Friday, April 26, 2013

Fwd: Vedanta judgement

Orissa Mining Corporation .. Petitioner 
Ministry of Environment & Forest & Others .. Respondents 
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 2
Rayagada Districts of Orissa and also for other consequential 
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 3
meanwhile, had also filed an application on 6.3.2004 before this 
Court seeking clearance for the proposal for use of 723.343 ha of 
land (including 58.943 ha of reserve forest land) in Lanjigarh Tehsil 
of District Kalahandi for setting up an Alumina Refinery. Noticing 
that forest land was involved, the State of Orissa submitted a 
proposal dated 16.08.2004 to the MoEF for diversion of 58.90 
hectare of forest land which included 26.1234 hectare of forest land 
for the said ARP and the rest for the conveyor belt and a road to the 
mining site. The State of Orissa, later, withdrew that proposal. The 
MoEF, as per the application submitted by M/s Sterlite, granted 
environmental clearance on 22.9.2004 to ARP on 1 million tonne 
per annum capacity of refinery along with 75 MW coal based CPP at 
Lanjigarh on 720 hectare land, by delinking it with the mining 
project. Later, on 24.11.2004, the State of Orissa informed MOEF 
about the involvement of 58.943 ha of forest land in the project as 
against "NIL" mentioned in the environmental clearance and that 
the Forest Department of Orissa had, on 5.8.2004, issued a showcause-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
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 5
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. 6
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 7
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. 8
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, 9
communication, recreation, livelihood and cultural 
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 
16. The forest land diverted shall be nontransferable. 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 in principle. It only seeks 
safeguards by which we are able to protect nature and 
subserve development. IAs are disposed of accordingly. 10
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 earlier order dated 
23.12.2007. Siddharth Nayak, who was the petitioner in WP No. 
549/07, then filed a Review Petition No. 100/2008 and sought 
review of the order dated 23.11.2007 passed by this Court stating 
that this court had posed a wrong question while deciding I.A. No. 
2134 of 2007 and pointed out that Alumina Refinery was already 
set up by Vedanta and production commenced and the principal 11
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 28.2.2005 seeking prior approval of MOEF for diversion of 
660.749 ha of forest land for mining of bauxite ore in Lanjigarh 
Bauxite Mines in favour of OMC, in accordance with Section 2 of 
the Forest (Conservation) Act, 1980. MOEF, after considering the 
proposal of the State Government and referring to the 12
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 nonforest 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 
(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. 13
(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 
(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. 14
(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-110 
003, as per the instructions communicated vide letter 
N.5-2/2006-PC dated 20.05.2006. 
(xii) As per Hon'ble Supreme Court's order dated 23.11.2007 
and 08.08.2-008, M/s SIIL shall deposit 5% of its 
annual profits before tax and interest from Lanjigarh 
Project of Rs.10 crores whichever is higher as 
contribution for Scheduled Area Development. The 
contribution is to be made every year commencing from 
01.04.2007. The State of Orissa shall float a Special 
Purpose Vehicle (SPV) for scheduled area development 
of Lanjigarh Project in which the stake-holders shall be 
State of Orissa, OMC Ltd. and M/s SIIL. Such SPV 
shall be incorporated under the Companies Act, 1956. 
The Accounts of SPC shall be prepared by the Statutory 
auditors of OMC Ltd and they shall be audited by the 
Auditor General for State of Orissa every year. 
(xiii) The permission granted under FC Act shall be coterminus with the mining lease granted under MMRD 
Act or any other relevant Act. 15
(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 
(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, 
(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 16
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: 17
"(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 18
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 19
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 20
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 21
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 
I have considered three broad factors while arriving at my 
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 22
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 fourmember 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. 23
2.Violations of the Environmental Protection Act 
(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 24
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: 25
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: 26
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 
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 27
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 
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 b y the 
MOE&F to the project proponent as to why the 
environmental clearance for the one million tonnes 
per annum alumina refinery should not be 
cancelled. 28
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. 29
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 30
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 31
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. 32
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 33
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 34
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 35
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. 36
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. 37
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. 38
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 39
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 40
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, 
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 41
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 42
facie violation of the Forest Rights Act and the Forest (Conservation) 
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 43
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 
 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 44
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 45
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 46
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: 47
"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 
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. 48
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. 49
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 50
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 51
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 52
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 
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 53
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 54
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 preagricultural communities 
(f) ---------- 
(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 
(i) Right to protect, regenerate or conserve or manage any 
community forest resource which they have been 
traditionally protecting and conserving for sustainable 
use; 55
(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." 56
"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 
"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 57
lands for bona fide livelihood needs and includes the 
Scheduled Tribe Pastoralist communities." 
"Forest land" is described under Section 2(d), which reads as 
"(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 
"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-58
agricultural communities and other forest dwelling 
Scheduled Tribes." 
"Scheduled Areas" is described under Section 2(m), which reads as 
"(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 
"(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 59
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. 60
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 SubDivisional 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 61
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, 62
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: 63
(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 nontimber 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/ 64
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 65
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:66
(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 67
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 68
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 69
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 70
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 
a) Each State should prepare suitable 
communication and training material in local 
language for effective implementation of the 
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 71
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 
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." 72
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………." 73
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 
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 74
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. Subsection (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 75
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 76
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 77
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 
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." 78
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 79
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. 80
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. 81
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 

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