Orissa High Court
Gobinda Majhi And Others vs Union Of India And Others .... Opposite ... on 5 March, 2025
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.3729 of 2025
Gobinda Majhi and others .... Petitioners
-Versus-
Union of India and others .... Opposite Parties
Advocates appeared in this case:
For Petitioners : Mr. Ishwar Mohanty, Advocate
For Opposite Parties : Mr. P. K. Parhi, DSG for Union of India,
Mr. S. K. Swain, AGA for State
Mr. Dhruv Mehta, Senior Advocate with
Mr. P. K. Nayak, Mr. U. Verma and
Mr. S. S. Mohanty, Advocates for O.P. no.8
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Date of hearing and judgment: 5th March, 2025
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ARINDAM SINHA, ACJ.
1. The writ petition was moved on 12th February, 2025. Mr.
Mohanty, learned advocate appearing on behalf of petitioners had
moved it. Paragraphs 1 and 2 from our order made that day are
reproduced below.
"1. Mr. Mohanty, learned advocate appears on behalf of
petitioners and submits, his clients are land holders and
inhabitants of villages, which fall under Sunger Gram
Panchayat in Rayagada district and Talaampadar Gram
Panchayat in Kalahandi district. They seek, inter alia,
issuance of certiorari for quashing Gram Sabha
resolutions dated 8th December, 2023 and subsequent
certificate issued by the Collector as they are fraudulent
and against provisions in Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition Of Forest
Rights) Act, 2006. Drawing attention to translation of
impugned resolution (page 56) he demonstrates,
permission granted was for setting up mining activities on
conversion of forest land to non-forest land.
2. He refers to sub-section(2) in section 3 and submits,
clauses thereunder do not include mining activities for
purpose of diversion of forest land under the Act. In the
circumstances, the resolutions, for being treated as
recommendation for purposes of the Act, is
misconceived."
(emphasis supplied)
2. Today, Mr. Parhi, learned advocate, Deputy Solicitor General
appears on behalf of Union of India, Mr. Swain learned advocate,
Additional Government Advocate for State and Mr. Mehta, learned
senior advocate virtually appears for opposite party no.8.
3. With reference to reproduced above paragraphs 1 and 2 from our
earlier order dated 12th February 2025, Mr. Mehta submits, it is
incorrect to say mining operation cannot be on forest land. He draws
attention to clause (e) under sub-rule (3) in rule 6 of Forest
(Conservation) Rules, 2003. He submits, when a user agency wants to
use any forest land for non-forest purposes, it is to make a proposal in
the relevant form. Procedure for obtaining the clearance is given under
the rule. Clauses in the rule require, inter alia, obtaining consent of the
Gram Sabhas having jurisdiction over the whole or a part of the forest
land indicated in the proposal. This requirement does not mean that
alienation for purpose of mining is not possible, as barred under the Act
of 2006.
4. Mr. Mehta submits, the Supreme Court in Orissa Mining
Corporation Limited v. Ministry of Environment and Forests
reported in (2013) 6 SCC 476 had declared the law regarding
ownership of minerals and conservation of forests. He relies on, inter
alia, paragraphs 1, 3, 11 and 58 in the report. He submits, while State
has ownership over minerals beneath surface of the land, including over
which forest stands, the Central Government is empowered to look into
conservation of forests. His client being a user agency has submitted
proposal to the Central Government for diversion of the forest land. In
the circumstances, there is a procedure in place for considering interest
of the forest dwellers, as provided by the Act of 2006, enacted
subsequent to Forest (Conservation) Act, 1980. As such there should
not be interference.
5. Reproduced below are sub-clauses (i) to (iii) under clause-(e) in
sub-rule (3) of rule-6 in the 2003 Rules.
"(e) the District Collector shall:-
(i) complete the process of recognition and vesting of
forest rights in accordance with the provisions of the
Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 (2 of 2007) for
the entire forest land indicated in the proposal;
(ii) obtain consent of each Gram Sabha having
jurisdiction over the whole or a part of the forest land
indicated in the proposal for the diversion of such forest
land and compensatory and ameliorative measures, if
any, having understood the purposes and details of
diversion, wherever required; and
(iii) forward his findings in this regard to the
Conservator of Forests;"
(emphasis supplied)
6. Petitioners have challenged Gram Sabha resolutions dated 8th
December, 2023 and subsequent certificate issued by the Collector. We
presuppose recognition and vesting of forest rights on inhabitants
within limits of the Gram Sabhas. In the circumstances, we accept
submissions made on behalf of opposite party no.8, regarding rights of
the forest dwellers provided for in the procedure, as to be dealt with in
case of alienation for purposes other than those mentioned under section
3 in the Act of 2006. Union of India must take note of interest of the
inhabitants in the villages under the Gram Sabhas, which have resolved
to concede to the alienation for mining purposes.
7. Mr. Mohanty submits, his clients have not conceded but on the
contrary maintained that impugned Gram Sabha resolutions were
fraudulently got made. He submits, subsequent to impugned
resolutions, the Gram Sabhas convened between 30th August, 2024 and
4th September, 2024. They resolved that no consent for diversion was
duly obtained. Mr. Mohanty points out, there has not been process duly
undertaken to grant recognition to his clients, who are forest dwellers in
the area. Mr. Swain disputes on submission that the Gram Sabha
proceedings were video recorded and petitioners were present in those
Gram Sabhas, which resulted in impugned resolutions. We would not
want to be drawn into this dispute on facts. The submission is recorded
for being noted by Union of India in dealing with the proposal made by
the user agency (opposite party no.8), upon taking into confidence
inhabitants of concerned villages, through the Gram Sabhas and
otherwise. Petitioners have pointed out their rights under the Act of
2006 as provided under section 3. We reiterate, Union of India must
take note.
8. With above directions, the writ petition is disposed of.
Signature
Not Verified ( Arindam Sinha )
Digitally Signed
Acting Chief Justice
Signed by:
MRUTYUNJAYA
PANDA
Designation: Secretary
Reason: Authentication
Location: High Court of
Orissa, Cuttack ( M.S. Sahoo )
Date: 06-Mar-2025
14:34:08 Judge
M. Panda,Secy./
S. K. Guin, PA
