#India- Dealing with Maoists

The Maoists want a military conflict as it brings more adivasis into their fold. The Indian state‘s best bet is in ensuring that it wins over the aam adivasis to its side.

May 25th’s condemnable attack by the People’s Liberation Guerrilla Army, which ended up killing and injuring over 50 people from Congress politicians to migrant adivasi labourers, cannot be understood without recognising the Maoist party’s explicit political aims. These aims include zero tolerance for any competing political force in the party’s area of armed influence. Also, as stated often by male members of the party’s non-adivasi leadership, the polarising hardships created by military conflict are desirable since they hold the opportunity of swelling the party’s ranks.

But to make deeper sense of the attack, Indians must also acknowledge the routine stymieing of democracy and governance in adivasi India— the context that nurtures the current avatar of India’s four-decade-old Naxalite rebellion.

If the Indian establishment wishes to effectively end such attacks in the long run, it cannot sidestep a hard look at why it stands so discredited in the aam adivasi’s eyes across central and eastern India. If  “democratic values” are what are at stake, as leading politicians argued in the wake of the attack, their parties must also act to uphold and defend such values in numerous adivasi blocks where the Maoists neither challenge the writ of the state nor hold out the threat of political assassinations.

Here are some specifics dos and don’ts:

1. Implement land rights safeguards: From the adivasi bonded labour agitations in neglected western Orissa to the struggles against losing land and livelihoods for mining and industrialization across the bauxite, coal and iron ore-rich tracts of central and eastern India, land is at the heart of much of the ongoing violence adivasis suffer. This despite clear safeguards in the Constitution, dedicated land alienation laws and the atrocities act, all of which are meant to prevent and redress adivasi displacement and dispossession. Existing constitutional and legal provisions have to be seriously implemented to address this growing crisis.

2. Fast-track the Forest Rights ActFrom the adivasi perspective, the 2006 Forest Rights Act (FRA) was arguably the most meaningful legislation of independent India. It overturned colonial notions of the state as owner of the forest, and recognised adivasis and other forest-inhabitants as rightful cultivators of forest produce and key actors in forest conservation. But states have been reluctant to cede control— as per the government’s latest status report (April 2013), under 50% of land title claims filed by villagers in Chhattisgarh, Jharkhand, Maharashtra and Orissa have resulted in titles. On the ground, this translates into deliberate neglect. In a mid-May interview with one of the columnists, residents of a Gond village in Orissa’s forested coal belt said they had filed FRA claims in 2010 but there was no administrative action to process them. Instead, forest officials had been making rounds of the village with officials of a private mining company. The other important aspect of the law—giving adivasi communities the right to market their forest produce—has been implemented in only a handful of villages across India.

3. Stop criminalising legitimate spaces of expression and protest: A wide spectrum of non-violent adivasi movements today exist on the ground, agitating on multiple issues including forced displacement, the loss of access to natural resources, the absence of meaningful economic and social rehabilitation, below-minimum wages, government liquor shops and indebtedness. Many of these struggles get little public or media attention. The state’s common reaction is to throttle and intimidate such agitations, often through outright physical assaults or by filing criminal charges against protestors, including those of Naxalism. In Chhattisgarh, such non-violent movements have had to coalesce under a single banner hoping for strength in numbers, given the perennial fear of imprisonment under the state’s harsh Public Security Act.

4. Pay closer attention to justice: The criminal justice system as it exists today is loaded against the adivasi. On the one hand, there is little recognition for crimes—from police atrocities to cheating and forced displacement—committed against the adivasi. NHRC’s April visit to Chattisgarh reinforced this principle of zero culpability when it did not recommend criminal charges in any of the questionable encounters that killed adivasi villagers. On the other hand, adivasis are routinely picked up and imprisoned, spending years in a hostile system they can make little sense of. Court proceedings often take place in a language they do not understand, the official legal aid system takes little interest in them, and private lawyers who can get them bail are beyond reach. This April, a year after a committee was set up to examine cases of adivasi prisoners, its head and former bureaucrat Nirmala Buch said she did not know if the Chhattisgarh government had acted on the recommendation that prosecutors not oppose bail for 110 adivasi undertrials in the 235 cases the committee had examined. Undertake a dedicated review of adivasi undertrials, and act on its findings. Create a distinctive legal aid program for adivasis with funds from the Tribal Sub-plan budget. Institute criminal charges on adivasi complaints.

5. Hold businesses accountable: Among the leading violators of human rights in India’s adivasi belt are businesses, in particular mining corporations who have made an unparalleled entry into these areas over the past decade. This presence will only expand in the coming years, but there is alarmingly little attention by the state on the profound implications of this for vulnerable communities on the ground. Corporate misdemeanours range from intimidating gram sabhas, falsifying records, fixing public hearings, nurturing land speculation and alienation, bribing politicians, the bureaucracy and the district media to facilitate violations, sapping natural resources including groundwater, and polluting without any notion of having to pay for it. All of these are open secrets through various levels of government. Yet a blind eye is turned since the consequences of these violations are primarily borne by adivasis. Businesses operating in adivasi areas need to be held to a code of conduct with clear principles of responsibility and accountability.

6. Address the head-on policy collision between mining and adivasi rights: There is a nascent but overdue debate within government on how mining in its current form is incompatible with the constitutional provisions for adivasis. V Kishore Chandra Deo, the most engaged Tribal Affairs Minister India has seen in a long time, has repeatedly pointed to the crisis of confidence and trust in adivasi areas mining is causing. He took this position most strongly in a letter on April 4 to the governors of all adivasi-populated states, men of power who have routinely ignored their constitutional mandate of ensuring ‘peace and good governance’ in adivasi areas. Deo’s concerns over mining have been publicly seconded by his colleague Jairam Ramesh. It is no coincidence that these are the only cabinet members who spend time in adivasi areas and see the damage on the ground first-hand. What is the larger strategic plan for our mineral resources and where might we draw the line on the social and economic costs adivasis bear for our extractive industries? Give these questions the seriousness they deserve, even though they are difficult ones to ask, when spoils from mining enrich individual MPs and MLAs across party lines, and bankroll electoral campaigns.

7. Engage, don’t exclude: Through a series of executive orders, the current government has shrunk the legitimate powers of gram sabhas in adivasi areas to participate in decisions over matters that affect them, from developmental and mining projects to diverting and destroying forests. None of these rollbacks were run by locals or justified to them. They orders came in response to high-level lobbying, and often after explicit PMO directives. The effective message to adivasis is that their participation is irrelevant, or an irritant. Dedicated area development funds in adivasi areas such as the Integrated Action Plan are imbued with a similar scuttling of participatory norms. IAP funds, hundreds of crores of rupees, are entirely controlled by 3 district bureaucrats, violating the legal mandates of local communities and elected panchayats. What proportion of IAP money and energies were spent to engage communities in key challenges like creating accessible and meaningful healthcare in their area?

8. Don’t patronise the adivasi: Adivasis are not our ‘backward’ siblings but full and equal citizens confronted with, and living through enormous inequality and injustice. Recognize that adivasi societies are home to deep and distinctive traditions, which add to the diversity India takes pride in. They also possess an evolved ecological awareness, acquired over generations of managing their environments and livelihoods— knowledge systems that arguably rival those of the most celebrated “development experts”. If the rest of India has the humility to listen, adivasi communities might hold valuable policy insights on how we could avoid replicating the fate of China, which has gravely damaged its environment on the path to economic progress. Incidentally, adivasi societies also possess better sex ratios than some of India’s most developed areas including South Delhi and South Mumbai. Don’t look down on adivasis for “staying aloof from the meanstream [sic] of modern society”, as one government document on Malkangiri’s IAP put it. The fundamental issue seeking resolution is not adivasi difference, but mitigating the inequality and injustice that compromise democratic values for them at every turn.

Chitrangada Choudhury is Research Fellow, Centre for the Study of Developing Societies. Ajay Dandekar is Professor, Central University, Gujarat.


Odisha -Group clashes in Gobindapur over Posco

By Express News Service – PARADIP

31st May 2013 12:13 PM

Despite deployment of one platoon of police force, law and order situation worsened in Gobindapur village due to group clash on Thursday. Betel vine demolition drive for proposed Posco steel plant project was affected as tension gripped the village after clashes between two groups of Harijanshai and two youth groups.

According to sources, last week one Samir Das of the village had handed over his betel vine to the administration despite the opposition of villagers in lieu of Rs 1.13 lakh as compensation. Earlier, Das had borrowed Rs 40,000 from another villager Trinath Bhoi to erect betel vine. After Das violated the villagers’ decision, annoyed Bhoi demanded his money back. When Das refused to return the money, Bhoi forcibly tried to extract money from Das leading to clash between two groups.

Nearly 150 Dalit families of the village have been opposing boundary demarcation and trench cutting work for the project. They alleged that the administration had demolished betel vines of nearly 22 Dalit families on the promise of giving new betel vines but nothing has been given as compensation.

“The administration has forcibly acquired our land without paying any compensation. So, we have sought the intervention of the Orissa High Court and Human Rights Commission,’said the villagers.


Stop cutting trees for Posco plant: tribunal


National green tribunal says large number of trees are being cut without permission of any competent authority
Neha Sethi Mail Me |  Ruchira Singh Mail Me
First Published: Tue, May 28 2013. 11 39 PM IST
Environmental clearance for the project was suspended by the same tribunal in March last year. Photo: Reuters<br />
Environmental clearance for the project was suspended by the same tribunal in March last year. Photo: Reuters
Updated: Tue, May 28 2013. 11 53 PM IST
New Delhi/Mumbai: The National Green Tribunal on Tuesday stepped in to stop felling of trees for the controversial Posco steel project in Orissa’s Jagatsinghpur district, posing another challenge to the South Korean company’s much-delayed $12 billion plant.
According to a report by PTI earlier this month, the state government has been able to acquire 2,630 acres of land against the initial requirement of 2,700 acres for setting up the 8 million tonnes per annum (mtpa) plant.
Environmental clearance for the project was suspended by the same tribunal in March last year.
“It is undisputed that as of today the project proponent does not have environmental clearance,” the bench headed by justice Swatanter Kumar said on Tuesday.
A petition filed by activist Prafulla Samantray brought to the tribunal’s notice the violation by the steel company in Orissa.
“It is contended before us now that large number of trees are being felled/cut by the project proponent without permission of any competent authority,” the bench’s order said.
Samantray alleged that the Orissa government was in collusion with the company and around 200,000 trees have been cut despite the suspension of the environmental clearance.
“This shows that the Orissa government is more concerned about the interests of the corporate and not the interest of its people. These trees are very important for our area as they prevent us from cyclones in the area,” he said.
The tribunal’s decision is significant as Posco was violating the earlier NGT order while felling trees in the area, said Rahul Choudhary, advocate for the petitioner.
“This talks about the company and how they are violating the law of the land. The country should make sure that they consider damage to environment because of a plant, instead of just looking at the investment that the company brings,” he said.
The tribunal added that the suspension of the environmental clearance will remain in force till an order is passed by the environment ministry based on the recommendations of a committee headed by former bureaucrat K. Roy Paul that was set up last year to look into this issue.
The South Korean company denied any violations in a posting on its website.
“Posco reiterates that it has never violated any human rights or environment norms in Orissa and also assures all its precious shareholders and stakeholders that Posco has committed itself to protect human rights through ethical practice,” the company said.
Posco India’s general manager, corporate relations, I.G. Lee, did not answer his phone or reply to a text message seeking comments.
Earlier, Lee had said the company was awaiting the handing over of 2,700 acres of land by the state government to start building its steel plant.
According to the original plan, the company needs 4,004 acres in an area with sandy soil in parts where villagers grow nuts and betel vines.
Meanwhile, an independent committee set up to safeguard Organisation for Economic Co-operation and Development ethical guidelines has said that Norway’s oil fund, which has invested in Posco’s steel plant and is the largest sovereign wealth fund in the world, has no strategy for dealing with possible violations of human rights by the companies in which it invests.
The committee further said that the fund was not doing enough to protect against human rights breaches.
PTI and Reuters contributed to this story.
First Published: Tue, May 28


Why Orissa mining may not go the Goa way

By MEERA MOHANTY, ET Bureau | 14 May, 2013,

When the Supreme Court reopened the iron-ore mining door some more in Karnataka, miners in Orissa breathed a Rs 50,000 crore sigh of relief.
Three weeks ago, when the Supreme Court reopened the iron-ore mining door some more in Karnataka, miners in Orissa breathed a Rs 50,000 crore sigh of relief. Also in the dock for some offences of a similar nature, Orissa’s iron-ore miners, who produce a third of this mineral that is critical to steel, had been dreading their fate, which lay in the hands of a Central government panel.

The last time the Shah Commission—whose remit is to study violations in iron ore and manganese mining in India and recommend changes— submitted a fact-finding report, made public in September 2012, it led to all iron-ore mining in Goa grind to a halt. So, as it prepared to submit its report on Orissa, by July, there was a gnawing sense of fear among miners, user companies, and government functionaries and politicians at both the Centre and the state levels, that this eastern state could go the Goa way.

For companies with steel units in the neighbourhood, like Tata SteelBSE -2.23 %, Jindal SteelBSE -1.06 % and Power and SAIL, it would mean losing access to their key input. For the Centre, it would mean another blow in its efforts to shore up industrial growth. For Orissa, it would mean the loss of its economic engine.

Most of all, for iron-ore miners, it would mean the loss of a lucrative business stream. Already smarting because of a Rs 65,000 crore recovery claim raised by Orissa, they were bracing for the worst. But now, feels senior advocate Ashok Parija, who is contesting these claims on behalf of some Orissa miners: “Mining will not stop. After this (Karnataka) order, it is clear that most leases here beat the Karnataka test.”

The ‘Karnataka test’ is a 10% straying limit. Cancelling 43% of iron-ore leases in Karnataka, the SC allowed the remaining, which had not strayed beyond 10% of their boundary (15% in certain cases), to reopen. “The nature of violations in Orissa is different in nature,” adds a member who has worked closely with the central empowered committee (CEC), the panel doing the fact-finding for the SC on illegal mining. “Further, unlike Karnataka or Goa, Orissa, for whatever reason, has been doing its bit to correct the situation,” he adds, on the condition of anonymity.


Since 2010, much before the Shah Commission was set up, the Naveen Patnaik government in Orissa has been putting in place checks and balances to detect illegal mining. Even the CEC noted this in its April 2010 report to the SC: it said that “…the state has taken corrective steps, though rather belatedly…”, but also added that “serious shortcomings” still remain. Orissa asked miners without valid clearances to stop mining. It initiated inquiries against companies allegedly doing illegal mining and suspended several state government officials. “Since 2009, we have suspended nearly 200 mines working on a ‘deemed extension’ (a much abused contingency provision for renewals) without statutory clearances,” says Deepak Mohanty, director of mines, Orissa.

The state government, further, made public data on leases, permits and status. It made registration compulsory for traders and truckers, removed stockyards outside a 40 km radius of a mine, issued e-permits that enabled real-time tracking of all consignments and asked the railways to check permits before allowing rakes to be loaded. “That is one kind of theft that would go completely unaccounted: trucks that loaded 20 tonnes, declaring half as much, and bribing their way through weigh bridges manned by class four employees,” says Rabi Das, whose petition in the Supreme Court brought the CEC to Orissa.

According to Das, the state had not turned a new leaf; its hand was forced when the case— now famously known as the ‘RBT case’ (after Ram Bahadur Thakur, the lease owner)—of two people claiming rights to mine a piece of land neither had the approval for rocked the state assembly. Since both the accused were reportedly associated with the ruling Biju Janata Dal (BJD), the state had to initiate an inquiry. “If this (the RBT case) hadn’t blown up, it would have been difficult to take action,” says a former state mining official, on the condition of anonymity.

Why Orissa mining may not go the Goa way

While those corrective measures may yet avert a shutdown, three other subsequent steps taken by Orissa—many say to save its face with the Shah Commission—has caused recrimination among miners, hurled the state into a legal standoff with the Centre and cast shadows of uncertainty in iron-ore mining in Orissa. And untangling all this will be a long, legal battle.


In October 2012, in the backdrop of a shutdown in Goa mining and the Supreme Court meaning business in Karnataka, Orissa stunned everyone with three big decisions. One, it asked 204 mines in the state to pay fines amounting to Rs 65,000 crore for extracting more iron ore than they had permission for in the last 10 years. Two, the state barred the private sector from all new mineral leases, reserving everything for its own Orissa Mining Corporation (OMC), which too had been fined Rs 8,700 crore. Three, it made it conditional on miners whose licences were awaiting renewals to supply 50% of their iron ore to steel units in the state and only then sell outside; it also declared that such leases on second or subsequent renewal can only retain reserves for 30 years of captive use.

According to a director of a large merchant miner that has challenged the fines and the captive clause, the policy moves don’t hold. “On the one hand, you practically restrict all production. On the other, you insist material should not leave the state, which firstly isn’t constitutional. Is the state ready for a hundred steel plants?” he says, not wanting to be named.

On the face of it, the battle lines seem to be drawn around the Rs 65,000 crore fine. On one side is the Orissa government. On the other side are the miners, who feel the basis and quantum of the fine are misplaced, and the Centre, which feels the Naveen Patnaikgovernment is overstepping its jurisdiction.

According to Orissa miners, some of the richest in India, unlike the worst of Karnataka mining offenders, they were not stealing from land they didn’t have permission to mine on. Further, they add, what the state is terming over-production is actually allowed under the rules. The Centre supports them on this, citing the 20% mark-up over the mining plan approved by the Indian Bureau of Mines (IBM) that is permissible. Says Mohanty: “It (the Centre) said that, in 71 of the 104 cases, where there was a slight increase beyond the IBMlimits, subsequent mining schemes in each and every case had been approved, and thus the excess regularised.”

Parija adds this would hold even on the ‘10% Karnataka rule’. “Goa or Karnataka mines are 5-10 hectare mines, Orissa’s are 25-1,000 hectares,” he says. “A 10% deviation will be huge, and that couldn’t have happened because most of these leases are adjacent.”

The Centre also argues that the clause under which Orissa has claimed the fines—Section 21(5) of the Mines and Mineral (Regulation and Development) (MMDR) Act 1957—applies to production outside a mine owner’s area, not excess production within. It has advised Orissa not to colelct the fines while 20 miners await the order of a Central tribunal on the matter.

Any resolution on the matter will take time. “We have only issued show cause notices. Hearings have to be completed so that the amount is reconciled. Only then can a formal notice be issued,” says Mohanty. The tribunal too is likely to wait for a formal notice, says a senior official in the Central ministry.

This is creating a piquant solution for miners as the state is also reviewing their applications for renewals. Mohanty says 337 mines are on ‘deemed extensions’; further, of these, only 58 have all statutory clearances. The state has said that, in deciding on each renewal, it will consider the past history of the occupant, including alleged irregularities committed by it.​

Why Orissa mining may not go the Goa way


Watching all this from the sidelines is the Shah Commission, led by MB Shah, the retired Supreme Court judge. His second-in-command is UV Singh, the pugnacious forest officer of Karnataka whose defiant documentation of the mining operations of the Reddy brothers formed the basis of the state Lokayukta’s report.

The Commission’s term ends on July 16, and the Orissa report, for which it ended its public meetings on April 21, will be its last for now. Such is its perceived influence and importance that one view is that Orissa acted against the miners so that the Shah Commission might cut it some slack, and events might not spiral out of its control, as they did in Goa.

In October 2012, Goa went into a tailspin after the Shah Commission report, which said that Rs 35,000 crore of illegal mining had happened in the state, was tabled in Parliament. This was the trigger for a public interest litigation (PIL) to be filed by an NGO called Goa Foundation in the SC, which banned all iron-ore mining in Goa.

Rajesh Verma, Orissa steel and mines secretary, asserts the state’s actions were proactive, and not reactive. He points out the notification for the Shah Commission came on November 22, 2010, while Orissa issued the order for its inquiry on August 25. The terms of the Orissa probe was to inspect how much each mine in five minerals— iron ore, chrome, manganese, bauxite and limestone—was producing vis-a-vis its approved limits. “We issued notices in September 2011, well before the Shah Commission’s first visit to the state in November 2011,” he adds.

“This is all a show for (Justice) Shah and the upcoming elections,” alleges Niranjan Patnaik, state Congress leader. “What about the pits in huge tracts of unleased area, relinquished area and OMC’s own mines? Has the Shah Commission seen these tracts, where the mafia ran riot with government patronage?” The state’s complicity is why, alleges Niranjan Patnaik, even as Karnataka and Goa agreed to an enquiry by the Central Bureau of Investigation(CBI), Orissa didn’t. “A CBI enquiry can well start with my mining baron cousins, but it must.”

CENTRE-STATE CONFLICTOrissa, on its part, has been arguing with the Centre for some time to reduce profits in the hands of miners—and increasing revenues in the hands of the state. At present, states earn a royalty, of 10% of the average sale price per tonne, on the iron ore sold.The Centre fixes this royalty rate. Although this rate is revised every three years, the 10% rate has been in place since 2009. Before that, it was a flat Rs 12-27 per tonne, which meant miners pocketed every bit of gains from a price increase. With China on a building boom, iron ore prices shot up four-fold between 2001 and 2011.

Orissa began asking the Centre to levy a windfall tax. On September 3, 2011, chief minister Patnaik wrote to the prime minister that, “I am concerned about the huge profits accruing to merchant mining companies, a large number of which are in private hands.”

Patnaik cited the phenomenal increase in NMDC’s net profit—from Rs 1,245 crore in 2001-02 to Rs 18,815 crore in 2010-11. Dinsha Patel, the minister of mines at the Centre, replied to Patnaik that Orissa’s coffers also rose proportionately: the state earned Rs 1,852 crore in iron-ore royalties in 2010-11, despite a fall in production, against Rs 668 crore collected the previous year.

A former mines ministry official, on the condition of anonymity, admits the Centre profited more than the state during the boom. “The Centre increased export duty (collected by the Centre) from 5% to 20% in February 2011 and to 30% in December 2011,” he says. “Orissa’s demand is fair enough. Royalty earnings also surged, but not to the extent exports did.”


All eyes are now on the Shah Commission, which had made three trips to Orissa. A battery of highprofile lawyers—including Ram Jethmalani representing Thriveni Earthmovers, andGopal Subramaniam representing seven companies, including Tata Steel and Indrani Patnaik—made a submission to it to hear their clients out individually, something that was not done in Goa.

Between February and April, miners defended their case to Justice Shah in Ahmedabad, Gujarat, where he is based. They have also been offering olive branches. During the commission’s hearings in Orissa, a group of miners offered to create a trust of Rs 100 crore for developmental work in the state.

Although miners are still going about operations and production hasn’t suffered, a period of trials and tribulations lies ahead for them. For example, the ‘RBT case’ accused, who were found guilty of illegal mining by Orissa, won relief from the Centre, and their cases are presently in the Orissa High Court. The state’s decision to insist on captive mining has also ended up in courts.


Supreme Court tells Centre to decide on POSCO’s mining license

Fri, 10 May 2013

By Newzfirst 5/10/13

New Delhi – The Supreme Court on Friday set aside the Orissa high court order which had quashed state government‘s petition to allot iron ore license to South Korean steel major POSCO in Khandadhar hills in Sundergarh district for a multi-crore steel plant.

A bench headed by Justice R M Lodha asked the Centre to consider all the objections raised by various parties pertaining to the mega steel plant and take a decision.

The court was hearing cross appeals filed by the state government and a mine and mineral company challenging the Orissa high court’s order on the issue of iron ore mines.

The state government of Orissa and Geomin Minerals & Marketing Limited had challenged the orders of the Orissa high court which had quashed the notification issuing iron ore mining in over 2,500 hectares in the Khandadhar hills in Sundergarh district to POSCO.

The high court, on July 14, 2010 on the petition of Geomin Minerals, had set aside the state government’s decision.

Geomin Minerals had contended before the high court that it had applied for the prospective licence for Khandadhar iron ore mines much before POSCO.

The High Court had set aside the notification issued by state government in 1962 reserving all mineral bearing land for exploitation within Orissa and take a fresh decision on it.

The high court had further said that all mineral bearing land reserved by the state government prior to 1987, without the approval of the central government would not be deemed to have never been reserved.

The Orissa government, which had moved the apex court, on October 29, 2010 on this issue, had contended that the high court could not have quashed the state government’s grant of licence to POSCO as it was under section 11 (5) of Mines And Minerals (Development And Regulation) Act, 1957.

The Orissa government had further contended that Section 11 (5) gives power to the state government to “grant a reconnaissance permit, prospecting license or mining lease, as the case may be, to an applicant whose application was received later in preference to an application whose application was received earlier”.

The state government in January 2009 had recommended POSCO to the central government for granting prospective licence for Khandadhar iron ore reserves.

This was challenged by Geomin and later 16 other firms who have also applied for mining leases also intervened.

Geomin, in its petition, had submitted before the apex court that the high court “does not take into account the pleading made by it” and “has traversed beyond the pleadings and prayer made by it”.



Posco project: Odisha to complete acquisition of 700 acres in a week

Business Standard
Jayajit Dash  |  Bhubaneswar 
 May 9, 2013 Last Updated at 17:53 IST

The state government has already acquired 2,000 acres of land for the Posco project


Moving ahead in its land acquisition spree for the Posco project, the Jagatsinghpur district administration aims to complete acquisition of 700 acres of land for the mega steel project in a week.

The state government has already acquired 2,000 acres of land for the Posco project. In the current phase of land procurement, an additional 700 acres were to be acquired.

This is necessary since Posco India had sought at least 2,700 acres of land to commence construction activity on an eight million tonne per annum (mtpa) steel mill in the first phase.

The proponent would later ramp up output to full scale 12 mtpa on receipt of its full land requirement of 4,004 acres.

“We expect to complete acquisition of 700 acres of land for the Posco project in a week. Close to 600 acres have already been acquired. Trenching work for boundary wall construction is also going on at Gobindpur”, sad Jagatsinghpur collector Satya Kumar Mallick.

Asked if protests at the project site would impede land acquisition, “The protests would not impact land acquisition activity since we hope to resolve all issues amicably through discussions.”’

Recently, the land acquisition drive for the Posco project had suffered a setback when villagers opposed the process, alleging massive irregularities in measurement of vines.

The affected people also objected to starting trench cutting necessary for commencement of boundary wall construction for the steel project.

The pro-Posco villagers alleged that the company authorities and officials of Odisha Industrial Infrastructure Development Corporation (Idco) have started trench cutting process for erection of boundary wall for the project without finalizing compensation, fixation of land rate, job opportunities, identification of betel vine labourers and other issues.

In a recent status note prepared on the Posco project, the state government said it has already handed over 546 acres to Posco India. An additional 1554 acres were ready to be handed over to the company.

Posco India needed 4004 acres of land in all. The land was to be acquired in eight villages- Nuagaon, Dhinkia, Noliasahi, Gobindpur, Polang, Bayanalkandha, Bhuyanpal and Jatadhar.

The state government admitted that law and order problems at the project site and delay in obtaining approval of forest diversion from the Union ministry of environment & forest (MoEF) impeded progress in project implementation.

While according approval of forest diversion for 2959 acres of forest land, MoEF did not appreciate the swapping clause of the original MoU (memorandum of understanding) signed with the steel major that expired in June 2010.


Joint Statement Condemn Police Excesses in Lower Suktel Project area in Balangir, Odisha

Warning sign for police brutality.

Warning sign for police brutality. (Photo credit: Wikipedia)




Scrap the Lower Suktel Dam project immediately




We, the undersigned, are anguished and appalled by the brutality and excesses of Orissa Police on peaceful demonstrators and concerned citizens near Magurbeda village of Balangir District in Orissa on 29 April 2013. At least 40 persons received severe injuries in this unprovoked lathi-charge and police brutality. We strongly condemn such police action and demand that responsible policemen be brought to book immediately!


Shockingly, during this standoff police dramatically turned into a confrontation, women were pulled by their hair, thrown on ground with policemen deliberately trampled over their feet and private parts as if they were trying to get confessions out of hardened criminals – all this under the supervision of the Sub-Divisional Police Officer and the Sub-Collector of Balangir, the latter with magisterial power.


It is absolutely unacceptable that state police in tacit approval of the state government engage in such brutality on peaceful protesters. The Odisha government needs to explain to its people as why Lower Sukhtel area has virtually become a war-zone, when people are democratically pressing for their demands.


Notably, Amitabh Patra, a journalist-filmmaker, who was shooting the confrontation, was purposefully targeted and rounded up by about a dozen policemen who beat him and kicked him ceaselessly on his head and face. Policemen seized his two cameras and broke both even as he lay unconscious for several hours. We would want an explanation from the government as what authority the Odisha Police has got to stop filmmakers from shooting such stand-offs? Under which rule of law, the Odisha Police has the power to strike at a journalist or a filmmaker with such brutality with intention to damage his head, when he was only a witness to what was going on? More shockingly, under pressure from the police and administration, the doctor at the government district hospital was refusing to admit Amitabh despite visible head injuries until a few local activists and journalists made a noise and forced him to do so!


At least 16 persons (including 9 women) were arrested from the site including Lenin Kumar, writer and editor of Odia literary journal – Nisan – and Amitabh Patra himself. We also strongly condemn the unilateral fatwa of Balangir Bar Council not to take up any cases in favour of any ‘outsiders’, as Lenin Kumar and Amitabh Patra are not from Balangir! Only after much deliberation, a lawyer friend from Titlagarh came forward to move the bail. Confrontation between police and a determined people has almost become routine since 8 April 2013 in the area; and on several occasions, the peaceful protestors are lathi-charged, foul-mouthed, and physically abused. In these last four weeks, more than 100 persons have endured massive blows of lathi and beatings in hands of an armed state. About two weeks back, 80 protesters were arrested and later released on bail. The demonstrators have been peacefully opposing the Lower Sukhtel project over concerns of loss of livelihoods and displacement for over 10 years. The project will submerge more than 56 villages, pushing the displaced and affected to precarious futures.


The project was seemingly abandoned by the state for a long time since originally conceived in 1979 following the rout of BALCO from the Gandhamardan Mountains (for bauxite mining). Water from Lower Suktel will be purportedly diverted to the mining company. The project has been variously criticized by several research and human rights groups since its inception. Most notably an authoritative study by Anita Agnihotri for UNDP (2008), only stops short of quashing the project calling it ‘prima facie unjustifiable in terms of anticipated benefits’ and in suggesting that ‘it will be worthwhile to explore an alternative to this costly undertaking’ and the government has viciously responded by refusing to make both the DPR (Detailed Public Report) as well as the Environmental Assessment Report public.


The present haste to start work on the project need to be seen in conjunction with the applications by a number of mining companies to mine the mountain. This renewed interest also needs to be located in the electoral dynamics of the state, which is going to face elections in 2014.


The trampling of peoples’ right to peaceful protests cannot be tolerated in a democratic polity! The Odisha government must answer some compelling questions. What calls for such mindless police brutality when people were peacefully raising slogans and organizing? Why concerned citizens and activists are repeatedly targeted, as is in Magurbeda at the moment?


The state government needs to remember always that people have constitutional right to protest and register their grievances. No state government, not even the Indian state can abrogate that right! It’s time that state governments, and police, are made accountable for their unjustifiable actions!!


We demand:


  1. Immediate and unconditional withdrawal of cases lodged against the people arrested on 29 April 2013
  2. The state must ensure proper treatments to all those who were injured in police brutalities on 29 April 2013
  3. The Superintendent of Police and the sub-Collector, Balangir, and all those police personnel who were engaged in the act must be put on trial immediately.
  4. Police force must be withdrawn immediately from the lower Suktel area.
  5. The Odisha government and the state police must apologize to those injured and / or arrested on 29 April 2013.
  6. Trumped-up cases against all those part of the Lower Suktel resistance since 2005 must be withdrawn immediately.
  7. Land acquisition on the Lower Suktel Project site must be stopped immediately.
  8. The government must immediately set up an independent judicial inquiry into the more-than-100-crore-rupee scam involving land-acquisition and compensation for the Lower Suktel Project, which even the CAG has pointed out. The inquiry must also look into all illegal land dealings done in the area by urban vested interests – with full knowledge and direct compliances of the district administration – in the submergence area even after land-acquisition notifications were made.
  9. The Lower Suktel Project must be scrapped immediately, and the suggestion by the Lower Suktel Budi Anchal Sangram Samiti to construct series of small barrages in lieu of a big dam be considered in all sincerity




In solidarity,


PUCL, Delhi; WSS; Socialist Front; Krantikari Yuvak Sangh; Inquilabi Mazdoor Kendra; People’s Democratic Front of India; Left Collective; Jan Morcha; New Socialist Initiative (NSI); National Alliance for People’s Movements (NAPM ); Indian Social Action Forum (INSAF); Students For Resistance; Gandhi Peace Foundation; POSCO Pratirodh Sabha; SANHATI; and many more individual, students of Delhi, and social organizations; All India Forum of Forest Movements (AIFFM);Jharkhand Jangal Bachao Andolan (JJBA);North Bengal Forum of Forest People and Forest Movement




SC Judgment on Niyamgiri and Directions interpreting FRA #Vedanta




Orissa Mining Corporation Ltd.   Versus Ministry of Environment & Forest & Others



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 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.


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 involved within  an  area  of  10 kms.  The 4th respondent – Vedanta, in the  meanwhile,  had  also  filed  an application  on  6.3.2004  before  this  Court  seeking  clearance  for  the proposal for use of 723.343 ha of  land  (including  58.943  ha  of  reserve forest land) in Lanjigarh Tehsil of District Kalahandi  for  setting  up  an Alumina Refinery.  Noticing that forest land  was  involved,  the  State  of Orissa submitted a proposal dated 16.08.2004 to the MoEF  for  diversion  of 58.90 hectare of forest land which included 26.1234 hectare of  forest  land for the said ARP and the rest for the  conveyor  belt  and  a  road  to  the mining site.  The State of  Orissa,  later,  withdrew  that  proposal.   The MoEF,  as  per  the  application  submitted   by   M/s   Sterlite,   granted environmental clearance on 22.9.2004 to ARP on 1  million  tonne  per  annum capacity of refinery along with 75 MW coal based CPP  at  Lanjigarh  on  720 hectare  land,  by  delinking  it  with  the  mining  project.   Later,   on 24.11.2004, the State of Orissa  informed  MOEF  about  the  involvement  o f 58.943 ha of forest land in the project as against “NIL” mentioned  in  the environmental clearance and that the Forest Department  of  Orissa  had,  on 5.8.2004, issued a show-cause-notice to 4th respondent for  encroachment  of 10.41 acres of forest  land  (out  of  58.943  ha  for  which  FC  clearance proposal was sent) by way of land breaking and leveling.

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,  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  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 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 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.

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.

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.


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  inprinciple. 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.

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  earlierorder 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.

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 8.2.2005 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 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. 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  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-110003, 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.

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.

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.

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.

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 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 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 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:

“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 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,  with  reference  to  the  environmental  clearance granted for the aluminum refinery, on p.7 of its Report dated 16th  August 2010 that:

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

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

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

Thereafter on September 22nd, 2004, environment clearance was granted  by  the  MoE&F  for  the  refinery  project.   While granting the environmental clearance, the MoE&F  was  unaware of the fact that the application  for  forest  clearance  was also pending since the environmental clearance letter clearly stated that no forest land was involved in the project.

In March 2005, in  proceedings  before  itself,  the  Central Empowered Committee (CEC) too questioned the validity of  the environmental clearance granted by the  MoE&F  and  requested the Ministry to withhold the forest clearance on the  project till the issue is examined by the CEC and report is submitted to the Hon’ble Supreme Court.

ii) Case before the MEAA by the Dongaria Kondhs:

After the grant of Environment Clearance, the local  tribals and other concerned persons including  the  Dongaria  Kondhs challenged  the  project  before  the  National  Environment Appellate  Authority  (NEAA).   [Kumati  Majhi  and  Ors  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:

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.

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 8th, 2008.  Therefore, after  careful consideration of the facts at hand,  due  deliberation  over  all  the reports submitted and while upholding the recommendation of the FAC, I have come to the following conclusions:

1. The Stage II forest clearance for the OMC  and  Sterlite bauxite  mining  project  on  the  Niyamgiri  Hills   in Lanjigarh, Kalahandi and Rayagada  districts  of  Orissa cannot be granted.  Stage-II Forest Clearance  therefore stands rejected.

2.  Since  forest  clearance   is   being   rejected,   the environmental clearance for this mine is inoperable.

3. It  appears  that  the  project  proponent  is  sourcing bauxite from a large number of mines  in  Jharkhand  for the one million tonne alumina refinery and  are  not  in possession  of  valid  environmental  clearance.    This matter is being examined separately.

4. Further, a show-cause notice is being  issued  by  the MOE&F  to  the  project  proponent   as   to   why   the environmental clearance for the one million  tonnes  per annum alumina refinery should not be cancelled.

5. A show-cause notice is also being issued to the  project proponent as to why the terms of reference (TOR) for the EIA report for the expansion from one million  tones  to six million tones should not be withdrawn.    Meanwhile, the TOR and the  appraisal  process  for  the  expansion stands suspended.

Separately the MoE&F is in the process of examining what penal  action should be initiated against the project proponents for the  violations of various laws as documented exhaustively by the Saxena Committee.

On the issues raised by the Orissa State Government, I must point  out that while customary rights of the Primitive  Tribal  Groups  are  not recognized in the National Forest Policy, 1988 they  are  an  integral part of the Forest Rights Act, 2006.     An Act passed  by  Parliament has greater sanctity than a Policy Statement.  This is apart from  the fact that the Forest Rights Act came into force eighteen  years  after the National Forest Policy.  On the other points raised by  the  State Government officials, on the procedural aspects of the  Forest  Rights Act, 2006, I expect that the joint Committee set up by the  MoE&F  and the Ministry of Tribal Affairs would give them due consideration.  The State Government officials were upset with the  observations  made  by the Saxena Committee on their role in implementing the  Forest  Rights Act, 2006.  Whether State Government officials have connived with  the violations is a separate issue and is not relevant to my decision.   I am prepared to  believe  that  the  State  Government  officials  were attempting to  discharge  their  obligations  to  the  best  of  their abilities and with the best of intentions.  The State Government could well contest many of the observations made by  the  Saxena  Committee. But this will not fundamentally alter the fact that serious violations  of various laws have indeed taken place.

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

The order dated 24.8.2010 was communicated by MOEF to the  State  of  Orissa vide its letter dated 30.8.2010,  the  legality  of  those  orders  are  the subject matter of this writ petition.

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 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 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  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  3rd respondent – Sterlite, submitted  that  various  grounds  stated  in  Saxena report as well as in the order of MOEF dated 24.8.2010,  were  urged  before this Court when  Vedanda  and  Sterlite  cases  were  decided  and,  it  was following those judgments, that MOEF granted Stage-I approval on  11.12.2008 on the basis of the recommendation of FAC.   In compliance  of  the  Stage-I  clearance accorded by MOEF, SPV (OMC and Sterlite) undertook  various  works and completed, the details of the same have been furnished  along  with  the written submissions filed on 21.1.2013.    Learned senior counsel  submitted that the attempt of the MOEF is to confuse the issue mixing up  the  Alumina Refinery Project with that of  the  Bauxite  Mining  Project  undertaken  by Sterlite and OMC through  a  SPV.   The  issues  relating  to  expansion  of refinery and alleged violation of the Environmental  Protection  Act,  1986, the Forest Conservation Act, 1980 etc. have nothing to do  with  the  mining project  undertaken  by  OMC  and  Sterlite.     Learned   senior   counsel, therefore, submitted that the rejection of the Stage-II  clearance  by  MOEF is arbitrary and illegal.

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 Section 3 of the Forest  Conservation  Act.   It  was submitted that it was on the recommendation of the statutory body that  MOEF had passed the impugned order dated 24.8.2010. Further, it was  pointed  out that, though MOEF had granted the Stage-I clearance on  11.12.2008,  it  can still examine as to whether the  conditions  stipulated  for  the  grant  of Stage-I clearance had been complied with or not.  For the said purpose,  two Committees were constituted and the  Saxena  Committee  in  its  report  has noticed the violation  of  various  conditions  stipulated  in  the  Stage-I

clearance granted by MOEF on  11.12.2008.   Shri  Parasaran  also  submitted that the petitioner as  well  as  3rd  respondent  have  also  violated  the provisions of the Forest  Rights  Act,  the  violation  of  which  had  been specifically  noted  by  the  Saxena  Committee  and   accepted   by   MOEF.

Referring to various provisions of  the  Forest  Rights  Act  under  Section 3.1(i), 3.1(e) and Section 5 of the Act, it  was  submitted  that  concerned forest dwellers  be  treated  not  merely  as  right  holders  as  statutory empowered  with  the  authority  to  protect  the  Niyamgiri  hills.    Shri Parasaran also pointed out that  Section  3.1(e)  recognizes  the  right  to community tenures of habitat and habitation for  “primitive  tribal  groups” and that Dongaria Kondh have the right to  grazing  and  the  collection  of mineral forest of the hills and  that  they  have  the  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.

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.

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 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.

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 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  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  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 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  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 13th day of December, 2005 primarily resided in and who  depend  on  the forest or forests land for bona fide livelihood needs.  Article  366(25)  of the  Constitution states that STs means such tribes  or  tribal  communities or parts of or groups within  such  tribes  or  tribal  communities  as  are defined under Article 342 to be the  Scheduled  Tribes.   The  President  of India, in exercise of the powers conferred by Clause (1) of Article  342  of the Constitution, has made the Constitution (Schedule Tribes)  Order,  1950.

Part XII of the Order refers to the State of Orissa.  Serial No.  31  refers to Dongaria Kondh, Kutia Kandha etc.

32.   Before we examine the scope of the Forest Rights Act, let us  examine, how  the  rights  of  indigenous  people  are  generally  viewed  under  our Constitution and the various International Conventions.

Constitutional Rights and Conventions:

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 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 of that Part.  Article 243-C of Chapter IX  refers  to  the  composition  of Panchayats.  Article 243-M (4)(b)   states  that  Parliament  may,  by  law, extend the provisions of Part IX to  the  Scheduled  Areas  and  the  Tribal areas and to work out the modalities for the same.   The Central  Government appointed  Bhuria  Committee  to  undertake  a  detailed  study   and   make recommendations as to whether the Panchayat Raj system could be extended  to Scheduled Areas.  The Committee  submitted  its  report  on 17.01.1995  and favoured democratic, decentralization in  Scheduled  Areas.   Based  on  the recommendations, the Panchayat (Extension  to  Scheduled  Areas)  Act,  1996 (for short ‘PESA Act’) was enacted by  the  Parliament  in  the  year  1996, extending the  provisions  of  Part  IX  of  the  Constitution  relating  to Panchayats to the Scheduled Areas.  The Statement of Objects and Reasons  of the Act reads as follows:

“There have been persistent demands from prominent  leaders  of  the Scheduled Areas for extending the  provisions  of  Part  IX  of  the Constitution to these Areas so that Panchayati Raj Institutions  may be established there.  Accordingly, it is proposed  to  introduce  a Bill to provide for the extension of the provisions of  Part  IX  of the Constitution to the Scheduled Areas with  certain  modifications providing that, among other things, the State legislations that  may be made shall be in consonance with the customary  law,  social  and religious  practices  and  traditional   management   practices   of community resources;….. The  offices  of  the  Chairpersons  in  the panchayats at all levels shall be reserved for the Scheduled Tribes; the reservations of seats  at  every  panchayat  for  the  Scheduled Tribes shall not be less than  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.

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 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  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  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 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  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 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 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 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:

“(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.”

“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  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  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 (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:


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

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

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

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

f) All decisions  of  the  Sub-Divisional  Level  Committee  and District  Level  Committee  that  involve  modification   or rejection of a Gram Sabha resolution/ recommendation  should be in the form of speaking orders.

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

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

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

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

ii)  Minor Forest Produce:

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

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

c)  The forest right holders or their cooperatives/  federations should be allowed full freedom to sell such MFPs  to  anyone or to undertake individual or collective  processing,  value addition,  marketing,  for  livelihood  within  and  outside forest area by using locally appropriate means of transport.

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

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

iii) Community Rights:

(a)  The District Level Committee should ensure that the records of prior recorded nistari  or  other  traditional  community rights  (such  as  Khatian  part  II   in   Jharkhand,   and traditional  forest   produce   rights   in   Himachal   and Uttarakhand) are provided to Gram Sabhas, and if claims  are filed for recognition of such  age-old  usufructory  rights, such claims are not rejected except for valid reasons, to be recorded in writing, for denial of such recorded rights;

(b) The District Level  Committee  should  also  facilitate  the filing of claims by pastoralists before the  concerned  Gram Sabha (s) since they would be a floating population for  the Gram Sabha(s) of the area used traditionally.

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

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

b)   In case no community forest resource rights are  recognized in a village, the reasons for the same should  be  recorded. Reference can be made to existing records of  community  and joint forest  management,  van  panchayats,  etc.  for  this purpose.

c)  The Gram Sabha would initially demarcate the  boundaries  of the community forest resource as defined in Section 2(a)  of the Act for the purposes of filing claims for recognition of forest right under Section 3(1)(i) of the Act.

d)  The Committees constituted under Rule  4(e)  of  the  Forest Rights Rules, 2008 would work  under  the  control  of  Gram Sabha. The State Agencies should facilitate this process.

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

v) Protection Against Eviction, Diversion of Forest Lands and Forced Relocation :

(a) Section 4(5) of the Act is very specific and  provides  that no member of a forest  dwelling  Scheduled  Tribe  or  other traditional forest 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 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  Parks  and  Sanctuaries  for  the purpose   of   creating   inviolate   areas   for   wildlife conservation, as per the procedure laid down. In  fact,  the rights of the forest dwellers residing in the National Parks and  Sanctuaries  are  required  to  be  recognized  without waiting of notification of  critical  wildlife  habitats  in these areas. Further, Section 4(2) of the Act  provides  for certain safeguards for protection of the  forest  rights  of the forest rights holders recognized under the  Act  in  the critical   wildlife   habitats   of   National   Parks   and Sanctuaries, when their rights are either to be modified  or resettled for the purposes of creating inviolate  areas  for wildlife conservation. No exercise for modification  of  the rights of the forest dwellers or their resettlement from the National Parks and Sanctuaries  can  be  undertaken,  unless their rights have been recognized and vested under the  Act.

In view of the provisions of Section 4(5)  of  the  Act,  no eviction and resettlement is permissible from  the  National Parks and sanctuaries till all the formalities  relating  to recognition and verification of their claims are  completed.

The State/ UT Governments may, therefore,  ensure  that  the rights of the forest dwelling  Scheduled  Tribes  and  other traditional forest dwellers, residing in National Parks  and Sanctuaries are recognized first  before  any  exercise  for modification of  their  rights  or  their  resettlement,  if necessary,  is  undertaken  and  no  member  of  the  forest dwelling Scheduled Tribe or other traditional forest dweller is evicted from such areas without the settlement  of  their rights and completion of all other  actions  required  under section 4 (2) of the Act.

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

vi) Awareness-Raising, Monitoring and Grievance Redressal:

a) Each State should prepare  suitable  communication  and training  material  in  local  language  for  effective implementation of the Act.

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

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

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

Forest Rights Act and MMRD Act:

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……….”

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 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  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 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)

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 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 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.

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 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 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.


(Aftab Alam)


(K.S. Radhakrishnan)


(Ranjan Gogoi)

New Delhi,

April  18, 2013


#India – Dams and the Doomed… min(e)d games of the state


April 29, 2013

 by Subrat Kumar Sahu

‘We all are living in a gang war… [in which] the state is just another gang!’ 
Arundhati Roy

In the wee hour 29 April 2013, at least 10 platoons of police cracked down on a gathering of about 2000 people, sitting in peaceful protest, on the bed of Suktel River, emanating from the magnificent Gandhamardan Mountains. Near Magurbeda village of Balangir district in Orissa, they were protesting against the construction of a dam at gunpoint on the river – their solitary lifeline – that will submerge more than 50 villages and devastate a self-reliant and robust agrarian economy. The forces came, saw the people, started beating them mercilessly, and invaded the ground. Several left injured and 16 of them arrested, including nine women. Among them were Lenin Kumar, poet and editor of Nisan (an Oriya literary magazine), and Amitabh Patra, an activist-filmmaker. Patra had received the severest of blows; understandably so, as he was filming the state-sponsored brutality live: his camera and head smashed. He fell unconscious and, only hours later, was taken to the hospital at the district headquarters of Balangir where he regained his senses.

Thousands of people of the Lower Suktel plateau have been agitating against this dam project for more than a decade now, facing brutal repression time and again. The state terror has magnified manifold since the past 20 days or so, as the state decided to push this project on war footing and complete it before elections next year – owing to unprecedented pressure from (1) the local politician class of all possible hues who have acquired huge tracts of farm land and hope to multiply returns if irrigation is ensured; (2) land mafia of Balangir who have duped and bought land from project-affected people even after the project was notified, which is illegal, in hope of pocketing hefty compensation amount (some of them are also leading a movement to raise the compensation amount); (3) big landholders of the area who have appropriated land from the aborigines (adivasis and dalits) over time; (4) the educated middle-class who see this brand of ‘development’ as a tool of salvation since the entry of a new market culture would cater to their aristocratic lifestyle and greedy capitalist aspirations (this includes many lawyers, engineers, doctors, professors, journalists, traders, contractors, and the likes). So, for the past 20 days or so, there have been unspoken brutalities unleashed on the people who have held the soil inviolate for centuries. More than a hundred people have been arrested so far and scores beaten up badly; a woman has also died of sunstroke while braving police aggression under a scorching sun.

What actually propels the state to get down to such excesses? Let’s have a quick take on it.

Nehru’s temple of doom

The fact that big dams and associated hydroelectric projects are actually NOT intended for irrigation and power-supply to people, as is always propagated, has come clearer to public perception in light of the recent controversy surrounding the Hirakud Dam in Orissa. The Orissa government’s decision to divert 478 cusec of water in 2007, originally meant for irrigation, from the dam reservoir to feed the mushrooming industries has created a political storm in the state in which ordinary folks have come out to the street in resistance. On 6 November 2007, more than 40,000 farmers gathered in front of Hirakud Dam and marched into the ‘prohibited area’ pulling down at least four police barricades in an unprecedented show of ‘civil disobedience’. The police though tried to push the demonstration back with a sudden and ruthless lathi charge, in which more than 35 farmers including women were badly injured, the successful act of civil disobedience by the strong gathering of ordinary people definitely jolted the powers-that-be in Bhubaneshwar out of their wits.

The controversy has even brought to fore how the dam has failed the originally promised irrigation plans and even produces electricity much below the promised and projected capacity. The water-carrying capacity of the reservoir has decreased drastically over the years, and nearly 50,000 acres of land in the irrigation command area has already turned dry. In such a demanding situation, the government’s plan to divert 478 cusec of water to industries would baffle any sensible mind. The fact that one cusec of water could irrigate 100 acres of land would arguably rage the farmers, especially when they were waiting for the government to set the worsening water situation right. Moreover, a large number of people displaced due to this project five decades back have not even been rehabilitated yet. Widespread reporting (for a change) of the harrowing facts that this movement brought forth into public gaze has had people learn a lot, especially that Nehru’s ‘temple of modern India’ for which innumerable sacrifices were made has only turned out to be the ‘temple of doom’ for the people! However, instead of learning from this blunder, the government kept on pushing numerous dams in various parts of the state down people’s throats, clearly indicating that dams are for industries, especially mining, and that industries are more sacrosanct than people.

Invoking the colonial ghosts

The fact that the Naveen Patnaik government has not left any doubt in public perception regarding its war-footing agenda to turn the entire state into an industrial graveyard explains it being so adamant and impatient in pushing several dubious dam projects throughout the state, despite strong opposition from the common folks as well as from environmentalists. Orissa now witnesses a sudden, uncomfortable, and outrageous influx of foreign mining and metal companies to set up shops there by destroying people’s homes, livelihoods, and cultures. These water- and energy-intensive industries, in turn, unleash unbearable burden on the natural resources, and the state government is only tamely obliging, pushing aside people’s needs and well being. Among these, the share of bauxite mining and aluminium-manufacturing units is the largest, especially in the western part of the state.

Supplying electricity and water to aluminium factories has historically been the central reason for the construction of big dams the world over. Europe and North America witnessed a spate of big dams built during the 1900s–1930s, soon after the technology of aluminium manufacturing matured in the West towards the end of the 19th century (Silenced rivers: the ecology and politics of large dams, Patrick McCully, 1998). This is because production of aluminium demands exceptionally large amounts of electricity and water. Producing one tonne of aluminium requires 15,000–16,000 kWh (kilowatt-hours) of electricity and 10,000–12,000 litres of water.

It is little wonder that the present plans for intensive mining of bauxite in Orissa alongside number of big dams, aluminium factories, and rail links actually date back to the 1920s. In fact, British geologist Cyril Fox had then outlined the whole plan for Orissa’s aluminium industry, as a colonial undertaking, involving aluminium factories, dams, railways, and ports, fed by bauxite mines on the main mountains (Double death: aluminium’s links with genocide revealed, Felix Padel and Samarendra Das, 2006). The Orissa government, of late, is only invoking the ghosts of colonial exploitation by welcoming foreign mining giants to dig every bit of the state while making their business easy by building dams, railway tracks, and roads with public and borrowed money, displacing and distressing millions of people and ensuring the state’s long-term indebtedness.

Damning a people

As the general mass is now aware of the warped intentions behind building dams, they are opposing such projects wherever there is an attempt to evict them from their homes and lands. The movement against the Lower Suktel Dam project is one such movement that is in its peak now in the Loisingha block of Orissa’s Balangir district.

The project has an interesting history, which evidently links to the state’s notorious mining agenda. The first survey for the dam project (the Lower Suktel Major Irrigation Project) was done way back in 1979; soon after it came to public knowledge that BALCO had been given permission to mine the adjacent Gandhamardan Mountains for bauxite. But, the government’s contention on the dam project then was also that for irrigation. However, a strong and determined people’s movement threw BALCO out of Gandhamardan in the 1980s and the government eventually scrapped its mining plans there. Interestingly, following that, work on the dam project also did not move ahead from there.

Now that scores of mining companies (including the infamous Vedanta and NALCO) have applied for and are eagerly waiting for approval to mine Gandhamardan, suddenly the dam project has once again become the state’s priority agenda. As people clearly see a nefarious nexus between mining and the dam, they have pulled up their sleeves in opposing it. Moreover, the government is unbending in not making public the DPR (detailed project report) despite demands from all quarters. While the people are united in fighting under the banner of the Lower Suktel Budi Anchal Sangram Samiti, government officials have earlier forced people in many villages to accept the so-called compensation money. Police force has been used mercilessly against the villagers in number of occasions and false cases have been registered against hundreds of them, including teenagers. In 2005, 52 persons (including school-going girls) from Dungripali and Pardhiapali villages were arrested, beaten up badly (two of them later succumbed to the injuries), and sent to judicial custody. They were released on bail after 21 days after the intervention of a local lawyer while the cases are still pending.

The Lower Suktel area is known as the vegetable garden of Orissa and is one of the most fertile land sites of the state. Even without any irrigation programme, the area has never witnessed drought or famine in history. Moreover, its forests are abundant in medicinal plants and revenue-generating tree species, apart from containing a rich biodiversity.

Interestingly, the Suktel River does not have much water to make way for a dam meant for irrigation. Villagers believe that it is a dangerous ploy by the state to first displace majority of the population through this dam project so that there will be few left to oppose when some inane mining giant comes to mine the Gandhamardan Mountains. There is also a plan afoot to interlink the Hati River to the Lower Suktel reservoir considering that Suktel does not hold much water. That makes it clear why a reservoir is needed exactly where it is being built. That would perfectly serve the mining company by providing it with a water source just next door.

The people’s movement against the project here offers a microcosm of the political economy of mining, linked to dams, devastation, and displacement – all in the name of ‘development’ (of a tiny sect of people, as listed in the beginning, whose greed and aspirations are acknowledged by the state as ‘will of the people’)!

While the villagers are resolute in putting up a strong resistance and had till now forced to stop the construction of the dam, meanwhile the government, after setting up several police stations in tiny villages, in the middle of nowhere, and a massive police barrack next to the dam site, has now declared war on its own people.


#India – Why are people opposing Lower Suktel Irrigation project in Odisha ?


“O government! Open your ear and listen to us ,We do not need Suktel dam.”
                   – writing on a wall in GS Dungripali, one of the villages that will be submerged if the Dam comes up

piccourtesy- down to earth


Context / Background




The river ‘Suktel’ originates from Gandhamardan Mountain (situated in between Balangir and Bargarh districts) in Orissa and flows into ‘Tel’ river. As a part of Lower Suktel Irrigation Project, Government of Orissa plans to build a dam on Suktel river which will be located 20kms from Balangir. According to Government of Orissa (GoO) this irrigation project will wipe out all miseries of people in Balangir which is otherwise known for its droughts and poverty. If the project promises such bright future ahead, why is it that people are protesting against the project for more than a decade now? The issue is much more complex than it seems to be and it is understood by the people in the area – at least those who have been with the ‘Lower Suktel Budi Anchal Sangram Parishad (LSBASP). In the following section we will explore more about the hidden and not so hidden agenda of this irrigation project and the larger politics behind it, the wrath of devastation, the evolution of a mass struggle and the process so far apart from understanding the organizational structure and systems.




The Project & the Scale of Devastation




The water resources department, GoO describes Lower Suktel irrigation project as a ‘major irrigation project’ where a dam and a spillway will be built. According to the GoO the dam will fully displace people from 16 villages and people of another 10 villages will be partially displaced. The survey that was done in 1996 pitched the figure of displacement at 4160 families which is much less than the real number. The GoO has apparently identified the land in three villages to build the rehabilitation colony. Around 638 hectare land will be affected due to this project. There are plans to hand over non-forest areas to the forest department for afforestation and GoO has a provision of Rs. 159.26lakh for this.




The dam project is stated to be planned with a help from the World bank worth Rs.600 crores.




The compensation package for a displaced family include 20 decimal  homestead land, 2 acre irrigated land or 4 acre non-irrigated land, money to build the house, financial assistance for one year, money for relocating in new place plus Rs.500/ -.




The GoO has obtained the required permissions from Central Water Commission, Forest Department and Pollution Control Board. This project entails an investment of Rs. 217.13 crores and the GoO has already given the permission for the same.




The number of villages to be affected as given by the government seems unrealistic and has not been updated with the changes in plans. The original height of the dam that was cited by the government was at 36 meters which is now slated to be at 56 meters. This essentially means many more villages coming under water. At least 142 villages (86 full & 56 partial) are estimated to be affected due to this dam/irrigation project.




Loisinga block of Balangir, with 48% tribal population, which will be affected by the project is known for its extremely fertile land. The thick forest around the area and through which Suktel river flows is known for rich flora and fauna and is said to be home for wild animals. The fertile land enables people to produce very good quality vegetables such as parwal & brinjal, mahul, mango, jamun, jackfruit etc and crops. People not only in Balangir district but also many other districts in Orissa are benefited by this produce. The area has a massive reserve for Kendu leaf.




There will be a loss of at least Rs.10crores due to the felling of trees which will lead to minimal rains ultimately affecting the eco-system of the area. It is not understood how a dam can be built and effectively used for irrigation on a river which is already not heavy flowing and without rain, it will be a dry river.






The Ground Swelling and the Process so far




There was enough speculation among the people about the project despite rigorous attempts by the state to create a favorable opinion among the masses about the project. In 1997, the then district collector Bijay Arora organized the first ever public hearing in Chudapali, one of the villages which will be affected due to the project. More than ten thousand people from 26 villages, which were said to be affected, came to the public hearing. The district collector invited 30 representatives from the gathering to present their views on the construction of the dam in the name of irrigation. Everyone except one representative voiced against the dam. The only person who did not cite against the dam had only said that the dam is ok as long as it does not damage the road. The district collector ironically concluded the public hearing saying that people have no objections to the dam. This was unacceptable to people who had gathered there and especially when 29 out of 30 had opposed the dam construction.




It is on that very occasion and at that place, people gathered there decided to organize their energy and fight against this conspiracy. The deceitful act of the government led to the formation of a campaign under the banner of ‘Lower Suktel Budi Anchal Sangram Parishad’ (LSBASP). A Parishad was formed in each of the 26 villages that were to be affected, according to the government record, due to the project. An eleven member team was constituted in each village with a President and a vice-President to intensify the campaign and mobilise the affected communities.




Mobilisation on the ground grew as people understood the hidden agenda of the dam project. The politics behind the dam project was becoming clear as people could see a direct connection between the dam project with the mining plans in Gandhamardan. It must be noted here that the mining plans in Gandhamardan, which faced strong opposition in 1980s, is resurfacing now since as many as 200 companies trying to get permission. Strong peoples’ resistance in Gandhamardan in 1980s had forced the company to go back even after investing 32crores. Biju Pattanaik’s government finally scrapped the project in early 1990s. But the agenda of the state to give the mountain for mining remained and it looked for ways and means to get there. The dam project, otherwise portrayed as an irrigation project, was designed to get to Gandhamardan. It is rather ridiculous to even have a dam on a river which usually does not have enough water throughout the year. The reservoir is planned as such that water could be ultimately sourced from it for mining purposes in the Mountain, especially for the proposed refinery in Taankapani, a mere 20kms from the reservoir.




This inter-linkage was not difficult for people in Suktel area to understand and when they realized the actual danger inherent in the irrigation project, the struggle even became much broader. The support and solidarity action became much more vigorous as many other movements and peoples’ organizations joined in this struggle across the state.




Sensing the danger from the government in going ahead with the project, LSABSP adopted the strategy of establishing a shrine to worship ‘Banadurga’ at the entry point in Pardhiapali  village – giving a clear signal about the protest. The project faced a strong opposition from people when the government decided to lay the foundation for the project in 2001. LSBASP mobilized 30 thousand people on that day to stage a massive protest. Deterred by this agitation on the ground, the administration hurriedly located another place away from the village for the chief minister to lay the foundation stone for the project. The administration applied section 144 apart from issuing warrant against few agitators in the new area so as to keep the agitators away.




Defying the repressive measures of the administration broke the police barricade and entered the area cordoned off for the programme. Shouting slogans against the project, the youths waived black flags to the chief minister. Interestingly, the Pashim Orissa Krushaka Parishad, a government outfit in an act to appease the chief minister intentionally interpreted it wrongly and communicated to him that the group is happy about the project. Unfortunately, the state of Orissa has a chief minister who does not understand Oriya and also such protest measures. Police arrested around 70 protesters in addition to the warrants it had already issued. This was vehemently protested and demanded their release by 30 thousand people who had gathered there to oppose the project.




LSBASP continued to contact people in all the villages and build collective strength through various mediums such as cycle rally, mashal yatra, village meetings and so on. The village-wise Parishad unit was effective in building one voice of resistance. On the human rights day in December 2001, the Parishad mobilised around 10-12 thousand people and submitted a demand letter to the collector and also sent it to the President of India. Interestingly, the President’s office responded and asked for papers (20 sets) on their struggle and suggests ways of irrigation without constructing a dam. Being a mass organization, the Parishad has always given primacy to the needs of the campaign on the ground and thus the requirement cited by the President’s office was beyond their bound. The Parishad communicated to the President’s office about the their inability to accommodate the request and urged him to visit the area to understand the situation first hand.




LSBASP asked the administration on 18 November 2001 about the reasons for not consulting people before going ahead with the project.




As the Parishad intensified its campaign, the state tried to mobilize people with lucrative offers. In 2002, people of 6 villages decided to withdraw themselves from the Parishad as they fell into the state tricks of compensations and benefits. The administration continued to motivate people through various ways such as taking the village Sarpanch into their fold. The roles of the land acquisition officer (LAO) and the bank officials have been extremely destructive as they have decided to play to the tunes of the state agenda and have continued to mis-guide people. This has led to people saying yes to compensation and rehabilitation deals and another 4 villages have got added up who have dissociated themselves from LSBASP by now.




The usual trick played by the LAO is to motivate the panchayat sarpanch and getting the entire village say yes to the offers. There are several instances where he alongwith the loan officer in the bank have told people to take compensation and build houses in the same area so as to get more compensation later. In the area, there are absolutely new houses coming up rapidly. This goes alongwith the line maintained by the Rural Development Commissioner (RDC)of the state who recently said that ‘there will be only compensation and no rehabilitation.’




Despite public outcry and massive demonstrations by LSBASP, the administration went ahead and distributed compensation in Khutpali village in 2003. A massive demonstation was organized in front of the police station by LSBASP and the administration assured that no more compensation will be distributed without consulting the organization. Apprehensive about the motive of the administration, LSBASP continued to strengthen its struggle on the ground. It ahs been demanding the admistration to make the ‘detailed project report’ public which the administration has been evading. The rift between Khutpali and GS Dungripali is growing as it is fuelled by the administration.




Compensation was distributed in Parjhapali on 11 January 2004 with heavy police presence. In fact the police did flag march in the entire area to keep off the people from resisting the process.




LSBASP has always communicated its displeasure about the manner in which the administration has motivated people to take the compensation. The leadership has always maintained that they are against the dam construction and thus no question arises about discussing compensation package. They find it very unfortunate to see the RDC engaging in mobilizing the people as Gagan Dhal, the RDC once said that compensation will help people to buy vehicles which they could use during the construction of the dam and earn a living. Ever since the villages have fallen into the clutches of the administration and accepted the compensation, there is an increase in the number of egg and liquor shops, vehicles and new houses in the area. The happiness of those who have taken money is short-lived




For LSBASP 11 May 2005 was the day when the administration and the local representative made the biggest blunder so far. The day was slated for bhumi pujan by the administration and as usual there was a heavy deployment of police. The local MLA Narsingh Mishra, whom people used to have a lot of faith, had assured people that there would be no such activity in the area till the administration makes the documents public and till people agrees to go ahead with the project. On this day he duped people and got the police to raid GS Dungripali village. People in the village recount that day with horror and anguish as they stood mute spectator to the dastardly act of the police. Police picked up 70 people including minor children. Each house in that village was ransacked by the police and women were abused severely. There were 15 platoons of police deployed for this task.




People also retaliated and it can be left to imagination to think what would have happened to the local MLA if he was there. It was kind of a ceasefire that continued for quite sometime. It took more than a month for LSBASP to mobilize support and get the people released.




This gruesome act of the administration has left the people in other villages completely baffled and scared. According to a villager in Kaindapali, “we saw what happened to people in GS Dungripali as police beat people mercilessly. It was cruel and we do not want to face the same situation. Police can do that to us also and we do not want that. That’s why we said yes to taking compensation when the administration came to us.” Kaindapali is one of those villages where the people have taken compensation but now refuse to move if they are not given equally fertile land and appropriate house to stay. This is the village where a man has got Rs. 6/- as compensation in lieu of his big house. So, one can imagine the skewed way of calculations as far as compensation is concerned.




Earlier this year, 2008, the present collector said that the collectorate will engage in any kind of discussion with LSBASP only if it agrees for dam construction. This put off the leaders and they decided to meet the RDC who showed sympathy but expressed his inability to do anything. The helplessness of the state government is vividly seen all over the state. In fact, the state government is in this kind of a situation not by chance but by choice where all the decisions are made in serious consultation with the corporate and international financial institutions.




The main slogan of the movement is “Maribu pache chati pati, nai chadu; Maribu pache Daribu Nai.”










The stated objective of the dam is to irrigate Balangir and flood management. But the fact remains that ground will be prepared for mining companies to take over Gandhamardan Mountain which has a rich bauxite reserve in the name of community development by way of compensation during the irrigation project. This will essentially destroy the age-old practice of lift irrigation in the area. As mentioned earlier, this area produces maximum variety of vegetable in large numbers and the production here caters to at least 6 big towns in Orissa.




IN last more than a decade LSBASP has seen people coming together, drifting away under pressure, state repression and so on. But the resolve of the organization is far from shying away from the struggle. The organization has the following demands:




–       No dam for irrigation – promote lift irrigation


–       no displacement


–       the rich bio-diversity can not be compensated


–       government must make the DPR public


–       stop state repression in the area


–       withdraw the false cased filed against people in 2005




The organization functions as a mass organization and draws strength and solidarity support from like-minded groups and individuals. Each village where the organization is active has a Parishad which amalgamates with the collective. LSBASP is led by a President and vice-President who are also office bearers in the Parishads in their respective villages. Women have continued to play major role in demonstration, rallies, mobilizing people in their villages. The organization recognizes the contribution of women in the struggle but does not have a policy to have them at the decision making body. The common notion, as shared by a number of Parishad office bearers, the office bearers have to do a lot of running around and women are not in a position to do so. This is the reason, according to them, why women do not figure in the list of office bearers in any of the villages actively involved in the struggle.


Written by — Mamata Dash



Previous Older Entries


Kractivism-Gonaimate Videos

Protest to Arrest

Faking Democracy- Free Irom Sharmila Now

Faking Democracy- Repression Anti- Nuke activists


Kamayaninumerouno – Youtube Channel


Enter your email address to follow this blog and receive notifications of new posts by email.

Join 6,224 other subscribers

Top Rated

Blog Stats

  • 1,869,529 hits


June 2023
%d bloggers like this: