The conflict between 'rights' and 'development' is vexing and it is seldom for the courts to able to resolve the said conflict leading to denial of the 'rights' in return of 'development'. But the Apex court in the above noted case has endeavoured to resolve the said conflict between two by proposing that the decision that shall be taken upon 'rights' shall be relied upon for the decision on 'development'. The Apex Court has acknowledged the importance of 'rights' and have asked the local community assembly 'gram sabha' to decide upon the same. The Apex Court has also taken a lenient and accommodating view with respect to industrial development and has observed that the rectification undertaken for the environmental violations shall also be consideration fordeciding on the question relating to 'development'.
The Apex Court in the above Writ Petition No. 180 of 2011 has issued directions to the State of Odisha to place the issues concerning the cultural and religious rights of the Dongaria Kondh Tribe before the Gram Sabha constituted under the Panchayat (Extension to Scheduled Areas) Act (PESA) for determination of the issue of cultural and religious 'rights' so as to provide decision for the consideration of Ministry of Environment and Forest (MoEF) for the final determination on the question of the grant of the approval to stage two of the forest clearance required to be ushered for Orissa Mining Corporation (OMC) and Sterlite Industry's Bauxite Mining Project at Niyamgiri Hills in state of Odisha.
The Niyamgiri Hills near Hundaljaliin Rayagada and Kalahandi districts in State of Odisha are religious shrine or abode of God Niyam Raja for the Scheduled Tribe (ST) and Traditional Forest Dwellers (TFD) of the region. These tribe and TFD have been worshipping the hills for many decades and had been using the resources of the hills for their live hood for centuries having cultural and traditional rights over the region that have been already recognised under the Scheduled Tribe and other traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or the Forest Rights Act, 2006.
The bauxite mining project requires forest clearance in these hills which have been natural habitat of this tribe for years and shall also be having an adverse impact on the biodiversity and environment of the region which is religious shrine for them. The mining activity in the hills shall also interfere with their customary and traditional rights that been vested in them by virtue of custom and the Forest Act. This project on the other hand is also essential as it is supporting the Aluminium refinery Project of Sterlite Industries which has been largest manufacturer of Aluminium in the country.
The Apex Court relying upon the provisions of Forest Rights Act and PESA observed that Gram Sabha by virtue of the provisions of Forest Rights act and PESA are under an obligation to safeguard and preserve the customs, traditions, cultural identity, and community resources etc of Scheduled Tribe and Traditional Forest Dwellers. The Apex Court took note of the provisions of PESA that had provided the extension of the Act to scheduled areas for preserving the traditional community assemblies like panchayats, gram sabha and had also provided Gram Sabha as holders of power so as to protect and safeguard the traditions and customs of the tribal community and preserve community mode of dispute resolution.
"The question whether STs and other TFD like Dongaria Kondh, Kutia Kandha and others have got some religious rights i.e. rights of worship over 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 near Niyama Danger, 10 km away from peak, would in any affect the abode of Niyam-Raja and in case, it in any way affects their religious rights to worship deity, known as Niyam-Raja, in the hill top of Niyamgiri range than the right is to be protected and preserved".
The Apex Court also took note of the important role that Gram Sabha plays under the law with respect to any development projects in the scheduled areas. The court observed various provisions of PESA and observed that Gram Sabha are required to be consulted before any area is given to mining lease or mining activity. The Apex Court also observed PESA empowers Gram Sabha to determine the nature and extent of the rights of the Tribal group and also provides it to be the authority before whom the tribal group submit their claims of rights which are accordingly decided by them wherein the Gram sabha verify and consolidate them and delineate the area for their exercise.
The Apex Court also taking note of various international conventions observed the important role of tribe and held that 'customary' and 'cultural' right of STs and TFD should be protected and respected.
The apex Court also took note of fundamental right guaranteed under Article 25 and 26 of the constitution that provides for religious freedom and observed that it guarantees not only right to practice and propagate the matters of faith or belief but also guarantee freedom to practice all rituals and observations that are integral part of one's religion. The Apex Court held that thus the rights of STs and TFD to worship their god Niyam-Raja is to be protected and preserved. The Apex Court thus rejected the contention of the OMC that the allotment of the land by the state for mining activity cannot be questioned in any court of law by virtue of the important fact of the state being the owner of all forest land. The Court rejected this contention and held that allotment of forest land for mining activity can be questioned in case in affects the rights of people as the state holds the land as trustee of people.
The Apex court thus issued direction to the state of Odisha to refer the question of existence of 'rights' to Gram Sabha and directed the Gram sabha to decide on the same within 3 months. The Apex Court also directed MoEF to decide the question of the grant of forest clearance in the hills in accordance to the decision rendered by Gram Sabha. The Court also directed that proceedings of the Gram Sabha shall be attended by observer who shall be district judge and shall be appointed by the Chief Justice of Odisha High Court. The court also directed that observer should sign the minutes of the meeting so as to certify that the meeting was held independently and was completely uninfluenced either by project proponents or by central government.
In the present case, Odisha Mining Corporation or OMC had filed writ petition in the Supreme Court challenging MoEF order of refusal to stage 2 forest clearances in Niyamgiri hills for OMC and Sterlite industries Bauxite Mining project. This project as noted above was to support the other Sterlite industries project of Aluminium Refinery Project in the State of Odisha.
The MoEF upon the recommendation and reports of statutory constituted Forest Advisory Committees had rejected the approval to forest clearance in Niyamgiri Hills in Rayaganda and Kalahandi districts. The rejection was due to violations of environmental norms (violation of Environment protection act, Forest (Conservation) act) committed by Sterlite industries with regard to its aluminium refinery project. MoEF had also rejected the approval due to violation of the Scheduled Tribe and other traditional Forest Dwellers) (Recognition of Forest Rights) Act, 2006 or Forest Act, 2006 and on account of the impact of the project on Niyamgiri hills and on Dongaria Konda tribe that depend upon the hills. The MoEF in view of the project impact on bio-diversity and rights of tribal groups and the breach of norms withdrew the approval to stage 2 forest clearance that was essential to kick-start the project. The withdrawal of approval was taken especially in context of violation of the rights of tribal group. These rights were Tribal rights with respect to 'habitat and habitation' that were also recognized under the Forest Rights Act.
The Apex Court has also held that Aluminium Refinery Project and Bauxite Mining project were not separate and were in fact interconnected and held that the violations committed by Aluminium refinery project could well be considered for rejecting the approval to forest clearance in Bauxite mining project.
The apex Court thus held that the rights of ST and TFD should be respected and protected and held that the Gram Sabha was empowered under the PESA to decide on the questions of rights of the tribes over the hills and also decide on the impact of the forest clearance on the rights of the tribe. The Apex Court directed that all claims of rights over the hills should be brought before the gram sabha which shall decide on the same accordingly.
The apex court also issued direction that MoEF should rely upon the decision of Gram Sabha for granting approval to forest clearance for the Bauxite Mining Project and also directed Aluminium refinery project to rectify any violation that had been committed by it and observed further that rectification by the company in Aluminium refinery Project shall be considered as consideration for the grant of approval to forest clearance in Bauxite Mining Project.
The Apex Court thus pronounced a landmark judgment wherein it not only upheld and recognised the rights of Schedule Tribe and traditional Forest dwellers that have often been marginalised in the wake of development projects but also recognised the importance of big infrastructure projects which not only provide platform for 'development' but also provide opportunities of employment and cannot be disregarded completely in view of 'rights'.
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