9911796707
TMI Blog2013 (4) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permeability, flow of natural resources etc. CMPDI submitted its report on 20.10.2006. MoEF appointed the Wildlife Institute of India (WII), Dehradun to study the impact of the Mining Project on the bio- diversity. WII submitted its report dated 14.06.2006 and the supplementary report dated 25.10.2006 before the MOEF. Reports of CMPDI, WII were all considered by the Forest Advisory Committee (FAC) on 27.10.2006 after perusing the above mentioned reports approved the proposal of OMC, for diversion of 660.749 ha. of forest land for the mining of bauxite in Kalahandi and Rayagada Districts subject to the conditions laid down by WII. 7. The State of Orissa had brought to the notice of this Court about the lack of basic infrastructure facilities in the Tribal areas of both the districts, so also the abject poverty in which the local people were living in Lanjigarh Tehsil, including the tribal people, and also the lack of proper housing, hospitals, schools etc. But this Court was not agreeable to clear the project, at the instance of Vedanta, however, liberty was granted to M/s. Sterlite to move the Court if they would agree to comply with the modalities suggested by the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation to the ownership of the State Forest Department. 3. The State Forest Department will take up compensatory afforestation at Project cost with suitable indigenous species and will declare the said area identified for compensatory afforestation as protected forest under the Orissa Forest Act, 1972 for the purpose of management. 4. The user agency shall undertake rehabilitation of Project-affected families, if any, as per the Orissa Rehabilitation and Resettlement Policy, 2006. 5. The user agency shall undertake phased reclamation of mined-out area. All overburden should be used for back-filling and reclamation of the mined-out areas. 6. The user agency shall undertake fencing of the safety zone area and endeavour for protection as well as regeneration of the said area. It shall deposit funds with the State Forest Department for the protection and regeneration of the safety zone area. 7. Adequate soil conservation measures shall be undertaken by the lessee on the overburdened dumps to prevent contamination of stream flow. 8. The user agency should undertake comprehensive study on hydrogeology of the area and the impact of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It only seeks safeguards by which we are able to protect nature and subserve development. IAs are disposed of accordingly. However, we once again reiterate that the applications filed by M/s VAL stand dismissed. The Court opined that if Sterlite, State of Orissa and OMC jointly agree to comply with the Rehabilitation Package , the Court might consider granting clearance to the project. Stating so, all the applications were disposed of, the order of which is reported in (2008) 2 SCC 222. 8. M/s. Sterlite, 3rd respondent herein, then moved an application being I.A. No. 2134 of 2007 before this Court, followed by affidavits, wherein it was stated that M/s. Sterlite, State of Orissa and OMC had unconditionally accepted the terms and conditions and modalities suggested by this Court under the caption Rehabilitation Package in its 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 alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be regularly monitored by the State Forest Department. v) RCC pillars of 4 feet height shall be erected by the User Agency at the project cost to demarcate the area and the pillars will be marked with forward and back bearings. vi) The State Government shall charge Net Present Value (NPV) from the User Agency for the entire diverted forest land, as directed by Hon ble Supreme Court and as per the guidelines issued vide Ministry of Environment and Forests letters No. 5-1/98-FC(Pt.II) dated 18th September 2003 and 22nd September 2003. vii) As per Hon ble Supreme Court s order dated 23.11.2007 and 08.08.2008, M/s SIIL shall pay NPV of ₹ 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 08.08.2-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition that the CCF (Central), Regional Office, Bhubaneshwar / the State Forest Department may impose from time to time for protection and improvement of flora and fauna in the forest area, shall also be applicable. xviii) All other provisions under different Acts, rules, and regulations including environmental clearance shall be complied with before transfer of forest land. xix) The lease will remain in the name of Orissa Mining Corporation (OMCL) and if any change has to be done, it will require prior approval of the Central Government as per guidelines. xx) The present forest clearance will be subject to the final outcome of the Writ petition No. 202 of 1995 from the Hon ble Supreme Court and Court s order dated 23.11.2007 and 08.08.2008. xxi) Other standard conditions as applicable to proposals related to mining shall apply in the instant case also. MOEF, then, vide its letter dated 11.12.2008 informed the State of Orissa that it had, in principle, agreed for diversion of 660.749 ha. of forest land for mining bauxite in favour of OMC, subject to fulfillment of the above mentioned conditions, and after getting the compliance report from the State Government. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 23.11.2007. Subsequently, Hon ble Supreme Court had finally cleared the project vide their order dated 08.08.2008. In view of the above position and orders of Hon ble Supreme Court of India, no further action in this regard is proposed. 12. State of Orissa s final proposal was then placed before the FAC on 4.11.2009. FAC recommended that the final clearance would be considered only after ascertaining of the community rights on forest land and after the process for establishing such rights under Forest Rights Act was completed. FAC also decided to constitute an Expert Group to carry out a site inspection. Consequently, on 1.1.2010, a three-member Team composed of Dr. Usha Ramanathan and two others, was constituted to consider and make recommendations to MOEF on the proposal submitted by OMC. The Team carried out the site inspection during the months of January and February, 2010 and submitted three individual reports to MOEF on 25.2.2010 which were not against the project as such, but suggested an in-depth study on the application of the Forest Rights Act. FAC also, on 16.4.2010, considered all the three reports and recommended that a Special Committee, under the Min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nents with regard to rights of the tribals and primitive tribal groups dependant on the area for their livelihood, as they have proceeded to seek clearance is shocking. Primitive Tribal Groups have specifically been provided for in the Forest Rights Act, 2006 and this case should leave no one in doubt that they will enjoy full protection of their rights under the law. The narrow definition of the Project Affected People by the State Government runs contrary to the letter and spirit of the Forest Rights Act, 2006. Simply because they did not live on the hills does not mean that they have no rights there. The Forest Rights Act, 2006 specifically provides for such rights but these were not recognized and were sought to be denied. Moreover, the fate of the Primitive Tribal Groups need some emphasis, as very few communities in India in general and Orissa in particular come under the ambit of such a category. Their dependence on the forest being almost complete, the violation of the specific protections extended to their habitat and habitations by the Forest Rights Act, 2006 are simply unacceptable. This ground by itself has to be foremost in terms of consideration wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 withho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which have already obtained environmental clearance. The Report listed 14 mines from which Bauxite was being sourced by the project proponents. However out of these 11 had not been granted a mining license while 2 had only received TORs and only 1 had received clearance. 3. Violations under the Forest Conservation Act: The Saxena Committee has gone into great detail highlighting the various instances of violations under the Forest (Conservation) Act 1980. All these violations coupled with the resultant impact on the ecology and biodiversity of the surrounding area further condemn the actions of the project proponent. Not only are these violations of a repeating nature but they are instances of willful concealment of information by the project proponent. IX. The Decision on Stage-II Clearance The Saxena Committee s evidence as reviewed by the FAC and read by me as well is compelling. The violations of the various legislations, especially the Forest (Conservation) Act, 1980, the Environment (Protection) Act, 1986, and the Scheduled Tribes and Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, appear to be too egregious to be glossed ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cials were upset with the observations made by the Saxena Committee on their role in implementing the Forest Rights Act, 2006. Whether State Government officials have connived with the violations is a separate issue and is not relevant to my decision. I am prepared to believe that the State Government officials were attempting to discharge their obligations to the best of their abilities and with the best of intentions. The State Government could well contest many of the observations made by the Saxena Committee. But this will not fundamentally alter the fact that serious violations of various laws have indeed taken place. The primary responsibility of any Ministry is to enforce the laws that have been passed by Parliament. For the MoE F, this means enforcing the Forest (Conservation) Act, 1980, the Environmental (Protection) Act, 1986, the Scheduled Tribes and Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and other laws. It is in this spirit that this decision has been taken. The order dated 24.8.2010 was communicated by MOEF to the State of Orissa vide its letter dated 30.8.2010, the legality of those orders are the subject matter of this writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent and not to the mining project granted to OMC. Learned senior counsel also submitted that Saxena Committee as well as MOEF has committed a factual error in taking into account the alleged legal occupation of 26.123 ha of village forest lands enclosed within the factory premises which has no connection with regard to the mining project, a totally independent project. Learned senior counsel also submitted that in the proposed mining area, there is no human habitation and that the individual habitation rights as well as the Community Forest Resource Rights for all villages located on the hill slope of the proposed mining lease area, have already been settled. Learned senior counsel also pointed out that the Gram Sabha has received several individual and community claims from Rayagada and Kalahandi Districts and they have settled by giving alternate lands. 18. Shri Sundaram also submitted that the Forest Rights Act deals with individual and community rights of the Tribals which does not, in any manner, expressly or impliedly, make any reference to the religious or spiritual rights protected under Articles 25 and 26 of the Constitution of India and does not extend to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge-I clearance on 11.12.2008, it can still examine as to whether the conditions stipulated for the grant of Stage-I clearance had been complied with or not. For the said purpose, two Committees were constituted and the Saxena Committee in its report has noticed the violation of various conditions stipulated in the Stage-I clearance granted by MOEF on 11.12.2008. Shri Parasaran also submitted that the petitioner as well as 3rd respondent have also violated the provisions of the Forest Rights Act, the violation of which had been specifically noted by the Saxena Committee and accepted by MOEF. Referring to various provisions of the Forest Rights Act under Section 3.1(i), 3.1(e) and Section 5 of the Act, it was submitted that concerned forest dwellers be treated not merely as right holders as statutory empowered with the authority to protect the Niyamgiri hills. Shri Parasaran also pointed out that Section 3.1(e) recognizes the right to community tenures of habitat and habitation for primitive tribal groups and that Dongaria Kondh have the right to grazing and the collection of mineral forest of the hills and that they have the customary right to worship the mountains in exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t only sought safeguards by which the Court would be able to protect the nature and sub-serve development. 24. The Sterlite, State of Orissa and OMC then unconditionally accepted the terms and conditions and modalities suggested by this Court in Vedanta under the caption Rehabilitation Package and they moved this Court by filing I.A. No. 2134 of 2007 and this Court accepted the affidavits filed by them and granted clearance to the diversion of 660.749 ha of forest land to undertake the bauxite mining in Niyamgiri Hills and ordered that MOEF would grant its approval in accordance with law. 25. MOEF, then considered the proposal of the State Government made under Section 2 of the Forest (Conservation) Act, 1980 and also the recommendations of the FAC and agreed in principle for the diversion of 660.749 ha of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in favour of OMC, subject to 21 conditions vide its order 11.12.2008. One of the conditions was with regard to implementation of the Wildlife Management Plan (WMP) suggested by WII and another was with regard to the implementation of all other provisions of different Acts, including environmental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2008 and 30.12.2008 and, in conclusion, the State Government has stated in their letter as follows: In view of the above position of compliance by the User Agency to the direction of Hon ble Supreme Court of India dated 8.8.2008 and stipulations of the Government of India, MOEF vide their Stage-I approval order dated 30.12.2008, the compliance is forwarded to the Government of India, MOEF to kindly examine the same and take further necessary steps in matters of according final approval for diversion of 660.749 ha of forest land for the project under Section 2 of the Forest Conservation Act, 1980. MOEF, it is seen, then placed the letter of the State Government dated 10.8.2008 before the FAC and FAC on 4.11.2009 recommended that the final clearance be considered only after ascertaining the community rights of forest land and after the process for establishing such rights under the Forest Rights Act is completed. Dr. Usha Ramanathan Committee report was placed before the FAC on 16.4.2010 and FAC recommended that a Special Committee under the Ministry of Tribal Affairs be constituted to look into the issue relating to violation of tribal rights and the settlement of var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this Judgment, however, we do not propose to make any final pronouncement on that issue but we would keep the focus mainly on the rights of the Scheduled Tribes and the Traditional Forest Dwellers under the Forest Rights Act. STs and TFDs: 31. Scheduled Tribe, as such, is not defined in the Forest Rights Act, but the word Traditional Forest Dweller has been defined under Section 2(o) as any member or community who has at least three generations prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs. Article 366(25) of the Constitution states that STs means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are defined under Article 342 to be the Scheduled Tribes. The President of India, in exercise of the powers conferred by Clause (1) of Article 342 of the Constitution, has made the Constitution (Schedule Tribes) Order, 1950. Part XII of the Order refers to the State of Orissa. Serial No. 31 refers to Dongaria Kondh, Kutia Kandha etc. 32. Before we examine the scope of the Forest Rights Act, let us examine, how the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribal areas and to work out the modalities for the same. The Central Government appointed Bhuria Committee to undertake a detailed study and make recommendations as to whether the Panchayat Raj system could be extended to Scheduled Areas. The Committee submitted its report on 17.01.1995 and favoured democratic, decentralization in Scheduled Areas. Based on the recommendations, the Panchayat (Extension to Scheduled Areas) Act, 1996 (for short PESA Act ) was enacted by the Parliament in the year 1996, extending the provisions of Part IX of the Constitution relating to Panchayats to the Scheduled Areas. The Statement of Objects and Reasons of the Act reads as follows: There have been persistent demands from prominent leaders of the Scheduled Areas for extending the provisions of Part IX of the Constitution to these Areas so that Panchayati Raj Institutions may be established there. Accordingly, it is proposed to introduce a Bill to provide for the extension of the provisions of Part IX of the Constitution to the Scheduled Areas with certain modifications providing that, among other things, the State legislations that may be made shall be in consonance with the customary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... digenous people. Following that there were two other conventions ILO Convention (No.169) and Indigenous and Tribal Peoples Convention, 1989 and United Nations Declaration on the rights of Indigenous Peoples (UNDRIP), 2007, India is a signatory only to the ILO Convention (No. 107). 38. Apart from giving legitimacy to the cultural rights by 1957 Convention, the Convention on the Biological Diversity (CBA) adopted at the Earth Summit (1992) highlighted necessity to preserve and maintain knowledge , innovation and practices of the local communities relevant for conservation and sustainable use of bio-diversity, India is a signatory to CBA. Rio Declaration on Environment and Development Agenda 21 and Forestry principle also encourage the promotion of customary practices conducive to conservation. The necessity to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources have also been recognized by United Nations in the United Nations Declaration on Rights of Indigenous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that forest dwelling tribal people and forests are inseparable and that the simplicity of tribals and their general ignorance of modern regulatory framework precluded them from asserting their genuine claims to resources in areas where they belong and depended upon and that only recently that forest management regimes have initiated action to recognize the occupation and other right of the forest dwellers. Of late, we have realized that forests have the best chance to survive if communities participate in their conservation and regeneration measures. The Legislature also has addressed the long standing and genuine felt need of granting a secure and inalienable right to those communities whose right to life depends on right to forests and thereby strengthening the entire conservation regime by giving a permanent stake to the STs dwelling in the forests for generations in symbiotic relationship with the entire ecosystem. 43. We, have to bear in mind the above objects and reasons, while interpreting various provisions of the Forest Rights Act, which is a social welfare or remedial statute. The Act protects a wide range of rights of forest dwellers and STs including the custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e traditional right of hunting or trapping or extracting a part of the body of any species of wild animal. 45. The above section has to be read along with a definition clause. Section 2(a) defines community forest resource : (a) Community Forest Resource means customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and protected areas such Sanctuaries and National Parks to which the community had traditional access. Critical wildlife habitat is defined under Section 2(b) of the Act, which reads as follows: (b) critical wildlife habitat means such areas of National Parks and Sanctuaries where it has been specifically and clearly established, case by case, on the basis of scientific and objective criteria, that such areas are required to be kept as inviolate for the purposes of wildlife conservation as may be determined and notified by the Central Government in the Ministry of Environment and Forests after open process of consultation by an Expert Committee, which includes experts from the locality appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eservation of habitat from any form of destructive practices affecting their cultural and natural heritage. 47. The definition clauses read with the above mentioned provisions give emphasis to customary rights, rights to collect, use and dispose of minor forest produce, community rights like grazing cattle, community tenure of habitat and habitation for primitive tribal groups, traditional rights customarily enjoyed etc. Legislative intention is, therefore, clear that the Act intends to protect custom, usage, forms, practices and ceremonies which are appropriate to the traditional practices of forest dwellers. 48. Chapter IV of the Act deals with the authorities and procedure for vesting of forest rights. That chapter has only one section i.e. Section 6, which has to be read along with The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2007 and the Amendment Rules 2012. 49. Ministry of Tribal Affairs has noticed several problems which are impeding the implementation of the Act in its letter and spirit. For proper and effective implementation of the Act, the Ministry has issued certain guidelines and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The Sub-Divisional Level Committee or the District Level committee should not reject any claim accompanied by any two forms of evidences, specified in Rule 13, and recommended by the Gram Sabha, without giving reasons in writing and should not insist upon any particular form of evidence for consideration of a claim. Fine receipts, encroacher lists, primary offence reports, forest settlement reports, and similar documentation rooted in prior official exercises, or the lack -thereof, would not be the sole basis for rejection of any claim. h) Use of any technology, such as, satellite imagery, should be used to supplement evidences tendered by a claimant for consideration of the claim and not to replace other evidences submitted by him in support of his claim as the only form of evidence. i) The status of all the claims, namely, the total number of claims filed, the number of claims approved by the District Level Committee for title, the number of titles actually distributed, the number of claims rejected, etc. should be made available at the village and panchayat levels through appropriate forms of communications, including conventional methods, such as, display of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d other traditional forest dwellers but also in getting them remunerative prices for the MFP, collected and processed by them. iii) Community Rights: (a) The District Level Committee should ensure that the records of prior recorded nistari or other traditional community rights (such as Khatian part II in Jharkhand, and traditional forest produce rights in Himachal and Uttarakhand) are provided to Gram Sabhas, and if claims are filed for recognition of such age-old usufructory rights, such claims are not rejected except for valid reasons, to be recorded in writing, for denial of such recorded rights; (b) The District Level Committee should also facilitate the filing of claims by pastoralists before the concerned Gram Sabha (s) since they would be a floating population for the Gram Sabha(s) of the area used traditionally. (c) In view of the differential vulnerability of Particularly Vulnerable Tribal Groups (PTGs) amongst the forest dwellers, District Level Committee should play a pro-active role in ensuring that all PTGs receive habitat rights in consultation with the concerned PTGs traditional institutions and their claims for habitat rights are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in a village, the reasons for the same should be recorded. Reference can be made to existing records of community and joint forest management, van panchayats, etc. for this purpose. c) The Gram Sabha would initially demarcate the boundaries of the community forest resource as defined in Section 2(a) of the Act for the purposes of filing claims for recognition of forest right under Section 3(1)(i) of the Act. d) The Committees constituted under Rule 4(e) of the Forest Rights Rules, 2008 would work under the control of Gram Sabha. The State Agencies should facilitate this process. e) Consequent upon the recognition of forest right in Section 3(i) of the Act to protect, regenerate or conserve or manage any community forest resource, the powers of the Gram Sabha would be in consonance with the duties as defined in Section 5(d), wherein the Gram Sabha is empowered to regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the bio- diversity. Any activity that prejudicially affects the wild- life, forest and bio-diversity in forest area would be dealt with under the provisions of the relevant A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts) Act, 2006 but before the issue of Ministry of Environment Forests letter dated 30.07.2009, referred to above. In case, any evictions of forest dwelling Scheduled Tribes and other traditional forest dwellers have taken place without settlement of their rights due to such major diversions of forest land under the Forest (Conservation) Act, 1980, the District Level Committees may be advised to bring such cases of evictions, if any, to the notice of the State Level Monitoring Committee for appropriate action against violation of the provisions contained in Section 4(5) of the Act. (d) The Act envisages the recognition and vesting of forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers over all forest lands, including National Parks and Sanctuaries. Under Section 2(b) of the Act, the Ministry of Environment Forests is responsible for determination and notification of critical wildlife habitats in the National Parks and Sanctuaries for the purpose of creating inviolate areas for wildlife conservation, as per the procedure laid down. In fact, the rights of the forest dwellers residing in the National Parks and Sanctuaries are required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee make district-wise plans for trainings of revenue, forest and tribal welfare departments' field staff, officials, Forest Rights Committees and Panchayat representatives. Public meetings for awareness generation in those villages where process of recognition is not complete need to be held. c) In order to generate awareness about the various provisions of the Act and the Rules, especially the process of filing petitions, the State Government should organize public hearings on local bazaar days or at other appropriate locations on a quarterly basis till the process of recognition is complete. It will be helpful if some members of Sub Divisional Level Committee are present in the public hearings. The Gram Sabhas also need to be actively involved in the task of awareness raising. d) If any forest dwelling Scheduled Tribe in case of a dispute relating to a resolution of a Gram Sabha or Gram Sabha through a resolution against any higher authority or Committee or officer or member of such authority or Committee gives a notice as per Section 8 of the Act regarding contravention of any provision of the Act or any rule made thereunder concerning recognition of fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess for determining the nature and extent of individual or community forest rights or both and that may be given to the forest dwelling STs and other TFDs within the local limits of the jurisdiction. For the said purpose it receive claims, and after consolidating and verifying them it has to prepare a plan delineating the area of each recommended claim in such manner as may be prescribed for exercise of such rights. The Gram Sabha shall, then, pass a resolution to that effect and thereafter forward a copy of the same to the Sub-Divisional Level Committee. Any aggrieved person may move a petition before the Sub- Divisional Level Committee against the resolution of the Gram Sabha. Sub- section (4) of Section 6 confers a right on the aggrieved person to prefer a petition to the District Level Committee against the decision of the Sub- Divisional Level Committee. Sub-section (7) of Section 6 enables the State Government to constitute a State Level Monitoring Committee to monitor the process of recognition and vesting of forest rights and to submit to the nodal agency. Such returns and reports shall be called for by that agency. 52. Functions of the Gram Sabha, Sub-Divisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters of faith or belief, but all those rituals and observations which are regarded as integral part of their religion. Their right to worship the deity Niyam-Raja has, therefore, to be protected and preserved. 56. Gram Sabha has a role to play in safeguarding the customary and religious rights of the STs and other TFDs under the Forest Rights Act. Section 6 of the Act confers powers on the Gram Sabha to determine the nature and extent of individual or community rights . In this connection, reference may also be made to Section 13 of the Act coupled with the provisions of PESA Act, which deal with the powers of Gram Sabha. Section 13 of the Forest Rights Act reads as under: 13. Act not in derogation of any other law. Save as otherwise provided in this Act and the provisions of the Panchayats (Extension of the Scheduled Areas) Act, 1996 (40 of 1996), the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. 57. PESA Act has been enacted, as already stated, to provide for the extension of the provisions of Part IX of the Constitution relating to Panchayats to the Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EF, through the State Government. On the conclusion of the proceeding before the Gram Sabha determining the claims submitted before it, the MoEF shall take a final decision on the grant of Stage II clearance for the Bauxite Mining Project in the light of the decisions of the Gram Sabha within two months thereafter. 61. The Alumina Refinery Project is well advised to take steps to correct and rectify the alleged violations by it of the terms of the environmental clearance granted by MoEF. Needless to say that while taking the final decision, the MoEF shall take into consideration any corrective measures that might have been taken by the Alumina Refinery Project for rectifying the alleged violations of the terms of the environmental clearance granted in its favour by the MoEF. 62. The proceedings of the Gram Sabha shall be attended as an observer by a judicial officer of the rank of the District Judge, nominated by the Chief Justice of the High Court of Orissa who shall sign the minutes of the proceedings, certifying that the proceedings of the Gram Sabha took place independently and completely uninfluenced either by the Project proponents or the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
