K. GURUPRASAD RAO v. STATE OF KARNATAKA AND OTHERS

[G.S. SINGHVI, J.] the whole spectrum of civil, cultural, economic, political and A social process, for the improvement of peoples well being and realization of their full potential.

90. In Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest (Writ Petition (C} No.180/2011) B. decided on 18.4.2013, this Court recognized the customary and cultural rights of indigenous people living in Kalahandi and Rayagada Districts of Orissa. While considering challenge to order dated 24.8.2010 passed by the Ministry of Environment and Forests whereby the application made by the petitioner for grant of permission for diversion of 660.749 hectares of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in two Districts of the State was rejected, the three Judge Bench extensively referred to Saxena Committee report, which covered several issues including violation of the rights of tribal groups including primitive tribal groups and the dalit population and proceeded to observe:

'The customary and cultural rights of indigenous people have also been the subject matter of various international conventions. International Labour Organization (ILO) E 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 emphasized the necessity for the protection of social, political and cultural F rights of indigenous 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 G ILO Convention (No. 107).

Apart from giving legitimacy to the cultural rights by 1957 Convention, the Convention on the Biological Diversity (CSA) adopted at the Earth Summit (1992) highlighted H

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A necessity to preserve and maintain knowledge, innovation and practices of the local communities relevant for conservation and sustainable use of bio-diversity, lridia is a signatory to CBA. Rio Declaration on Environment and Development Agenda 21 and Forestry principle also B 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 c 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 a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands."

The Bench then referred to the provisions of the Forest Rights Act, 2006, the rules framed thereunder as also the guidelines issued by the Ministry of Tribal Welfare, referred to the judgment of this Court in Amritlal Athubhai Shah v. Union Govemmentoflndia (1976) 4 SCC 108, which recognized the power of the State Government to reserve any particular area for bauxite mining for a public sector corporation, and observed:

F "Religious freedom guaranteed to STs and the TFDs under Articles 25 and 26 of the Constitution is 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, G 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.

Gram Sabha has a role to play in safeguarding the H

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[G.S. SINGHVI, J.] customary and religious rights of the STs and other TFDs A 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 B 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 c of the Panchayats (Extension of the Scheduled Areas) Act, 1996 (40of1996). 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." D 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 Scheduled Areas. Section 4(d) of the Act says that every Gram Sabha shall be competent to safeguard and preserve the traditions, customs of the people, their cultural identity, community resources and community mode o(dispute resolution. Therefore, Grama Sabha functioning under the Forest Rights 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 Affairs vide its letter dated 12.7.2012."

91. When seen in this light, the protection of ancient monuments has necessarily to be kept in mind while carrying out development activities. The need for ensuring protection and preservation of the ancient monuments for the benefit of future generations has to be balanced with the benefits which H

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A may accrue from mining and other development related activities. In our view, the recommendations and suggestions made by the Committee for creation of Core Zone and Buffer Zone appropriately create this balance. While mining activity is sure to create financial wealth for the leaseholders and also B the State, the immense cultural and historic wealth, not to mention the wealth of information which the temple provides cannot be ignored and every effort has to be made to protect the temple.

c ~2. 13efore concluding, we may deal with the submission of Shri Lalit that mining can be permitted beyond the distance of 300 meters from the temple by using Ripper Dozer and Rock Breaker machines. According to the learned senior counsel, the use of Ripper Dozer and Rock Breaker will not produce vibration which may cause harm to the temple. In our view, this submission does not merit acceptance because in paragraph 6 of the suggestions made by it, the Committee appointed by the Court has already indicated that mining in the Buffer Zone may be permitted with controlled blasting or without blasting by using Ripper Dozer/Rock Breaker or any other machinery and taking adequate measures towards generation, propagation, suppression and deposition of airborne dust to be closely monitored by experts from IBM etc.

93. In the result, the appeal is allowed and the impugned order is set aside. The report of the Committee is accepted and the State Government is directed to implement the recommendations contained in Part V thereof including the recommendation relating to creation of Corpus Fund of Rs.3,43, 19, 160 which shall be utilized for implementing the conservation plan for Jambunatheswara temple. However, it is made clear that respondent No.18 shall be free to operate the Beneficiation plant subject to the condition that it shall procure raw material only through E-auction mode.

H 94. With a view to ensure that other protected monuments

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[G.S. SINGHVI, J.] in the State do not suffer the fate of Jambunatheswara temple, A we direct that the Committee appointed by this Court vide order dated 26.4.2011 shall undertake similar exercise in respect of other protected monuments in the State in whose vicinity mining operations are being undertaken and submit report to the State Government within a maximum period of nine months. The B State Government shall release a sum of Rs.30 lacs in favour of the Committee to meet the expenses of survey, investigation etc. The report submitted by the Committee shall be considered by the Government within next two months and appropriate order be passed. c

95. We hope and trust that the Government of India will also appoint an expert committee/group to ,,examine the impact of mining on the monuments declared as protected monuments under the 1958 Act and take necessary remedial measures. D K.K.T. Appeal allowed.