Smt Alka Tiwari
National Commission for the Scheduled Tribes (NCST)
Dear Smt Tiwari,
I understand from a news report (https://m.economictimes.com/industry/indl-goods/svs/metals-mining/vedanta-declared-preferred-bidder-for-bauxite-block-in-odisha/articleshow/97953706.cms) that the Odisha government has put the Sijimali bauxite mine located across Kalahandi and Rayagada districts to auction and that the Vedanta Group has been declared as a preferred bidder.
Sijimali bauxite mine is located across Thuamul–Rampur tehsil of Kalahandi district and Kashipur tehsil of Rayagada district in Odisha, which stand notified under the Fifth Schedule to the Constitution, attracting the provisions of the Panchayat (Extension to the Scheduled Areas) Act, 1996 [PESA] and the Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006 [FRA]. Under both these legislations, no private mining can be allowed in this area without a prior discussion and consent by the local Gram Sabhas, supported by a resolution of the Odisha Tribal Advisory Council. It appears to me that the concerned authorities are not in compliance with that statutory requirement, which renders allotment of the mine to any private party illegal.
In this connection, I refer to the landmark judgement dated 18-4-2013 pronounced by the Hon’ble Supreme Court in Orissa Mining Corporation Ltd vs Ministry Of Environment & Forest & Others, reiterating the above statutory requirement, holding the allotment of a bauxite mine in the same area to the Vedanta Group to be illegal.
Further, the restrictive provisions of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956, in my view, would also prohibit alienation of land and minerals in the Scheduled Areas of the State to private parties. In this connection, I invite your attention to another landmark judgement dated 11-7-1997 pronounced by the Hon’ble AP High Court in Samatha vs State Of Andhra Pradesh And Ors, which dealt with a similar statute in force in Andhra Pradesh and held that mining by a private agency in the Scheduled Areas in that State to be invalid. It appears to me that the findings in that judgement are equally valid to the scheduled Areas of Odisha, in view of the above cited regulation in force in Odisha.
Under Article 338A(9), both the Union and the States are required to consult the NCST in matters that affect the lives of the Scheduled Tribes. In such an important matter as allowing mining in the Scheduled Areas and that too, by private agencies, in violation of PESA and FRA, the Union and the State ought to have sought NCST’s considered views before proceeding to put mining blocks to auction in the tribal tracts of the country. It appears that no such prior consultation had been held by the Union Ministry of Mines and the States. This renders the whole process prima facie illegal.
In view of the above considerations, I appeal to the NCST to take this matter on file and issue the necessary advice to the Union Ministry of Mines and the Odisha government not to permit mining in any Scheduled Area of the State or, for that matter, in any Scheduled Area anywhere else.
E A S Sarma
Former Secretary to Government of India