Fwd: Vedanta judgement

1

REPORTABLE

IN THE SUPREME COURT OF INDIA 

CIVIL ORIGINAL JURISDICTION 

WRIT PETITION (CIVIL) NO. 180 OF 2011

Orissa Mining Corporation .. Petitioner 

Versus 

Ministry of Environment & Forest & Others .. Respondents 

J U D G M E N T

K. S. RADHAKRISHNAN, J.

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

Undertaking, has approached this Court seeking a Writ of Certiorari

to quash the order passed by the Ministry of Environment and 

Forests (MOEF) dated 24.8.2010 rejecting the Stage-II forest 

clearance for diversion of 660.749 hectares of forest land for mining 

of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi and 2

Rayagada Districts of Orissa and also for other consequential 

reliefs. 

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

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

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

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

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

'Vedanta case'] and the order passed by this Court in I.A. No. 2134 

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

(2008) 9 SCC 711 [hereinafter referred to as the 'Sterlite case']. In 

order to examine the issues raised in this writ petition, it is 

necessary to examine the facts at some length. 

FACTS: 

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

on 19.3.2003 before MOEF for environmental clearance for the 

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

Tehsil of District Kalahandi, stating that no forest land was 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 

lifestyle. 

12. As per the policy of the State Government, 

the user agency shall earmark 5% of the net profit

accrued in the Project to be spent for the 

development of health, education, communication, 

irrigation and agriculture of the said scheduled area 

within a radius of 50 km. 

13. Controlled blasting may be used only in 

exigencies wherever needed to minimise the impact 

of noise on wildlife of the area. 

14. The user agency shall undertake 

development of greenery by way of plantation of 

suitable indigenous species in all vacant areas 

within the Project. 

15. Trees shall be felled from the diverted area 

only when it is necessary with the strict supervision 

of the State Forest Department at the cost of the 

Project. 

16. The forest land diverted shall be 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. 

Conclusion

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

rehabilitation package then they shall be at liberty to 

move this Court by initiating a proper application. This 

Court is not against the Project in principle. It only seeks 

safeguards by which we are able to protect nature and 

subserve development. IAs are disposed of accordingly. 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 

elsewhere. 

(iv) The reclamation of mines shall be carried out 

concurrently and should be regularly monitored by the 

State Forest Department. 

(v) RCC pillars of 4 feet height shall be erected by the User 

Agency at the project cost to demarcate the area and the 

pillars will be marked with forward and back bearings. 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 

crores. 

(viii) An undertaking from the User Agency shall also be 

obtained stating that in case the rates of NPV are 

revised upwards, the additional/differential amount 

shall be paid by the User Agency. 

(ix) As per Hon'ble Supreme Court's order dated 23.11.2007 

and 08.08.2-008, M/s SIIL shall pay Rs.50.53 crores 

towards Wildlife Management Plan for Conservation and 

Management of Wildlife around Lanjigarh bauxite mine. 

(x) As per Hon'ble Supreme Court's order dated 23.11.2007 

and 08.08.2-008, M/s SIIL is required to contribute 

Rs.12.20 crores towards tribal development apart from 

payment of NPV and apart from contribution to the 

Management of Wildlife around Lanjigarh Bauxite Mine. 

Moreover, while allocating CAMPA Funds the said 

amount of Rs.12.20 crores shall be earmarked 

specifically for tribal development. 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 

Department. 

(xv) All efforts shall be made by the User Agency and the 

State Government to prevent soil erosion and pollution 

of rivers/nallas/streams etc. 

(xvi) The Wildlife Management Plan (WMP) shall be modified 

accordingly as suggested by the Wildlife Institute of 

India (WII), Dehradun and shall be implemented by the 

State Government/User Agency at the project cost. The 

progress of implementation of the WMP shall be 

regularly monitored by the WILL and Regional Office, 

Bhubaneshwar. 

(xvii) Any other condition that the CCF (Central), Regional 

Office, Bhubaneshwar / the State Forest Department 

may impose from time to time for protection and 

improvement of flora and fauna in the forest area, shall 

also be applicable. 

(xviii) All other provisions under different Acts, rules, and 

regulations including environmental clearance shall be 

complied with before transfer of forest land. 

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

Corporation (OMCL) and if any change has to be done, it 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 

Clearance 

I have considered three broad factors while arriving at my 

decision. 

1.The Violation of the Rights of the Tribal Groups 

including the Primitive Tribal Groups and the 

Dalit Population. 

The blatant disregard displayed by the project 

proponents with regard to rights of the tribals 

and primitive tribal groups dependant on the 

area for their livelihood, as they have proceeded 

to seek clearance is shocking. Primitive Tribal 

Groups have specifically been provided for in the 

Forest Rights Act, 2006 and this case should 

leave no one in doubt that they will enjoy full 

protection of their rights under the law. The 

narrow definition of the Project Affected People 

by the State Government runs contrary to the 

letter and spirit of the Forest Rights Act, 2006. 

Simply because they did not live on the hills does 

not mean that they have no rights there. The 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 

1986: 

(i) Observations of the Saxena Committee and 

MoE&F Records: 

In additional to its findings regarding the 

settlement of rights under the FRA 2006, the 

four-member Committee has also observed, with 

reference to the environmental clearance granted 

for the aluminum refinery, on p.7 of its Report 

dated 16th August 2010 that: 

"The company/s Vedanta Alumina Limited 

has already proceeded with construction 

activity for its enormous expansion project 

that would increase its capacity six fold 

from 1 Mtpa to 6 Mtpa without obtaining 

environmental clearance as per the 

provisions of EIA Notification, 2006 under 

the EPA. This amounts to a serious 

violation of the provisions of the 

Environment (Protection) Act. This 

expansion, its extensive scale and 

advanced nature, is in complete violation of 

the EPA and is an expression of the 

contempt with which this company treats 

the laws of the land." 

I have reviewed the records of the MoE&F and 

have found no documentation which 

establishes such activity to have been granted 

clearance. Nor is there any evidence to 

suggest that such requirement was waived by 

the Ministry. The TORs for the expansion of 

the project from 1 million tones to 6 million 

tones were approved in March 2008. No 

further right has been granted in any form by 

the Ministry to the project proponents to 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 

clearance. 

3.Violations under the Forest Conservation Act: 

The Saxena Committee has gone into great detail 

highlighting the various instances of violations 

under the Forest (Conservation) Act 1980. All 

these violations coupled with the resultant 

impact on the ecology and biodiversity of the 

surrounding area further condemn the actions of 

the project proponent. Not only are these 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 

conclusions: 

1. The Stage II forest clearance for the OMC and 

Sterlite bauxite mining project on the Niyamgiri 

Hills in Lanjigarh, Kalahandi and Rayagada districts 

of Orissa cannot be granted. Stage-II Forest 

Clearance therefore stands rejected. 

2. Since forest clearance is being rejected, the 

environmental clearance for this mine is inoperable. 

3. It appears that the project proponent is sourcing 

bauxite from a large number of mines in Jharkhand 

for the one million tonne alumina refinery and are 

not in possession of valid environmental clearance. 

This matter is being examined separately. 

4. Further, a show-cause notice is being issued 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, 

1980." 

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

dated 10.8.2008 before the FAC and FAC on 4.11.2009 

recommended that the final clearance be considered only after 

ascertaining the community rights of forest land and after the 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) 

Act. 

29. Petitioner has assailed the order of MoEF dated 24.08.2010 as 

an attempt to reopen matters that had obtained finality. Further, it 

is also submitted that the order wrongly cites the violation of certain 

conditions of environmental clearance by "Alumina Refinery Project" 

as grounds for denial of Stage II clearance to OMC for its "Bauxite 

Mining Project". The contention is based on the premise that the 

two Projects are totally separate and independent of each other and 

the violation of any statutory provision or a condition of 

environmental clearance by one cannot be a relevant consideration 

for grant of Stage II clearance to the other. 

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

Bauxite Mining Project are two separate and independent projects, 

cannot be accepted as such, since there are sufficient materials on 

record to show that the two projects make an integrated unit. In 

the two earlier orders of this Court (in the Vedanta case and the 

Sterlite case) also the two Projects are seen as comprising a single 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 

Project. 

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

final pronouncement on that issue but we would keep the focus 

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

Forest Dwellers" under the Forest Rights Act. 

STs and TFDs:

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

Act, but the word "Traditional Forest Dweller" has been defined 

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

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

resided in and who depend on the forest or forests land for bona 

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

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

seats." 

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

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

PESA Act and few sections of the Jharkhand Panchayat Raj Act, 

2001 were challenged in Union of India v. Rakesh Kumar, (2010) 

4 SCC 50 and this Court upheld the Constitutional validity. 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 

ecosystem. 

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

forest dwelling tribal people and forests are inseparable and that 

the simplicity of tribals and their general ignorance of modern 

regulatory framework precluded them from asserting their genuine 

claims to resources in areas where they belong and depended upon 

and that only recently that forest management regimes have 

initiated action to recognize the occupation and other right of the 

forest dwellers. Of late, we have realized that forests have the best 

chance to survive if communities participate in their conservation 

and regeneration measures. The Legislature also has addressed the 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) ---------- 

(g)----------- 

(h)Rights of settlement and conversion of all forest villages, 

old habitation, unsurveyed villages and other villages in 

forests, whether recorded, notified or not into revenue 

villages; 

(i) Right to protect, regenerate or conserve or manage any 

community forest resource which they have been 

traditionally protecting and conserving for sustainable 

use; 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 

4." 

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

the Act, which reads as follows: 

"(c) "Forest dwelling Scheduled Tribes" means the 

members or community of the Scheduled Tribes who 

primarily reside in and who depend on the forests or forest 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 

follows: 

"(d) "forest land" means land of any description falling 

within any forest area and includes unclassified forests, 

undemarcated forests, existing or deemed forests, protected 

forests, reserved forests, sanctuaries and National Parks." 

"Gram Sabha" is defined under Section 2(g), which reads as follows: 

"(g) "Gram Sabha" means a village assembly which shall 

consist of all adult members of a village and in case of 

States having no Panchayats, Padas, Tolas and other 

traditional village institutions and elected village 

committees, with full and unrestricted participation of 

women." 

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

"(h) "habitat" includes the area comprising the customary 

habitat and such other habitats in reserved forests and 

protected forests of primitive tribal groups and pre-58

agricultural communities and other forest dwelling 

Scheduled Tribes." 

"Scheduled Areas" is described under Section 2(m), which reads as 

follows: 

"(m) "Scheduled Areas" means the Scheduled Areas referred to 

in clause (1) of Article 244 of the Constitution." 

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

follows: 

"(n) "sustainable use" shall have the same meaning as 

assigned to it in clause (o) of Section 2 of Biological Diversity 

Act, 2002 (18 of 2003)." 

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

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

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

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

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

empowers them to carry out duties. Those duties include 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: 

"GUIDELINES:

i) Process of Recognition of Rights:

(a) The State Governments should ensure that on 

receipt of intimation from the Forest Rights 

Committee, the officials of the Forest and 

Revenue Departments remain present during 

the verification of the claims and the evidence 

on the site. 

b) In the event of modification or rejection of a 

claim by the Gram Sabha or by the 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 

Redressal:

a) Each State should prepare suitable 

communication and training material in local 

language for effective implementation of the 

Act. 

b) The State Nodal Agency should ensure that the 

Sub Divisional Level Committee and the 

District Level Committee make district-wise 

plans for trainings of revenue, forest and tribal 

welfare departments' field staff, officials, Forest 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 

raising. 

d) If any forest dwelling Scheduled Tribe in case of 

a dispute relating to a resolution of a Gram 

Sabha or Gram Sabha through a resolution 

against any higher authority or Committee or 

officer or member of such authority or 

Committee gives a notice as per Section 8 of 

the Act regarding contravention of any 

provision of the Act or any rule made 

thereunder concerning recognition of forest 

rights to the State Level Monitoring 

Committees, the State Level Monitoring 

Committee should hold an inquiry on the basis 

of the said notice within sixty days from the 

receipt of the notice and take action, if any, 

that is required. The complainant and the 

Gram Sabha should be informed about the 

outcome of the inquiry." 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 

Corporation. 

Gram Sabha and other Authorities:

51. Under Section 6 of the Act, Gram Sabha shall be the authority 

to initiate the process for determining the nature and extent of 

individual or community forest rights or both and that may be given 

to the forest dwelling STs and other TFDs within the local limits of 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 

preserved. 

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

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

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

to determine the nature and extent of "individual" or "community 

rights". In this connection, reference may also be made to Section 

13 of the Act coupled with the provisions of PESA Act, which deal 

with the powers of Gram Sabha. Section 13 of the Forest Rights Act 

reads as under: 

"13. Act not in derogation of any other law. – Save 

as otherwise provided in this Act and the provisions of 

the Panchayats (Extension of the Scheduled Areas) Act, 

1996 (40 of 1996), the provisions of this Act shall be in 

addition to and not in derogation of the provisions of 

any other law for the time being in force." 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. 

……………………...……J. 

 (Aftab Alam) 

…………………….……..J. 

 (K.S. Radhakrishnan) 

……………….……..……J. 

 (Ranjan Gogoi) 

New Delhi, 

April 18, 2013