1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 180 OF 2011

Orissa Mining Corporation Ltd. .. Petitioner

Versus

Ministry of Environment & Forest & Others .. Respondents

JUDGMENT

K. S. RADHAKRISHNAN, J.

1. Orissa Mining Corporation (OMC), a State of Orissa

Undertaking, has approached this Court seeking a Writ of

Certiorari to quash the order passed by the Ministry of

Environment and Forests (MOEF) dated 24.8.2010 rejecting the

Stage-II forest clearance for diversion of 660.749 hectares of

forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in

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Kalahandi and Rayagada Districts of Orissa and also for other

consequential reliefs.

2. OMC urged that the above order passed by the MOEF has the

effect of neutralizing two orders of this Court passed in I.A. Nos.

1324 and 1474 in Writ Petition (C) No. 202 of 1995 with I.A. Nos.

2081-2082 (arising out of Writ Petition No. 549 of 2007) dated

23.11.2007 reported in (2008) 2 SCC 222 [hereinafter referred to

as ‘Vedanta case’] and the order passed by this Court in I.A. No.

2134 of 2007 in Writ Petition No. 202 of 1995 on 08.08.2008

reported in (2008) 9 SCC 711 [hereinafter referred to as the

‘Sterlite case’]. In order to examine the issues raised in this writ

petition, it is necessary to examine the facts at some length.

FACTS:

3. M/s. Sterlite (parent company of Vedanta) filed an application

on 19.3.2003 before MOEF for environmental clearance for the

purpose of starting an Alumina Refinery Project (ARP) in Lanjigarh

Tehsil of District Kalahandi, stating that no forest land was

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involved within an area of 10 kms. The 4 th respondent – Vedanta,

in the meanwhile, had also filed an application on 6.3.2004 before

this Court seeking clearance for the proposal for use of 723.343

ha of land (including 58.943 ha of reserve forest land) in Lanjigarh

Tehsil of District Kalahandi for setting up an Alumina Refinery.

Noticing that forest land was involved, the State of Orissa

submitted a proposal dated 16.08.2004 to the MoEF for diversion

of 58.90 hectare of forest land which included 26.1234 hectare of

forest land for the said ARP and the rest for the conveyor belt and

a road to the mining site. The State of Orissa, later, withdrew that

proposal. The MoEF, as per the application submitted by M/s

Sterlite, granted environmental clearance on 22.9.2004 to ARP on

1 million tonne per annum capacity of refinery along with 75 MW

coal based CPP at Lanjigarh on 720 hectare land, by delinking it

with the mining project. Later, on 24.11.2004, the State of Orissa

informed MOEF about the involvement of 58.943 ha of forest land

in the project as against “NIL” mentioned in the environmental

clearance and that the Forest Department of Orissa had, on

5.8.2004, issued a show-cause-notice to 4th respondent for

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encroachment of 10.41 acres of forest land (out of 58.943 ha for

which FC clearance proposal was sent) by way of land breaking

and leveling.

4. The State of Orissa, on 28.2.2005 forwarded the proposal to

MOEF for diversion of 660.749 ha of forest land for mining bauxite

ore in favour of OMC in Kalahandi and Rayagada Districts. The

Central Empowered Committee (CEC), in the meanwhile,

addressed a letter dated 2.3.2005 to MOEF stating that pending

the examination of the project by CEC, the proposal for diversion

of forest land and/or mining be not decided.

5. Vedanta, however, filed an application I.A. No. 1324 of 2005

before this Court seeking a direction to the MoEF to take a

decision on the application for forest clearance for bauxite mining

submitted by the state Government on 28.2.2005 for the Refinery

project. The question that was posed by this Court while

deciding the above-mentioned I.A. was whether Vedanta should

be allowed to set up its refinery project, which involved the

proposal for diversion of 58.943 ha. of forest land. CEC had,

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however, objected to the grant of clearance sought by Vedanta on

the ground that the Refinery would be totally dependent on

mining of bauxite from Niyamgiri Hills, Lanjigarh, which was the

only vital wildlife habitat, part of which constituted elephant

corridor and also on the ground that the said project would

obstruct the proposed wildlife sanctuary and the residence of

tribes like Dongaria Kondha.

6. The Court on 03.06.2006 directed the MoEF to consult the

experts/organizations and submit a report. MoEF appointed

Central Mining Planning and Design Institute (CMPDI), Ranchi to

study the social impact of ground vibration on hydro-geological

characteristics, including ground propensity, permeability, flow of

natural resources etc. CMPDI submitted its report on 20.10.2006.

MoEF appointed the Wildlife Institute of India (WII), Dehradun to

study the impact of the Mining Project on the bio-diversity. WII

submitted its report dated 14.06.2006 and the supplementary

report dated 25.10.2006 before the MOEF. Reports of CMPDI, WII

were all considered by the Forest Advisory Committee (FAC) on

27.10.2006 after perusing the above mentioned reports approved

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the proposal of OMC, for diversion of 660.749 ha. of forest land for

the mining of bauxite in Kalahandi and Rayagada Districts subject

to the conditions laid down by WII.

7. The State of Orissa had brought to the notice of this Court

about the lack of basic infrastructure facilities in the Tribal areas

of both the districts, so also the abject poverty in which the local

people were living in Lanjigarh Tehsil, including the tribal people,

and also the lack of proper housing, hospitals, schools etc. But

this Court was not agreeable to clear the project, at the instance

of Vedanta, however, liberty was granted to M/s. Sterlite to move

the Court if they would agree to comply with the modalities

suggested by the Court. Following were the modalities suggested

by the Court, while disposing of the Vedanta case on 23.11.2007:

“(i) State of Orissa shall float a Special Purpose

Vehicle (SPV) for scheduled area development of
Lanjigarh Project in which the stakeholders shall be
State of Orissa, OMC Ltd. and M/s SIIL. Such SPV shall
be incorporated under the Companies Act, 1956. The
accounts of SPV will be prepared by the statutory
auditors of OMC Ltd. and they shall be audited by the
Auditor General for State of Orissa every year. M/s SIIL

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will deposit, every year commencing from 1-4-2007, 5%

of its annual profits before tax and interest from
Lanjigarh Project or Rs 10 crores whichever is higher for
Scheduled Area Development with the said SPV and it
shall be the duty of the said SPV to account for the
expenses each year. The annual report of SPV shall be
submitted to CEC every year. If CEC finds non-utilisation
or misutilisation of funds the same shall be brought to
the notice of this Court. While calculating annual profits
before tax and interest M/s SIIL shall do so on the basis
of the market value of the material which is sold by
OMC Ltd. to M/s SIIL or its nominee.

(ii) In addition to what is stated above, M/s SIIL

shall pay NPV of Rs 55 crores and Rs 50.53 crores
towards Wildlife Management Plan for Conservation and
Management of Wildlife around Lanjigarh bauxite mine
and Rs 12.20 crores towards tribal development. In
addition, M/s SIIL shall also bear expenses towards
compensatory afforestation.

(iii) A statement shall be filed by M/s SIIL with CEC

within eight weeks from today stating number of
persons who shall be absorbed on permanent basis in
M/s SIIL including land-losers. They shall give categories
in which they would be permanently absorbed. The list
would also show particulars of persons who would be
employed by the contractors of M/s SIIL and the period
for which they would be employed.

(iv) The State Government has the following

suggestions on this issue:

1. The user agency shall undertake

demarcation of the lease area on the ground using
four feet high cement concrete pillars with serial

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number, forward and back bearings and distance

from pillar to pillar.
2. The user agency shall make arrangements
for mutation and transfer of equivalent non-forest
land identified for compensatory afforestation to
the ownership of the State Forest Department.
3. The State Forest Department will take up
compensatory afforestation at Project cost with
suitable indigenous species and will declare the
said area identified for compensatory afforestation
as “protected forest” under the Orissa Forest Act,
1972 for the purpose of management.

4. The user agency shall undertake

rehabilitation of Project-affected families, if any, as
per the Orissa Rehabilitation and Resettlement
Policy, 2006.
5. The user agency shall undertake phased
reclamation of mined-out area. All overburden
should be used for back-filling and reclamation of
the mined-out areas.
6. The user agency shall undertake fencing of
the safety zone area and endeavour for protection
as well as regeneration of the said area. It shall
deposit funds with the State Forest Department for
the protection and regeneration of the safety zone
area.
7. Adequate soil conservation measures shall
be undertaken by the lessee on the overburdened
dumps to prevent contamination of stream flow.
8. The user agency should undertake
comprehensive study on hydrogeology of the area
and the impact of mining on the surrounding water
quality and stream flow at regular interval and
take effective measures so as to maintain the pre-
mining water condition as far as possible.

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9. The user agency should undertake a

comprehensive study of the wildlife available in
the area in association with institutes of repute like
Wildlife Institute of India, Dehradun, Forest
Research Institute, Dehradun, etc. and shall
prepare a site specific comprehensive wildlife
management plan for conservation and
management of the wildlife in the Project impact
area under the guidance of the Chief Wildlife
Warden of the State.
10. The user agency shall deposit the NPV of
the forest land sought for diversion for
undertaking mining operations.
11. The user agency shall prepare a
comprehensive plan for the development of tribals
in the Project impact area taking into consideration
their requirements for health, education,
communication, recreation, livelihood and cultural
lifestyle.
12. As per the policy of the State
Government, the user agency shall earmark 5% of
the net profit accrued in the Project to be spent for
the development of health, education,
communication, irrigation and agriculture of the
said scheduled area within a radius of 50 km.
13. Controlled blasting may be used only in
exigencies wherever needed to minimise the
impact of noise on wildlife of the area.
14. The user agency shall undertake
development of greenery by way of plantation of
suitable indigenous species in all vacant areas
within the Project.
15. Trees shall be felled from the diverted
area only when it is necessary with the strict
supervision of the State Forest Department at the
cost of the Project.

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16. The forest land diverted shall be non-

transferable. Whenever the forest land is not
required, the same shall be surrendered to the
State Forest Department under intimation to
Ministry of Environment and Forests, Government
of India.

If M/s SIIL, State of Orissa and OMC Ltd. jointly agree to

comply with the above rehabilitation package, this
Court may consider granting of clearance to the Project.

Conclusion

12. If M/s SIIL is agreeable to the aforestated

rehabilitation package then they shall be at liberty to
move this Court by initiating a proper application. This
Court is not against the Project in principle. It only
seeks safeguards by which we are able to protect
nature and subserve development. IAs are disposed of
accordingly.
However, we once again reiterate that the
applications filed by M/s VAL stand dismissed.”

The Court opined that if Sterlite, State of Orissa and OMC jointly

agree to comply with the “Rehabilitation Package”, the Court

might consider granting clearance to the project. Stating so, all

the applications were disposed of, the order of which is reported

in (2008) 2 SCC 222.

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8. M/s. Sterlite, 3rd respondent herein, then moved an

application – being I.A. No. 2134 of 2007 – before this Court,

followed by affidavits, wherein it was stated that M/s. Sterlite,

State of Orissa and OMC had unconditionally accepted the terms

and conditions and modalities suggested by this Court under the

caption “Rehabilitation Package” in its earlier order dated

23.12.2007. Siddharth Nayak, who was the petitioner in WP No.

549/07, then filed a Review Petition No. 100/2008 and sought

review of the order dated 23.11.2007 passed by this Court stating

that this court had posed a wrong question while deciding I.A. No.

2134 of 2007 and pointed out that Alumina Refinery was already

set up by Vedanta and production commenced and the principal

question which came up before this Court was with regard to the

ecological and cultural impact of mining in the Niyamgiri Hills.

Further, it was also pointed out that if Sterlite was allowed to mine

in the Niyamgiri Hills, it would affect the identity, culture and

other customary rights of Dongaria Kondh. Review Petition was,

however, dismissed by this Court on 07.05.2008.

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9. This Court then passed the final order in Sterlite case on

8.8.2008, the operative portion of which reads as follows:

“13. For the above reasons and in the light of the

affidavits filed by SIIL, OMCL and the State of Orissa,
accepting the rehabilitation package, suggested in our
order dated 23-11-2007, we hereby grant clearance to
the forest diversion proposal for diversion of 660.749 ha
of forest land to undertake bauxite mining on Niyamgiri
Hills in Lanjigarh. The next step would be for MoEF to
grant its approval in accordance with law.”

10. MOEF, later, considered the request of the State of Orissa

dated 28.2.2005 seeking prior approval of MOEF for diversion of

660.749 ha of forest land for mining of bauxite ore in Lanjigarh

Bauxite Mines in favour of OMC, in accordance with Section 2 of

the Forest (Conservation) Act, 1980. MOEF, after considering the

proposal of the State Government and referring to the

recommendations of FAC dated 27.10.2006, agreed in principle

for diversion of the above mentioned forest land, subject to

various conditions which are as follows:

(i) The Compensatory Afforestation shall be raised

over non-forest land, equal in extent to the forest
land proposed to be diverted, at the project cost.
The User Agency shall transfer the cost of

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Compensatory Afforestation to the State Forest

Department.
(ii) The non-forest land identified for Compensatory
Afforestation shall be declared as Reserved Forests
under Indian Forest Act, 1927.
(iii) The User Agency shall create fence and maintain a
safety zone around the mining area. The User
Agency will deposit fund with the Forest
Department for creation, protection and
regeneration of safety zone area and also will have
to bear the cost of afforestation over one and a half
time of the safety zone area in degraded forest
elsewhere.
(iv) The reclamation of mines shall be carried out
concurrently and should be regularly monitored by
the State Forest Department.
(v) RCC pillars of 4 feet height shall be erected by the
User Agency at the project cost to demarcate the
area and the pillars will be marked with forward and
back bearings.
(vi) The State Government shall charge Net Present
Value (NPV) from the User Agency for the entire
diverted forest land, as directed by Hon’ble
Supreme Court and as per the guidelines issued
vide Ministry of Environment and Forests letters No.

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5-1/98-FC(Pt.II) dated 18th September 2003 and 22nd

September 2003.
(vii) As per Hon’ble Supreme Court’s order dated
23.11.2007 and 08.08.2008, M/s SIIL shall pay NPV
of Rs.55 crores.
(viii) An undertaking from the User Agency shall also be
obtained stating that in case the rates of NPV are
revised upwards, the additional/differential amount
shall be paid by the User Agency.
(ix) As per Hon’ble Supreme Court’s order dated
23.11.2007 and 08.08.2-008, M/s SIIL shall pay
Rs.50.53 crores towards Wildlife Management Plan
for Conservation and Management of Wildlife
around Lanjigarh bauxite mine.
(x) As per Hon’ble Supreme Court’s order dated
23.11.2007 and 08.08.2-008, M/s SIIL is required to
contribute Rs.12.20 crores towards tribal
development apart from payment of NPV and apart
from contribution to the Management of Wildlife
around Lanjigarh Bauxite Mine. Moreover, while
allocating CAMPA Funds the said amount of
Rs.12.20 crores shall be earmarked specifically for
tribal development.
(xi) The State Government shall deposit all the funds
with the Ad-hoc Body of Compensatory Afforestation

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Fund Management and Planning Authority (CAMPA)

in Account No. CA 1585 of Corporation Bank (A
Government of India Enterprise) Block-II, Ground
Floor, CGO Complex, Phase-I, Lodhi Road, New Delhi-
110 003, as per the instructions communicated vide
letter N.5-2/2006-PC dated 20.05.2006.
(xii) As per Hon’ble Supreme Court’s order dated
23.11.2007 and 08.08.2-008, M/s SIIL shall deposit
5% of its annual profits before tax and interest from
Lanjigarh Project of Rs.10 crores whichever is higher
as contribution for Scheduled Area Development.
The contribution is to be made every year
commencing from 01.04.2007. The State of Orissa
shall float a Special Purpose Vehicle (SPV) for
scheduled area development of Lanjigarh Project in
which the stake-holders shall be State of Orissa,
OMC Ltd. and M/s SIIL. Such SPV shall be
incorporated under the Companies Act, 1956. The
Accounts of SPC shall be prepared by the Statutory
auditors of OMC Ltd and they shall be audited by
the Auditor General for State of Orissa every year.
(xiii) The permission granted under FC Act shall be co-
terminus with the mining lease granted under
MMRD Act or any other relevant Act.

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(xiv) Tree felling shall be done in a phased manner to

coincide with the phasing of area to be put to
mining with a view to minimizing clear felling. The
felling will always be carried out under strict
supervision of State Forest Department.
(xv) All efforts shall be made by the User Agency and
the State Government to prevent soil erosion and
pollution of rivers/nallas/streams etc.
(xvi) The Wildlife Management Plan (WMP) shall be
modified accordingly as suggested by the Wildlife
Institute of India (WII), Dehradun and shall be
implemented by the State Government/User Agency
at the project cost. The progress of implementation
of the WMP shall be regularly monitored by the WILL
and Regional Office, Bhubaneshwar.
(xvii)Any other condition that the CCF (Central), Regional
Office, Bhubaneshwar / the State Forest Department
may impose from time to time for protection and
improvement of flora and fauna in the forest area,
shall also be applicable.
(xviii) All other provisions under different Acts,
rules, and regulations including environmental
clearance shall be complied with before transfer of
forest land.

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(xix) The lease will remain in the name of Orissa Mining

Corporation (OMCL) and if any change has to be
done, it will require prior approval of the Central
Government as per guidelines.
(xx) The present forest clearance will be subject to the
final outcome of the Writ petition No. 202 of 1995
from the Hon’ble Supreme Court and Court’s order
dated 23.11.2007 and 08.08.2008.
(xxi) Other standard conditions as applicable to
proposals related to mining shall apply in the
instant case also.”

MOEF, then, vide its letter dated 11.12.2008 informed the State of

Orissa that it had, in principle, agreed for diversion of 660.749 ha.

of forest land for mining bauxite in favour of OMC, subject to

fulfillment of the above mentioned conditions, and after getting

the compliance report from the State Government. Order dated

11.12.2008 was slightly modified on 31.12.2008. It was further

ordered that the transfer of forest land to the user agency should

not be effected by the State Government till formal orders

approving diversion of forest land were issued.

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11. MoEF then granted environmental clearance to OMC vide its

proceedings dated 28.04.2009 subject to various conditions

including the following conditions:

“(iii) Environmental clearance is subject to grant of

forestry clearance. Necessary forestry clearance
under the Forest (Conservation) Act, 1980 for
diversion of 672.018 ha forest land involved in the
project shall be obtained before starting mining
operation in that area. No mining shall be
undertaken in the forest area without obtaining
requisite prior forestry clearance.”

The State Government then forwarded the final proposal to the

MoEF vide its letter dated 10.08.2009 stating that the user

agency had complied with all the conditions stipulated in the

letter of MoEF dated 11.12.2008. On the Forest Rights Act, the

Government letter stated as follows:

“Provisions of Scheduled Tribes and other

Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006.

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The Govt. of India, MOEF vide their letter dated

28.04.2009 have accorded environmental clearance to
Lanjigarh Bauxite Mining Project. This letter of Govt. of
India, MOEF puts on record that there is no habitation in
the mining lease area on the plateau top and no
resettlement and rehabilitation is involved. Public
hearing for the project was held on 07.02.2003 for
Kalahandi District and on 17.03.2003 for Rayagada
District. In both the cases, the project has been
recommended. Copies of the public hearing
proceedings have already been submitted to Govt. of
India, MOEF along with forest diversion proposal. This
project was also challenged in the Hon’ble Supreme
Court of India on the ground that it violates the
provisions of the Scheduled Tribes & Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006
WP (C) No. 549 of 2007 was filed in the Hon’ble
Supreme Court of India by one Sri Siddharth Nayak
challenging the project on the above issue. After
examining different aspects of the writ petition in IA No.
2081-2082 in WP (C) No. 549/2007, the Hon’ble
Supreme Court of India had cleared the project by way
of disposing the Writ Petition vide their order dated
23.11.2007. Subsequently, Hon’ble Supreme Court had
finally cleared the project vide their order dated

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08.08.2008. In view of the above position and orders of

Hon’ble Supreme Court of India, no further action in this
regard is proposed.”

12. State of Orissa’s final proposal was then placed before the

FAC on 4.11.2009. FAC recommended that the final clearance

would be considered only after ascertaining of the community

rights on forest land and after the process for establishing such

rights under Forest Rights Act was completed. FAC also decided

to constitute an Expert Group to carry out a site inspection.

Consequently, on 1.1.2010, a three-member Team composed of

Dr. Usha Ramanathan and two others, was constituted to consider

and make recommendations to MOEF on the proposal submitted

by OMC. The Team carried out the site inspection during the

months of January and February, 2010 and submitted three

individual reports to MOEF on 25.2.2010 which were not against

the project as such, but suggested an in-depth study on the

application of the Forest Rights Act. FAC also, on 16.4.2010,

considered all the three reports and recommended that a Special

Committee, under the Ministry of Tribal Affairs, be constituted to

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look into the issues relating to the violation of Tribal rights and the

settlement of Forest rights under the Forest Rights Act.

13. MOEF then met on 29.6.2010 and decided to constitute a

team composed of specialists to look into the settlement of rights

on forest dwellers and the “Primitive Tribal Groups” under the

Forest Rights Act and the impact of the Project on wildlife and

biodiversity in the surrounding areas. Consequently, a 4-member

Committee was constituted headed by Dr. Naresh Saxena to study

and assess the impacts of various rights and to make a detailed

investigation. The Committee, after conducting several site visits

and making detailed enquiries submitted its report to MOEF on

16.8.2010.

14. The State Government then submitted their written objection

on 17.08.2010 to the MoEF on the Saxena Committee Report and

requested that an opportunity of hearing be given to it before

taking any decision on the report. MoEF, however, called a

meeting of FAC on 20.8.2010 and placed the Saxena Committee

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report before FAC, for consideration. Minutes of the Committee

meeting was released on 23.8.2010, stating that the Primitive

Tribal Groups were not consulted in the process of seeking project

clearance and also noticed the violation of the provisions of Forest

Rights Act, the Forest (Conservation) Act, 1980, Environmental

Protection Act, 1986 and also the impact on ecological and

biodiversity values of the Niyamgiri hills upon which the Dongaria

Kondh and Kutia Kondh depend. FAC opined that it was a fit case

for applying the precautionary principle to obviate the irreparable

damage to the affected people and recommended for the

temporary withdrawal of the in-principle/State I approval

accorded. FAC recommended that the State Government be

heard before a final decision is taken by the MoEF.

15. The recommendations of the FAC dated 23.8.2010 and

Saxena Committee report were considered by MOEF and the

request for Stage-II Clearance was rejected on 24.8.2010, stating

as follows:

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“VIII. Factors Dictating Decision on Stage-II

Clearance

I have considered three broad factors while arriving at

my decision.

1. The Violation of the Rights of the Tribal

Groups including the Primitive Tribal
Groups and the Dalit Population.

The blatant disregard displayed by the project

proponents with regard to rights of the tribals
and primitive tribal groups dependant on the
area for their livelihood, as they have
proceeded to seek clearance is shocking.
Primitive Tribal Groups have specifically been
provided for in the Forest Rights Act, 2006 and
this case should leave no one in doubt that they
will enjoy full protection of their rights under
the law. The narrow definition of the Project
Affected People by the State Government runs
contrary to the letter and spirit of the Forest
Rights Act, 2006. Simply because they did not
live on the hills does not mean that they have
no rights there. The Forest Rights Act, 2006
specifically provides for such rights but these
were not recognized and were sought to be
denied.

Moreover, the fate of the Primitive Tribal Groups

need some emphasis, as very few communities
in India in general and Orissa in particular come
under the ambit of such a category. Their
dependence on the forest being almost
complete, the violation of the specific
protections extended to their “habitat and

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habitations” by the Forest Rights Act, 2006 are

simply unacceptable.

This ground by itself has to be foremost in

terms of consideration when it comes to the
grant of forest or environmental clearance. The
four-member committee has highlighted
repeated instances of violations.

One also cannot ignore the Dalits living in the

area. While they may technically be ineligible to
receive benefits under the FRA 2006, they are
such an inextricable part of the society that
exists that it would be impossible to disentitle
them as they have been present for over five
decades. The Committee has also said on p.40
of their report that “even if the Dalits have no
claims under the FRA the truth of their de facto
dependence on the Niyamgiri forests for the
past several decades can be ignored by the
central and state governments only at the cost
of betrayal of the promise of inclusive growth
and justice and dignity for all Indians”. This
observation rings true with the MoE&F and
underscores the MoE&F’s attempt to ensure
that any decision taken is not just true to the
law in letter but also in spirit.

2. Violations of the Environmental

Protection Act 1986:

(i) Observations of the Saxena

Committee and MoE&F Records:

In additional to its findings regarding the

settlement of rights under the FRA 2006, the
four-member Committee has also observed,

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with reference to the environmental clearance

granted for the aluminum refinery, on p.7 of its
Report dated 16th August 2010 that:

“The company/s Vedanta Alumina Limited

has already proceeded with construction
activity for its enormous expansion
project that would increase its capacity
six fold from 1 Mtpa to 6 Mtpa without
obtaining environmental clearance as per
the provisions of EIA Notification, 2006
under the EPA. This amounts to a serious
violation of the provisions of the
Environment (Protection) Act. This
expansion, its extensive scale and
advanced nature, is in complete violation
of the EPA and is an expression of the
contempt with which this company treats
the laws of the land.”

I have reviewed the records of the MoE&F

and have found no documentation which
establishes such activity to have been
granted clearance. Nor is there any
evidence to suggest that such requirement
was waived by the Ministry. The TORs for
the expansion of the project from 1 million
tones to 6 million tones were approved in
March 2008. No further right has been
granted in any form by the Ministry to the
project proponents to proceed with the
expansion. While any expansion without
prior EC is a violation of the EIA
Notification/EPA 1986 this, itself, is not a
minor expansion and is therefore a most
serious transgression of the EPA 1986.

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There also appear to have been other acts of

violation that emerge from a careful perusal
of the evidence at hand. This is not the first
act of violation. On March 19 th, 2003 M/s
Sterlite filed an application for environmental
clearance from the MoE&F for the refinery.
In the application it was stated that no forest
land is involved in the project and that there
was no reserve forest within a radius of 10
kms of the project site.

Thereafter on September 22nd, 2004,

environment clearance was granted by the
MoE&F for the refinery project. While
granting the environmental clearance, the
MoE&F was unaware of the fact that the
application for forest clearance was also
pending since the environmental clearance
letter clearly stated that no forest land was
involved in the project.

In March 2005, in proceedings before itself,

the Central Empowered Committee (CEC) too
questioned the validity of the environmental
clearance granted by the MoE&F and
requested the Ministry to withhold the forest
clearance on the project till the issue is
examined by the CEC and report is
submitted to the Hon’ble Supreme Court.

(ii) Case before the MEAA by the

Dongaria Kondhs:

After the grant of Environment Clearance,

the local tribals and other concerned
persons including the Dongaria Kondhs

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challenged the project before the National

Environment Appellate Authority (NEAA).
[Kumati Majhi and Ors Vs Ministry of
Environment. and Forest, Srabbu Sikka and
Ors. Vs Ministry of Environment and
Forests, R Sreedhar Vs. Ministry of
Environment and Forest, Prafulla
Samantara Vs. Ministry of Environment and
Forests and Ors Appeal No. 18, 19, 20 and
21 of 2009].

It is brought to my attention that this is the

first time that the Dongaria Kondha have
directly challenged the project in any Court
of law. The Appeals highlighted the several
violations in the Environmental Clearance
process. Some of the key charges raised
were that the full Environmental Impact
Assessment Report was not made available
to the Public before the public hearing,
different EIA reports made available to the
public and submitted to the Ministry of
Environment and Forests, the EIA conducted
was a rapid EIA undertaken during the
monsoon months. The matter is reserved
for judgment before the NEAA.

(iii) Monitoring Report of the

Eastern Regional Office dated
25th May, 2010:

On 25th May 2010, Dr. VP Upadhyay

(Director ‘S’) of the Eastern Regional Office
of the Ministry of Environment and Forests
submitted his report to the MoE&F which
listed various violations in para 2 of the
monitoring report. They observed:

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a. “M/s Vedanta Alumina Limited

has already proceeded with
construction activity for
expansion project without
obtaining environmental
clearance as per provisions of
EIA Notification 2006 that
amounts to violation of the
provisions of the Environment
(Protection) Act.”
b. “The project has not established
piezometers for monitoring of
ground water quality around red
mud and ash disposal ponds;
thus, the condition no. 5 of
Specific Condition of the
clearance letter is being
violated.”
c. “The condition no. Ii of General
Condition of environmental
clearance has been violated by
starting expansion activities
without prior approval from the
Ministry.”

Furthermore all bauxite for the refinery was

to be sourced from mines which have
already obtained environmental clearance.
The Report listed 14 mines from which
Bauxite was being sourced by the project
proponents. However out of these 11 had
not been granted a mining license while 2
had only received TORs and only 1 had
received clearance.

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3. Violations under the Forest

Conservation Act:

The Saxena Committee has gone into great

detail highlighting the various instances of
violations under the Forest (Conservation) Act
1980. All these violations coupled with the
resultant impact on the ecology and
biodiversity of the surrounding area further
condemn the actions of the project proponent.
Not only are these violations of a repeating
nature but they are instances of willful
concealment of information by the project
proponent.

IX. The Decision on Stage-II Clearance

The Saxena Committee’s evidence as reviewed by the

FAC and read by me as well is compelling. The
violations of the various legislations, especially the
Forest (Conservation) Act, 1980, the Environment
(Protection) Act, 1986, and the Scheduled Tribes and
Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006, appear to be too egregious to be
glossed over. Furthermore, a mass of new and
incriminating evidence has come to light since the Apex
court delivered its judgment on August 8 th, 2008.
Therefore, after careful consideration of the facts at
hand, due deliberation over all the reports submitted
and while upholding the recommendation of the FAC, I
have come to the following conclusions:

1. The Stage II forest clearance for the OMC

and Sterlite bauxite mining project on the
Niyamgiri Hills in Lanjigarh, Kalahandi and
Rayagada districts of Orissa cannot be

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granted. Stage-II Forest Clearance

therefore stands rejected.
2. Since forest clearance is being rejected,
the environmental clearance for this mine
is inoperable.
3. It appears that the project proponent is
sourcing bauxite from a large number of
mines in Jharkhand for the one million
tonne alumina refinery and are not in
possession of valid environmental
clearance. This matter is being examined
separately.
4. Further, a show-cause notice is being
issued b y the MOE&F to the project
proponent as to why the environmental
clearance for the one million tonnes per
annum alumina refinery should not be
cancelled.
5. A show-cause notice is also being issued to
the project proponent as to why the terms
of reference (TOR) for the EIA report for the
expansion from one million tones to six
million tones should not be withdrawn.
Meanwhile, the TOR and the appraisal
process for the expansion stands
suspended.

Separately the MoE&F is in the process of examining

what penal action should be initiated against the
project proponents for the violations of various laws as
documented exhaustively by the Saxena Committee.

On the issues raised by the Orissa State Government, I

must point out that while customary rights of the
Primitive Tribal Groups are not recognized in the
National Forest Policy, 1988 they are an integral part of
the Forest Rights Act, 2006. An Act passed by

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Parliament has greater sanctity than a Policy

Statement. This is apart from the fact that the Forest
Rights Act came into force eighteen years after the
National Forest Policy. On the other points raised by the
State Government officials, on the procedural aspects
of the Forest Rights Act, 2006, I expect that the joint
Committee set up by the MoE&F and the Ministry of
Tribal Affairs would give them due consideration. The
State Government officials were upset with the
observations made by the Saxena Committee on their
role in implementing the Forest Rights Act, 2006.
Whether State Government officials have connived with
the violations is a separate issue and is not relevant to
my decision. I am prepared to believe that the State
Government officials were attempting to discharge their
obligations to the best of their abilities and with the
best of intentions. The State Government could well
contest many of the observations made by the Saxena
Committee. But this will not fundamentally alter the
fact that serious violations of various laws have indeed
taken place.

The primary responsibility of any Ministry is to enforce

the laws that have been passed by Parliament. For the
MoE&F, this means enforcing the Forest (Conservation)
Act, 1980, the Environmental (Protection) Act, 1986, the
Scheduled Tribes and Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 and other laws.
It is in this spirit that this decision has been taken.”

The order dated 24.8.2010 was communicated by MOEF to the

State of Orissa vide its letter dated 30.8.2010, the legality of

those orders are the subject matter of this writ petition.

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16. Shri K.K. Venugopal, learned senior counsel appearing for

OMC, referred to the earlier judgments of this Court in Vedanta

as well as Sterlite and submitted that those judgments are

binding on the parties with regard to the various questions raised

and decided and also to the questions which ought to have been

raised and decided. Learned senior counsel also pointed out that

MOEF itself, after the above mentioned two judgments, had

accorded Stage-I clearance vide its proceeding dated 11.12.2008

and that the State of Orissa vide its letter dated 10.8.2009 had

informed MOEF of the compliance of the various conditions

stipulated in the Stage-I clearance dated 11.12.2008.

Consequently, there is no impediment in the MOEF granting

Stage-II clearance for the project. Learned senior counsel also

submitted that the reasons stated by the FAC as well as the

Saxena Committee are all untenable and have nothing to do with

Bauxite Mining Project (BMP) undertaken by OMC. Learned senior

counsel also submitted that the constitution of, initially, a 3-

Member Committee and, later, a 4-Member Committee, was

intended only to cancel the Stage-I clearance granted to the BMP

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in compliance with the judgment of this Court. Learned counsel

also pointed out that the claim under the Forest Rights Act was

also raised by Sidharth Nayak through a review petition, which

was also rejected by this Court on 7.5.2008. Consequently, it

would not be open to the parties to again raise the issues which

fall under the Forest Rights Act.

17. Shri C.A. Sundaram, learned senior counsel appearing for the

State of Orissa, submitted that various reasons stated by the

MOEF for rejecting the Stage-II clearance are unsustainable in law

as well as on facts. Learned senior counsel pointed out that

reasons stated by the Saxena Committee as well as MOEF alleging

violation of the Environmental Protection Act, 1986, are totally

unrelated to the BMP. Learned senior counsel pointed out that

Alumina Refinery is an independent project and the violation, if

any, in respect of the same ought not to have been relevant

criteria for the consideration of the grant of Stage-II clearance to

the BMP, being granted to OMC. Referring to the Monitoring

Report of Eastern Regional Office dated 25.5.2010, learned senior

counsel pointed out that the findings recorded in that report are

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referable to 4th respondent and not to the mining project granted

to OMC. Learned senior counsel also submitted that Saxena

Committee as well as MOEF has committed a factual error in

taking into account the alleged legal occupation of 26.123 ha of

village forest lands enclosed within the factory premises which

has no connection with regard to the mining project, a totally

independent project. Learned senior counsel also submitted that

in the proposed mining area, there is no human habitation and

that the individual habitation rights as well as the Community

Forest Resource Rights for all villages located on the hill slope of

the proposed mining lease area, have already been settled.

Learned senior counsel also pointed out that the Gram Sabha has

received several individual and community claims from Rayagada

and Kalahandi Districts and they have settled by giving alternate

lands.

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

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reference to the religious or spiritual rights protected under

Articles 25 and 26 of the Constitution of India and does not

extend to the property rights. Learned senior counsel also

submitted that the State Government continues to maintain and

have ownership over the minerals and deposits beneath the

forests and such rights have not been taken away by the Forest

Rights Act and neither the Gram Sabha nor the Tribals can raise

any ownership rights on minerals or deposits beneath the forest

land.

19. Shri C.U. Singh, learned senior counsel appearing for the 3 rd

respondent – Sterlite, submitted that various grounds stated in

Saxena report as well as in the order of MOEF dated 24.8.2010,

were urged before this Court when Vedanda and Sterlite cases

were decided and, it was following those judgments, that MOEF

granted Stage-I approval on 11.12.2008 on the basis of the

recommendation of FAC. In compliance of the Stage-I clearance

accorded by MOEF, SPV (OMC and Sterlite) undertook various

works and completed, the details of the same have been

furnished along with the written submissions filed on 21.1.2013.

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Learned senior counsel submitted that the attempt of the MOEF is

to confuse the issue mixing up the Alumina Refinery Project with

that of the Bauxite Mining Project undertaken by Sterlite and OMC

through a SPV. The issues relating to expansion of refinery and

alleged violation of the Environmental Protection Act, 1986, the

Forest Conservation Act, 1980 etc. have nothing to do with the

mining project undertaken by OMC and Sterlite. Learned senior

counsel, therefore, submitted that the rejection of the Stage-II

clearance by MOEF is arbitrary and illegal.

20. Shri Mohan Parasaran, Solicitor General of India, at the

outset, referred to the judgment of this Court in Sterlite and

placed considerable reliance on para 13 of the judgment and

submitted that while granting clearance by this Court for the

diversion of 660.749 ha of forest land to undertake bauxite mining

in Niyamgiri hills, left it to the MOEF to grant its approval in

accordance with law. Shri Parasaran submitted that it is in

accordance with law that the MOEF had constituted two

Committees and the reports of the Committees were placed

before the FAC, which is a statutory body constituted under

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Section 3 of the Forest Conservation Act. It was submitted that it

was on the recommendation of the statutory body that MOEF had

passed the impugned order dated 24.8.2010. Further, it was

pointed out that, though MOEF had granted the Stage-I clearance

on 11.12.2008, it can still examine as to whether the conditions

stipulated for the grant of Stage-I clearance had been complied

with or not. For the said purpose, two Committees were

constituted and the Saxena Committee in its report has noticed

the violation of various conditions stipulated in the Stage-I

clearance granted by MOEF on 11.12.2008. Shri Parasaran also

submitted that the petitioner as well as 3 rd respondent have also

violated the provisions of the Forest Rights Act, the violation of

which had been specifically noted by the Saxena Committee and

accepted by MOEF. Referring to various provisions of the Forest

Rights Act under Section 3.1(i), 3.1(e) and Section 5 of the Act, it

was submitted that concerned forest dwellers be treated not

merely as right holders as statutory empowered with the

authority to protect the Niyamgiri hills. Shri Parasaran also

pointed out that Section 3.1(e) recognizes the right to community

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tenures of habitat and habitation for “primitive tribal groups” and

that Dongaria Kondh have the right to grazing and the collection

of mineral forest of the hills and that they have the customary

right to worship the mountains in exercise of their traditional

rights, which would be robed of if mining is permitted in Niyamgiri

hills.

21. Shri Raj Panjwani, learned senior counsel appearing for the

applicants in I.A. Nos. 4 and 6 of 2012, challenged the

environmental clearance granted to OMC on 28.4.2009 by MOEF

before the National Environment Appellate Authority (NEAA)

under Section 4(1) of the NEAA Act, 1997, by filing Appeal Nos. 20

of 2009 and 21 of 2009 before NEAA. NEAA vide its order dated

15.5.2010 allowed the appeals and remitted the matter to MOEF

to revisit the grant of environmental clearance to OMC on

28.4.2009. Later, MOEF by its order dated 11.7.2011 has

withdrawn the environmental clearance dated 28.4.2009 granted

in favour of OMC and that OMC, without availing of the statutory

remedy of the appeal, filed I.A. No. 2 of 2011 in the present writ

petition.

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22. Shri Sanjay Parekh, learned counsel appearing for the

applicants in I.A. Nos. 5 and 6 of 2011, referred to the various

provisions of the Forest Rights Act and the Rules and submitted

that the determination of rights of scheduled tribes (STs)/other

traditional forest dwellers (TFDs) have to be done by the Gram

Sabha in accordance with the machinery provided under Section 6

of the Act. Learned counsel also submitted that the forest wealth

vests in the STs and other TFDs and can be diverted only for the

purpose mentioned in Section 3(3). Learned counsel also referred

to the Saxena Committee report and submitted that the report

clearly reveals the community rights as well as the various rights

and claims of the primitive traditional forest dwellers. Learned

counsel also submitted that if the mining is undertaken in

Niyamgiri hills, it would destroy more than 7 sq. Km. of

undisturbed forest land on the top of the mountain which is the

abode of the Dongaria Kondh and their identity depends on the

existence of Niyamgiri hills.

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Judicial Evaluation

23. We may, at the outset, point out that there cannot be any

doubt that this Court in Vedanta case had given liberty to Sterlite

to move this Court if they were agreeable to the “suggested

rehabilitation package” in the order of this Court, in the event of

which it was ordered that this Court might consider granting

clearance to the project, but not to Vedanta. This Court in

Vedanta case had opined that this Court was not against the

project in principle, but only sought safeguards by which the

Court would be able to protect the nature and sub-serve

development.

24. The Sterlite, State of Orissa and OMC then unconditionally

accepted the terms and conditions and modalities suggested by

this Court in Vedanta under the caption “Rehabilitation Package”

and they moved this Court by filing I.A. No. 2134 of 2007 and this

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Court accepted the affidavits filed by them and granted clearance

to the diversion of 660.749 ha of forest land to undertake the

bauxite mining in Niyamgiri Hills and ordered that MOEF would

grant its approval in accordance with law.

25. MOEF, then considered the proposal of the State

Government made under Section 2 of the Forest (Conservation)

Act, 1980 and also the recommendations of the FAC and agreed in

principle for the diversion of 660.749 ha of forest land for mining

of bauxite ore in Lanjigarh Bauxite Mines in favour of OMC,

subject to 21 conditions vide its order 11.12.2008. One of the

conditions was with regard to implementation of the Wildlife

Management Plan (WMP) suggested by WII and another was with

regard to the implementation of all other provisions of different

Acts, including environmental clearance, before the transfer of the

forest land. Further, it was also ordered that after receipt of the

compliance report on fulfilment of the 21 conditions from the

State of Orissa, formal approval would be issued under Section 2

of the Forest (Conservation) Act, 1980.

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26. MOEF examined the application of the OMC for

environmental clearance under Section 12 of the EIA Notification,

2006 read with para 2.1.1(i) of Circular dated 13.10.2006 and

accorded environmental clearance for the “Lanjigarh Bauxite

Mining Project” to OMC for an annual production capacity of 3

million tonnes of -bauxite by opencast mechanized method

involving total mining lease area of 721.323 ha, subject to the

conditions and environmental safeguards, vide its letter dated

28.4.2009. 32 special conditions and 16 general conditions were

incorporated in that letter. It was ordered that failure to comply

with any of the conditions might result in withdrawal of the

clearance and attract action under the provisions of the

Environment Protection Act, 1986. It was specifically stated that

the environmental clearance would be subject to grant of forestry

clearance and that necessary clearance for diversion of 672.018

ha. Of forest land involved in the project be obtained before

starting operation in that area and that no mining be undertaken

in the forest area without obtaining prior forestry clearance.

Condition No. XXX also stipulated that the project proponent shall

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take all precautionary measures during mining operation for

conservation and protection of flora and fauna spotted in the

study area and all safeguards measures brought out by the WMP

prepared specific to the project site and considered by WII shall

be effectively implemented. Further, it was also ordered that all

the recommendations made by WII for Wildlife Management be

effectively implemented and that the project proponent would

also comply with the standards prescribed by the State and

Central Pollution Control Boards. Later, a corrigendum dated

14.7.2009 was also issued by MOEF adding two other conditions –

one special condition and another general condition.

27. State of Orissa vide its letter dated 10.8.2009 informed

MOEF that the user agency had complied with the stipulations of

Stage-I approval. Specific reference was made point by point to

all the conditions stipulated in the letters of MOEF dated

11.12.2008 and 30.12.2008 and, in conclusion, the State

Government has stated in their letter as follows:

“In view of the above position of compliance by the

User Agency to the direction of Hon’ble Supreme Court of
India dated 8.8.2008 and stipulations of the Government

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of India, MOEF vide their Stage-I approval order dated

30.12.2008, the compliance is forwarded to the
Government of India, MOEF to kindly examine the same
and take further necessary steps in matters of according
final approval for diversion of 660.749 ha of forest land for
the project under Section 2 of the Forest Conservation Act,
1980.”

MOEF, it is seen, then placed the letter of the State Government

dated 10.8.2008 before the FAC and FAC on 4.11.2009

recommended that the final clearance be considered only after

ascertaining the community rights of forest land and after the

process for establishing such rights under the Forest Rights Act is

completed. Dr. Usha Ramanathan Committee report was placed

before the FAC on 16.4.2010 and FAC recommended that a Special

Committee under the Ministry of Tribal Affairs be constituted to

look into the issue relating to violation of tribal rights and the

settlement of various rights under the Forest Rights Act, which led,

as already indicated, to the constitution of the Saxena Committee

report, based on which the MOEF passed the impugned order

dated 24.8.2010.

28. FAC, in its meeting, opined that the final clearance under the

Forest (Conservation) Act would be given, only after ascertaining

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the “Community Rights” on forest land and after the process of

establishing such rights under the Forest Rights Act. After

perusing the Usha Ramanathan report, FAC on 16.4.2010

recommended that a Special Committee be constituted to look

into the issues relating to the alleged violation of rights under the

Forest Rights Act. MOEF, then on 29.6.2010 constituted the

Saxena Committee and the Committee after conducting an

enquiry submitted its report which was placed before the FAC on

20.8.2010 and FAC noticed prima facie violation of the Forest

Rights Act and the Forest (Conservation) Act.

29. Petitioner has assailed the order of MoEF dated 24.08.2010

as an attempt to reopen matters that had obtained finality.

Further, it is also submitted that the order wrongly cites the

violation of certain conditions of environmental clearance by

“Alumina Refinery Project” as grounds for denial of Stage II

clearance to OMC for its “Bauxite Mining Project”. The contention

is based on the premise that the two Projects are totally separate

and independent of each other and the violation of any statutory

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provision or a condition of environmental clearance by one cannot

be a relevant consideration for grant of Stage II clearance to the

other.

30. Petitioner’s assertion that the Alumina Refinery Project and

the Bauxite Mining Project are two separate and independent

projects, cannot be accepted as such, since there are sufficient

materials on record to show that the two projects make an

integrated unit. In the two earlier orders of this Court (in the

Vedanta case and the Sterlite case) also the two Projects are seen

as comprising a single unit. Quite contrary to the case of the

petitioner, it can be strongly argued that the Alumina Refinery

Project and Bauxite Mining Project are interdependent and

inseparably linked together and, hence, any wrong doing by

Alumina Refinery Project may cast a reflection on the Bauxite

Mining Project and may be a relevant consideration for denial of

Stage II clearance to the Bauxite Mining Project.

In this Judgment, however, we do not propose to make any

final pronouncement on that issue but we would keep the focus

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mainly on the rights of the Scheduled Tribes and the “Traditional

Forest Dwellers” under the Forest Rights Act.

STs and TFDs:

31. Scheduled Tribe, as such, is not defined in the Forest Rights

Act, but the word “Traditional Forest Dweller” has been defined

under Section 2(o) as any member or community who has at least

three generations prior to the 13 th day of December, 2005

primarily resided in and who depend on the forest or forests land

for bona fide livelihood needs. Article 366(25) of the Constitution

states that STs means such tribes or tribal communities or parts of

or groups within such tribes or tribal communities as are defined

under Article 342 to be the Scheduled Tribes. The President of

India, in exercise of the powers conferred by Clause (1) of Article

342 of the Constitution, has made the Constitution (Schedule

Tribes) Order, 1950. Part XII of the Order refers to the State of

Orissa. Serial No. 31 refers to Dongaria Kondh, Kutia Kandha etc.

32. Before we examine the scope of the Forest Rights Act, let us

examine, how the rights of indigenous people are generally

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viewed under our Constitution and the various International

Conventions.

Constitutional Rights and Conventions:

33. Article 244 (1) of the Constitution of India which appears in

Part X provides that the administration of the Scheduled Areas

and Scheduled Tribes in States (other than Assam, Meghalaya and

Tripura) shall be according to the provisions of the Fifth Schedule

and Clause (2) states that Sixth Schedule applies to the tribal

areas in Assam, Meghalaya, Tripura and Mizoram. Evidently, the

object of the Fifth Schedule and the Regulations made thereunder

is to preserve tribal autonomy, their cultures and economic

empowerment to ensure social, economic and political justice for

the preservation of peace and good Governance in the Scheduled

Area. This Court in Samatha v. Arunachal Pradesh (1997) 8

SCC 191 ruled that all relevant clauses in the Schedule and the

Regulations should be harmoniously and widely be read as to

elongate the Constitutional objectives and dignity of person to the

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Scheduled Tribes and ensuring distributive justice as an integral

scheme thereof. The Court noticed that agriculture is the only

source of livelihood for the Scheduled Tribes apart from collection

and sale of minor forest produce to supplement their income.

Land is their most important natural and valuable asset and

imperishable endowment from which the tribal derive their

sustenance, social status, economic and social equality,

permanent place of abode, work and living. Consequently, tribes

have great emotional attachments to their lands.

34. Part B of the Fifth Schedule [Article 244(1)] speaks of the

administration and control of Schedules Areas and Scheduled

Tribes. Para 4 thereof speaks of Tribes Advisory Council. Tribes

Advisory Council used to exercise the powers for those Scheduled

Areas where Panchayat Raj system had not been extended. By

way of the Constitution (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

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of that Part. Article 243-C of Chapter IX refers to the composition

of Panchayats. Article 243-M (4)(b) states that Parliament may,

by law, extend the provisions of Part IX to the Scheduled Areas

and the Tribal areas and to work out the modalities for the same.

The Central Government appointed Bhuria Committee to

undertake a detailed study and make recommendations as to

whether the Panchayat Raj system could be extended to

Scheduled Areas. The Committee submitted its report on

17.01.1995 and favoured democratic, decentralization in

Scheduled Areas. Based on the recommendations, the Panchayat

(Extension to Scheduled Areas) Act, 1996 (for short ‘PESA Act’)

was enacted by the Parliament in the year 1996, extending the

provisions of Part IX of the Constitution relating to Panchayats to

the Scheduled Areas. The Statement of Objects and Reasons of

the Act reads as follows:

“There have been persistent demands from

prominent leaders of the Scheduled Areas for
extending the provisions of Part IX of the
Constitution to these Areas so that Panchayati Raj

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Institutions may be established there. Accordingly, it

is proposed to introduce a Bill to provide for the
extension of the provisions of Part IX of the
Constitution to the Scheduled Areas with certain
modifications providing that, among other things,
the State legislations that may be made shall be in
consonance with the customary law, social and
religious practices and traditional management
practices of community resources;….. The offices of
the Chairpersons in the panchayats at all levels shall
be reserved for the Scheduled Tribes; the
reservations of seats at every panchayat for the
Scheduled Tribes shall not be less than one-third of
the total number of seats.”

35. This court had occasion to consider the scope of PESA Act

when the constitutional validity of the proviso to section 4(g) of

the PESA Act and few sections of the Jharkhand Panchayat Raj

Act, 2001 were challenged in Union of India v. Rakesh Kumar,

(2010) 4 SCC 50 and this Court upheld the Constitutional validity.

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36. Section 4 of the PESA Act stipulates that the State legislation

on Panchayats shall be made in consonance with the customary

law, social and religious practices and traditional management

practices of community resources. Clause (d) of Section states

that every Gram Sabha shall be competent to safeguard and

preserve the traditions and customs of the people, their cultural

identity, community resources and the customary mode of

dispute resolution. Further it also states in clause (i) of Section 4

that the Gram Sabha or the Panchayats at the appropriate level

shall be consulted before making the acquisition of land in the

Scheduled Areas for development projects and before re-settling

or rehabilitating persons affected by such projects in the

Scheduled Areas and that the actual planning and implementation

of the projects in the Scheduled Areas, shall be coordinated at the

State level. Sub-clause (k) of Section 4 states that the

recommendations of the Gram Sabha or the Panchayats at the

appropriate level shall be made mandatory prior to grant of

prospective licence or mining lease for minor minerals in the

Scheduled Areas. Panchayat has also endowed with the powers

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and authority necessary to function as institutions of Self-

Government.

37. The customary and cultural rights of indigenous people have

also been the subject matter of various international conventions.

International Labour Organization (ILO) Convention on Indigenous

and Tribal Populations Convention, 1957 (No.107) was the first

comprehensive international instrument setting forth the rights of

indigenous and tribal populations which emphasized the necessity

for the protection of social, political and cultural rights of

indigenous people. Following that there were two other

conventions ILO Convention (No.169) and Indigenous and Tribal

Peoples Convention, 1989 and United Nations Declaration on the

rights of Indigenous Peoples (UNDRIP), 2007, India is a signatory

only to the ILO Convention (No. 107).

38. Apart from giving legitimacy to the cultural rights by 1957

Convention, the Convention on the Biological Diversity (CBA)

adopted at the Earth Summit (1992) highlighted necessity to

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preserve and maintain knowledge , innovation and practices of

the local communities relevant for conservation and sustainable

use of bio-diversity, India is a signatory to CBA. Rio Declaration

on Environment and Development Agenda 21 and Forestry

principle also encourage the promotion of customary practices

conducive to conservation. The necessity to respect and promote

the inherent rights of indigenous peoples which derive from their

political, economic and social structures and from their cultures,

spiritual traditions, histories and philosophies, especially their

rights to their lands, territories and resources have also been

recognized by United Nations in the United Nations Declaration on

Rights of Indigenous Peoples. STs and other TFDs residing in the

Scheduled Areas have a right to maintain their distinctive spiritual

relationship with their traditionally owned or otherwise occupied

and used lands.

39. Many of the STs and other TFDs are totally unaware of their

rights. They also experience lot of difficulties in obtaining

effective access to justice because of their distinct culture and

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limited contact with mainstream society. Many a times, they do

not have the financial resources to engage in any legal actions

against development projects undertaken in their abode or the

forest in which they stay. They have a vital role to play in the

environmental management and development because of their

knowledge and traditional practices. State has got a duty to

recognize and duly support their identity, culture and interest so

that they can effectively participate in achieving sustainable

development.

40. We notice, bearing in mind the above objects, the Forest

Rights Act has been enacted conferring powers on the Gram

Sabha constituted under the Act to protect the community

resources, individual rights, cultural and religious rights.

The Forest Rights Act

41. The Forest Rights Act was enacted by the Parliament to

recognize and vest the forest rights and occupation in forest land

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in forest dwelling STs and other TFDs who have been residing in

such forests for generations but whose rights could not be

recorded and to provide for a framework for recording the forest

rights so vested and the nature of evidence required for such

recognition and vesting in respect of forest land. The Act also

states that the recognized rights of the forest dwelling STs and

other TFDs include the responsibilities and authority for

sustainable use, conservation of bio-diversity and maintenance of

ecological balance and thereby strengthening the conservation

regime of the forests while ensuring livelihood and food security

of the forest dwelling STs and other TFDs. The Act also noticed

that the forest rights on ancestral lands and their habitat were not

adequately recognized in the consolidation of State forests during

the colonial period as well as in independent India resulting in

historical injustice to them, who are integral to the very survival

and sustainability of the forest ecosystem.

42. The Statement of Objects and Reasons of the Act states that

forest dwelling tribal people and forests are inseparable and that

the simplicity of tribals and their general ignorance of modern

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regulatory framework precluded them from asserting their

genuine claims to resources in areas where they belong and

depended upon and that only recently that forest management

regimes have initiated action to recognize the occupation and

other right of the forest dwellers. Of late, we have realized that

forests have the best chance to survive if communities participate

in their conservation and regeneration measures. The Legislature

also has addressed the long standing and genuine felt need of

granting a secure and inalienable right to those communities

whose right to life depends on right to forests and thereby

strengthening the entire conservation regime by giving a

permanent stake to the STs dwelling in the forests for generations

in symbiotic relationship with the entire ecosystem.

43. We, have to bear in mind the above objects and reasons,

while interpreting various provisions of the Forest Rights Act,

which is a social welfare or remedial statute. The Act protects a

wide range of rights of forest dwellers and STs including the

customary rights to use forest land as a community forest

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resource and not restricted merely to property rights or to areas

of habitation.

44. Forest rights of forest dwelling STs and other TFDs are dealt

with in Chapter II of the Act. Section 3 of that chapter lists out

what are the forest rights for the purpose of the Act. Following

are some of the rights which have been recognized under the Act:

(a) Right to hold and live in the forest land

under the individual or common occupation for
habitation or for self-cultivation for livelihood by
a member or members of a forest dwelling
Scheduled Tribe or other traditional forest
dwellers;
(b) Community rights such as nistar, by
whatever name called, including those used in
erstwhile Princely States, Zamindari or such
intermediary regimes;
(c) Right of ownership access to collect, use,
and dispose of minor forest produce which has
been traditionally collected within or outside
village boundaries;
(d) Other community rights of uses or
entitlement such as fish and other products of

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water bodies, grazing (both settled or

transhumant) and traditional seasonal resource
access of nomadic or pastoralist communities;
(e) Rights, including community tenures of
habitat and habitation for primitive tribal groups
and pre-agricultural communities
(f) ----------
(g) -----------
(h) Rights of settlement and conversion of all
forest villages, old habitation, unsurveyed
villages and other villages in forests, whether
recorded, notified or not into revenue villages;
(i) Right to protect, regenerate or conserve or
manage any community forest resource which
they have been traditionally protecting and
conserving for sustainable use;
(j) Rights which are recognized under any State law
or laws of any Autonomous District Council or
Autonomous Regional Council or which are
accepted as rights of tribals under any traditional
or customary law of the concerned tribes of any
State;
(k) Right of access to bio-diversity and
community right to intellectual property and

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traditional knowledge related to bio-diversity and

cultural diversity;
(l) Any other traditional right customarily enjoyed
by the forest dwelling Scheduled Tribes or other
traditional forest dwellers, as the case may be,
which are not mentioned in clauses (a) to (k) but
excluding the traditional right of hunting or
trapping or extracting a part of the body of any
species of wild animal.

45. The above section has to be read along with a definition

clause. Section 2(a) defines “community forest resource”:

“(a) “Community Forest Resource” means customary

common forest land within the traditional or customary
boundaries of the village or seasonal use of landscape in
the case of pastoral communities, including reserved
forests, protected forests and protected areas such
Sanctuaries and National Parks to which the community
had traditional access.”

“Critical wildlife habitat” is defined under Section 2(b) of the Act,

which reads as follows:

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“(b) “critical wildlife habitat” means such areas of

National Parks and Sanctuaries where it has been
specifically and clearly established, case by case, on the
basis of scientific and objective criteria, that such areas
are required to be kept as inviolate for the purposes of
wildlife conservation as may be determined and notified
by the Central Government in the Ministry of Environment
and Forests after open process of consultation by an
Expert Committee, which includes experts from the
locality appointed by that Government wherein a
representative of the Ministry of Tribal Affairs shall also be
included, in determining such areas according to the
procedural requirement arising from sub-sections (1) and
(2) of Section 4.”

“Forest dwelling Scheduled Tribes” is defined under Section 2(c) of

the Act, which reads as follows:

“(c) “Forest dwelling Scheduled Tribes” means the

members or community of the Scheduled Tribes who
primarily reside in and who depend on the forests or
forest lands for bona fide livelihood needs and includes
the Scheduled Tribe Pastoralist communities.”

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“Forest land” is described under Section 2(d), which reads as

follows:

“(d) “forest land” means land of any description falling

within any forest area and includes unclassified forests,
undemarcated forests, existing or deemed forests,
protected forests, reserved forests, sanctuaries and
National Parks.”

“Gram Sabha” is defined under Section 2(g), which reads as

follows:

“(g) “Gram Sabha” means a village assembly which

shall consist of all adult members of a village and in case
of States having no Panchayats, Padas, Tolas and other
traditional village institutions and elected village
committees, with full and unrestricted participation of
women.”

“Habitat” is defined under Section 2(h), which reads as follows:

“(h) “habitat” includes the area comprising the

customary habitat and such other habitats in reserved
forests and protected forests of primitive tribal groups

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and pre-agricultural communities and other forest

dwelling Scheduled Tribes.”

“Scheduled Areas” is described under Section 2(m), which reads

as follows:

“(m) “Scheduled Areas” means the Scheduled Areas referred

to in clause (1) of Article 244 of the Constitution.”

“Sustainable use” is described under Section 2(n), which reads as

follows:

“(n) “sustainable use” shall have the same meaning as

assigned to it in clause (o) of Section 2 of Biological Diversity
Act, 2002 (18 of 2003).”

46. Chapter III of the Act deals with recognition, restoration and

vesting of forest rights and related matters. Section 4 of that

chapter deals with recognition of, and vesting of, forest rights in

forest dwelling STs and other TFDs. Section 5 lists out duties in

whom the forest rights vests and also the holders of forest rights

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empowers them to carry out duties. Those duties include

preservation of habitat from any form of destructive practices

affecting their cultural and natural heritage.

47. The definition clauses read with the above mentioned

provisions give emphasis to customary rights, rights to collect,

use and dispose of minor forest produce, community rights like

grazing cattle, community tenure of habitat and habitation for

primitive tribal groups, traditional rights customarily enjoyed etc.

Legislative intention is, therefore, clear that the Act intends to

protect custom, usage, forms, practices and ceremonies which are

appropriate to the traditional practices of forest dwellers.

48. Chapter IV of the Act deals with the authorities and

procedure for vesting of forest rights. That chapter has only one

section i.e. Section 6, which has to be read along with The

Scheduled Tribes and Other Traditional Forest Dwellers

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(Recognition of Forest Rights) Amendment Rules, 2007 and the

Amendment Rules 2012.

49. Ministry of Tribal Affairs has noticed several problems which

are impeding the implementation of the Act in its letter and spirit.

For proper and effective implementation of the Act, the Ministry

has issued certain guidelines and communicated to all the States

and UTs vide their letter dated 12.7.2012. The operative portion

of the same reads as follows:

“GUIDELINES:

i) Process of Recognition of Rights:

(a)The State Governments should ensure that

on receipt of intimation from the Forest
Rights Committee, the officials of the Forest
and Revenue Departments remain present
during the verification of the claims and the
evidence on the site.

b) In the event of modification or rejection of a

claim by the Gram Sabha or by the Sub-
Divisional Level Committee or the District
Level Committee, the decision on the claim
should be communicated to the claimant to
enable the aggrieved person to prefer a
petition to the Sub Divisional Level
Committee or the District Level Committee,

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as the case may be, within the sixty days

period prescribed under the Act and no such
petition should be disposed of against the
aggrieved person, unless he has been given a
reasonable opportunity to present his case.

c) The Sub-Divisional Level Committee or the

District Level Committee should, if deemed
necessary, remand the claim to the Gram
Sabha for reconsideration instead of rejecting
or modifying the same, in case the resolution
or the recommendation of the Gram Sabha is
found to be incomplete or prima-facie
requires additional examination.

d) In cases where the resolution passed by the

Gram Sabha, recommending a claim, is
upheld by Sub-Divisional Level committee,
but the same is not approved by the District
Level Committee, the District Level
Committee should record the reasons for not
accepting the recommendations of the Gram
Sabha and the Sub-Divisional Level
Committee, in writing, and a copy of the order
should be supplied to the claimant.

e) On completion of the process of settlement of

rights and issue of titles as specified in
Annexures II, III & IV of the Rules, the
Revenue / Forest Departments shall prepare a
final map of the forest land so vested and the
concerned authorities shall incorporate the
forest rights so vested in the revenue and
forest records, as the case may be, within the
prescribed cycle of record updation.

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f) All decisions of the Sub-Divisional Level

Committee and District Level Committee that
involve modification or rejection of a Gram
Sabha resolution/ recommendation should be
in the form of speaking orders.

g) The Sub-Divisional Level Committee or the

District Level committee should not reject any
claim accompanied by any two forms of
evidences, specified in Rule 13, and
recommended by the Gram Sabha, without
giving reasons in writing and should not insist
upon any particular form of evidence for
consideration of a claim. Fine receipts,
encroacher lists, primary offence reports,
forest settlement reports, and similar
documentation rooted in prior official
exercises, or the lack -thereof, would not be
the sole basis for rejection of any claim.

h) Use of any technology, such as, satellite

imagery, should be used to supplement
evidences tendered by a claimant for
consideration of the claim and not to replace
other evidences submitted by him in support
of his claim as the only form of evidence.

i) The status of all the claims, namely, the total

number of claims filed, the number of claims
approved by the District Level Committee for
title, the number of titles actually distributed,
the number of claims rejected, etc. should be
made available at the village and panchayat
levels through appropriate forms of
communications, including conventional
methods, such as, display of notices, beat of
drum etc.

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j) A question has been raised whether the four

hectare limit specified in Section 4(6) of the
Act, which provides for recognition of forest
rights in respect of the land mentioned in
clause (a) of sub-section (1) of section 3 of
the Act, applies to other forest rights
mentioned in Section 3(1) of the Act. It is
clarified that the four hectare limit specified
in Section 4(6) applies to rights under section
3(1)(a) of the Act only and not to any other
right under section 3(1), such as conversion
of pattas or leases, conversion of forest
villages into revenue villages etc.

ii) Minor Forest Produce:

(a) The State Government should ensure that the

forest rights relating to MFPs under Section
3(1)(c) of the Act are recognized in respect of
all MFPs, as defined under Section 2(i) of the
Act, in all forest areas, and state policies are
brought in alignment with the provisions of
the Act. Section 2(i) of the Act defines the
term “minor forest produce” to include "all
non-timber produce of plant origin, including
bamboo, brush wood, stumps, cane, tussar,
cocoons, honey, wax, lac, tendu or kendu
leaves, medicinal plants and herbs, roots,
tubers, and the like".

(b) The monopoly of the Forest Corporations in

the trade of MFP in many States, especially in
case of high value MFP, such as, tendu patta,
is against the spirit of the Act and should
henceforth be done away with.

c) The forest right holders or their cooperatives/

federations should be allowed full freedom to

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sell such MFPs to anyone or to undertake

individual or collective processing, value
addition, marketing, for livelihood within and
outside forest area by using locally
appropriate means of transport.

d) The State Governments should exempt

movement of all MFPs from the purview of the
transit rules of the State Government and, for
this purpose, the transit rules be amended
suitably. Even a transit permit from Gram
Sabha should not be required. Imposition of
any fee/charges/royalties on the processing,
value addition, marketing of MFP collected
individually or collectively by the
cooperatives/ federations of the rights holders
would also be ultra vires of the Act.

(e) The State Governments need to play the

facilitating role in not only transferring
unhindered absolute rights over MFP to forest
dwelling Scheduled Tribes and other
traditional forest dwellers but also in getting
them remunerative prices for the MFP,
collected and processed by them.

iii) Community Rights:

(a) The District Level Committee should ensure

that the records of prior recorded nistari or
other traditional community rights (such as
Khatian part II in Jharkhand, and traditional
forest produce rights in Himachal and
Uttarakhand) are provided to Gram Sabhas,
and if claims are filed for recognition of such
age-old usufructory rights, such claims are

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not rejected except for valid reasons, to be

recorded in writing, for denial of such
recorded rights;

(b) The District Level Committee should also

facilitate the filing of claims by pastoralists
before the concerned Gram Sabha (s) since
they would be a floating population for the
Gram Sabha(s) of the area used traditionally.

(c) In view of the differential vulnerability of

Particularly Vulnerable Tribal Groups (PTGs)
amongst the forest dwellers, District Level
Committee should play a pro-active role in
ensuring that all PTGs receive habitat rights
in consultation with the concerned PTGs’
traditional institutions and their claims for
habitat rights are filed before the concerned
Gram Sabhas.

(d) The forest villages are very old entities, at

times of pre-independent era, duly existing in
the forest records. The establishment of these
villages was in fact encouraged by the forest
authorities in the pre-independent era for
availability of labour within the forest areas.
The well defined record of each forest village,
including the area, number of inhabitants,
etc. exists with the State Forest Departments.
There are also unrecorded settlements and
old habitations that are not in any
Government record. Section 3(1)(h) of the Act
recognizes the right of forest dwelling
Scheduled Tribes and other traditional forest
dwellers relating to settlement and
conversion on forest villages, old habitation,
un-surveyed villages and other villages and

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forests, whether recorded, notified or not into

revenue villages. The conversion of all forest
villages into revenue villages and recognition
of the forest rights of the inhabitants thereof
should actually have been completed
immediately on enactment of the Act. The
State Governments may, therefore, convert
all such erstwhile forest villages, unrecorded
settlements and old habitations into revenue
villages with a sense of urgency in a time
bound manner. The conversion would include
the actual land-use of the village in its
entirety, including lands required for current
or future community uses, like, schools,
health facilities, public spaces etc. Records of
the forest villages maintained by the Forest
Department may thereafter be suitably
updated on recognition of this right.

iv) Community Forest Resource Rights:

(a) The State Government should ensure that the

forest rights under Section 3(1)(i) of the Act
relating to protection, regeneration or
conservation or management of any
community forest resource, which forest
dwellers might have traditionally been
protecting and conserving for sustainable use,
are recognized in all villages and the titles are
issued as soon as the prescribed Forms for
claiming Rights to Community Forest
Resource and the Form of Title for Community
Forest Resources are incorporated in the
Rules. Any restriction, such as, time limit, on
use of community forest resources other than
what is traditionally imposed would be
against the spirit of the Act.

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b) In case no community forest resource rights

are recognized in a village, the reasons for
the same should be recorded. Reference can
be made to existing records of community
and joint forest management, van
panchayats, etc. for this purpose.

c) The Gram Sabha would initially demarcate the

boundaries of the community forest resource
as defined in Section 2(a) of the Act for the
purposes of filing claims for recognition of
forest right under Section 3(1)(i) of the Act.

d) The Committees constituted under Rule 4(e) of

the Forest Rights Rules, 2008 would work
under the control of Gram Sabha. The State
Agencies should facilitate this process.

e) Consequent upon the recognition of forest

right in Section 3(i) of the Act to protect,
regenerate or conserve or manage any
community forest resource, the powers of the
Gram Sabha would be in consonance with the
duties as defined in Section 5(d), wherein the
Gram Sabha is empowered to regulate access
to community forest resources and stop any
activity which adversely affects the wild
animals, forest and the bio-diversity. Any
activity that prejudicially affects the wild-life,
forest and bio-diversity in forest area would
be dealt with under the provisions of the
relevant Acts.

v) Protection Against Eviction, Diversion of

Forest Lands and Forced Relocation :

(a) Section 4(5) of the Act is very specific and

provides that no member of a forest dwelling

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Scheduled Tribe or other traditional forest

dwellers shall be evicted or removed from the
forest land under his occupation till the
recognition and verification procedure is
complete. This clause is of an absolute nature
and excludes all possibilities of eviction of
forest dwelling Scheduled Tribes or other
traditional forest dwellers without settlement
of their forest rights as this Section opens
with the words “Save as otherwise provided”.
The rationale behind this protective clause
against eviction is to ensure that in no case a
forest dweller should be evicted without
recognition of his rights as the same entitles
him to a due compensation in case of
eventuality of displacement in cases, where
even after recognition of rights, a forest area
is to be declared as inviolate for wildlife
conservation or diverted for any other
purpose. In any case, Section 4(1) has the
effect of recognizing and vesting forest rights
in eligible forest dwellers. Therefore, no
eviction should take place till the process of
recognition and vesting of forest rights under
the Act is complete.

(b) The Ministry of Environment & Forests, vide

their letter No.11-9/1998-FC(pt.) dated
30.07.2009, as modified by their subsequent
letter of the same number dated 03.08.2009,
has issued directions, requiring the State/ UT
Governments to enclose certain evidences
relating to completion of the process of
settlement of rights under the Scheduled
Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006, while
formulating unconditional proposals for

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diversion of forest land for non-forest

purposes under the Forest (Conservation) Act,
1980. The State Government should ensure
that all diversions of forest land for non-forest
purposes under the Forest (Conservation) Act,
1980 take place in compliance with the
instructions contained in the Ministry of
Environment & Forest’s letter dated
30.07.2009, as modified on 03.08.2009.

(c) There may be some cases of major diversions

of forest land for non-forest purposes under
the Forest (Conservation) Act, 1980 after the
enactment of the Scheduled Tribes and other
Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006 but before the issue
of Ministry of Environment & Forests’ letter
dated 30.07.2009, referred to above. In case,
any evictions of forest dwelling Scheduled
Tribes and other traditional forest dwellers
have taken place without settlement of their
rights due to such major diversions of forest
land under the Forest (Conservation) Act,
1980, the District Level Committees may be
advised to bring such cases of evictions, if
any, to the notice of the State Level
Monitoring Committee for appropriate action
against violation of the provisions contained
in Section 4(5) of the Act.

(d) The Act envisages the recognition and vesting

of forest rights in forest dwelling Scheduled
Tribes and other traditional forest dwellers
over all forest lands, including National Parks
and Sanctuaries. Under Section 2(b) of the
Act, the Ministry of Environment & Forests is
responsible for determination and notification
of critical wildlife habitats in the National

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Parks and Sanctuaries for the purpose of

creating inviolate areas for wildlife
conservation, as per the procedure laid down.
In fact, the rights of the forest dwellers
residing in the National Parks and Sanctuaries
are required to be recognized without waiting
of notification of critical wildlife habitats in
these areas. Further, Section 4(2) of the Act
provides for certain safeguards for protection
of the forest rights of the forest rights holders
recognized under the Act in the critical
wildlife habitats of National Parks and
Sanctuaries, when their rights are either to be
modified or resettled for the purposes of
creating inviolate areas for wildlife
conservation. No exercise for modification of
the rights of the forest dwellers or their
resettlement from the National Parks and
Sanctuaries can be undertaken, unless their
rights have been recognized and vested
under the Act. In view of the provisions of
Section 4(5) of the Act, no eviction and
resettlement is permissible from the National
Parks and sanctuaries till all the formalities
relating to recognition and verification of their
claims are completed. The State/ UT
Governments may, therefore, ensure that the
rights of the forest dwelling Scheduled Tribes
and other traditional forest dwellers, residing
in National Parks and Sanctuaries are
recognized first before any exercise for
modification of their rights or their
resettlement, if necessary, is undertaken and
no member of the forest dwelling Scheduled
Tribe or other traditional forest dweller is
evicted from such areas without the
settlement of their rights and completion of

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all other actions required under section 4 (2)

of the Act.

(e) The State Level Monitoring Committee should

monitor compliance of the provisions of
Section 3(1)(m) of the Act, which recognizes
the right to in situ rehabilitation including
alternative land in cases where the forest
dwelling Scheduled Tribes and other
traditional forest dwellers have been illegally
evicted or displaced from forest land without
receiving their legal entitlement to
rehabilitation, and also of the provisions of
Section 4(8) of the Act, which recognizes their
right to land when they are displaced from
their dwelling and cultivation without land
compensation due to State development
interventions.

vi) Awareness-Raising, Monitoring and Grievance

Redressal:

a) Each State should prepare suitable

communication and training material in
local language for effective
implementation of the Act.

b) The State Nodal Agency should ensure that

the Sub Divisional Level Committee and the
District Level Committee make district-wise
plans for trainings of revenue, forest and
tribal welfare departments' field staff,
officials, Forest Rights Committees and
Panchayat representatives. Public meetings
for awareness generation in those villages
where process of recognition is not complete
need to be held.

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c) In order to generate awareness about the

various provisions of the Act and the Rules,
especially the process of filing petitions, the
State Government should organize public
hearings on local bazaar days or at other
appropriate locations on a quarterly basis till
the process of recognition is complete. It will
be helpful if some members of Sub Divisional
Level Committee are present in the public
hearings. The Gram Sabhas also need to be
actively involved in the task of awareness
raising.

d) If any forest dwelling Scheduled Tribe in case

of a dispute relating to a resolution of a Gram
Sabha or Gram Sabha through a resolution
against any higher authority or Committee or
officer or member of such authority or
Committee gives a notice as per Section 8 of
the Act regarding contravention of any
provision of the Act or any rule made
thereunder concerning recognition of forest
rights to the State Level Monitoring
Committees, the State Level Monitoring
Committee should hold an inquiry on the
basis of the said notice within sixty days from
the receipt of the notice and take action, if
any, that is required. The complainant and
the Gram Sabha should be informed about
the outcome of the inquiry.”

Forest Rights Act and MMRD Act:

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50. State of Orissa has maintained the stand that the State has

the ownership over the mines and minerals deposits beneath the

forest land and that the STs and other TFDs cannot raise any

claim or rights over them, nor the Gram Sabha has any right to

adjudicate such claims. This Court in Amritlal Athubhai Shah

and Ors. v. Union Government of India and Another (1976)

4 SCC 108, while dealing with the scope of Mines and Minerals

(Regulation and Development) Act, 1957 held as follows:

“3. ……the State Government is the “owner of

minerals” within its territory, and the minerals “vest” in it.
There is nothing in the Act or the Rules to detract from
this basic fact. That was why the Central Government
stated further in its revisional orders that the State
Government had the “inherent right to reserve any
particular area for exploitation in the public sector”. It is
therefore quite clear that, in the absence of any law or
contract etc to the contrary, bauxite, as a mineral, and
the mines thereof, vest in the State of Gujarat and no
person has any right to exploit it otherwise then in
accordance with the provisions of the Act and the
Rules……….”

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The Forest Rights Act, neither expressly nor impliedly, has taken

away or interfered with the right of the State over mines or

minerals lying underneath the forest land, which stand vested in

the State. State holds the natural resources as a trustee for the

people. Section 3 of the Forest Rights Act does not vest such

rights on the STs or other TFDs. PESA Act speaks only of minor

minerals, which says that the recommendation of Gram Sabha

shall be made mandatory prior to grant of prospecting licence or

mining lease for minor minerals in the Scheduled Areas.

Therefore, as held by this Court in Amritlal (supra), the State

Government has the power to reserve any particular area for

Bauxite mining for a Public Sector Corporation.

Gram Sabha and other Authorities:

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

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local limits of the jurisdiction. For the said purpose it receive

claims, and after consolidating and verifying them it has to

prepare a plan delineating the area of each recommended claim

in such manner as may be prescribed for exercise of such rights.

The Gram Sabha shall, then, pass a resolution to that effect and

thereafter forward a copy of the same to the Sub-Divisional Level

Committee. Any aggrieved person may move a petition before the

Sub-Divisional Level Committee against the resolution of the

Gram Sabha. Sub-section (4) of Section 6 confers a right on the

aggrieved person to prefer a petition to the District Level

Committee against the decision of the Sub-Divisional Level

Committee. Sub-section (7) of Section 6 enables the State

Government to constitute a State Level Monitoring Committee to

monitor the process of recognition and vesting of forest rights and

to submit to the nodal agency. Such returns and reports shall be

called for by that agency.

52. Functions of the Gram Sabha, Sub-Divisional Level

Committee, District Level Committee, State Level Monitoring

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Committee and procedure to be followed and the process of

verification of claims etc. have been elaborately dealt with in

2007 Rules read with 2012 Amendment Rules. Elaborate

procedures have therefore been laid down by Forest Rights Act

read with 2007 and 2012 Amendment Rules with regard to the

manner in which the nature and extent of individual or customary

forest rights or both have to be decided. Reference has already

been made to the details of forest rights which have been

conferred on the forest dwelling STs as well as TFDs in the earlier

part of the Judgment.

Individual/Community Rights

53. Forest Rights Act prescribed various rights to tribals/forest

dwellers as per Section 3 of the Act. As per Section 6 of the Act,

power is conferred on the Gram Sabha to process for determining

the nature and the extent of individual or community forests read

with or both that may be given to forest dwelling STs and other

TFDs, by receiving claims, consolidate it, and verifying them and

preparing a map, delineating area of each recommended claim in

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such a manner as may be prescribed. The Gram Sabha has

received a large number of individual claims and community

claims from the Rayagada District as well as the Kalahandi

District. From Rayagada District Gram Sabha received 185

individual claims, of -which 145 claims have been considered and

settled by granting alternate rights over 263.5 acres of land. 40

Individual claims pending before the Gram Sabha pertain to areas

which falls outside the mining lease area. In respect of Kalahandi

District 31 individual claims have been considered and settled by

granting alternate rights over an area of 61 acres.

54. Gram Sabha has not received any community claim from the

District of Rayagada. However, in respect of Kalahandi District 6

community claims had been received by the Gram Sabha of which

3 had been considered and settled by granting an alternate area

of 160.55 acres. The balance 3 claims are pending consideration.

Customary and Religious Rights (Sacred Rights)

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55. Religious freedom guaranteed to STs and the TFDs under

Articles 25 and 26 of the Constitution is intended to be a guide to

a community of life and social demands. The above mentioned

Articles guarantee them the right to practice and propagate not

only matters of faith or belief, but all those rituals and

observations which are regarded as integral part of their religion.

Their right to worship the deity Niyam-Raja has, therefore, to be

protected and preserved.

56. Gram Sabha has a role to play in safeguarding the customary

and religious rights of the STs and other TFDs under the Forest

Rights Act. Section 6 of the Act confers powers on the Gram

Sabha to determine the nature and extent of “individual” or

“community rights”. In this connection, reference may also be

made to Section 13 of the Act coupled with the provisions of PESA

Act, which deal with the powers of Gram Sabha. Section 13 of the

Forest Rights Act reads as under:

“13. Act not in derogation of any other law. –

Save as otherwise provided in this Act and the

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provisions of the Panchayats (Extension of the

Scheduled Areas) Act, 1996 (40 of 1996), the
provisions of this Act shall be in addition to and not in
derogation of the provisions of any other law for the
time being in force.”

57. PESA Act has been enacted, as already stated, to provide for

the extension of the provisions of Part IX of the Constitution

relating to Panchayats to the Scheduled Areas. Section 4(d) of

the Act says that every Gram Sabha shall be competent to

safeguard and preserve the traditions, customs of the people,

their cultural identity, community resources and community mode

of dispute resolution. Therefore, Grama Sabha functioning under

the Forest Rights Act read with Section 4(d) of PESA Act has an

obligation to safeguard and preserve the traditions and customs

of the STs and other forest dwellers, their cultural identity,

community resources etc., which they have to discharge following

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the guidelines issued by the Ministry of Tribal Affairs vide its letter

dated 12.7.2012.

58. We are, therefore, of the view that the question whether STs

and other TFDs, like Dongaria Kondh, Kutia Kandha and others,

have got any religious rights i.e. rights of worship over the

Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the

hill top known as Niyam-Raja, have to be considered by the Gram

Sabha. Gram Sabha can also examine whether the proposed

mining area Niyama Danger, 10 km away from the peak, would in

any way affect the abode of Niyam-Raja. Needless to say, if the

BMP, in any way, affects their religious rights, especially their

right to worship their deity, known as Niyam Raja, in the hills top

of the Niyamgiri range of hills, that right has to be preserved and

protected. We find that this aspect of the matter has not been

placed before the Gram Sabha for their active consideration, but

only the individual claims and community claims received from

Rayagada and Kalahandi Districts, most of which the Gram Sabha

has dealt with and settled.

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59. The Gram Sabha is also free to consider all the community,

individual as well as cultural and religious claims, over and above

the claims which have already been received from Rayagada and

Kalahandi Districts. Any such fresh claims be filed before the

Gram Sabha within six weeks from the date of this Judgment.

State Government as well as the Ministry of Tribal Affairs,

Government of India, would assist the Gram Sabha for settling of

individual as well as community claims.

60. We are, therefore, inclined to give a direction to the State of

Orissa to place these issues before the Gram Sabha with notice to

the Ministry of Tribal Affairs, Government of India and the Gram

Sabha would take a decision on them within three months and

communicate the same to the MOEF, through the State

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Government. On the conclusion of the proceeding before the

Gram Sabha determining the claims submitted before it, the MoEF

shall take a final decision on the grant of Stage II clearance for

the Bauxite Mining Project in the light of the decisions of the Gram

Sabha within two months thereafter.

61. The Alumina Refinery Project is well advised to take steps to

correct and rectify the alleged violations by it of the terms of the

environmental clearance granted by MoEF. Needless to say that

while taking the final decision, the MoEF shall take into

consideration any corrective measures that might have been

taken by the Alumina Refinery Project for rectifying the alleged

violations of the terms of the environmental clearance granted in

its favour by the MoEF.

62. The proceedings of the Gram Sabha shall be attended as an

observer by a judicial officer of the rank of the District Judge,

nominated by the Chief Justice of the High Court of Orissa who

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shall sign the minutes of the proceedings, certifying that the

proceedings of the Gram Sabha took place independently and

completely uninfluenced either by the Project proponents or the

Central Government or the State Government.

63. The Writ Petition is disposed of with the above directions.

Communicate this order to the Ministry of Tribal Affairs, Gram

Sabhas of Kalahandi and Rayagada Districts of Orissa and the

Chief Justice of High Court of Orissa, for further follow up action.

……………………...……J.
(Aftab Alam)

…………………….……..J.
(K.S. Radhakrishnan)

……………….……..……J.
(Ranjan Gogoi)
New Delhi,
April 18, 2013

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