF 939
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
A
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.
B
(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 c
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
D
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 E
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 F
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. G
(b) The Ministry of Environment & Forests, vide their
letter No.11-9/1998-FC(pt.) dated 30.07 .2009, as
modified by their subsequent Jetter of the same
number dated 03.08.2009, has issued directions,
H
940 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B formulating unconditional proposals for 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
c (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
D 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 &
E 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
F 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
G 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
H
ORISSA MINING CORPORATION v. MINISTRY OF 941
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
Section 2(b) of the Act, the Ministry of Environment A
& 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 B
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 c
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
0
conservation. No exercise for modification of the
rights of the forest c!Wellers 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 E
resettlem_ent 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 F
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 G
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. H
942 SUPREME COURT REPORTS (2013] 6 S.C.R.
A (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
B 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
c displaced from their dwelling and cultivation without
land compensation due to State development
interventions.
(vi) Awareness-Raising, Monitoring and Grievance
Redressal:
D
(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
E
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
F 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
G 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
H will be helpful if some members of Sub Divisional
ORISSA MINING CORPORATION v. MINISTRY OF 943
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
Level Committee are present in the public hearings. A
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 8
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 C
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 D
should be informed about the outcome of the
inquiry."
Forest Rights Act and MMRD Act:
E
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 F
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 G
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 H
944 SUPREME COURT REPORTS [2013) 6 S.C.R.
A 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
B of the Act and the Rules .......... "
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
C 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
D Areas. Therefore, as held by this Court in Amritlal (supra), the
State Governmeni has the power to reserve any particular area
for Bauxite mining for a Public Sector Corporation.
Gram Sabha and other Authorities:
E
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 local limits of the jurisdiction. For the said purpose it receive
F 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-
G 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-
H Divisional Level Committee. Sub-section (7) of Section 6
ORISSA MINING CORPORATION v. MINISTRY OF 945
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
enables the State Government to constitute a State Level A
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 B
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 C
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. D
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 E
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 TtDs, by receiving claims, consolidate
it, and verifying them and preparing a map, delineating area
F
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 G
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 r~ect of Kalahandi District
31 individual claims have been considered and settled by
granting alternate rights over an area of 61 acres. H
9216 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B pending consideration.
Customary and Religious Rights (Sacred Rights)
55. Religious freedom guaranteed to STs and the TFDs
under Articles 25 and 26 of the Constitution is intended to be
C 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,
D 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
E 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:
F "13. 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
G 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.
H Section 4(d) of the Act says that every Gram Sabha shall be
ORISSA MINING CORPORATION v. MINISTRY OF 947
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
competent to safeguard and preserve the traditions, customs A
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 B
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.
58. We are, therefore, of the view that the question whether C
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, 1O km away from the D
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 E
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. F
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 G
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 H
948 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B 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
C 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
D 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
E Judge, nominated by the Chief Justice of the High Court of
Orissa who 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.
F 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.
G
B.B.B. Writ Petition disposed of.
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