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TMI Blog2013 (4) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CMPDI submitted its report on 20.10.2006. MoEF appointed the Wildlife Institute of India (WII), Dehradun to study the impact of the Mining Project on the bio- diversity. WII submitted its report dated 14.06.2006 and the supplementary report dated 25.10.2006 before the MOEF. Reports of CMPDI, WII were all considered by the Forest Advisory Committee (FAC) on 27.10.2006 after perusing the above mentioned reports approved the proposal of OMC, for diversion of 660.749 ha. of forest land for the mining of bauxite in Kalahandi and Rayagada Districts subject to the conditions laid down by WII. 7. The State of Orissa had brought to the notice of this Court about the lack of basic infrastructure facilities in the Tribal areas of both the districts, so also the abject poverty in which the local people were living in Lanjigarh Tehsil, including the tribal people, and also the lack of proper housing, hospitals, schools etc. But this Court was not agreeable to clear the project, at the instance of Vedanta, however, liberty was granted to M/s. Sterlite to move the Court if they would agree to comply with the modalities suggested by the Court. Following were the modalities suggested by the Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke up compensatory afforestation at Project cost with suitable indigenous species and will declare the said area identified for compensatory afforestation as "protected forest" under the Orissa Forest Act, 1972 for the purpose of management. 4. The user agency shall undertake rehabilitation of Project-affected families, if any, as per the Orissa Rehabilitation and Resettlement Policy, 2006. 5. The user agency shall undertake phased reclamation of mined-out area. All overburden should be used for back-filling and reclamation of the mined-out areas. 6. The user agency shall undertake fencing of the safety zone area and endeavour for protection as well as regeneration of the said area. It shall deposit funds with the State Forest Department for the protection and regeneration of the safety zone area. 7. Adequate soil conservation measures shall be undertaken by the lessee on the overburdened dumps to prevent contamination of stream flow. 8. The user agency should undertake comprehensive study on hydrogeology of the area and the impact of mining on the surrounding water quality and stream flow at regular interval and take effective measures so as to maintain the pre-mining wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ₹ 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 ₹ 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 ₹ 12.20 crores shall be earmarked specifically for tribal d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. xix) The lease will remain in the name of Orissa Mining Corporation (OMCL) and if any change has to be done, it will require prior approval of the Central Government as per guidelines. xx) The present forest clearance will be subject to the final outcome of the Writ petition No. 202 of 1995 from the Hon'ble Supreme Court and Court's order dated 23.11.2007 and 08.08.2008. xxi) Other standard conditions as applicable to proposals related to mining shall apply in the instant case also." MOEF, then, vide its letter dated 11.12.2008 informed the State of Orissa that it had, in principle, agreed for diversion of 660.749 ha. of forest land for mining bauxite in favour of OMC, subject to fulfillment of the above mentioned conditions, and after getting the compliance report from the State Government. Order dated 11.12.2008 was slightly modified on 31.12.2008. It was further ordered that the transfer of forest land to the user agency should not be effected by the State Government till formal orders approving diversion of forest land were issued. 11. MoEF then granted environmental clearance to OMC vide its proceedings dated 28.04.2009 subject to various conditions including the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e community rights on forest land and after the process for establishing such rights under Forest Rights Act was completed. FAC also decided to constitute an Expert Group to carry out a site inspection. Consequently, on 1.1.2010, a three-member Team composed of Dr. Usha Ramanathan and two others, was constituted to consider and make recommendations to MOEF on the proposal submitted by OMC. The Team carried out the site inspection during the months of January and February, 2010 and submitted three individual reports to MOEF on 25.2.2010 which were not against the project as such, but suggested an in-depth study on the application of the Forest Rights Act. FAC also, on 16.4.2010, considered all the three reports and recommended that a Special Committee, under the Ministry of Tribal Affairs, be constituted to look into the issues relating to the violation of Tribal rights and the settlement of Forest rights under the Forest Rights Act. 13. MOEF then met on 29.6.2010 and decided to constitute a team composed of specialists to look into the settlement of rights on forest dwellers and the "Primitive Tribal Groups" under the Forest Rights Act and the impact of the Project on wildlife and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter and spirit of the Forest Rights Act, 2006. Simply because they did not live on the hills does not mean that they have no rights there. The Forest Rights Act, 2006 specifically provides for such rights but these were not recognized and were sought to be denied. Moreover, the fate of the Primitive Tribal Groups need some emphasis, as very few communities in India in general and Orissa in particular come under the ambit of such a category. Their dependence on the forest being almost complete, the violation of the specific protections extended to their "habitat and habitations" by the Forest Rights Act, 2006 are simply unacceptable. This ground by itself has to be foremost in terms of consideration when it comes to the grant of forest or environmental clearance. The four-member committee has highlighted repeated instances of violations. One also cannot ignore the Dalits living in the area. While they may technically be ineligible to receive benefits under the FRA 2006, they are such an inextricable part of the society that exists that it would be impossible to disentitle them as they have been present for over five decades. The Committee has also said on p.40 of their repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved in the project and that there was no reserve forest within a radius of 10 kms of the project site. Thereafter on September 22nd, 2004, environment clearance was granted by the MoE&F for the refinery project. While granting the environmental clearance, the MoE&F was unaware of the fact that the application for forest clearance was also pending since the environmental clearance letter clearly stated that no forest land was involved in the project. In March 2005, in proceedings before itself, the Central Empowered Committee (CEC) too questioned the validity of the environmental clearance granted by the MoE&F and requested the Ministry to withhold the forest clearance on the project till the issue is examined by the CEC and report is submitted to the Hon'ble Supreme Court. ii) Case before the MEAA by the Dongaria Kondhs: After the grant of Environment Clearance, the local tribals and other concerned persons including the Dongaria Kondhs challenged the project before the National Environment Appellate Authority (NEAA). [Kumati Majhi and Ors Vs Ministry of Environment. and Forest, Srabbu Sikka and Ors. Vs Ministry of Environment and Forests, R Sreedhar Vs. Ministry of Envi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the project proponent. Not only are these violations of a repeating nature but they are instances of willful concealment of information by the project proponent. IX. The Decision on Stage-II Clearance The Saxena Committee's evidence as reviewed by the FAC and read by me as well is compelling. The violations of the various legislations, especially the Forest (Conservation) Act, 1980, the Environment (Protection) Act, 1986, and the Scheduled Tribes and Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, appear to be too egregious to be glossed over. Furthermore, a mass of new and incriminating evidence has come to light since the Apex court delivered its judgment on August 8th, 2008. Therefore, after careful consideration of the facts at hand, due deliberation over all the reports submitted and while upholding the recommendation of the FAC, I have come to the following conclusions: 1. The Stage II forest clearance for the OMC and Sterlite bauxite mining project on the Niyamgiri Hills in Lanjigarh, Kalahandi and Rayagada districts of Orissa cannot be granted. Stage-II Forest Clearance therefore stands rejected. 2. Since forest clearance is being rejected, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pointed out that the Gram Sabha has received several individual and community claims from Rayagada and Kalahandi Districts and they have settled by giving alternate lands. 18. Shri Sundaram also submitted that the Forest Rights Act deals with individual and community rights of the Tribals which does not, in any manner, expressly or impliedly, make any reference to the religious or spiritual rights protected under Articles 25 and 26 of the Constitution of India and does not extend to the property rights. Learned senior counsel also submitted that the State Government continues to maintain and have ownership over the minerals and deposits beneath the forests and such rights have not been taken away by the Forest Rights Act and neither the Gram Sabha nor the Tribals can raise any ownership rights on minerals or deposits beneath the forest land. 19. Shri C.U. Singh, learned senior counsel appearing for the 3rd respondent - Sterlite, submitted that various grounds stated in Saxena report as well as in the order of MOEF dated 24.8.2010, were urged before this Court when Vedanda and Sterlite cases were decided and, it was following those judgments, that MOEF granted Stage-I approval o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that concerned forest dwellers be treated not merely as right holders as statutory empowered with the authority to protect the Niyamgiri hills. Shri Parasaran also pointed out that Section 3.1(e) recognizes the right to community tenures of habitat and habitation for "primitive tribal groups" and that Dongaria Kondh have the right to grazing and the collection of mineral forest of the hills and that they have the customary right to worship the mountains in exercise of their traditional rights, which would be robed of if mining is permitted in Niyamgiri hills. 21. Shri Raj Panjwani, learned senior counsel appearing for the applicants in I.A. Nos. 4 and 6 of 2012, challenged the environmental clearance granted to OMC on 28.4.2009 by MOEF before the National Environment Appellate Authority (NEAA) under Section 4(1) of the NEAA Act, 1997, by filing Appeal Nos. 20 of 2009 and 21 of 2009 before NEAA. NEAA vide its order dated 15.5.2010 allowed the appeals and remitted the matter to MOEF to revisit the grant of environmental clearance to OMC on 28.4.2009. Later, MOEF by its order dated 11.7.2011 has withdrawn the environmental clearance dated 28.4.2009 granted in favour of OMC and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the FAC and agreed in principle for the diversion of 660.749 ha of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in favour of OMC, subject to 21 conditions vide its order 11.12.2008. One of the conditions was with regard to implementation of the Wildlife Management Plan (WMP) suggested by WII and another was with regard to the implementation of all other provisions of different Acts, including environmental clearance, before the transfer of the forest land. Further, it was also ordered that after receipt of the compliance report on fulfilment of the 21 conditions from the State of Orissa, formal approval would be issued under Section 2 of the Forest (Conservation) Act, 1980. 26. MOEF examined the application of the OMC for environmental clearance under Section 12 of the EIA Notification, 2006 read with para 2.1.1(i) of Circular dated 13.10.2006 and accorded environmental clearance for the "Lanjigarh Bauxite Mining Project" to OMC for an annual production capacity of 3 million tonnes of -bauxite by opencast mechanized method involving total mining lease area of 721.323 ha, subject to the conditions and environmental safeguards, vide its letter dated 28.4.2009. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after ascertaining the community rights of forest land and after the process for establishing such rights under the Forest Rights Act is completed. Dr. Usha Ramanathan Committee report was placed before the FAC on 16.4.2010 and FAC recommended that a Special Committee under the Ministry of Tribal Affairs be constituted to look into the issue relating to violation of tribal rights and the settlement of various rights under the Forest Rights Act, which led, as already indicated, to the constitution of the Saxena Committee report, based on which the MOEF passed the impugned order dated 24.8.2010. 28. FAC, in its meeting, opined that the final clearance under the Forest (Conservation) Act would be given, only after ascertaining the "Community Rights" on forest land and after the process of establishing such rights under the Forest Rights Act. After perusing the Usha Ramanathan report, FAC on 16.4.2010 recommended that a Special Committee be constituted to look into the issues relating to the alleged violation of rights under the Forest Rights Act. MOEF, then on 29.6.2010 constituted the Saxena Committee and the Committee after conducting an enquiry submitted its report which was plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident of India, in exercise of the powers conferred by Clause (1) of Article 342 of the Constitution, has made the Constitution (Schedule Tribes) Order, 1950. Part XII of the Order refers to the State of Orissa. Serial No. 31 refers to Dongaria Kondh, Kutia Kandha etc. 32. Before we examine the scope of the Forest Rights Act, let us examine, how the rights of indigenous people are generally viewed under our Constitution and the various International Conventions. Constitutional Rights and Conventions: 33. Article 244 (1) of the Constitution of India which appears in Part X provides that the administration of the Scheduled Areas and Scheduled Tribes in States (other than Assam, Meghalaya and Tripura) shall be according to the provisions of the Fifth Schedule and Clause (2) states that Sixth Schedule applies to the tribal areas in Assam, Meghalaya, Tripura and Mizoram. Evidently, the object of the Fifth Schedule and the Regulations made thereunder is to preserve tribal autonomy, their cultures and economic empowerment to ensure social, economic and political justice for the preservation of peace and good Governance in the Scheduled Area. This Court in Samatha v. Arunachal Pradesh ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may be established there. Accordingly, it is proposed to introduce a Bill to provide for the extension of the provisions of Part IX of the Constitution to the Scheduled Areas with certain modifications providing that, among other things, the State legislations that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources;….. The offices of the Chairpersons in the panchayats at all levels shall be reserved for the Scheduled Tribes; the reservations of seats at every panchayat for the Scheduled Tribes shall not be less than one-third of the total number of seats." 35. This court had occasion to consider the scope of PESA Act when the constitutional validity of the proviso to section 4(g) of the PESA Act and few sections of the Jharkhand Panchayat Raj Act, 2001 were challenged in Union of India v. Rakesh Kumar, (2010) 4 SCC 50 and this Court upheld the Constitutional validity. 36. Section 4 of the PESA Act stipulates that the State legislation on Panchayats shall be made in consonance with the customary law, social and religious practices and traditional management practices of comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources have also been recognized by United Nations in the United Nations Declaration on Rights of Indigenous Peoples. STs and other TFDs residing in the Scheduled Areas have a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands. 39. Many of the STs and other TFDs are totally unaware of their rights. They also experience lot of difficulties in obtaining effective access to justice because of their distinct culture and limited contact with mainstream society. Many a times, they do not have the financial resources to engage in any legal actions against development projects undertaken in their abode or the forest in which they stay. They have a vital role to play in the environmental management and development because of their knowledge and traditional practices. State has got a duty to recognize and duly support their identity, culture and interest so that they can effectively participate in achieving sustainable development. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to bear in mind the above objects and reasons, while interpreting various provisions of the Forest Rights Act, which is a social welfare or remedial statute. The Act protects a wide range of rights of forest dwellers and STs including the customary rights to use forest land as a community forest resource and not restricted merely to property rights or to areas of habitation. 44. Forest rights of forest dwelling STs and other TFDs are dealt with in Chapter II of the Act. Section 3 of that chapter lists out what are the forest rights for the purpose of the Act. Following are some of the rights which have been recognized under the Act: a) Right to hold and live in the forest land under the individual or common occupation for habitation or for self- cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers; b) Community rights such as nistar, by whatever name called, including those used in erstwhile Princely States, Zamindari or such intermediary regimes; c) Right of ownership access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundarie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try of Environment and Forests after open process of consultation by an Expert Committee, which includes experts from the locality appointed by that Government wherein a representative of the Ministry of Tribal Affairs shall also be included, in determining such areas according to the procedural requirement arising from sub-sections (1) and (2) of Section 4." "Forest dwelling Scheduled Tribes" is defined under Section 2(c) of the Act, which reads as follows: "(c) "Forest dwelling Scheduled Tribes" means the members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs and includes the Scheduled Tribe Pastoralist communities." "Forest land" is described under Section 2(d), which reads as follows: "(d) "forest land" means land of any description falling within any forest area and includes unclassified forests, undemarcated forests, existing or deemed forests, protected forests, reserved forests, sanctuaries and National Parks." "Gram Sabha" is defined under Section 2(g), which reads as follows: "(g) "Gram Sabha" means a village assembly which shall consist of all adult members of a village and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Act, the Ministry has issued certain guidelines and communicated to all the States and UTs vide their letter dated 12.7.2012. The operative portion of the same reads as follows: "GUIDELINES: i) Process of Recognition of Rights: a) The State Governments should ensure that on receipt of intimation from the Forest Rights Committee, the officials of the Forest and Revenue Departments remain present during the verification of the claims and the evidence on the site. b) In the event of modification or rejection of a claim by the Gram Sabha or by the Sub-Divisional Level Committee or the District Level Committee, the decision on the claim should be communicated to the claimant to enable the aggrieved person to prefer a petition to the Sub Divisional Level Committee or the District Level Committee, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f drum etc. j) A question has been raised whether the four hectare limit specified in Section 4(6) of the Act, which provides for recognition of forest rights in respect of the land mentioned in clause (a) of sub-section (1) of section 3 of the Act, applies to other forest rights mentioned in Section 3(1) of the Act. It is clarified that the four hectare limit specified in Section 4(6) applies to rights under section 3(1)(a) of the Act only and not to any other right under section 3(1), such as conversion of pattas or leases, conversion of forest villages into revenue villages etc. ii) Minor Forest Produce: (a) The State Government should ensure that the forest rights relating to MFPs under Section 3(1)(c) of the Act are recognized in respect of all MFPs, as defined under Section 2(i) of the Act, in all forest areas, and state policies are brought in alignment with the provisions of the Act. Section 2(i) of the Act defines the term "minor forest produce" to include "all non-timber produce of plant origin, including bamboo, brush wood, stumps, cane, tussar, cocoons, honey, wax, lac, tendu or kendu leaves, medicinal plants and herbs, roots, tubers, and the like". (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities, 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides that no member of a forest dwelling Scheduled Tribe or other traditional forest dwellers shall be evicted or removed from the forest land under his occupation till the recognition and verification procedure is complete. This clause is of an absolute nature and excludes all possibilities of eviction of forest dwelling Scheduled Tribes or other traditional forest dwellers without settlement of their forest rights as this Section opens with the words "Save as otherwise provided". The rationale behind this protective clause against eviction is to ensure that in no case a forest dweller should be evicted without recognition of his rights as the same entitles him to a due compensation in case of eventuality of displacement in cases, where even after recognition of rights, a forest area is to be declared as inviolate for wildlife conservation or diverted for any other purpose. In any case, Section 4(1) has the effect of recognizing and vesting forest rights in eligible forest dwellers. Therefore, no eviction should take place till the process of recognition and vesting of forest rights under the Act is complete. (b) The Ministry of Environment & Forests, vide their letter No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the forest rights of the forest rights holders recognized under the Act in the critical wildlife habitats of National Parks and Sanctuaries, when their rights are either to be modified or resettled for the purposes of creating inviolate areas for wildlife conservation. No exercise for modification of the rights of the forest dwellers or their resettlement from the National Parks and Sanctuaries can be undertaken, unless their rights have been recognized and vested under the Act. In view of the provisions of Section 4(5) of the Act, no eviction and resettlement is permissible from the National Parks and sanctuaries till all the formalities relating to recognition and verification of their claims are completed. The State/ UT Governments may, therefore, ensure that the rights of the forest dwelling Scheduled Tribes and other traditional forest dwellers, residing in National Parks and Sanctuaries are recognized first before any exercise for modification of their rights or their resettlement, if necessary, is undertaken and no member of the forest dwelling Scheduled Tribe or other traditional forest dweller is evicted from such areas without the settlement of their rights and comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that is required. The complainant and the Gram Sabha should be informed about the outcome of the inquiry." Forest Rights Act and MMRD Act: 50. State of Orissa has maintained the stand that the State has the ownership over the mines and minerals deposits beneath the forest land and that the STs and other TFDs cannot raise any claim or rights over them, nor the Gram Sabha has any right to adjudicate such claims. This Court in Amritlal Athubhai Shah and Ors. v. Union Government of India and Another (1976) 4 SCC 108, while dealing with the scope of Mines and Minerals (Regulation and Development) Act, 1957 held as follows: "3. ……the State Government is the "owner of minerals" within its territory, and the minerals "vest" in it. There is nothing in the Act or the Rules to detract from this basic fact. That was why the Central Government stated further in its revisional orders that the State Government had the "inherent right to reserve any particular area for exploitation in the public sector". It is therefore quite clear that, in the absence of any law or contract etc to the contrary, bauxite, as a mineral, and the mines thereof, vest in the State of Gujarat and no pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Rules. Elaborate procedures have therefore been laid down by Forest Rights Act read with 2007 and 2012 Amendment Rules with regard to the manner in which the nature and extent of individual or customary forest rights or both have to be decided. Reference has already been made to the details of forest rights which have been conferred on the forest dwelling STs as well as TFDs in the earlier part of the Judgment. Individual/Community Rights 53. Forest Rights Act prescribed various rights to tribals/forest dwellers as per Section 3 of the Act. As per Section 6 of the Act, power is conferred on the Gram Sabha to process for determining the nature and the extent of individual or community forests read with or both that may be given to forest dwelling STs and other TFDs, by receiving claims, consolidate it, and verifying them and preparing a map, delineating area of each recommended claim in such a manner as may be prescribed. The Gram Sabha has received a large number of individual claims and community claims from the Rayagada District as well as the Kalahandi District. From Rayagada District Gram Sabha received 185 individual claims, of -which 145 claims have been considered and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rights Act read with Section 4(d) of PESA Act has an obligation to safeguard and preserve the traditions and customs of the STs and other forest dwellers, their cultural identity, community resources etc., which they have to discharge following the guidelines issued by the Ministry of Tribal Affairs vide its letter dated 12.7.2012. 58. We are, therefore, of the view that the question whether STs and other TFDs, like Dongaria Kondh, Kutia Kandha and others, have got any religious rights i.e. rights of worship over the Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the hill top known as Niyam-Raja, have to be considered by the Gram Sabha. Gram Sabha can also examine whether the proposed mining area Niyama Danger, 10 km away from the peak, would in any way affect the abode of Niyam-Raja. Needless to say, if the BMP, in any way, affects their religious rights, especially their right to worship their deity, known as Niyam Raja, in the hills top of the Niyamgiri range of hills, that right has to be preserved and protected. We find that this aspect of the matter has not been placed before the Gram Sabha for their active consideration, but only the individual claims and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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