# 6 S.C.R. 881 ORISSA MINING CORPORATION v. MINISTRY OF ENVIRONMENT & FOREST & OTHERS

- **Citation:** [2013] 6 S.C.R. 881
- **Court:** Supreme Court of India
- **Decided:** 2013-04-18
- **Bench:** Aftab Alam, K.S. Radhakrishnan, RANJAN GOGOi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/6-s-c-r-881-orissa-mining-corporation-v-ministry-of-environment-forest-others-29326
- **Pages:** 68

## Headnote

A
B
Scheduled Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 - Primitive Tribal
C
Groups - Specific protections extended to their "habitat and
habitations" - Bauxite Mining Project (BMP) - Ministry of
Environment and Forests (MOEF) rejecting Stage-II forest
clearance for diversion of 660. 7 49 hectares of forest land for
mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi
D
and Rayagada Districts of Orissa - Alleged violation of the
rights of the Scheduled Tribes (STs) and the "Traditional
Forest Dwellers" (TFDs) - Held: STs and other TFDs have a
vital role to play in the environmental management and
development because of their knowledge and traditional
E
practices - The State has a duty to recognize and duly
support their identity, culture and interest so that they can
effectively participate in achieving sustainable development
- STs and other TFDs residing in the Scheduled Areas have
a right to maintain their distinctive spiritual relationship with
F
their traditionally owned or otherwise occupied and used lands
- Central role of Gram Sabha in determining the nature and
extent of "individua/"/'community rights" of the STs and other
TFDs and in safeguarding their customary and religious rights
under the Forest Rights Act - In the instant case, question
G
whether STs and other TFDs, like Dongaria Kondh, Kutia
Kandha and others, had 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, to be
881
H
882
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A considered by the Gram Sabha -
Gram Sabha to 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 - Gram Sabha also free to consider all the
community, individual as well as cultural and religious claims,
B over and above the claims already received from Rayagada
and Kalahandi Districts - The State Government as well as
the Ministry of Tribal Affairs, Government of India, to assist
the Gram Sabha for settling of individual as well as community
claims -
Gram Sabha to take decision on them within 3
C months and communicate the same to the MOEF, through the
State Government - MoEF to then take a final decision on
the grant of Stage II clearance for the Bauxite Mining Project
in light of the decision of the Gram Sabha within 2 months
thereafter - Environmental Law.
D
Scheduled Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 - Enactment of -
Object and purpose - Discussed - Held: The Act is a social
welfare or. remedial statute - It intends to protect custom,
usage, forms, practices and ceremonies which are appropriate
E to the traditional practices of forest dwellers - The Act protects
a wide range of rights of forest dwellers and STs including
customary rights to use forest land as a community forest
resource and not restricted merely to property rights or to
areas of habitation.
F
Scheduled Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 - s.6 - Nature and
extent of "individua/''!'community rights" of the Scheduled
Tribes (STs) and other ''Traditional Forest Dwellers" (TFDs)
G and their customary and religious rights - Determination of
- Role of Gram Sabha - Discussed - Held: Gram Sabha is
the authority to initiate the process for determining the nature
and extent of individual or community forest rights or both that
may be given to the forest dwelling STs and other TFDs within
H the local limits of their jurisdiction - Gram Sabha functioning
ORISSA MINING CORPORATION v. MINISTRY OF
883
ENVIRONMENT & FOREST
under the Forest Rights Act rlw s.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
T

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[2013) 6 S.C.R. 881
ORISSA MINING CORPORATION
v.
MINISTRY OF ENVIRONMENT & FOREST & OTHERS
(Writ Petition (Civil) No. 180 of 2011)
APRIL 18, 2013
[AFTAB ALAM, K.S. RADHAKRISHNAN AND
RANJAN GOGOi, JJ.]
A
B
Scheduled Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 - Primitive Tribal
C
Groups - Specific protections extended to their "habitat and
habitations" - Bauxite Mining Project (BMP) - Ministry of
Environment and Forests (MOEF) rejecting Stage-II forest
clearance for diversion of 660. 7 49 hectares of forest land for
mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi
D
and Rayagada Districts of Orissa - Alleged violation of the
rights of the Scheduled Tribes (STs) and the "Traditional
Forest Dwellers" (TFDs) - Held: STs and other TFDs have a
vital role to play in the environmental management and
development because of their knowledge and traditional
E
practices - The State has a duty to recognize and duly
support their identity, culture and interest so that they can
effectively participate in achieving sustainable development
- STs and other TFDs residing in the Scheduled Areas have
a right to maintain their distinctive spiritual relationship with
F
their traditionally owned or otherwise occupied and used lands
- Central role of Gram Sabha in determining the nature and
extent of "individua/"/'community rights" of the STs and other
TFDs and in safeguarding their customary and religious rights
under the Forest Rights Act - In the instant case, question
G
whether STs and other TFDs, like Dongaria Kondh, Kutia
Kandha and others, had 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, to be
881
H
882
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A considered by the Gram Sabha -
Gram Sabha to 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 - Gram Sabha also free to consider all the
community, individual as well as cultural and religious claims,
B over and above the claims already received from Rayagada
and Kalahandi Districts - The State Government as well as
the Ministry of Tribal Affairs, Government of India, to assist
the Gram Sabha for settling of individual as well as community
claims -
Gram Sabha to take decision on them within 3
C months and communicate the same to the MOEF, through the
State Government - MoEF to then take a final decision on
the grant of Stage II clearance for the Bauxite Mining Project
in light of the decision of the Gram Sabha within 2 months
thereafter - Environmental Law.
D
Scheduled Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 - Enactment of -
Object and purpose - Discussed - Held: The Act is a social
welfare or. remedial statute - It intends to protect custom,
usage, forms, practices and ceremonies which are appropriate
E to the traditional practices of forest dwellers - The Act protects
a wide range of rights of forest dwellers and STs including
customary rights to use forest land as a community forest
resource and not restricted merely to property rights or to
areas of habitation.
F
Scheduled Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 - s.6 - Nature and
extent of "individua/''!'community rights" of the Scheduled
Tribes (STs) and other ''Traditional Forest Dwellers" (TFDs)
G and their customary and religious rights - Determination of
- Role of Gram Sabha - Discussed - Held: Gram Sabha is
the authority to initiate the process for determining the nature
and extent of individual or community forest rights or both that
may be given to the forest dwelling STs and other TFDs within
H the local limits of their jurisdiction - Gram Sabha functioning
ORISSA MINING CORPORATION v. MINISTRY OF
883
ENVIRONMENT & FOREST
under the Forest Rights Act rlw s.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 - Scheduled
Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Amendment Rules, 2007 read with the 2012
Amendment Rules - Panchayat (Extension to Scheduled
Areas) Act, 1996 - s.4(d).
A
B
c
Mines and Minerals (Regulation and Development) Act,
1957 - Right of the State over mines or minerals lying
underneath the forest land - Held: The State holds the natural
resources as a trustee for the people - s.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 . D
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 - State
Government has the power to reserve any particular area for
Bauxite mining for a Public Sector Corporation - Scheduled
Tribes and other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006 - s.3 - Panchayat (Extension to
Scheduled Areas) Act, 1996.
E
The Orissa Mining Corporation (OMC), a State of
Orissa Undertaking, approached this Court seeking a
Writ of Certiorari to quash the order passed by the
Ministry of Environment and Forests (MOEF) dated
24.8.2010 rejecting the Stage-II forest clearance for
diversion of 660.749 hectares of forest land for mining of
bauxite ore in Lanjigarh Bauxite Mines in Kalahandi and
Rayagada Districts of Orissa and for other consequential
reliefs.
The Stage II forest clearance for the OMC and Sterlite
bauxite mining project on the Niyamgiri Hills in Lanjigarh,
F
G
H
884
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A
Kalahandi and Rayagada districts of Orissa was rejected
by the MOEF on grounds of:- 1) violation of the rights of
the Tribal Groups including the Primitive Tribal Groups
and the Dalit Population, more particularly with reference
to the specific protections extended to their "habitat and
B habitations" under the Scheduled Tribes and other
Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006 [the Forest Rights Act]; 2) violations of the
Environmental Protection Act, 1986 and 3) violations
under the Forest Conservation Act, 1980 coupled with
c the resultant impact on the ecology and biodiversity of
the surrounding area.
The Petitioner assailed the order of MoEF dated
24.08.2010 as an attempt to reopen matters that had
obtained finality and further submitted that the order
D wrongly cited 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 was based on
the premise that the two Projects were totally separate
E 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.
F
Disposing of the writ petition, the Court
HELD: 1. The 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
G show that the two projects make an integrated unit. In
two earlier orders of this Court (in the Vedanta case and
the Sterlite case) also, the two Projects are seen as
comprising a single unit. Quite contrary to the case of the
petitioner, the Alumina Refinery Project and Bauxite
H Mining Project are interdependent and inseparably linked
ORISSA MINING CORPORATION v. MINISTRY OF
885
ENVIRONMENT & FOREST
together and, hence, any wrong doing by Alumina
A
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.
However, in this Judgment, this Court, does not propose
to make any final pronouncement on that issue but
B
would keep the focus mainly on the rights of the
Scheduled Tribes (STs) and the "Traditional Forest
Dwellers" (TFDs) under the Forest Rights Act. [Para 30]
(921-G-H; 922-A-C]
STs and TFDs:
c
2. 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
D
prior to the 13th day of December, 2005 primarily resided
in and who depend on the forest or forests land for bona
fide livelihood needs. Article 366(25) of the Constitution
states that STs means such tribes or tribal communities
or parts of or groups within such tribes or tribal
E
communities as are defined under Article 342 to be the
Scheduled Tribes. [Para 31] (922-D-E]
Constitutional Rights and Conventions:
3.1. Article 244 (1) of the Constitution of India which
F
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
G
Assam, Meqhalaya, 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
H
886
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A good Governance in the Scheduled Area. [Para 33] [922H; 923-A-B]
3.2. Section 4 of the Panchayat (Extension to
Scheduled Areas) Act, 1996 [PESA Act] stipulates that the
8 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
C cultural identity, community resources and the customary
mode of dispute resolution. [Para 36] [924-H; 925-A-B]
3.3. The customary and cultural rights of indigenous
people have also been the subject matter of various
o 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
E emphasized the necessity for the protection of social,
political and cultural rights of indigenous people. India is
a signatory to the ILO Convention (No. 107). [Para 37]
[925-E-G]
3.4. Apart from giving legitimacy to the cultural rights
F
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
G use of bio-diversity, India is a signatory to CBA. Rio
Declaration on Environment and Development Agenda
21 and Forestry principle also encourage the promotion
of customary practices conducive to conservation. The
necessity to respect and promote the inherent rights of
H indigenous peoples which derive from their political,
ORISSA MINING CORPORATION v. MINISTRY OF
887
ENVIRONMENT & FOREST
economic and social structures and from their cultures,
A·
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
B
a right to maintain their distinctive spiritual relationship
with their traditionally owned or otherwise occupied and
used lands. [Para 38] [925-G-H; 926-A-C]
3.5. STs and other TFDs have a vital role to play in
the environmental management and development C
because of their knowledge and traditional practices. The
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. [Para
39] [926-E-F]
D
Samatha v. Arunachal Pradesh (1997) 8 SCC 191: 1997
(2) Suppl. SCR 305 and Union of India v. Rakesh Kumar
(2010) 4 SCC 50: 2010 (1) SCR 483 - referred to.
The Forest Rights Act
E
4.1. 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
F
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
G
the forest rights so vested and the nature of evidence
required for such recognition and vesting in respect of
forest land. [Paras 40, 41] [926-G-H; 927-A-B]
4.2. The Forest Rights Act is a social welfare or
remedial statute. The Act protects a wide range of rights
H
888
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A 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. [Para 43] [928-A-B]
8
4.3. Legislative intention is clear that the Act intends
to protect custom, usage, forms, practices and
ceremonies which are appropriate to the traditional
practices of forest dwellers. [Para 47] [932-B]
Forest Rights Act and MMRD Act:
c
5. 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. The State
holds the natural resources as a trustee for the people.
D 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
E in the Scheduled Areas. Therefore, as held by this Court
in Amritlal case while dealing with the scope of Mines and
Minerals (Regulation and Development) Act, 1957, the
State Government has the power to reserve any particular
area for Bauxite mining for a Public Sector Corporation.
F
[Para 50] [944-B-D]
Amritlaf Athubhai Shah and Ors. v. Union Government
of India and Another (1976) 4 SCC 108: 1977 (1) SCR 372
- relied on.
G Gram Sabha and other Authorities:
6. Under Section 6 of the Forest Rights Act, Gram
Sabha shall be the authority to initiate the process for
determining the nature and extent of individual or
H community forest rights or both and that may be given to
ORISSA MINING CORPORATION v. MINISTRY OF
889
ENVIRONMENT & FOREST
the forest dwelling STs and other TFDs within the local
A
limits of the jurisdiction. For the said purpose it receive
claims, and after consolidating and verifying them it has
to prepare a plan delineating the area of each
recommended claim in such manner as may be
prescribed for exercise of such rights. [Para 51] [944-E-F]
B
6.2. 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 the Scheduled Tribes and Other C
Traditional Forest Dwellers (Recognition of Forest Rights)
Amendment Rules, 2007 read with the 2012 Amendment
Rules. [Para 52] [945-B-C]
Individual/Community Rights
D
7. The 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
E
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. [Para 53] [945-E-F]
F
Customarv and Religious Rights !Sacred Rights)
8.1. Religious freedom guaranteed to STs and the
TFDs under Articles 25 and 26 of the Constitution is G
intended to be a guide to a community of life and social
demands. The above mentioned Articles guarantee them
the right to practice and propagate not only matters of
faith or belief, but all those rituals and observations which
are regarded as integral part of their religion. Their right
H
890
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A to worship the deity Niyam-Raja has, therefore, to be
protected and preserved. [Para 55] [946-C-D]
8.2.Gram Sabha has a role to play in safeguarding the
customary and religious rights of the STs and other TFDs
8 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". [Para 56]
[946-E]
8.3. Gram Sabha functioning under the Forest Rights
C 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
D Affairs vide its letter dated 12.7.2012. [Para 57] [947-B]
9.1. In the instant case, therefore, the question
whether STs and other TFDs, like Dongaria Kondh, Kutia
Kandha and others, have got any religious rights i.e.
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. If the
F 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. This aspect of the
matter has not been placed before the Gram Sabha for
G 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. [Para 58] [947-C-F]
H
9.2. The Gram Sabha is also free to consider all the
ORISSA MINING CORPORATION v. MINISTRY OF
891
ENVIRONMENT & FOREST
community, individual as well as cultural and religious A
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. The State
Government as well as the Ministry of Tribal Affairs, B
Government of India, would assist the Gram Sabha for
settling of individual as well as community claims. [Para
59] [947-G]
9.3. Direction is given to the State of Orissa to place C
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 conclusion of the proceeding
before the Gram Sabha determining the claims submitted D
before it, the MoEF shall take a final decision on the grant
of Stage II clearance for the Bauxite Mining l'roject in the
light of the decisions of the Gram Sabha within two
months thereafter. [Para 60] [947-H; 948-A-B]
9.4. The Alumina Refinery Project is well advised to
take steps to correct and rectify the alleged violations by
E
it of the terms of the environmental clearance granted by
MoEF. While taking the final decision, the MoEF shall take
into consideration any corrective measures that might F
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. [Para 61] [948-C-D]
9.5. The proceedings of the Gram Sabha shall be G
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 H
892
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A uninfluenced either by the Project proponents or the
Central Government or the State Government. [Para 62]
(948-E-F]
B
Case Law Reference:
1997 (2) Suppl. SCR 305 referred to
2010 (1) SCR 483
1977 (1) SCR 372
referred to
relied on
Para 33
Para 35
Para 50
c
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
180 of 2011.
Under Article 32 of the Constitution of India.
Mohan Parasaran, Solicitor General, Sidharth Luthra,
D ASG, K.K. Venugopal, C.U. Singh, C.A. Sundaram, Raj
Panjwani, Prashanto Chandra Sen, P.S. Sudneer, Sara
Sundram, Rishi Maheshwari, Anne Mathew, Abu John Mathew,
Ekta Kapil, Anubha Singh, Atishree Sood, Vijayalakshmi
Menon, R.S. Jena, Rohini Musa, A.D.N. Rao, Siddhartha
E Chouhdary, D.L. Chidananda, Haris Beeran, Asha G. Nair,
Aditya Singla, Gurmohan Bedi, Amer Musthaq Salim, Zoheb
Hossain, Alok Prasanna Kumar, Aarthi Rajan (for S.N. Terdal),
Binu Tamta, Rahul Chaudhary, Ritwick Dutta, Anitha Shenoy,
Sanjay Parikh, Marnia Saxena, Bushra Parveen, AN. Singh for
F the appearing parties.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. Orissa Mining Corporation
(OMC), a State of Orissa Undertaking, has approached this
G Court seeking a Writ of Certiorari to quash the order passed
by the Ministry of Environment and Forests (MOEF) dated
24.8.201 O rejecting the Stage-II forest clearance for diversion
of 660.749 hectares of forest land for mining of bauxite ore in
Lanjigarh Bauxite Mines in Kalahandi and Rayagada Districts
H of Orissa and also for other consequential reliefs.
ORISSA MINING CORPORATION v. MINISTRY OF
893
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J ]
2. OMC urged that the above order passed by the MOEF
A
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 sec 222
[hereinafter referred to as 'Vedanta case'] and the order
B
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.
c
FACTS:
3. Mis. 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
D
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
E
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
F
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 Mis
Sterlite, granted environmental clearance on 22.9.2004 to ARP
on 1 million tonne per annum capacity of refinery along with 75
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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
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A
Department of Orissa had, on 5.8.2004, issued a show-causenotice 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.
B
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
C 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
D 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
E
the proposal for diversion of 58.943 ha. of forest land. CEC had,
however, objected to the grant of clearance sought by Vedanta
on the ground that the Refinery would be totally dependent on
mining of bauxite from Niyamgiri Hills, Lanjigarh, which was the
only vital wildlife habitat, part of which constituted elephant
F
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
G Central Mining Planning and Design Institute (CMPDI), Ranchi
to study the social impact of ground vibration on hydrogeological characteristics, including ground propensity,
permeability, flow of natural resources etc. CMPDI submitted
its report on 20.10.2006. MoEF appointed the Wildlife Institute
H of India (Wll), Dehradun to study the impact of the Mining
ORISSA MINING CORPORATION v. MINISTRY OF
895
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
Project on the bio-diversity. Wll submitted its report dated A
14.06.2006 and the supplementary report dated 25.10.2006
before the MOEF. Reports of CMPDI, Wll 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
B
mining of bauxite in Kalahandi and Rayagada Districts subject
to the conditions laid down by Wll.
7. The State of Orissa had brought to the notice of this
Court about the lack of basic infrastructure facilities in the Tribal C
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 Mis. Sterlite to move the Court if they would agree to comply D
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:
"(1) State of Orissa shall float a Special Purpose E
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
F
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
1 O crores whichever is higher for Scheduled Area G
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
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calculating annual profits before tax and interest Mis Sill
shall do so on the basis of the market value of the material
which is sold by OMC Ltd. to Mis Sill or its nominee.
(ii) In addition to what is stated above, M/s Sill 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 Sill shall also bear expenses towards
compensatory afforestation.
(iit) A statement shall be filed by M/s Sill with CEC
within eight weeks from today stating number of persons
who shall be absorbed on permanent basis in Mis Sill
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 Mis Sill 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
ORISSA MINING CORPORATION v. MINISTRY OF
897
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
foresf' under the Orissa Forest Act, 1972 for the purpose
A
of management.
4. The user agency shall undertake rehabilitation of
Project-affected families, if any, as per the Orissa
Rehabilitation and Resettlement Policy, 2006.
8
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
c
regeneration of the safety zone area.
o
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
E
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,
F
etc. and shall prepare a site specific comprehensive
G
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
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forest land sought for diversion for undertaking mining
operations.
11. The user agency shall prepare a comprehensive
plan for the development of tribals in the Project impact
area taking into consideration their requirements for health,
education, communication, recreation, livelihood and
cultural lifestyle.
12. As per the policy of the State Government, the
user agency shall earmark 5% of the net profit accrued in
the Project to be spent for the development of health,
education, communication, irrigation and agriculture of the
said scheduled area within a radius of 50 km.
13. Controlled blasting may be used only in
exigencies wherever needed to minimise the impact of
noise on wildlife of the area.
14. The user agency shall undertake development
of greenery by way of plantation of suitable indigenous
species in all vacant areas within the Project.
15. Trees shall be felled from the diverted area only
when it is necessary with the strict supervision of the State
Forest Department at the cost of the Project.
16. The forest land diverted shall be 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 Mis Sill, 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 Mis Sill is agreeable to the aforestated rehabilitation
ORISSA MINING CORPORATION v. MINISTRY OF
899
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.]
package then they shall be at liberty to move this Court by
A
initiating a proper application, This Court is not against the
Project in principle. It only seeks safeguards by which we
are able to protect nature and subserve development. IAs
are disposed of accordingly.
However, we once again reiterate that the applications
8
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 C
the applications were disposed of, the order of which is reported
in (2008) 2 sec 222.
8. M/s. Sterlite, 3rd respondent herein, then moved an
application - being I.A. No. 2134 of 2007 - before this Court,
0
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
E
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. Nci. 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
F
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 G
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:
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"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
B
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
C diversion of 660. 749 ha of forest land for mining of bauxite ore
in Lanjigarh Bauxite Mines in favour of OMC, in accordance
with Section 2 of the Forest (Conservation) Act, 1980. MOEF,
after considering the proposal of the State Government and
referring to the recommendations of FAC dated 27.10.2006,
D agreed in principle for diversion of the above mentioned forest
land, subject to various conditions which are as follows:
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(i)
The Compensatory Afforestation shall be raised
over non-forest land, equal in extent to the forest
land proposed to be diverted, at the project cost.
The User Agency shall transfer the cost of
Compensatory Afforestation to the State Forest
Department.
(ii)
The non-forest land identified for Compensatory
Afforestation shall be declared as Reserved
Forests under Indian Forest Act, 1927.
(iii)
The User Agency shall create fence and maintain
a safety zone around the mining area. The User
Agency will deposit fund with the Forest Department
for creation, protection and regeneration of safety
zone area and also will have to bear the cost of
afforestation over one and a half time of the safety
zone area in degraded forest elsewhere.
ORISSA MINING CORPORATION v. MINISTRY OF
901
ENVIRONMENT & FOREST [K.S. RADHAKRISHNAN, J.)
(iv)
The reclamation of mines shall be carried out A
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
B
area and the pillars will be marked with forward and
back bearings.
(vi)
The State Government shall charge Net Present
Value (NPV) from the User Agency for the entire
diverted forest land, as directed by Hon'ble c
Supreme Court and as per the guidelines issued
vide Ministry of Environment and Forests letters No.
5-1/98-FC(Pt.il) dated 18th September 2003 and
22nd September 2003.
(vii) As per Hon'ble Supreme Court's order dated D
23.11.2007 and 08.08.2008, Mis Sill shall pay
NPV of Rs.55 crores.
(viii) An undertaking from the User Agency shall also be
E
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 Sill shall pay
F
Rs.50.53 crores towards Wildlife Management Plan
for Conservation and Management of Wildlife
around laniigarh bauxite mine.
(x)
As per Hon'ble Supreme Court's order dated G
23.11.2007 and 08.08.2-008, Mis Sill 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 H
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Rs.12.20 crores shall be earmarked specifically for
tribal development.
(xi)
The State Government shall deposit all the funds
with the Ad-hoc Body of Compensatory
Afforestation Fund Management and Planning
Authority (CAMPA) in Account No. CA 1585 of
Corporation Bank (A Government of India
Enterprise) Block-II, Ground Floor, CGO Complex,
Phase-I, Lodhi Road, New Delhi-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.1 O 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 are!l development of Lanjigarh Project
in which the stake-holders shall be State of Orissa,
OMC Ltd. and Mis Siil. Such SPV shall be
incorporated under the Companies Act, 1956.