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ABSTRACT
Land banks are a newly created administrative mechanism managed by the Odisha Industrial and Infrastructure Corporation (IDCO) and the Revenue and Disaster Management Department. Their purpose is to provide large parcels of land to industries with minimal procedural hassles in the acquisition. Thus, the administrative authorities put in place an intricate web of legal interpretations that enable it to bypass due process requirements. The legal landscape in India’s forests transformed with the passing of the Forest Rights Act,2006 in the direction of democratisation and participation of forest-dwelling communities. An essential part of this legal framework was the right to free, prior, and informed consent of the village assembly. In this paper, through case studies and examples I argue that a space of exception is created within the law through the mechanism of land banks to prevent the applicability of the consent provision. This sophisticated legal interpretive exercise by the administrative authority results in the violation of the human right to free, prior, and informed consent of forest-dwelling communities in Odisha.
KEYWORDS:
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Based on interviews of the forest-dwelling community and observations of the author during her fieldwork in Nuagaon in July 2018.
2 Established in 1981 under the Orissa Industrial Infrastructure Development Act (OIIDC Act), 1980 is a parastatal agency with the mandate to develop, manage, and maintain industrial estates/areas.
3 Compensatory Afforestation is a requirement for obtaining a forest clearance where the project proponent or the company applying for the forest clearance has to pay a certain sum of money so that forests that have been lost can be recreated through afforestation on other lands. Details are mentioned in the Rules of the Forest Conservation Act, 1980.
4 Devika Banerji, ‘People can deposit fallow and uncultivated land in government land banks to garner money’, Economic Times published on April 11, 2012.
5 Based on interviews with members from the mining industry and their associations by the author on July 10, 2018.
6 As per section 5.4.1 (a) of the Industrial Policy Resolution, 2015 of Odisha available at https://investodisha.gov.in/download/industrial-policy-resolution-2015.pdf.
7 Micheal Levien, Dispossession without Development (Oxford University Press, 2017).
8 D.J. Galligan, Discretionary Powers: A Study of Official Discretion (Oxford University Press, 1986).
9 K. Sivaramakrishnan, Modern Forests: State making and Environmental Change in Colonial Eastern India (Stanford University Press, 1999).
10 O. Springate-Baginski et al., ‘Redressing Historical Injustice Through the Indian Forest Rights Act, 2006’, Institute for Pro-poor Growth. http://www.ippg.org.uk/papers/dp27.pdf (last accessed April 8, 2019).
11 ‘Engaging with Free, Prior, and Informed Consent’, BSR. September 2012. Available at https://www.bsr.org/reports/BSR_Engaging_With_FPIC.pdf (last visited on November 15, 2016).
12 United Nations Declaration on the Rights of Indigenous Peoples available at https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf.
13 Based on documents obtained from M. Rajshekhar who through a Right to Information Application on government papers relating to the making of the Forest Rights Act, 2006.
14 Prior informed consent is used more often in this paper than free, prior, and informed consent as the statutory requirement in India does not provide the need for free in its understanding of FPIC.
15 Letter by the Ministry of Environment and Forest available at https://www.dgms.net/HANDBOOK_GUIDELINES18_03_2019.pdf (last accessed January 3, 2020).
16 Odisha Mining Corporation V Ministry of Environment and Forests and Others WRIT PETITION (CIVIL) NO. 180 OF 2011.
17 Report of the Four Member Committee to Investigate the Proposal Submitted by Odisha Mining Corporation to Mine Niyamgiri, http://envfor.nic.in/sites/default/files/Saxena_Vedanta-1.pdf. (Accessed April 8, 2019).
18 The Forest Conservation Act, 1980 rules as amended in 2016 and 2017.
19 Project Report by the Revenue and Disaster Management Department of Odisha titled ‘Procedure of Lease of Government Land for Industrial Purpose in Odisha’, available at http://rotiodisha.nic.in/files/29102018/Publication%20And%20Training%20Material/Project%20Reports%20of%20Trainees/Land%20Settlement/Umesh%20Kumar%20Pujari_22nd%20Batch.pdf (last accessed on January 3, 2020).
20 Provisions of the Odisha Government Land Settlement Act, 1962.
21 As per paragraph 6 (IV) of the Resolution No. 31320–GE(GL)-S-04/2015/R&DM. by the Revenue and Disaster Management Department of Odisha published on 13th November 2015 available at http://govtpress.odisha.gov.in/pdf/2016/330.pdf (last accessed January 3, 2020).
22 MoEF notification exempting roads and other linear projects from the need to fulfil the consent requirement.
23 Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-based Decision-making in law and life (Clarendon Press, 1991).
24 As per Section 2(b) of the Odisha Government Land Settlement Act, 1962.
25 Arpitha Kodiveri, ‘Land Banks: Unsettled Law and Undetermined Rights’ in Law School Policy Review, 8 November 2018 available at https://lawschoolpolicyreview.com/2018/11/08/land-banks-unsettled-law-undetermined-rights/ (last accessed on January 3, 2020)
26 Project Report by the Revenue and Disaster Management Department of Odisha titled ‘Procedure of Lease of Government Land for Industrial Purpose in Odisha’ available at http://rotiodisha.nic.in/files/29102018/Publication%20And%20Training%20Material/Project%20Reports%20of%20Trainees/Land%20Settlement/Umesh%20Kumar%20Pujari_22nd%20Batch.pdf (last accessed on January 3, 2020).
27 As per details provided by IDCO in Form A submitted as part of the forest clearance process available at http://forestsclearance.nic.in/viewreport.aspx?pid=FP/OR/Others/30693/2017 (last accessed January 3, 2020).
28 As per details provided by IDCO in Form A submitted as part of the forest clearance process available at http://forestsclearance.nic.in/viewreport.aspx?pid=FP/OR/Others/26153/2017 (last accessed January 3, 2020).
29 Order of the National Green Tribunal in Jharana Pradhan Vs State of Odisha and Others, Original Application No 05/2019 available at http://www.indiaenvironmentportal.org.in/files/file/Gramya-Jungle-non-forest-activities-NGT-order.pdf (last accessed January 3, 2020).
30 Jyoti Prakash Brahma, ‘Villagers win brewing forest rights fight in Odisha’, in Down To Earth, November 20, 2018 available at https://www.downtoearth.org.in/news/forests/villagers-win-brewing-forest-rights-fight-in-odisha-62195 (last accessed January 3, 2020).
31 Ibid see note 22 above.
32 As per details provided by IDCO in Form A submitted as part of the forest clearance process available at http://forestsclearance.nic.in/viewreport.aspx?pid=FP/OR/Others/30693/2017 (last accessed January 3, 2020).
33 To access the satellite view from google maps https://www.google.com/maps/place/Chandia,+Odisha/@20.9514442,86.0099704,7924m/data=!3m2!1e3!4b1!4m5!3m4!1s0x3a194ea0b2cde5c1:0x475d61f2e1d9e8d2!8m2!3d20.9463334!4d86.0274622 (last accessed January 3 2020).
34 As per the census data of 2011, available at http://www.census2011.co.in/data/village/400570-chandia-orissa.html (last accessed January 3, 2020).
35 Ranjana Padhi and Rajendra Singh Negi, ‘Kalinganagar where ‘development’ is threatening a way of life’ in The Wire published on January 6, 2018, available at https://thewire.in/rights/kalinganagar-development-threatening-way-life (last accessed January 3, 2020).
36 Ibid to see note 28 above.
37 Undertaking submitted by IDCO available at http://forestsclearance.nic.in/writereaddata/Addinfo/0_0_1211812812151Undertaking-II.pdf (last accessed January 3, 2020).
38 Jyoti Prakash Brahma, ‘Villagers win brewing forest rights fight in Odisha’, in Down To Earth, November 20, 2018 available at https://www.downtoearth.org.in/news/forests/villagers-win-brewing-forest-rights-fight-in-odisha-62195 (last accessed January 3, 2020).
39 Chitrangada Choudhury and Aniket Aga, ‘Manufacturing Consent: Mining, Bureaucratic Sabotage, and the Forest Rights Act in India’, Capitalism Nature Socialism (2019), doi:10.1080/10455752.2019.1594326.
40 Jairam Ramesh, ‘Green Signals-Ecology, Growth and Democracy in India’ (New Delhi: Oxford University Press, 2015).
41 The developmental Indian state in this thesis refers to the highly interventionist Indian state in the development process. However, the welfare functions like healthcare and education of the developmental Indian state has not penetrated these remote forest areas.
42 Gram Panchayats refers to the lowest rung of authority at the village level.
43 Special Economic Zone is a large parcel of land which enjoys the benefits of tax exemptions. Avishek Topno, ‘What is a Special Economic Zone?’ Economic Times, New Delhi, July 8, 2005.
44 Jairam Ramesh, Green Signals-Ecology, Growth and Democracy in India (New Delhi: Oxford University Press, 2015).
45 Land Banks are an administrative mechanism where the Odisha Industrial Development Corporation will identify land belonging to the government or recently acquired will be banked and managed by the parastatal agency.
46 Abhishek Shanker, ‘Posco said to be backing out of the $12 billion steel project in India’, Bloomberg, India, March 15, 2015.
47 Arpitha Kodiveri, ‘Land Banks: Who Benefits’, Thompson Reuters News Foundation, India, February5, 2019.
48 Interview with the local family in Nuagaon, August 2018.
49 Chapter III of the Land Acquisition Act, 2013.
50 Ishan Kukreti, ‘Odisha seeks Panel nod for transfer of forest clearance from Posco Ltd to JSW’, Down to Earth, India, March 19, 2019.
51 Bhramarbar Das and Another Vs Union of India and Others M.A No 516 of 2018.
52 Micheal Levien, Dispossession without Development (Oxford University Press, 2017).
53 Interview with R.K Sharma, August 2018.
54 Ibid, 23.
55 Ibid, 17.
56 Odisha Industrial Facilitation Act, 2004.
57 As per the Odisha Industrial Facilitation Act, 2004 and the Forest Conservation Act amended rules in 2016.
58 Interview with Vinay Rao, July 2018.
59 Upendra Baxi, ‘Developments in Indian Administrative Law’, in Public Law in India, ed. Abdul Gafoor Noorani (Vikas Publishers, 1982).
60 Interview with Prakash Jena, August 2018.
61 Anecdotal evidence gathered through conversations with the local community in Dhinkia, August 2018.
62 Interview with Jairam Ramesh, July 2018.
Additional information
Notes on contributors
Arpitha Kodiveri
Arpitha Kodiveri is a Hans Kelsen Fellow and Doctoral Researcher in Law at the European University Institute. Her work focuses on land conflicts and legal mobilization by forest-dwelling communities in Odisha, India.