Majority Report of the Committee
Constituted to Investigate into the proposal submitted by POSCO India
Pvt. Limited for establishment of an Integrated Steel Plant and Captive
Port in Jagatsinghpur District, Orissa
October 18, 2010
Dr. Urmila Pingle
Dr. Devendra Pandey
Dr. V. Suresh
Submitted to the
MINISTRY OF ENVIRONMENT AND FORESTS
Government of India
Majority Report of the POSCO Enquiry Committee
(Dr. Urmila Pingle, Dr. Devendra Pandey, Dr. V. Suresh)
1. The Government of Orissa and Pohang Steel Company (POSCO), Republic of Korea signed a Memorandum of Understanding (MOU) on June 22, 2005 for setting up an Integrated Steel Plant of a total capacity of 12 million tonnes per annum in Orissa at Paradeep, in Jagatsinghpur district. By establishing an Indian Company as POSCO- India, it would develop and operate the Steel Plant to produce a total of 12 MT starting 4MT in first Phase with a proposed investment
of Rs 51,000 crores or 12 billion US$. The integrated steel plant includes captive power plant and a captive minor port. The plant would be located on the northwestern bank of the Jatadharmohan river creek 12 km south of the Paradeep Port requiring a total of 1620.496 hectares of land of which 1253.225 hectares is forest land and would affect 8 villages of three Gram Panchayats of Erasama block, Kujang Tahsil.
The MOU also envisaged that the company would develop and operate, (i) Mining Project in areas allocated by the government of Orissa /Government of India (ii) Transportation Project which includes a dedicated railway line, road and Port (iii) Integrated township and (iv) Water Supply infrastructure or the Water Project
2. After the MOU, POSCO-India commissioned studies on rapid environment impact assessment (REIA) of steel plant (only for 4 MT) along with captive power plant and separately for captive minor port. The studies were completed in two-three months along with survey for demarcating CRZ areas during August to November 2005 and got environment management plan (EMP) prepared through M/s M.N. Dastur & Company (P) ltd. The Ministry of Environment and Forests, Government of India gave CRZ and Environment Clearance for the Captive Minor
Port on 15 may 2007 and that of Integrated Steel Plant with Captive Power Plant on 19 July 2007. The Ministry also granted in-principle (stage I) clearance for diverting 1253.225 ha forest land for the project on 19 September 2008 under Forest Conservation (FC) Act 1980 stipulating a set of conditions for compliance before final clearance.
3. In the mean time Forest Rights Act 2006 for the Scheduled Tribes (ST) and other Traditional Forest Dwellers (OTFD) became operational from January 2008. The Ministry of Environment and Forests (MoEF) issued circular on 3 Aug 2009 to all the States/UT mandating compliance with Forest Rights Act (FRA) 2006 where proposals for diverting forest land for non-forestry purpose are processed. State governments were asked to provide certificates about the completion of the FRA process in the concerned areas along with supporting letter from each Gram Sabha as well as letter of consent or rejection from the Gram Sabha about the proposed
project. In the case of POSCO-India, after receiving the letter of compliance of conditions of stage I clearance the MoEF issued final forest clearance under FC Act 1980 on 29 Dec 2009 with a condition that rights of the ST/OTFD should be settled before implementation of the project. Though Orissa government furnished a certificate to the MoEF about the completion of FRA process, there was no certificate from the Gram Sabha.
4. From the day the MOU was signed there has been large scale protests against the project by local inhabitants whose livelihood is going to be adversely affected due to displacement. The number of petitions to the Central Government increased after the approval of the project because besides livelihood, the Orissa government reportedly violated the FRA in the project area as mentioned by Mr. D. Raja, Member of Parliament and a large number of NGOs. In July, 2010 some members of the FRA monitoring committee jointly constituted by MoEF and Ministry of Tribal Affairs visited the villages to be affected by the project in Jagatsinghpur
district, Orissa. They submitted a report dated 24th July, 2010 highlighting violations of the FRA in the POSCO project area.
5. The MoEF appointed this four member committee on 28 July 2010 to enquire into the status of implementation of FRA in and around forest land of the POSCO project and rehabilitation and resettlement provisions. Subsequently, the committee was asked to review the environment, CRZ and other clearances also given by MOEF and state and local authorities. In the mean time MoEF directed the Orissa government on 5 Aug 2010 to stop all the works undertaken in the
6. This committee conducted intensive enquiry by consulting a large number of documents, field visits and meeting a large number of people (including officials of Orissa government, local affected inhabitants, NGOs and civil society and experts in concerned fields). The findings of the committee are mentioned in the following paragraphs.
A. Implementation of the Forest Rights Act 2006
7. As per the land cover analysis with high resolution satellite imagery of 2006/ 2007 by Orissa government about 70% area of the forest land is covered with various kinds of forest and trees and the remaining area is sandy, covered with betel vine, agriculture and other miscellaneous activities, as also water bodies. The areas under casuarina plantation which occupies the major portion of forests in the coastal areas were earlier covered with mangroves and were destroyed either during super cyclones or by illegal cutting.
8. A large number of documentary and oral evidences have been found to support the presence of forest dwelling STs and OTFDs in the proposed POSCO project area contrary to the claim made by the district administration and the Orissa government that there are none. The voter list of 2006 mentions 21 names of ST community living in one of the villages Polang, included in the project area. A number of non tribal people living in project affected villages have produced
documents of 1920s showing their relationship, dependence on forests/forest land thereby clearly establishing the existence of OTFDs and STs in the project area.
9. The district administration of Jagatsinghpur has not been fair and democratic in implementing the FRA in the project affected villages perhaps for two reasons (i) a number of villagers, specially of Dhinkia, have been opposing setting of POSCO steel plant from the day (June 2005) when MOU was signed between Orissa government and POSCO and (ii) the district administration wanted the project area to be free from such rights for smooth taking over.
10. There has been lack of adequate publicity, awareness campaign, training as required to the people and the Palli Sabha specially, in the project affected villages, about various provisions of the Forest Rights Act and the process which forms the first link of the FRA implementation.
11. When the Gram/ Palli Sabhas were called for the first time in these villages on 23 March 2008, the required quorum in many cases was not complete to constitute the Forest Rights Committee (FRC). The district administration also did not fulfill its obligations to assist, support and provide records as a part of the process. The government should have made more serious and genuine efforts to call for the Palli Sabha with proper quorum. This committee searched for
panchayat registers, especially of Dhinkia village, to verify the proceedings but the same was not made available. It is therefore not verified if the Palli Sabha called for claims after constitution of FRC and waited for claims for three months from date of calling of such claims as provided in Rule 11 of FRA.
12. The district administration imposed an artificial and arbitrary deadline in an attempt to prevent the filing of claims. In fact the power to extend the period of filing claims rests with Palli Sabha as per FRA Rule 11. Gram Sabha, if it considers necessary, may extend such period of three months after recording the reasons thereof in writing. This provision has not been followed by the district administration.
13. Recognizing the role of Gram Sabha in implementation of FRA as well as in diversion of forest land for non-forestry purpose the MoEF in its circular dated 3 Aug 2009 made it clear that a letter from each of the concerned Gram Sabha indicating completion of the process of the FRA and of prior informed consent for any diversion of the forest land is a pre-condition that must be satisfied before final forest clearance is granted. Instead of obtaining certificate from Gram
Sabhas, Orissa government vide letter dated 16 March 2010 forwarded certificate of the Collector of Jagatsinghpur enclosing proceedings of the Sub-Divisional Level Committee of FRA. This is clearly not in compliance with but actually in violation of the conditions imposed by the MoEF.
14. The takeover of forest land from 96 betel vine cultivators in Gadkujang
gram panchayat, amounting to 11.85 acres, in July 2010 by the Orissa government
violated the Forest Rights Act, 2006.
15. Recommendation- The committee therefore feels that the final forest
clearance dated 29.12.2009 of the MoEF has overlooked serious violations of
their own directions and the procedures prescribed by law. Imposing additional
conditionalities as in the clarification given by MoEF in January, 2010 while
allowing the clearance to stand does not remedy the illegalities. The Committee
therefore strongly recommends that the final forest clearance referred above be
16. Recommendation: Orissa government must initiate implementation of the
FRA process afresh in the project area in a transparent and democratic way and
ensure settling of individual and community rights as per the provisions of the
Forest Right Act and Rules made there in.
B. Status of Rehabilitation and Resettlement Implementation
17. The rehabilitation and resettlement program has yet to take off fully. As on
date only 11.85 acres of government / forest land has been taken from 96 betel
vine growers. Ex-gratia compensation was paid as per the RPDAC package. The
committee feels that mere land compensation however big it may be, will not
compensate the loss of sustainable livelihoods and the best way would be to
genuinely give equivalent land for land compensation so that they continue eking
a sustainable livelihood. Of course this means the whole process should involve
all PAFs and their people’s representatives in a transparent, inclusive and just
negotiation. If the people feel it is a better option than what they already have,
they will be willing to give it a chance. There have been more failures than
successes in R&R in the past. People are displaced in a hurry even before the
resettlement or rehabilitation process is in place. Many times the promises to the
people are not kept and displaced people live in greater destitution than before
displacement. The whole process of R&R implementation should also look at
improving the lives of women and older people and provide them with suitable
18. It appears that a large number of fishing communities depend on fishing in
the Jatadharmohan creek area in which the project is located. They have old and
recognized customary rights of fishing in the area which have been overlooked
and left out of the R &R scheme. The State Government needs to examine the
rights of such communities and ensure that their livelihood rights are protected
while covering them in the R & R scheme.
19. Landless agricultural and other labourers have not been included in the list
of affected persons and no benefits have been given to them (except for those
working in betel vine cultivation and those compensated for their homesteads on
government land). Since landless workers constitute economically the most
vulnerable social section, they need to be included in R & R scheme and
compensated for their loss of livelihood.
20. Finally, as the socio economic survey of XIMB mentions, ‘displacement
amounts to uprooting them from their soil that belonged to them for generations,
which can be psychologically a traumatic event’. This requires a lot of empathy
while handling the process of shifting and relocation. We would like the State
Government to bear this in mind and engage organizations (reputed NGOs) who
have worked with people, to help in the process of relocation, so as to make the
relocation less traumatic.
21. Recommendation - Though the R & R scheme has not yet started fully,
the Committee feels that the rehabilitation package should take into account the
loss of livelihoods, provide for land for land compensation, account for
vulnerable sections including women, labourers and old people and decided
upon through a transparent and democratic process.
C. Environmental Clearance of Steel Plant and captive Port
22. It is important to stress that the EIA process is governed by the EIA
Notification (first issued in 1994 and subsequently revised and issued anew in
2006) which has statutory status under the Environment Protection Act, 1986, the
main legislation governing EIAs. Thus any infringement of the prescribed
standards amount to a statutory violation. Central to the EIA process is therefore
the quality of the data and information collected, presented and analysed in the
EIA which are the essential substratum for the decision makers to decide over
whether to grant environmental clearance to the project or not.
23. Considering the scale of the project (12 MTPY) which is almost equal to
combined production capacity of 6 steel plants of India (Bhilai, Bokaro, Durgapur,
Rourkela, Burnpur and Salem put together) there was a critical necessity of having
a comprehensive environment impact analysis (EIA) for both the steel plant as
well as the captive port. The MoEF ought to have insisted on a comprehensive
EIA by collecting full year data which was also pointed out by various state
agencies and the Regional Office of MoEF.
24. The MoEF should not have granted environment clearance on the basis of
rapid EIA for port which was based on one season data. Even in case of the port,
the data was collected during September to November 2005, which is the monsoon
period. It should be noted that data collection during monsoon period is prohibited
by EIA Notification.
25. The entire POSCO project is an integrated project encompassing different
components like the township, pipeline, road and transportation etc. which have
been left out of the scope of REIA and other baseline data. As a result of partial
EIA, the full environmental impact of the entire project has been undermined.
On a clarification sought by one of the committee members (Dr Suresh), the
Director of POSCO (Mr. Kim) confirmed that comprehensive EIA both for steel
plant and captive port was completed by July, 2007. The Regional office of MoEF,
Bhubaneswar as well as the Orissa Government informed that copies of the
comprehensive EIA were delivered by hand only in October 2010 after the
clarification from the member of this committee. Submitting such a basic and
critical report three years after the clearances is only an empty formality.
26. The committee members are of the strong view that MoEF should not have
given environment clearance for part of the project (4 MTPY) when all other
components and infrastructure of the project such as land, displacement of people,
ecological destruction, port construction etc have aimed for full project, that is, 12
million tons. This is especially so when the expansion plans are not sometime in
the distant future but contemplated at the rate of increase of 4 million tonnes every
two years. POSCO should have been asked to apply for clearance of total
capacity. Otherwise, the logical step would have been to restrict the requirement
of land and the size of the port to the requirements of a 4 MTPY capacity plant. It
puts a question mark on the scientific and technical prudence of the MoEF.
27. In a recent report the MoEF has come out with an environmental pollution
index called as Comprehensive Environmental Pollution Index (CEPI) to help in
categorising the industrial clusters in terms of priority of planning needs for
interventions. Under this report Paradeep has a CEPI score of 69.26 which shows
that it is a severely polluted area, just bordering on the CEPI of a critically
polluted industrial cluster. The concern that the Paradip area is already polluted
from existing industries was also raised during the public hearing but
unfortunately it was never addressed by any of the decision making authorities.
28. The Technical Committee of the Orissa State Pollution Control Board
raised many issues of substantial importance specially related to air pollution
which curiously have not been followed up to its logical end. The records supplied
to us do not reveal that these issues were ever addressed before the clearances
were given. However, even before these queries have been satisfactorily answered
by the project proponent, the company has been recommended for clearances and
issue of Consent to Establish. This is a serious abdication of statutory
responsibility by the Orissa State Pollution Control Board.
29. Concerns regarding the impact of the POSCO captive port on the existing
Paradip Port have been repeatedly voiced by the authorities as well as by the
public. The Ministry of Shipping, Road Transport and Highways, Government of
India appears to have a different view. A question about adverse effect of this
captive private port was raised in the Lok Sabha to the Ministry of Shipping, Road
Transport and Highways during December 2005. The then Minister in charge had
replied “ the proposed minor port for POSCO steel plant may lead to severe
erosion along the coastline posing a threat to the port facilities at Paradeep”. The
Minister also stated that the Orissa Government has been urged to undertake a
detailed study regarding erosion if they decide to develop a minor port for POSCO
and should associate Government of India and Paradeep port with such studies.
Unfortunately the EAC and MoEF did not call for the study report before giving
clearance in 2007.
30. The Committee is of the firm view that the Public Hearing held on
15.4.2007 was not in compliance with the rules. The authorities failed to provide
copies of the EIA to panchayats; all the project affected persons were not given
opportunity to be heard. It was held in Kujanga about 15 km away from the
affected villages. During the hearing, many people complained that because of the
prohibitive distance, many villagers could not travel to participate in the Public
Hearing. The committee was informed that there was presence of a strong police
force at the venue of the public hearing a day prior to the hearing itself. This
served as a deterrent to free participation by local villagers, who were opposing
the project. Other project affected people like traditional fishing community and
farmers were not covered by the public hearing. The social impact of the project
was also not discussed. Project proponent has failed to answer all the objections
raised during the public hearing. The EAC has failed to apply its mind to the
objections raised by various authorities and the public and have also failed to
consider the available material on record. The EAC has also failed to record any
reasons in respect of accepting or rejecting the objections raised but instead gave
clearance. Such mechanical clearance makes a mockery of rule of law and
31. The integrated steel plant has a huge water requirement. As per the Rapid
EIA, the water requirement will be met from Jobra Barrage over the Mahanadi
River by laying an 86 kilometer long pipeline. POSCO has already taken an
approval from the Department of Water Resources, Government of Orissa, for
withdrawal of 10 MGD water from the Jobra Barrage. The existing competing
use of the water resources from the Jobra Barrage are drinking water for Cuttack
and Bhubaneshwar cities, irrigation water for agriculture in four districts (Cuttack,
Jagatsinghpur, Khurda and Kendrapada) and several industries, and these have not
been taken into account. The public representatives who met the committee
members expressed concern about the existing scarcity of water due to use by the
already established industries. In fact, the Water Resources Department has
allocated additional water from Hansua nalla for construction purposes which has
not been disclosed in the EIA amounting to suppression of the information. The
REIA has not addressed the widespread impact that will adversely affect a large
population spread in a number of big towns as well as districts.
32. Recommendation- The Committee strongly feels that there have been
many serious lapses and illegalities in the EIA process. The EIA for such a
megaproject is rapid, based on one-season data without taking into account all
the components of the project like the township project, water project, railroad
and transport facilities etc. Moreover it is limited only to Phase I of the project.
There are serious violations in the public hearing process where many
communities have been left out. The imposition of additional conditions to the
existing ECs will not at all remedy the lapses and illegalities. The Committee
therefore strongly recommends that the Environmental Clearance given by the
MoEF dated 15.5.2007 for minor port and 19.7.2007 for the steel plant should
be immediately revoked.
D. Compliance of Coastal Regulation Zone (CRZ)
33. The Coastal Zone Management Plan (CZMP) of Konark -Paradip stretch
submitted by the Government of Orissa in 1995 to the MoEF includes the belt of
Jatadharmohan creek. Because the area falls under estuary zone and is
ecologically sensitive, barrier spits and channel bars occurring near the estuarine
mouth has been categorized as CRZ-I. Only the areas studded with agriculture
fields and settlements are to be categorized as CRZ-III near the Dhinkia village.
The NIO report has not specifically indicated the extent of area/ length along the
creek/shore line falling under CRZ I and CRZ III.
34. Further, the limits of the CRZ lines drawn on 1:5,000 scale maps by NIO at
500 m towards the northern portion of POSCO site and at 150 m on the creek side
are not very clear. The limits and extent upto which these lines exists should have
been well defined by the geo-coordinates in the maps as well as in the text. But it
has not been mentioned in either of the documents. In the absence of such geocoordinates
it would be impossible to draw lines on the ground. The main worry is
who is going to verify these lines and distances from the HTL on the ground? No
permanent marking has been done on the ground. Orissa state government was
not associated in the CRZ survey of the POSCO site and NIO depended on the
land use map and geo-coordinates provided by POSCO.
35. Except for port, any activity relating to steel plant, be it storage of raw
material, cannot be allowed within the CRZ (500 m from HTL) as per CRZ
Regulations. On the other hand NIO has recommended for establishing coal/ore
and slag yard which are parts of steel plant in the CRZ I (i) & CRZ III areas facing
open coast in northern side ( page 18 of the NIO-DCRZ Report). This amounts to
violation of the CRZ regulations.
36. The State Coastal Management Zone Authority while discussing the port
proposal of POSCO-India on 7 Aug 2006 found a mismatch between CRZ maps
prepared by ORSAC and NIO. This was to be reconciled by the POSCO-India but
no document for such reconciliation has been provided to the committee.
37. Dressing or altering of sand dunes, hills, natural features including
landscape changes for beautification, recreational and other such purpose are
prohibited , except as permitted under the notification. During the visit of the
committee on 21 Sep 2010, the representative of the POSCO-India Mr. S.N. Singh
informed the members that the existing mouth of the Jatadharmohan creek will be
used as an approach channel for one lane for vessels and will be progressively
widened to 500 m. The map provided by POSCO, however, shows that existing
mouth will be filled and sandy barrier spit at about 500 m away towards south will
be cut to make the approach channel. Such a cutting and filling of sand bars
amounts to change of the natural course of the creek and are in contravention of
the CRZ notification. In a clarification sought from the POSCO it was replied that
the mouth of the Jatadharmohan creek originally existed at the proposed site in
1998 and in last 10 years the Jatadhar Mouth has shifted towards north and has
acquired the present form. The site of the old mouth has been therefore chosen for
making approach channel. The committee did not find such explanation
convincing. Further, in the common clearance/approval dated 15.05.2007 given
for CRZ and EIA for the port Condition B(vii) stipulates that the sand dunes and
mangroves, if any, on the site should not be disturbed in any way. It is not clear
how it is possible to dredge through the sand pits and reclaim land for the port as
well as steel plant without disturbing the sand dunes.
38. As per the REIA report for the steel plant, a common effluent treatment
plant (CETP) will be set up to take care of untreated effluents from the production
process and treated plant sanitary wastewater. After partial use of the treated
water, the rest of the water will be let into the sea by a submarine pipeline at 18-20
meters depth by jet diffusion. POSCO-India has not applied for CRZ clearance for
this pipeline which amounts to suppression of facts and is a serious violation.
39. Recommendation: In view of the above observations the committee feels
that POSCO-India Pvt. Ltd has not been able to address all the issues relating to
CRZ notification. There are a number of serious lapses and violations,
including suppression of facts. The environment clearance given by the MoEF
vide letter dated 15 May 2007 should therefore be revoked forthwith.
Dr. Urmila Pingle Dr. Devendra Pandey Dr. V. Suresh
Introduction 1 – 10
Section 1 Land Tenure History, Ecology and Socio 11-18
Cultural Aspects of the project area
Section 2 Potential Impact of the Project 19-30
Section 3 Forest Rights and Forest Clearance 31-57
Section 4 Rehabilitation and Resettlement (R & R) 58-67
Section 5 Environmental Clearance of Steel Plant & Port 68-118
Section 6 Compliance with Coastal Regulation Zone (CRZ) 119-129
Conclusions and Recommendations 130-140
References / Annexures
Majority Report of the POSCO Enquiry Committee
This Committee has been constituted with the purpose of examining the POSCO-India project, a
combined mine – steel plant – port project in Orissa, on certain specific grounds. In particular
we have been asked to examine compliance with and implementation of various critical
environmental laws, such as the Forest Rights Act, the Environment (Protection) Act and the
Coastal Regulation Zone notification. In this report we have thus limited ourselves to the basic
question of whether the project and the State and Central authorities have complied with the law
in their actions. We have focused on the proposed sites of the steel plant and port, which are the
main areas where clearances have been obtained and agitations have occurred.
However, in the context of a large project such as POSCO, with social, environmental and
economic implications far beyond the project area, it is inevitable that the debate over our
findings will extend beyond narrow interpretations of law. Issues of “balancing” environmental
concerns with development concerns are likely to be raised. In this context we wish to make a
few observations as to why we feel that legal compliance is vital in such projects, and why such
compliance is in fact the only way that any balance can be achieved.
The POSCO-India project will be, if it is completed, the single largest Foreign Direct Investment
(FDI) in India till date. It will also be the largest greenfield steel plant in Asia and one of the
single biggest mining operations in our country. These figures are often cited as evidence in
themselves of the good that will result from this project. But it is important to recognise that
industrial projects, and particularly extractive industries such as this one, do not always produce
positive social results. Many of the gains may fail to materialise, and many of the losses be
magnified, if proper regulation is not in place.
In the words of the World Bank's Extractive Industries Review:
“Extractive industries can cause environmental degradation. Exploration and
development of extractive industries can lead to land clearing and habitat loss...
And environmental degradation can in turn destroy livelihoods dependent on
local resources.... These industries can also lead to social disruption and cause
conflict among communities. … The poor, lacking the necessary skills and
education, often fail to benefit from jobs created in the extractive industries; in
many cases, employees are brought in from outside of the area. Often these
negative impacts from a project occur before it even starts to generate
revenues... In a number of countries, extractive industries have been linked to
human rights abuses and civil conflict.”1
The literature on development economics abounds with references to the “resource curse”.
Valuable natural resources, like iron ore in the case of the POSCO project, offer the possibility of
enormous profits purely from extraction and from leveraging international market prices. Such
profits in turn generate an incentive to “cut and run”, to extract as cheaply as possible, with as
little employment and running costs as necessary, and to leave as soon as costs or problems
begin to rise. Moreover, there is little incentive to invest in long term infrastructure for the area
1 Striking a Balance: the Final Report of the Extractive Industries Review, World Bank, 2003, pp.20-21
as a whole (as opposed to for the industry alone), to generate sustainable and high quality
employment or to contribute to the local economy in a significant manner. The impact of these
tendencies is already visible in the extreme poverty and armed conflict that now marks India's
mineral rich areas, which have largely failed to provide either development or welfare to their
people. In such a context, there is no question of a “balance”, for such industrial activity
achieves neither environmental protection nor development.
Indeed, to again draw on the language of the Extractive Industries Review,
“Extractive industries [can only] contribute to poverty alleviation through
sustainable development... when the right conditions are in place. The three
main enabling conditions are:
• pro-poor public and corporate governance, including proactive planning and
management to maximize poverty alleviation through sustainable development;
• much more effective social and environmental policies; and
• respect for human rights.” 2
It is notable that the concept of “pro poor public and corporate governance, including proactive
planning” is given pride of place in these recommendations. In our view, the specific
environmental and social regulations that are applicable in the POSCO context attempt to
approach this ideal. In particular:
· The Environmental Impact Assessment notification seeks to require an impact assessment
of any particular project in order to measure the likely social, environmental and
ecological impacts of that project. This is then meant to be placed before the people of
the area as a check on executive authority, through the public hearing process.
· The Coastal Regulation Zone notification takes into account the sensitive and critical
nature of coastal areas and seeks to impose a planning regimen on development in these
· The Forest Rights Act recognises the rights of forest dwelling communities and also,
more crucially, provides space for deciding both rights and forest management through
the gram sabha. This is a step towards converting environmental governance into a
democratic process rather than an executive / bureaucratic one. This in turn makes the
consent of the gram sabha a legal requirement prior to any diversion of forest land,
forcing the state to take development plans to the people.
To our mind, these regulations thus make a step towards enforcing a system of environmental
governance with three crucial elements:
· a holistic system of environmental planning,
· a democratic process of decision making, and
· protection for critical ecosystems and vulnerable communities.
In this view, industrial planning, and development planning generally, should not be driven by
short term factors and the narrow requirements of particular projects alone. Rather, it should be
2 Executive Summary. Striking a Better Balance: The Final Report of the Extractive Industries Review, World Bank, 2003.
integrated with a wider understanding of the social, environmental and economic requirements of the country. It is possible to argue that the current regulatory framework is flawed, or that it
does not approach these goals. But it is not permissible to bypass it, for to do so would – aside
from the damage caused by any particular project – undermine the entire regulatory framework
of our state machinery and reduce the ability of our society to channel its resources for social
For these reasons, it is also important that this regulatory framework be understood as a cohesive whole, and compliance with it should be evaluated in such a manner as to achieve that goal. This is the approach we have followed in this report. We have not attempted to artificially read down regulations or the law in order to reduce requirements, or to find loopholes by which
requirements can be bypassed. Rather, we seek to fulfill our mandate to review this project in a
manner that complies with the overall goals of both environment and development.
Indeed, it is precisely because the scale of the POSCO project is so large that it must be
subjected to examination and regulation in a comprehensive, just and impartial manner, for the
potential impacts are just as large. Moreover, as a precedent-setting project, the manner in which this case is handled could have a bearing on many future projects as well. It is for this reason that this committee feels that a detailed examination of legal compliance is not merely a
requirement of law, nor merely a procedural safeguard, but is crucial to preventing wider damage and to ensuring future compliance as well. This report seeks to undertake such an examination.
INTRODUCTION- Time Line of Events
Part A- General
I. Memorandum of Understanding between POSCO and Government of Orissa
1. The Pohang Steel Company (POSCO), Korea and the Government
of Orissa signed a Memorandum of Understanding (MOU) on June 22,
2005 ( Annexure A1) for setting up an integrated steel plant of a total capacity
of 12 million tones per annum near Paradeep, in Jagatsinghpur district,
Orissa. POSCO through establishing an Indian company POSCO- India
would develop and operate the steel plant to produce a total of 12 MT in
three phases ( 4MT per phase) with a proposed investment of Rs 51,000
crores or 12 billion US$. As per the MOU the company would develop
1) “Mining Project” facilities in areas allocated by the government of
Orissa / Government of India
2) “Transportation Project “which includes a dedicated railway line,
road and Port
3) Integrated township and
4) Water Supply infrastructure or the “Water Project”
2. The Government of Orissa and the Company agreed to be
“Partners in Development”.
In this context the MOU provided that the state government would facilitate clearances and approvals of the Central Government as and when required. To ensure that the project proceeded according to the planned schedule a dedicated High Power Committee was constituted jointly by the Government of Orissa and the Company consisting of senior officers of the Departments of Steel and Mines, Industries, Energy, Water, Environment and representatives from the company. This High Power Committee would meet regularly to review the progress and have regular interactions with the Chief Minister and Chief Secretary of the government of Orissa to appraise them of the overall progress of the project and all it’s components. A “Single Window” clearance committee was established by the state government to ensure smooth clearances under state laws from the various departments. A senior officer or “Nodal Officer” would be in charge of this Project and all relevant clearances permits, approvals etc would be routed through the Nodal Officer, who would update the Company regularly on the status of
II. Location of the Project.
3.The location of the integrated steel plant would be on the
northwestern bank of the Jatadharmohan river (or the mouth of the river
Jatadhar) located 12 km south of the Paradeep Port in Jagatsinghpur
district, Orissa. The project lies in the jurisdiction of Kujang Tahsil
,Jagatsinghpur district within 20 degrees 11’ to 20 degrees 13’ north
latitude and 80 degrees 30’ to 86 degrees 35’ east latitude. The proposed
project requires a total of 1620.496 hectares of land of which 1253 .225
hectares is forest land and non-forest land is 367.271 hectares. (Site
inspection report dated 24-7-2007, MOEF, Eastern Regional
office,Bhubaneswar- Annexure A2). The proposed project area would
affect 8 villages of three Gram Panchayats of Ersama block, Kujang
Tahsil, Jagitsinghpur district. It is stated as per official statistics that
471 families would be displaced by the project. The three Gram
Panchayats involved are those of Dhinkia and Govindpur villages in
Dhinkia GP , Noliasahi ,Bhuyanpal ,Polanga and Bayanalakanda in
Gadkujang GP, and Nuagaon and Jatadhar villages ( the latter is
uninhabited ) in Nuagaon GP. It is stated as per official statistics that
471 families would be displaced by the project. Two out of eight villages
namely Noliasahi and Polang fall fully within the project site and would
need to be resettled and rehabilitated in other areas.
4. The location of the proposed captive minor port “Jatadhar Port”
is approximately 20 degrees 11.85’ – 20 degrees 12.94’ N and 86 degrees
32.66’- 86 degrees 34.84’ E and is 12 km south of the Paradeep Port. The
port is adjacent to the steel plant.
III. Mining site for sourcing raw materials for the proposed Steel
5. The captive mining site for extraction of iron ore (600 million
tonnes) to meet POSCO’s annual requirement of 12 million tonnes
annually has been selected in Bonei subdivision of Sundargarh and
Keonjhar districts of Orissa. This area is a Scheduled V area located in
Reserve forests where PTG tribals reside. Orissa government has
recommended the grant of prospecting license to POSCO for mining this
area. However, Geomin minerals one of 290 parties who had applied for
lease of this mine approached the High Court of Orissa against the
allotment of the mine to POSCO instead of to them. The High Court in a
decision given in July 2010, said that the relative merits in deciding in
favour of POSCO India were insufficient and asked the Orissa
government to hear all the applications for mines once again and take a
decision within 4 months another.( annexure A4-WP ( C ) 23/2009).
IV. No progress of project at ground level on account of local
6. Since the signing of the MOU between POSCO-India and the
Government of Orissa on June 22, 2005 there has been very little
progress of the project on the ground because of huge opposition to the
project by a large segment of the residents of several villages but
principally of Dhinkia and Govindpur of Dhinkia GP who would stand to
lose the maximum forest land to be diverted to POSCO. The protests
against the diversion of this forest land to POSCO were supported by
people’s organizations; the largest of these is POSCO Pratirodhi Sangram
Samathi (PPSS). The main form of protest adopted has been the peaceful
blockade preventing the entry of Government officials and POSCO
officials. The anti-POSCO movement continues to be strong to this day.
( Annexure A 5 ).
7. The people in these 8 villages of three Gram Panchayats of
Dhinkia, Govindpur and Nuagaon have been cultivating this forest land
with Betel vines as well Cashew and other tree species in addition to
collecting minor food products, bamboo and fuel wood from this area
from the time of their forefathers right from the Bardhaman Estate
period . They are however considered as illegal “encroachers” by the
government as their rights have not been settled for the area they have
been cultivating which were declared as forest land, mostly protected
forests, in 1960s.
8. The peaceful protests of the people of these three GPs continued
without any conciliation between the state government and the project
affected communities. A single combined public hearing was held on
April 15th, 2007 based on two separate REIA reports of POSCO steel
plant (Aug, 2006) and captive minor port. Based on the REIA (Rapid
Environment Impact Assessment) reports and minutes of public hearing,
the Expert Appraisal Committee (EAC) set up by MOEF recommended
clearance for the Port and the MOEF, Government of India gave
environment clearance for the captive port on May 15, 2007 to POSCO (
Annexure A-5). The REIA for steel plant (4 MTPA) and captive power
plant (4x100 MW) was appraised by the EAC (Industry) and sent to the
MOEF with recommendation for clearance. The MOEF gave environment
clearance to the steel plant on July 19, 2007 (vide letter no J-11011/
285/ 2007-IA II) (Annexure A-6).
V. Police action and reports of human rights violations.
9. On November 27-28th, 2007 several clashes took place between
state administration and the people opposing the POSCO steel plant near
Balithuta cross roads where thousands of villagers gathered together to
protest peacefully (Nov 27–29). There were violent incidents between
those opposing POSCO and those supporting POSCO. Section 144 was
declared. A number of people were injured and many were arrested on
charges of inciting violence. Several FIRs were filed (based on charges of
inciting violence and anti- government activities) against the leaders of
the Anti-POSCO movement and police contingents were stationed in
public buildings in these different villages, excepting Dhinkia, which
continued to remain under blockade. On Dec 5th, 2007 Dr B.D Sharma,
former Commissioner for Scheduled Castes and Tribes visited the area
but was turned back by armed groups reportedly with the knowledge of
police. Dr B.D Sharma and Kuldip Nayyer wrote a letter of protest to
Hon’ble Justice Rajender Babu, Chairperson of NHR Commission on 27
Dec, 2007 regarding the violations of human rights in these villages.
They lodged complaints against different public servants (named) for
abuse of power (Annexure A 7).
Forest Conservation Act and implementation of Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights)
I. Application for diversion of forest land for non forest purpose in
the project area.
10. Under the Forest Conservation Act of 1980, any use of forest
land for non-forest purposes requires clearance from the Ministry of
Environment and Forests, Government of India. It was therefore
mandatory for POSCO to get a forest clearance for diversion of 1253.255
hectares of forest land which formed part of the area required for the
integrated steel plant and captive port. According to the procedure set
down in the Forest Conservation Act the proposal was considered by the
Forest Advisory Committee under MOEF on Aug 9, 2007 (Annexure A 8).
This committee recommended the grant of forest clearance.
II. Recommendations of the Central Empowered Committee (CEC) of
the Supreme Court.
11. The project simultaneously came under the scrutiny of the
Supreme Court as per its April 27, 2007 order (Annexure A 9) according
to which all fresh decisions of the FAC would be reviewed by the
Supreme Court in the TN Godavarman vs. Thirumulpad case. The Court
sought the comments of Central Empowered Committee (CEC) set up as
a monitoring body by the Court. The CEC on 14th Nov, 2007 (Annexure
A 10) made two important recommendationsi)
The CEC was of the view that instead of piecemeal diversion
of forest land for the project, it would be appropriate that the
total forest land required for the project including for
mining is assessed after considering the ecological importance
of the area, number of trees required to be felled, adequacy and
effectiveness of the R&R plan for the project affected persons
and benefits accruing to the state. The diversion of forest land
for the steel plant, without taking a decision for the linked uses
particularly the mining project may not be in order.
ii) Due to the large number of trees to be felled (2.8 lakhs) the
CEC suggested that an independent expert committee should
visit the site in order to assess the impact and suggest
12. Subject to the compliance of the above observations the CEC
recommended the diversion of forest land. The Supreme Court through
it’s order dated 8th Aug, 2008 sent the proposal back to the MOEF to
consider granting forest clearance; it remained silent on the issue of
piece meal diversion of forest land for different components of POSCO’s
integrated steel plant. ‘In principle’ clearance was granted by the
Ministry on September 18th, 2008 (Annexure A 11). The project was
subsequently granted final clearance on Dec 29, 2009.
III. The enactment of the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006
13. In December 2006, Parliament passed the Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006 which came into operation on 1st January, 2008. After this date
any forest clearance should have been given after the action required
under FRA had been completed, i.e. once forest rights, if any, had been
settled on eligible forest dwellers. The State administration has since
stated that since there were no OTFDs and STs, in the project villages,
there were no claims made by the villagers of these three GPs and
therefore the formal process of inviting and finalizing of claims for
recognition of forest rights was completed and closed. However several of
the project affected villagers in the three GPs claimed they had made
both individual and community claims which were approved in their
Gram Sabha resolutions which they had submitted to the concerned
officials of the district administration. On March 23, 2008 the Palli
Sabhas in the three GPs of Dhinkia, Nuagaon and Gadkujang formed
forest rights committees excepting in villages of Bhuyanpal and
Noliasahi, where the said committees were formed later.
IV. Circular making compliance with Forest Rights Act mandatory
before processing applications for diversion of forest land under the
Forest Conservation Act.
14.On July 30, 2009 and August 3rd, 2009 the Ministry of
Environment and Forests (MOEF) issued circulars (Annexure A 12 and
A 13) that inter alia states, “The State/UT governments, where process
of settlement of rights under the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act (FRA) is yet to begin
are required to enclose evidences supporting that settlement of rights
under FRA 2006 will be initiated and completed before the final approval
of proposals.” It also stated that the proposal should be accompanied by
“A letter from each of the concerned Gram Sabhas, indicating that all
formalities/processes under the FRA have been carried out, and that
they have given their consent to the proposed diversion and the
compensatory and ameliorative measures if any, having understood the
purposes and details of proposed diversion.”
15. In pursuance of the circular of the Ministry, on October 24th,
2009 (Annexure A 14), the Chief Secretary of Orissa wrote a letter to all
Collectors forwarding the Ministry circular and requesting them to issue
certificates as per its requirements, including letters from all concerned
Gram Sabhas certifying completion of the process and grant of consent
to the diversion. On December 19th, 2009 (Annexure A 15), the Collector
of Jagatsinghpur forwarded the Chief Secretary’s letter to the Block
Development Officer of Ersama Block, stating the proposed diversion for
POSCO is required to be approved in the Palli Sabhas of the area. On
this basis, he said, he would be required to give a certificate.
V. Forest clearance given without certificates of compliance under
16. However, without any such certificates being provided by the
State government or by the concerned Gram Sabha, regarding either the
completion of the Forests Rights Act process or the consent of the Palli
Sabhas to the diversion the final forest clearance was given to POSCO in
Dec 29, 2009 (Annexure A 16). Shortly thereafter, the Ministry issued a
clarification on Jan 8th, 2010 that the forest clearance granted was
“conditional” to the State government’s compliance with the August 3rd,
2009 circular of the Ministry, and to the consent of the forest dwellers
therein (Annexure A 17).
VI. Letter of Govt of India warning of action for failure to implement
17. The Principal Secretary, ST and SC Development, Government
of Orissa, sent a circular dated Feb 1, 2010 to all Collectors, all PA,
ITDAs, all District Forest Officers, all Sub Collectors regarding the
compliance with the FRA. The Principal Secretary even issued a warning
to the respective officials that violations would invite criminal action
against members of SDLC and DLC under section7 of FRA Act, 2006
(Annexure A 18).
18.A circular from Principal Chief Conservator of Forests, Orissa, to
all District Forest Officers in the letter dated 25th Feb, 2010 stated that,
“Besides, regularization of pre-1980 eligible category of forest
encroachments which are dealt with under the Forest (Conservation) Act,
1980 include the cases of people belonging to both tribal and non-tribal
groups. These pre- 25-10-80 forest encroachments can be processed for
regularization under the procedure laid down under F.C Act. Under this
procedure the claims of non-tribals which cannot be settled under the ST
and OTFD (RFR) Act, 2006 may be taken up. All such cases which have
already been approved under FC Act can be settled in favour of the
eligible claimants, subject to compliance of the stipulations made by
MOEF, Government of India in their final approval order in this respect.
The DFOs and the ACFs are required to play their assigned role in
facilitating disposal of claim petitions filed under the Forest Rights Act in
respect of all categories of forest lands; and also in taking up
appropriately the cases of non-tribal claimants who may be eligible pre-
1980 encroachers in terms of the provisions under F.C.Act.” (Annexure A
19. It is important to note that the Principal Chief Conservator of
Forests categorically gave instructions to his DFOs that claims of nontribals
which cannot be settled under the ST and OTFD (FRA) Act, 2006
may be taken up under pre-25-10-80 forest encroachments for
regularizations under the Forest Conservation, Act, 1980.
VII. Resolutions of the palli sabhas in the project affected area.
20. As stated above, the Collector of Jagatsinghpur on 19th
December, 2009 wrote to the BDO, Ersama to organize Palli Sabhas and
get their consent for forest diversion for POSCO steel plant. In turn the
BDO, Ersama wrote to the Sarpanches of Dhinkia, Nuagaon and
Govindpur on January 19th, 2010 requiring them to hold Palli Sabhas
before Febuary 10th, 2010 to discuss and approve the POSCO diversion
proposal. In response the Palli Sabhas of Dhinkia, Govindpur and
Nuagaon met on Feb 5, Feb 6 and Feb 4th, 2010 respectively. They all
passed similar resolutions rejecting diversion of forest land for
establishing the POSCO steel plant, asserting their eligibility as other
traditional forest dwellers (OTFDs) under the Forest Rights Act and
invoking their powers under section 5 of the Act to protect forests,
wildlife, biodiversity and their cultural and natural heritage.
VIII. Letter of Collector, Jagatsinghpur recording that there are no
tribals or OTFDs in the project affected areas.
21. Despite these resolutions by the Palli Sabhas, shortly
afterwards in Feb 23, 2010 (Annexure A 20) the Collector of
Jagatsinghpur wrote a letter no 139 to the state government which
mentioned, “It is pertinent to mention here that Palli Sabhas have been
conducted in all 3 GPs covering the POSCO project area and no claim for
settlement of rights from tribals and traditional forest dwellers have been
received. Since no tribals or traditional forest dwellers are residing in the
aforesaid area, the question of settlement of rights of tribal people /other
traditional forest dwellers under the Forest Rights Act does not arise.”
He enclosed certain Gram Sabha documents in Oriya. On March 16,
2010 (Annexure A 21) the state government sends this certified
information of the Collector, Jagatsinghpur to the MOEF. In reply to this
MOEF wrote to the State Government on April 15, 2010 (Annexure A 22)
asking for English translations of the Oriya documents that had been
sent. The Special Secretary, Government of Orissa sent the English
translations of the proceedings of Palli Sabhas of the three Gram
Panchayats of the project affected area on 29-6-2010 (Annexure A 23).
These Palli Sabha proceedings only covered the constitution of Forest
Rights Committees and their members. There were no certificates giving
consent of the Gram Sabhas/Palli Sabhas to the diversion of forest land
in their areas.
IX. Protests against land acquisition and announcement of revised
22. On 11th May, 2010 there was a conflict between police and the
communities blockading land acquisition in the area for the POSCO
project. A number of people were injured in these clashes.
23. On July 8, 2010 (Annexure A 24) second RPDAC meeting was
convened after an interval of 4 years (the first one was in 2006) and a
revised R&R package announced which was declared to be better than
the R&R package under the Orissa R&R policy, since higher
compensation was given to the displaced and the price for agriculture
land being acquired substantially increased. The new package also
included betel vine growers and those with cashew trees in forest land. In
the earlier R&R these people were not compensated. However they
continue to be defined as encroachers by the government.
X. Report of the Ashish Kothari sub- committee.
24. On 24th July, 2010 (Annexure A 25) a three member team of
an MOEF/ MOTA constituted larger Committee (Chairperson is
N.C.Saxena) set up to look into the implementation of the Forest Rights
Act visited Jagatsinghpur in connection with the committee’s work on
FRA process implementation. The team was led by Mr Ashish Kothari.
The team reported that FRA process had not been completed and
concluded that archival, documentary and oral evidence existed that
the people living there were OTFDs and were thus eligible to stake their
claims under FRA Act, 2006. The team reported that the State
government had not accepted their claims that they had been cultivating
for more than 3 generations . In addition the Palli Sabha resolutions
rejecting diversion of the forest land for the POSCO project had not been
acknowledged by the State government. Hence, the team concluded that
the MOEF should ask the Orissa government to stop all such work till
the required processes under the FRA are completed , and till and if Palli
Sabha consent is obtained. The team further recommended that the
forest clearance granted by the MOEF should be withdrawn .
XI. Taking over of forest land by Orissa government.
25. On 27 th July, 2010, the Orissa government began the process
of taking over the forest land in the Gram Panchayat of Gadkujang. As
per the letter of Principal Secretary, Environment and Forests,
Government of Orissa to the Ministry of Environment and Forests
(Annexure A 26), the lands of 96 persons, amounting to 11.85 acres,
were taken at a compensation of Rs11.5 lakhs per acre (as per the
recent RPDAC order).
26. As a result of the report of the Saxena Committee and the
commencement of taking over of forest land in the area, the Ministry
vide it’s letter dated 5 August, 2010 (Annexure A 27) quoted the report of
the Committee and directed the Government of Orissa that no forest land
be handed over to the user agency. Based on these complaints of
violations of the FRA, 2006, the Ministry felt that there was need to
further examine the compliance with the Scheduled Tribes and Other
Traditional Forest Dwellers Act, 2006 and Rehabilitation and
Resettlement provisions, pending which a final decision would be taken
on handing over of the said forest land to the user agency.
Constitution of the present committee.
27. This led the MOEF to constitute a four member committee, vide
it’s order dated 28th July, 2010 (Annexure A 28) whose terms of
reference were further amended on Aug 27, 2010 (Annexure A 29) . The
committee consisted of:
i) Ms Meena Gupta IAS (Retd), Former Secretary, Ministry of
Environment and forests;
ii) Dr Urmila Pingle, an expert on tribal issues, Hyderabad;
iii) Dr Devendra Pandey .IFS ( Retd), former Director, Forest
of India, Dehradun
iv) Dr V. Suresh, Advocate, Madras High court.
28. The Committee was required to investigate into the proposal
submitted by POSCO-India Pvt. Ltd. for establishment of an Integrated
Steel Plant and Captive Port in Jagatsinghpur District.The terms of
reference set out for the Committee were as follows:
i) Investigation and ascertainment of the status of the
implementation of the Scheduled Tribes and Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006 in and around
the said forest land;
ii) Investigation and ascertainment of the status of the
implementation of the rehabilitation and resettlement provisions
in respect of the said project; and
iii) Review compliance with Environment (EIA), Coastal Regulation
Zone (CRZ) and other clearances/approvals granted by the
Ministry of Environment and Forests and other Central, State and
iv)Review compliance with statutory provisions, approvals,
clearances and permissions under various statutes, rules,
v) Review compliance with pari passu conditionalities imposed in
item iii) and iv) above;
vi) Any other matter which in furtherance of the above objectives.”
* * *
Majority Report of the POSCO Enquiry Committee Section 1: Land Tenure
Land Tenure History, Ecology and Socio-Cultural Aspects of the
Project area in Jagatsinghpur District, Orissa
I. Land Tenure and Tenancy History going back to the beginning of
the 19th century
1. The Project area falls within the three Gram Panchayats of
Dhinkia, Govindpur and Nuagaon, Ersama block in Jagatsinghpur
District. This district is one of the 30 districts of the state located on the
eastern coastal tract adjoining Bay of Bengal. Earlier it was part of
undivided Cuttack and was carved out as a new district in 1992. This
area belonged to the ex-estate of Kujanga (Bhurdwan ex-estate).
II. History of Kujang Ex-Estate
2. This Quilla was permanently settled under Regulation XII of
1805. It covered an area of 369 sq miles (955.673 sq kms) containing the
main estuary of the Mahanadi river (Orissa District Gazetteer, Cuttack,
1906, 1933 and1992). The Sendha family created the Quilla and held it
from 1643-1868 after subduing the neighbouring chiefs. On the advent
of the British, the Raja executed an agreement for payment of Peshkush
of 11, 503 which was reduced to 7,503 in 1883, on the Raja agreeing to
keep the embankments in repair and construct new ones wherever
necessary. (District Gazeteer, Cuttack, 1996, page 549) (Annexure B1).
After the Great Famine in 1866 the Sendha family fell into debts and the
estate was then sold for 3.5 lakhs of rupees to the Maharaja of
Bhurdman who held it till abolition under the estates Abolition Act,
1952. The estate was under the Court of Wards from 1885-1902. In 1887
the estate was surveyed with rearrangements of village units into 461.
These villages were reduced to 408 in the last settlement as a result of
amalgamation and division.
3. In the 1887 survey, no record writing or rent settlement was
made. In Dalziel settlement an amicable settlement was made amounting
to Rs 1, 19,595. Rents were high and average rent under occupancy
holding was Rs2-5-0 (Rs 2.31) per acre. The rent charged for betel garden
of which there were many, varied from 50- 75 per acre. This is also
indicates how far back betel gardens were established in this area.
The Sairat income of the estate was largely derived from jungles but
there were some profits from markets, fisheries and others. There were
extensive jungles nearer the coast which were subsequently reclaimed on
patta basis but were largely encroached upon and subsequently settled
after the abolition of the zamindari under the lease principles of the
government. (District Gazetteer, Cuttack, 1996 - first published in 1906,
followed by 1933). Kujang estate was a permanently settled estate which
differed from temporarily settled estates in both the fixity of rent as well
as that permanent settled estates were not cadastrally surveyed and no
record of rights were prepared unlike the temporarily settled estates
which were surveyed and settled by the time the Orissa Tenancy Act was
framed.. Therefore though the customary rights of tenants in the
temporarily settled estates were well known it was not the case in
permanently settled estates which were still regulated by customs.
However, these permanently settled estates were later surveyed during
1922-32 and they thus had the opportunity of the main provisions of the
Orissa Tenancy Act being applied to these estates also. The passing of
the Tenancy Act has improved the status of the tenants especially in the
temporarily settled estates whereas in the permanently settled estates as
Kujang the relationship between landlord and tenant were strained and
the tenants displayed a remarkable ignorance of their rights under law.
(page 197, Bihar and Orissa Gazetteers, Cuttack , 1933 (Annexure B2 ).
III. Geography of Kujang ex-estate (1930)
4. The Kujang forest block was situated in two disjointed bits one of
which lies in the police –station Ersama and the other in the police
station Tirtol and Mahakalpara being separated from the former by
villages like Dhinkia, Abya Chandrapur and Kansarpatia . The area of
both the patches has been found to be 53,911.07 acres or about 84. 24
sq km after survey. The total population of the forest block is estimated
to be 11,715 and the forest block comprises of 32 villages. (Final Report
on settlement of Kujang Forest Block 1959- 66, Annexure B3, page 34).
5. The Erasama portion lies within 86 degrees 28’ to 86 degrees 35’
longitude and 20 degrees 6’ to 20 degrees 13’ latitude (see map of Kujang
forest block,Cuttack in Final Report on settlement of Kujang Forest
Block 1959-66 by S.N.Hota, IAS). In this portion lie six units of Kankan
(forest block 205), Bhuyanpal (207),Dhobei jungle (204), Barakud(206),
Jatadar (208) and Jatarthanda (209). It is the Jatadar unit (2373.87
acres) which is the specific project site and is bounded by Nuagaon
,Palonga,Govindpur, Dhinkia and Bhuyanpal in the North,
Jatadarthanda on the south and East and Barkud in the West. This
area can be viewed on survey of India Topo-sheet No. 73 L/12 and covers
two periods 1929 and 1972.
6. The Kujang ex-estate was vested in the government (Revenue
department Notification No. 6934- EA –29/52-R) on 27 November, 1952,
page 9, Annexure B3). After this the administration of the forest was
taken over by Anchal Adhikari, Kujang. Large areas of the estate had
been leased out by the ex- intermediary and there was neither map nor
systematic record of rights of the lands leased out. The total area of
forests of Kujang Anchal prior to vesting with Revenue department was
55, 501 acres (22, 461 hectares) of which some 25, 692 acres (10.397
hectares) were leased to local people and some Midnapur settlers by the
Zamindars. Some 7228 acres (2925 hectares) were taken by Paradeep
Port as per Political and Services Department Notification No. 192.P
dated 6th January, 1958.
IV. Survey of 1958 and Record of Rights
7. On June 7, 1958 the Revenue Department’s notification was
issued to initiate a survey to and record of rights be prepared in respect
of Forest blocks of Kujang Tahsils lying within the external boundaries of
Ersama, Tirtol and Mahaklapada police stations in the district of
Cuttack. Some of the particulars recorded in the survey and settlement
are as follows;-
i) The name of the tenant
ii) The class to which the tenant belongs (Tenure holder,
raiyat, occupancy raiyat, non-occupancy raiyat, tenure holder,
permanent or not etc)
iii) The situation and quantity and one or more boundaries of the
held by tenant or occupier)
iv) The name of the tenant’s landlord,
v) The rent payable at the time of records –of-rights,
vi) If the rent is gradually increasing and the steps of increase,
vii) The mode of rent fixation,
viii)The rights and obligations of each tenant in respect of water
agricultural use and water source.
V. Rights of `encroachers’ not settled.
8. However, this settlement specifically did not cover “encroachers”
i.e, those in cultivation of lands who could not establish that they had
either tenancy or lease rights under the zamindar. This was the result of
a decision of the government that all encroachments in Kujang Block
would be treated as `objectionable’. Given the uncertainty about which
areas had been leased and which had not, the net result is that the
settlement would not have covered many of those cultivating forest lands
(Annexure B3, page 42).
VI. Ex- Zamindari forests transferred to Forest Department.
9. On 31, October 1957 a resolution No. 18636- EA. XI- 5/57-R
(Annexure B3, page 9-10) was passed by the Government of Orissa,
Revenue Department to transfer the management of ex-zamindari forests
from Revenue Department to the Forest department for the sake of better
development, utilization and exploitation of forests. However, Revenue
officers will continue to have powers to issue permits for unreserved
species in order to meet the requirements of tenants for domestic use.
Permits for all forest materials in reserve forests and for reserved species
in unreserved ones will be issued by the forest officers.
VII. Forest lands and Waste lands in Kujang Block notified as
10. On October 4th, 1961, vide notification No. 33237 of the
Development (Forest) Department, the Government of Orissa further
declared all wastelands and forest lands in Kujang Block and other forest
blocks to be protected forests ( Annexure B3, page 11).
VIII. Notification states that there was no prior recording of rights.
11. It is important to note that both of the above notifications were
issued under the proviso to section 29 (3) of the Indian Forest Act, which
was applicable to the area at the time.
Section 29 reads as follows:
“Protected forests – (1) The State Government may, by notification
in the official Gazette, declare the provisions of this chapter
applicable to any forest-land or wasteland which, is not included in
a reserve forest but which is the property of Government, or over
which Government has proprietary rights or to the whole or any
part of the forest produce of which the Government is entitled.
2) The forest- land and waste-land comprised in any such
notification shall be called a “protected forest”.
3) No such notifications shall be made unless the nature and extent
of the rights of Government and of private persons in or over the
forest-land or waste-land comprised therein have been inquired
into and recorded at a survey or settlement, or in such other
manner as the State Government thinks sufficient. Every such
record shall be presumed to be correct until the contrary is proved:
Provided that, if, in the case of any forest-land or waste-land , the
State Government thinks that such inquiry and record are
necessary, but that they will occupy such length of time as in the
meanwhile to endanger the rights of Government may, pending
such enquiry and record, declare such land to be a protected
forest , but so as not to abridge or affect any existing rights of
individuals or communities.”
12. In the instant case, the notifications invoked the last
proviso- i.e. they were issued despite the lack of any recording of
rights. The 1961 notification, for instance stated:
“Whereas the nature and extent of the rights of the Government
and private persons in or over the forest lands and waste lands
known as Kujang Forests….[ specified forest lands] have not been
enquired into nor recorded at a survey or settlement
And whereas the State Government think that such enquiry and
record are necessary in case of the said forest lands and
wastelands but that they will occupy such length of time as in the
meantime to endanger the rights of Government;
Now , therefore , in exercise of the powers conferred by section 29
of the Indian Forests Act, 1927 (Act XIV of 1972) and in supersession
of all previous orders on the subject the State Government
do hereby declare , pending both enquiry and record, the said
forest lands and wastelands in the said Kujang ,Kilpal, Daltangarh,
Harshipur, Morichipur and Bishnupur forest areas, fully described
in the Schedule annexed hereto which are the property of the
Government to be protected forests and that the provisions of
Chapter IV of the said Act shall be applicable to such forests lands
and wastelands but so as not to abridge or affect any existing rights
of individuals or communities.”
14. Further, for effective management of the forests, the Indian
Forest Act was amended in its application to the merged territories by the
Orissa Amendment Act XI of 1954 which inserted section 20- A to that
Act. Under this provision of law any forest land or wasteland in the
merged territories which had been recognized by the ruler as reserved
forest in pursuance of any law, custom, rule, order, working plan or
register, etc immediately before the merger shall be deemed as reserve
forests under the Indian Forest Act. All other forests which were
recognized in the merged territories as Khesra forests or village forest, etc
shall be deemed to be protected forest under the Indian Forest Act. The
Indian Forest Act 1927 was repealed on enforcement of the Orissa Forest
Act, 1972 which came into force w.e.f. 14th July, 1972. This Act follows
the Indian Forest Act with minor variations. Under Section 81 of this Act
forests recognized in the merged territories as Khesra forests, village
forests or protected forests other than reserved forests by whatever name
designated or locally known shall be deemed to be protected forest under
IX. Rights and Concessions in Killa Kujang
15. The resident tenants were allowed to take wood from the
jungles on payment of a fee Rs-4-0 (Rs 0.25) per annum for each
household (Orissa District Gazetteer, Cuttack, 1992). On payment of a
fee of Re.0-4-0 the tenant obtained a permit which entitled him to take
20 maunds of dry fuel and certain amount of wood for agricultural
implements, as well as some creepers for thatching. Some classes of
Jagirdars were exempted from the fees. The landlord reserved portions of
the jungle from time to time. A cess called Bankar at the rate of Re 0-4-0
per family is realized. Villagers paying Bankar were allowed to remove
free 30 maunds of firewood and other timber required for agricultural
improvements per annum.
Forest Ecology and Riverine systems of Kujang Forest Block
I. Physical Features.
16. A detailed picture of the physical features of this forest block
can be found in R.L Derry’s (District Forest Officer, Puri Division)
inspection report of 2nd January, 1930. (Annexure B3, pages 34-37). He
stated in this report that the area was a typical mangrove swamp
formation along the coast. In the estate it forms a well defined band
running the whole length of the eastern or coastal boundary. Derry
“The forest in this tract is the typical mangrove formation found in
estuaries subject to tidal inundation. Having no previous
experience of them I imagine they resemble the forests of the
Sunderbans region of Bengal. In place, as near the old Garh-
Kujang, it is hardly 2-3 miles broad. Higher up around Hookitola
and Falsepoint the band widens to a breadth of 8 or 10 miles. The
tract is typical of deltaic swamps and consists largely of low marshy
saline islands interlaced by a network of creeks and rivers. These
islands are formed from accumulation of silt deposits brought down
by many rivers of the Mahanadhi delta, and subsequently stabilized
by the mangrove tidal forests that spring up. The older and higher
group of the inside islands is often free from inundation at High
tide and subject to partial inundation only at spring tides. On the
Western boundary, on the landward sides, the high ground
gradually merges into the cultivated alluvial formations behind.”
II. Record of dependency of residents on forests.
17. In the settlement report of 1893 the following are the
important revenue yielding forests supplying fuel and wood for building
purposes of the residents of the estate :-
1. Piasal Ptero carpus marsupium
2. Sisu Dalbergia latifolia
3. Kendu Diopyros melanoxylon
4. Kurum Adina cardiflora
5. Suam Soymida febrifuga
6. Gambhari Gmelinaar arborea
7. Tinia Albizzia lebbeck and
8. Asan Terminalia tomentosa
9. Karonj Pongamia glabra
10. Sanari Cassia fistula
11. Mohul Bassia latifolia
12. Bel Aegle mamurelos
The above trees are found in upland un-inundated forest.
18. The type of vegetation found in marshy tidal formation are the
1. Sundari Rhizophore mucronata
2. Bhuasuni Avicenia alba
3. Bani Hibiscus tiliaceus
4. Sisumar Carapa ovata
5. Rasunia Bruguiera speciosa
6. Bada Chakunda Caesalpinia nuga
7. Chota Khajuri Phoeniaz paludosa
8. Kia Pandanus tectorius
9. Jamu Syzygium
19. In his report Derry states that there is no sharp line dividing a
large number of species of these types for they gradually merge from one
to the other. In the marshy localities there is commonly a narrow strip,
rarely more than 200 yards in breadth which is regularly inundated by
the tides. Along these strips are to be seen the numerous species with
their characteristic still like roots and pneumatophores, Rhizophora
mucronate, Avicenia, Sonneratia, Bruguiniers, Kandelia and Carapa
20. In the upland areas the dense forests changes to the open
parkland type, with extensive and often sandy glades and isolated groves
of trees with or without undergrowth. In the open areas Kochila is
common and in the sandy a common mixture consists of Ber (Zizyphus),
cashew nut and poonang (Callophyllum inophyllum). After 1930, these
physical features have changed to the extent that thousands of acres of
forest land have been converted to paddy lands.
Traditional system of Agriculture that prevailed among the local
Oriya communities in this area.
I. Cultivation in forest land.
21. `Kandhachas’ is a cultivation that needed clearing of big
patches of forest for cultivation of paddy on a co-operative basis. The
cultivators used to reside there temporarily and carry on agriculture. As
soon as the agricultural activity is complete they come back to their
villages which are outside the forest leaving one or two people to watch
over the crop. This supervision is carried out on a rotation basis. When a
particular operation is needed to be done then the entire group moves to
the spot to construct temporary structures. However, different people
take up different activities such as fishing, repair of implements etc. It is
however understood that the crop belongs to the entire group and they
share equally. The ‘Khanda’ is known after the name of the group leader.
Some of these ‘Khandas’ are about hundreds of acres in extent and the
membership of the group goes up from 50-60 in some cases. Hence, the
land is held un-fragmented in this customary practice. However, during
the settlement ‘Khandha Chasis’ have been recorded as encroachers on
government land, as they have entered the forest block. It is an ancient
form of cultivation practice and uses the fertility of forest soil to grow
paddy. (Final report on settlement of Kujang Forest Block 1959- 66,
Annexure B3 ,page 39).
II. History of Betel Vine Cultivation in Kujang Estate
22. A history of the cultivation of betel vine is quite old, going back
to the 19th century and is reported (Bihar and Orissa Gazetteer,
Cuttack, 1933, page 89-90, Annexure B2) as follows-
“The cultivation of the climbing vine called betel (piper betel) the
leaves of which are used to wrap up supari chewed by Indians of all
ranks and classes, is not extensive. It was introduced by some men
of Barua caste who came from Bengal and settled down in Cuttack.
It is still grown for the most part by men of this caste , but it is no
longer confined to them as the profits of the crop have attracted
other castes, and now Khandaits, and indeed even Brahmans
The finest betel were reported to have been grown at Barkud in the
Kujang estate, where the immigrant Baruas first settled ; and the greater
portion of the district, especially the markets in the Kendrapara
subdivision is supplied with betel leaf from their plantations. It is
interesting to note in this report that betel requires the most careful
cultivation; but the crop is extremely valuable and the large profits amply
repay the labour and expense which it entails. It is estimated that
average life of the garden is 18 years – at the end of that time it grows to
a height that it has to be abandoned. Presently after such a cycle of 18-
20 years the betel area needs to be relocated to a fresh site and new
garden planted. It is still practiced like this today among the project
Majority Report of the POSCO Enquiry Committee Section 2: Potential Impact of Project
Potential impact of the Project on Coastal Land use pattern, Ecology
of river and sea marine life systems and on Economy and
Forest cover and Land Use Pattern
I. Coastal Land-use Pattern
1. The Project affcted villages fall in Jagatsinghpur district, an
eastern coastal tract adjoining the Bay of Bengal. The district is bordered
on the north by the Mahanadi and its riverine delta providing the rich
alluvium soil that makes the district fertile for paddy cultivation with an
average production greater than the rest of the state. The project site lies
on the North western bank of the Jatadharmohan river creek. Villagers of
Nolia Sahi hamlet live close to this estuary and depend mostly on fishing
for a livelihood.
2. The geomorphology of the area (REIA report of the POSCO steel
plant, 2005) show gently undulated coastal plains interlaced with tidal
creeks. There is a system of sand dunes along the shoreline which act as
barriers for flood tides to enter the villages as well as act as recharge
zones supporting an elevated water table stopping the ingress of saline
II. The land use pattern and forest cover of the Project area
3. This has been analysed from satellite data (Liss IV Mx &
Cartosat) with geo-referenced revenue cadastral showing project area and
forest land (1253.225 ha). The forest land having forest cover is 868.560
ha and the remaining forest area with non-forest cover is 384.665 ha.
(Vegetation analysis of POSCO proposed steel plant, October 2006-2007,
by Spatial Planning and Analysis Research Centre Pvt. Ltd.
Bhubaneswar, Annexure B-4).
Non-forest cover/ land use Area (ha) %
1. River and Water bodies 58.27 15.15
2. Betel vines 30.075 7.82
3. Burrow pits (for Betel vines 22.61 5.88
4. Sandy area 139.80 36.35
5. Aquaculture Ponds 0.79
6. Agricultural activities 42.12 10.95
7. Other miscellaneous use 91.00 23.66
Total Forest land with non-forest cover 384.560 100.00
4. The vegetated land (868.56 ha) within the forest land was
delineated after further masking non -forest cover areas. The vegetation
analyses (based on GPS inputs of typical vegetation class/ signature
data) is as follows:
Vegetation Types within forest land Area (ha) % Area
1. Casurina 285. 99 34. 08
2. Mixed ( Predominantly Cashew) 190. 87 21.97
3. Scrub 381.71 43.95
Total area under vegetation 868. 56 100
5. The density class of vegetations within Forest land , using
advanced NDVI image method was categorized as Dense, Moderately
Dense, Open and Sparse as follows:
Density Index as per NDVI Area ( ha) % Area
1. Dense 3.51 0.41
2 Moderately Dense 73.59 8.47
3. Open 418.83 48.22
4. Sparse 372. 62 42.90
TOTAL 868.56 100.00
Assessment of average canopy density of the forest land
Vegetation type Area (Ai)(ha) Avg. canopy
1. Dense Casurina 1.64 0.79
2. Moderately Dense Casurina 38.67 0.58
3. Open Casurina 165.26 0.38
4. Sparse Casurina 90.41 0.13
5. Dense mixed 1.63 0.31
6. Moderately dense mixed 31.89 0.21
7. Open Mixed 94.17 0.12
8. Sparse Mixed 63.17 0.07
9. Scrub 381.71 -
10. Non-Forest cover 384.665 -
Ecology and hydrological systems
I. Evidence of existence of Mangroves.
6. The area shows a typical ecological succession of non-mangrove
vegetation in this area. Earlier there were mangroves but due to the
establishment of Paradeep Port a lot of the mangroves were cut in the
1960s and remaining mangroves were uprooted due to the super cyclone
of 1999 in this area. The upland area free from tidal influx is covered
with sub humid evergreen vegetation dominated by Phoeneix sylvestris,
Acacia arabica, Azadirechta indica, Albizzia lebbeck and Ficus
bengalensis etc. Species diversity index is medium indicating a diverse
type of vegetation with Casuarina equistiflora and Anacardium
occidentate dominating in the area of project villages.
II. Jatadharmohan creek.
7. The Jatadharmohan creek lies north-east-south-east between
Mahanadi in the north and Devi river in the south and is a tidal creek
with its mouth about 3.5 km south west of Abhay Chandrapur village.
The course of this tidal channel runs almost parallel to the shoreline for
about 10 km from the mouth from where it branches into a number of
small distributaries in different directions in their winding pattern. The
course of the river is separated from the sea by an elongated sandy
barrier split, which has a maximum width of 400m. These sandy ridges
are interpreted as the remnants of beach dune ridges representing the
former shoreline position. Based on the existence of the beach ridges
even up to 7 km inland it is surmised that the shoreline was up to
Trilochanpur village in the geological past. It is noted by satellite images
that considerable deposition is going on both sides of the mouth leading
to the extension of this elongated sandy features as a result of which the
creek mouth is clogged by sediment. (REIA, steel plant, POSCO) On the
other hand a considerable erosional activity has been observed in the
landward part of the river near the confluence and seasonal erosion
along the coastline of the confluence. (REIA report, Captive Port, POSCO,
2005, pg 33-34, Annexure B- 5).
III. Bio diversity of the Estuary:
8. The Jatadhar river mouth forms the northern portion of the
Restricted Fishing Zone which the Orissa state government has declared
under the Orissa Marine Fisheries Regulation Act, 1982. Due to its
critical location lying midway between the stretches of the Mahanadi
delta and the Devi river confluence, it serves as a major ecotone for
diversified biological systems and is a sporadic nesting site for Olive
Ridley sea turtles along the sandy beaches. The main nesting places for
mass nesting of turtles is at Gahirmatha Marine sanctuary, the Devi
river mouth (7 km from Jatadhar river mouth) and at Rushikulya river
mouth. Each of these sites has been given legal status. Due to the close
proximity of the port site to the Devi river mouth the nesting habitats
and nesting could likely be impacted. Mass nesting is very unique to this
coast and occurs in the Ridley turtles. The congregations of sea turtles
are not stationary and the turtles select varying nesting sites at beaches.
Mechanised fishing has already endangered the turtles and the
cumulative effect of different minor ports coming up along the east coast
of Orissa is likely to have a significant negative impact on the turtles.
Other endangered species are the horse shoe crab (Tachypleus giger and
Carcinocorpeus rotundicauda ) which live only in Orissa waters. They
have a strong preference of beaches having sand particle size in the
range of 63- 125 mm where they come for nesting. The Olive Ridley turtle
also has a preference for the same beaches. Hence, dredging operations
are likely to have a negative effect on these endangered animals. Besides
these animals, the estuary serves as an important spawning and
breeding ground for several species of fish.
9. The release of pollutants and wastes from ships as well as oil
spills both small and big over time into the estuary would lead to a
modified ecosystem eliminating the eco-sensitive organisms. The
handling of iron ore from the proposed steel plant is likely to create a
cumulative accumulation of metallic contaminants into the estuary. This
will impair the physiological functions on the marine organisms. Besides,
some organisms like mussels can accumulate toxic metals in their
tissues causing toxicity to people eating them.
10. The impact of illumination because of the port illumination
being close to the mouth of Devi River (about 7 Km) may disorient the
turtle hatchlings making their way into the sea. Over the years the
intensity of illumination from the Paradeep Port has intensified although
located at a distance of 50 km from the Gahirmatha nesting site. (letters
of Prafulla Samantra, President, Lok Shakti Abiyan, 26-8 –2010 to the
Committee and Biswajit Mohanty, Wildlife Society, Orissa, to Chairman,
Orissa State Pollution Control Board on 13th April, 2007 and Kartik
Shanker, Ashoka Trust for Research in Ecology and the Environment,
Bangalore, to Orissa State Pollution Control Board, 14-4-2007,
Annexures B-6, B-7, B-8 )
IV. Impact on fresh water aquifers in the project site.
11. In Ersama block of the project site fresh water aquifers occur
between 73 m to 340 m depth below ground level. (EIA report on
integrated steel plant, 2005). The villagers of this area told the
Committee that the water is sweet and the sand too is sweet. Studies
show that saline water aquifers occupy the top strata and fresh water
aquifers occupy at the bottom with high artesian/sub-artesian pressure
heads. The interface layer or Aquicludes range between 50m and 300m
below ground level. So the exploitation of ground water through digging
of wells may cause ingress of saline water and loss of agricultural
V. Impact on coastal dunes
12. The presence of dunes in this area serves for coastal protection
and stability. It helps keep the cyclonic tides surges from ingressing
inland into agriculture lands and villages. It also provides for supply and
recharge of fresh water aquifers. Additionally it forms the habitat for
several plants and animals. Development of the steel plant, port and
other infrastructure will flatten out the dunes and create negative impact
on both fresh water aquifer and biodiversity and increase the
vulnerability to tidal surges of sea water inland.
VI. Impact of loss of coastal mangroves and other bio-shields on
vulnerability to cyclone damages
13. The frequency and intensity of cyclones hitting the Orissa coast
in the past century have gone up. Massive deforestation of coastal
mangroves for development of ports (such as Paradeep port in the 1960s’)
and conversion to other commercial activities has made the coast
vulnerable to the effect of cyclones and tidal surges. For example the
destruction of mangroves in Ersama (in the Project area) was one of the
main reasons that this area experienced more damage to crops and
people at the time of super cyclone in 1999 as compared to other areas of
the coast having extensive mangrove forests. Ersama block reported
8000 deaths and the tidal waves entered 10 km into the land. However,
the coastal district of Kendrapara which is just north west of
Jagatsinghpur which had a fair mangrove forest suffered less damage.
From the1960s Orissa has lost 45% of it’s mangrove forests (Disaster
dossier: The impact of climate change in Orissa, Richard Mahapatra,
Infochange News and Features, March 2006, Annexure B-9). The
economic losses to the state in 30 years have gone up 27 times. Hence
the cumulative effect of development of multiple ports on the east coast
are likely to have a long term damaging effect on coastal ecosystems as
well as a spread effect on inland ecology and way of life.
14. Thus, the inclusion of the aquatic area upto 12 nautical miles
and water area of tidal influenced water bodies in the draft CRZ
amendment notification, 2010 has been done none too soon. Hazard
mapping of the coast for monitoring sea level rise of the coast on the
basis of degree of coastal erosion has been included in this notification.
No projects will be allowed to come up in the high erosion zones while
medium erosion prone areas Comprehensive EIA will be required. No new
projects will be allowed to come up in CRZ I zones .These are areas that
are ecologically sensitive such as National parks/sanctuaries,
mangroves, coral reefs as well as areas close to breeding and spawning
grounds of fish and other marine life.
Impact on the livelihood of the people
I. Predominantly rural agricultural community.
15. The communities living in the project site are pre-dominantly
rural with a lower percentage of urban population (10 %) as compared to
the State average of 15 %. However, the population density of this area is
higher (633 per sq km) than in the rest of Orissa (237 per sq km). The
agricultural land holding per family in this area is 1.19 ha as compared
to 1.3 ha in the state. The landholding pattern here is that 40 % of
families have less than one hectare of land, 30 % have 1-2 ha, 8 % have
2-4 ha and 3 % have more than 4 ha land. The number of landless
families is 19 %. (REIA, POSCO steel plant report, 2005). However, being
part of the rich alluvial Mahanadi riverine delta the productivity of the
land in this area is 28 % higher than the state. The average household
income is Rs 40,000 per annum according to the REIA report; however,
this figure is disputed by others, including a group of American
researchers who have made a submission to the Committee. Betel vine
income contributes significantly to the cash economy of the area's, and
is an important source of employment for agricultural labourers
especially women from within the area . Paddy cultivation is also
undertaken, predominantly for self-consumption.
II. One third of population is Scheduled Caste.
16. The total number of families in the project affected Gram
Panchayats of Dhinkia, Nuagaon and Gadkujang are 3350 ( Census,
2001) and total population is 22, 000. Almost a third of the population
belongs to the Scheduled Castes constituting a higher percentage than in
other areas of the state. The Scheduled Tribe population are less than 1
% in this project area. Only the village of Polanga out of the 8 villages
has 23 tribals (Census, 2001).
17. The literacy figures indicate that 30- 40 % of males/females
are illiterate. The Approximately 11 % in the males and 3 % among the
females have received intermediate level education. 6% of males and 3%
of females have received graduate to professional level education.
III. Sustainable and diversified livelihoods
18. In spite of the frequency of cyclones and tidal surges damaging
their crops and plantations the people of this coastal area have been able
to recover and continue getting a sustainable production from the
diversity of production systems that they put their land under. Though
the land holdings are small the value of different crops such as paddy,
betel vines, cashew and other tree crops have yielded a sufficient income
to keep them at a middle income class status. The people look healthy
with very little malnutrition among the children. The committee saw a
number of very old people during our tour of these villages. This is not
generally the case of many rural areas where poverty levels are high. Dr
B.D. Sharma, former SC/ST Commissioner while visiting this area
“ the people are having the trinity of Paan, Dhan and Maach (betel,
paddy and fish), the essence of life”.
The contribution of abundance of high protein fish to their diet has
definitely provided the people a balanced diet and kept their degree of
malnutrition levels low as compared to inland areas.
IV. Presence of sand dunes provides a unique combination of ‘sweet’
water along coastal zone ideal for betel vines cultivation.
19. The combination of “sweet” fresh water, climatic conditions and
the presence in a coastal zone has provided a near unique combination
of circumstances that are ideal for the cultivation of betel vine crops.
This makes the area one of the betel production centres of the country,
and it was widely reported by the people of the area that the famous
“Banarasi paan” is in fact sourced entirely from this area. A point that
was repeatedly raised in the area is that these agro-climatic and soil
conditions are not replicable and hence any form of rehabilitation cannot
replace the perennial crops and livelihood stability offered by this area.
20. The “sweetness” of water and their sand dunes they say is a
sign that Gods have favoured them and kept the ingress of salt water
coming in. One of the reasons they give is the height of their village sand
dunes which are charged with fresh water that is drinkable and also
good for irrigation of their crops. The heights of the sand dunes are
important for yet another reason that is it keeps the tidal waves from
ingressing inland. They also told us that there were extensive mangroves
in this area which have been destroyed over time due to repeated
cyclones as well large scale removal for developing the port in Paradeep
in the 1960s. Now casuarinas have been plan as a protective coastal
shield. They also mentioned that these casuarina plantations and other
forest stands are protected by the people through forest protection
committees, which undertake voluntary patrols on a rotational basis.
There is no official support, financial or otherwise, for these committees.
21. The local economy is based on paddy cultivation, betel
cultivation and income from tree crops such as cashew as well as prawn
cultivation in ponds on the banks of the rivers. According to estimates
given to us by the villagers there are 5000 betel vines grown in three
Panchayats, which are tended by 10, 000 cultivators.
22. There are various estimates of betel vine cultivation. A “project
research team” of American researchers which made a submission to the
Committee has stated on the basis of their investigation, that
approximately 85-90% of the population are either cultivators of betel
vines or wage labourers (whose primary employment is in betel vine
cultivation). They further estimate that the income from betel vine
cultivation is on the order of Rs. 37,000 – 40,000 per decimal. Wage
labourers received “Rs. 150 for plucking of betel leaves, Rs.180 to Rs.200
for carrying of sand and re-layering of sand mixed mustard dust in the
betel vine slots, and Rs.220 to Rs.240 for the work of untying and
reburying the betel vines”, in addition to two meals a day. Wage
labourers had little difficulty in finding work when required.
23. Another estimate mentions that the average annual income
from this cultivation is Rs 1 lakh per acre with another Rs 1 lakh for
other ancillary employment. (Manshi Asher, Striking while the Iron is
Hot, National Centre for advocacy Studies, February 2009, Annexure B-
10, pages14-15). Many of the landless families depend on basket making
for packaging paan or work as daily labourers on the betel vine
cultivation for their livelihood. Around 30 lakh paans are transported to
Mumbai, Bangladesh, Pakistan and Saudi every year.
24. In the summer the cashew cultivation provided the main
livelihood. A family earns Rs.20,000 per season on an average as
reported. An average cashew tree yields 100 kg of nuts a year worth Rs
4000. About 50 % of the families are engaged in pisciculture chiefly
prawns. An acre of farm ponds yields prawns worth Rs 7 lakhs a year.
Many other families fish in the estuary –all 108 families of Noliasahi
hamlet which lies close to estuary. The average daily catch per person is
about 20 kg. The hamlet as a whole sells 1.5 quintals of fish every day,
the daily earnings per family ranging from Rs 100 – Rs 5000. A
significant amount of catch is transported and sold in Cuttack (Manshi
Asher, 2009, Annexure B-10, page 15). It is estimated that 20,000 –
30,000 fishermen, many of whom do not themselves reside in the project
area, are dependent wholly on estuary fishing for their livelihood.
25. Another source of income is from a succulent plant called
Kewara that is collected mainly wild in their habitat . Perfume is distilled
from these leaves on a cottage industry level and sold.
VI. Dependence on Forests and Forest lands
26.The vast majority of betel vine, cashew and kewara cultivation
takes place on forest land, while most paddy cultivation takes place on
private and revenue lands. The land near the shore is particularly
important for betel vine cultivation, which requires large quantities of the
'sweet' sand (which is mixed with mustard dust) in this area.
27. People also rely on the forest for forest produce such as
vegetables and fruits, which are a major part of their diet. Both the
POSCO Pratirodh Sangram Samiti and the American researchers
contended in their submissions before the Committee that these are a
crucial source of food (and nutrition) for the people of the area. The
villagers also displayed many such items before the Committee during
28. In addition, forest produce such as casuarina leaves and other
materials are used in the construction of the sheds and other items for
betel vine cultivation.
VII. Impact of the project on extent of displacement from land and
29. These findings are based on the Socio-economic study done on
project affected villages/families by Xavier Institute of Management,
Bhubaneshwar, in January 2008 for POSCO-INDIA. It was done in two
phases, the first phase study focused on project displaced households
(those losing their homes as well as land) and the second phase study on
a broader context of overall project affected families (those not losing
homesteads but lands /livelihoods). Due to the tension and blockade
within some of the villages against POSCO entering the area the Xavier
team could not themselves visit the villages to collect field data. They
instead trained some local NGOs to collect the data on these parameters
(Socio-Economic report by Xavier Institute of Management, pages 4-8,
2008, Annexure B-11). The consultants supervised them. In their
report the consultants state that reliability of data therefore was in
question and that critical information on sensitive matters such as
land particulars could not be ascertained properly and hence there
were gaps in the data. They also stated that field volunteers had taken
a lot of risk to visit these villages and talk to people.
30. In light of these caveats it is very difficult to rely on the data in
this “socioeconomic study.” The findings are reported here for
appreciation, but it should be noted that they are at variance with data
reported by others, including published works on the area and the
submission of a group of American researchers to the Committee. Some
of the important findings reported in the first phase of study are :-
i) The number of displaced families is 7 villages are 718 of which
466 are original families and 252 are separate families as per the
definition in the Orissa Resettlement and Rehabilitation Policy
(ORRP) . Out of 718 displaced families 611 ( 85 % ) are from
Dhinkia, Govindpur and Noliasahi villages. Hence the displaced
families are predominantly from these three villages. The term
“displaced” here is used to refer to those who are losing their homes
as well as lands; others are considered “project affected families.”
ii) The displaced families are generating a net income of Rs 7
million per annum. The same caveat regarding the concept of
“displacement” however is noted.
iii) Average income per family /annum has been reported to be Rs
14, 100/-. As mentioned earlier, this figure is at sharp variance
with other reported studies of the area, including that by the
American research team which has made a submission to the
Committee. It is also at variance with the figures reported later in
the study for project affected families.
iv) 42% of families pursue betel vine cultivation as a major
occupation, 20.5% families pursue fishing and 11.7% families are
wage earners in agriculture sector. Only 13/ 718 (2 %) families
pursue agriculture. (Report on Socio-economic study by XIM part
II, volume 1, page 9, Annexure B11). It is surprising that such a
small percentage of people are pursuing agriculture and throws
doubt over this data.
v) The majority of the displaced families said they were residing and
cultivating the lands since their forefathers. Only a small number
said that they were there recently.
vi) Status of ownership showed that 10.45 % were landed with
27.44 % being legal heirs and 60.58 % being landless. This very
high figure of land less families is at variance with the apparent
situation on the ground.
vii) Some of the important findings during the Second Phase of the
study to identify Project Affected Families (PAFs) (Xavier Institute
of Management, 2008 ,Socio-Economic Study of POSCO site)
viii) The study covered the same 7 villages of three GPs of Dhinkia,
Gadkujang and covered 3578 respondents who were considered
project affected families or PAFs. On calculation these 3578 PAFS
would be the total no of families of the all these 7 villages (as per
2001 Census data the total number of families of these villages are
ix) The main occupation is betel vine cultivation with 2362 families
(66%), 477 families (13%) being wage earners and only 62 families
(2%) dependent on agriculture and 132 PAFs ( 4 % ) depend on
fishing and prawn cultivation. The villages of Noliasahi and
Bhuyanpal are predominantly concentrated on fishing and prawn
x) Women are predominantly employed in betel vine cultivation.
xi) Average income of betel vine cultivators is nearly 5.6 times
more than those cultivating crops.
xii) 46% of PAFs earn a range of income between Rs 25, 000- Rs
50,000, 36 % earn from Rs 50, 000- Rs 100,000 and 10% of PAFs
fall below Rs 25,000 income bracket.
xiii) Status of land use is reported as the following:-
xiv) 1562 PAFs (44%) possess legal title (both individual and joint)
for agriculture land .
xv) 552 PAFs (15.4 % ) do not have legal titles for the lands.
xvi) 1037 PAFs ( 29 %) are encroachers cultivating betel vine in
forest lands. They are mostly Scheduled Caste communities.The
extent of such land cultivated could not be ascertained due to the
xvii) 1980 PAFs ( 53 % ) have mentioned that they are cultivating
crops on encroached lands since their forefather’s time.
xviii) 2299 PAFs ( 65 %) are cultivating betel vines in forest lands
xix) 1374 PAFs ( 38% ) are dependent on fishing or prawn culture
ponds on forest lands since many generations.
xx) Betel vine cultivation provides major source of livelihood to 68
% of the PAFs.
31. On the basis of the facts mentioned above the committee has
come to the following conclusions –
i) Total land required for the project from the 8 villages belonging
to 3 Grampanchayats
ii) All 8 villages are together going to lose a total of 4004 acres of
which 3566.32 acres (89%) is government land (forest land
included) and 437.68 acres (11 %) is private land.
iii) In the category of government land being acquired 2958.79
acres (83 %) is forest land and 607. 53 acres (17 %) is non-forest
iv) 73 % of total land going to be acquired by POSCO belongs to
the three villages of Dhinkia, Nuagaon and Govindpur. These
three villages together are cultivating forest land which is 58% of
the total land to be acquired by POSCO. Hence the maximum
protest against POSCO is being waged by these 3 villages as they
stand to lose a sustainable and diverse livelihood if these lands
are acquired by POSCO-India. There are some proportion of
families in these villages who are not opposed to POSCO.
v) All families in these villages (total number of 3578 families as
per census 2001) are going to lose land whether partial or total
and have come under the category of PAFs. So 718 (466 + 252)
displaced families in these villages of 3 Gram Panchayats are a
subset of the total families of 3578 which are going to be affected
by the Project. In the opinion of the Committee, loss of one’s land
or source of livelihood is as devastating as physical displacement
from one's homestead land.
vi) Since most of the land being acquired is Government land
(forest) and they do not have titles/forest rights whatever
compensation they may get will not give them a level playing field
to negotiate as compared to their having legal titles. The betel vine
cultivation in forest land is an important source of income to
Majority Report of the POSCO Enquiry Committee Section 3: FRA & Forest Clearance
Forest Rights and the Forest Clearance
1. On June 26th, 2007, the Orissa government applied to the Ministry of
Environment and Forests for clearance under section 2 of the Forest
Conservation Act to divert 1253.225 hectares of forest land for the
proposed steel plant and port. On August 9th, 2007, the Forest Advisory
Committee recommended the proposal for in principle clearance. As
described in the Introduction of this report, as a result of the April 27,
2007 order of the Supreme Court, this recommendation was
automatically placed before the Court, who sent it to the Central
Empowered Committee (CEC) for review. The CEC recommended the
project for clearance subject to the following conditions:
(1) Instead of piecemeal diversion of forest land for the project, it would
be appropriate that the total forest land required for the project
including for mining is assessed after considering the ecological
importance of the area, number of trees required to be felled,
adequacy and effectiveness of the R&R plan for the project affected
persons and benefits accruing to the state. The diversion of forest
land for the steel plant, without taking a decision for the linked
uses particularly the mining project may not be in order.
(2) Due to the large number of trees to be felled (2.8 lakhs) the CEC
suggested that an independent expert committee should visit the
site in order to assess the impact and suggest mitigation measures.
2. On August 8th, 2008, the Supreme Court approved the FAC
recommendation. While appointing a committee to look into the second
concern, the Court did not engage with the first issue raised by the CEC.
3. On September 18th, 2008, on the basis of the Supreme Court order,
the Ministry of Environment and Forests granted in principle forest
clearance for the diversion of 1253.225 hectares of forest land for the
project. On December 3rd, 2009, the Orissa government submitted a
compliance report stipulated in stage clearance, and final forest
clearance was then granted on December 29th, 2009.
4. In the interim, on January 1st, 2008, the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006
(henceforth Forest Rights Act) was notified into force, recognising and
vesting the rights of forest dwelling Scheduled Tribes and other
traditional forest dwellers on forests and forest lands.
5. The Forest Rights Act has direct implications for the forest diversion
process, a point to which we will return below. First, however, we
examine whether there are in fact eligible persons and forest rights in the
proposed project area.
Part I. Eligibility of the People of the Area under the Forest Rights Act
6. A major point of contestation in this area has been the question of
whether any persons are eligible for rights under the Forest Rights
Act. In section 2(c) and 2(o), the said Act provides for two
categories of eligible forest rights holders: forest dwelling Scheduled
Tribes and Other Traditional Forest Dwellers.
7. The Orissa Government has at various points sought to contend
that the Forest Rights Act has no relevance to this area as no
persons in the area are eligible under either category. A statement
of this argument was made by Shri U.N. Behera, Principal
Secretary, Environment and Forests to the Government of Orissa,
in his letter dated August 13th, 2010 to the Ministry of Environment
and Forests (Annexure C- 4). This was as follows:
(1) The reading of definition of OTFDs show two ingredients, the
requirements of residence inside forest lands and second,
dependence on forest land for three generations (75 years) as per
Forest Rights Act, 2006.
(2) Originally this area was under the Bardhaman Raj estate and as
per the provisions of Orissa Estate Abolition Act, 1951 the said
estate was vested in the State Government with abolition of all
(3) Section 8 (1) of the OEA Act provided that any person who
immediately before the date of vesting of an estate in the state
Government was in possession of any holding as a tenant under an
intermediary shall be deemed to be a tenant of the State
government with same rights and subject to the same restrictions .
(4) He goes on to say that under sub-section (3) of section 8-A if no
claim was filed within the specified period, the right to possess the
land , building or structure stood vested in the state government by
operation of the Act and therefore the right to make any such claim
by the intermediary or any other individual stood extinguished.
(5) The Burdhaman Raj Estate in November 27, 1952 got vested in the
government vide Revenue department and the lands in Touzi No.14
(Kujang estate) passed to the State government. (Annexure B 3,
(6) The ex- intermediary filed rent roll against all the lands in respect
of which he had created tenancy rights in order to allow them to
continue as tenants under the state. These tenants got enrolled in
the “Tenants Ledger” of the village and they started paying rent to
the government as a token of possession of such land. The date of
filing has been extended from time to time till 1983.
(7)He thus claims that since this settlement process was closed and
as there was no one left out without his claim be settled these
people who are producing records for lands that have not been
settled in their favor have faked the documents and are thus
(8) None of the villages in Nuagaon and Dhinkia GPs formed a part of
30 forest blocks transferred to DFO, Athagarh in 1957. Only
Bhuyanpal and Jatadar villages formed a part of unsurveyed forest
blocks, the remaining 6 villages did not form a part of any
recognized forest block.
(9) On 4th October 1961, the government of Orissa in Development
(Forest) Department published a notification U/s 29 of the Indian
Forest Act 1927 declaring the forest lands and wastelands of
Kujang as protected forest. Thus the lands that had not been
covered in the 30 forest blocks and became protected forests must
have been wastelands. ( C 5).
(10) Though the requirement of residence inside the forest land
has been dispensed with by the Ministry of Tribal Affairs in their
circular No. 17014/02/2007-PC ( V0l 111) dated 9 June, 2008, the
second ingredient ,i.e. dependence on the forest land for 75 years
prior to 13-12-2005 remains mandatory ( C 6). In sum, as the
land was not forest and there are doubts over whether the persons
now claiming rights were present in these lands. On both counts,
it is argued, these persons are not eligible as Other Traditional
Forest Dwellers under the Act.
8. A large number of residents of the area, particularly those opposing
the project, dispute all these claims and assert their eligibility as other
traditional forest dwellers under the Forest Rights Act. They also assert
that there are forests dwelling Scheduled Tribes within the project area.
9. In light of this major area of contestation, it is first necessary to more
closely examine the language of section 2(o) of the Act. The section reads
“Other traditional forest dwellers “means any member or community who
has for at least three generations prior to the 13th day of December, 2005
primarily resided in and who depends on the forest or forest land for bona
fide livelihood needs.
Explanation: For the purpose of this clause, “generation” means a period
comprising of twenty five years.
In light of this, the ingredients of this definition are as follows:
(1) any “member or community”, implying that proof for every
individual claimant is not required. The word “community” is
otherwise used in the Act to refer to the village (for instance, in
section 2(a) defining “Community Forest Resource”), and the same
meaning can be taken here.
(2) Has primarily resided. In June 2008, the Ministry of Tribal Affairs
(C3) clarified that the words “primarily reside in” in sections 2(c)
and 2(o) of the Act should not be taken to mean physical dwelling
on forest land. It is sufficient to establish dependence for bona fide
livelihood needs on forests or forest lands to establish primary
residence. In order to establish residence, then, establishment of
dependence on forests or forest land is sufficient.
(3) In forests or forest lands. The term “forest land” is defined in section
2(d) of the Act to mean “land of any description falling within any
forest area”. Thus, the land upon which either residence or
dependence is established must be within a forest area. Moreover,
one must note that this is not limited to lands under the Forest
Department but includes any land under the “jungle kisam” (Letter
entitled, “Grant of titles to eligible STs and other traditional forest
dwellers under ST & OTFD (RFR) Act, 2006 dated 11-2-2010 by
Shri R.K.Sharma Commissioner–cum- Secretary to Government of
Orissa an addressed to all Collectors) (Annexure C-9).
(4) Depend on forest or forest lands for bona fide livelihood needs. The
language is used in the present sense, it is open to claimants to
prove residence as such on forest or forest lands from prior to
1930, or to prove dependence from prior to 1930, which then
establishes primary residence as per the Ministry circular. A key
point here is that what is required is proof of dependence, which is
distinct from occupation of forest land. One can be dependent on
forests or forest land through activities such as minor forest
produce collection, grazing, use of water bodies, etc; which do not
necessarily involve actual cultivation of the land. Overall,
dependence in the sense of the Act refers to the exercise of the
rights contained in section 3(1) of the Act.
9. In sum, a community claiming to be other traditional forest dwellers
has to establish either:
· Residence in the sense of dwelling on lands that are now classified
as forests or forest lands from prior to 1930 ;
· Dependence , in the sense of the Act , on forests or forest lands
from prior to 1930; where in both cases the term “forest land” is
understood to mean land of any description within a forest land.
10. In light of the above, we examine each of the Orissa government's
I. Prior Settlements in the Area
11. The Orissa government contends that this area would have been
subject to settlement on numerous occasions and all rights recorded.
11. First, the Committee notes that the Forest Department notification
dated October 4th, 1961 (No. 33237-D), under which the majority of the
land in question was declared protected forest, states that:
“The nature and extent of the rights of government and private
persons in or over the forest lands and wastelands known as
Kujang forests in, Mahabalpara, Ersama and Patkura police
stations in Cuttack district, Daltangarh forests in the police station
of Tirtol in Cuttack District, Harishpur forests in the police station
of Ersama in Cuttack district have not been enquired into nor
recorded at a survey or settlement.
And whereas the state government think that such enquiry and
record are necessary in case of the said forest lands and
wastelands but that they will occupy such length of time as in the
meantime to endanger the rights of the government.
Now, therefore, in exercise of the powers conferred by section 29 of
the Indian Forest Act, 1927 and in super-session of all previous
orders on the subject the state government do hereby declare,
pending such enquiry and record, the said forest lands and
wastelands in the said Kujang, Kilpal, Daltangarh, Morichipur and
Bishnupur forest areas, fully described in the schedule annexed
here to which are the property of government to be protected
forests and that the provision of chapter IV of the said Act shall be
applicable to such forest lands and wastelands but so as not to
abridge or affect any existing rights of individuals or communities”.
12. It should be noted that this notification was issued under the proviso
to section 29(3) of the Indian Forest Act. Section 29 of the Act explicitly
permits the State government to declare any “forest land or waste land”
to be protected forest on the basis of a survey or settlement or indeed any
recording of rights “in such other manner as the State Government
thinks sufficient.” It is only if the State government itself is convinced
that no proper manner of recording has been done that the proviso to
section 29 (3) can be invoked and a notification of this nature, namely
one that declares a protected forest while barring abridgement of existing
rights, can be issued. Clearly, therefore, in 1961 the position of the State
Government was that no survey or settlement had taken place in these
13. As per the working plan of the Athgarh Forest Division, the
remaining 30 blocks referred to in the Orissa government's letter (as
being transferred to the DFO Athgarh in 1957) had been declared
protected forest through Revenue Department Notification No. 1630-IX-
52/55 EA dated 6th March 1956, which too had been issued under the
proviso to section 29(3) and therefore also constituted a statement that
rights had not been recorded in these forest areas. Thus, the Orissa
government itself stated that no record of rights had been prepared for
these areas either, and hence no such record existed for the entire area
that now is proposed for the project.
14. In regard to the Estates Abolition Act, the District Gazetteer of
Cuttack of 1996 (Page 587) (Annexure B-1) describes the settlement
process under the Estates Abolition Act as far from perfect contrary to
what the Principal Secretary, Shri U.N. Behera claimed. A large number
of cases were in “Bebandobast” status (i.e. the case had not been
decided at the time of settlement) even on revenue lands and cultivated
areas. Even at the time of publication of the Gazetteer in 1996, 11,615
cases involving nearly 10, 000 acres were still pending for disposal- more
than four decades after vesting had been completed. This indicates the
manner in which settlement has been done in these areas.
15. Further, the Estates Abolition Act settlement was concerned with
recognising tenancy rights, whereas the Forest Rights Act makes no
distinction between tenants and occupants; even unauthorised
occupants of the zamindar's lands, and those dependent on the forests,
are dependent in the sense of the Act. The same is true of subsequent
deadlines for claims under the Estates Abolition Act.
16. In regard to the Kujang Forest Settlement of 1961, the
Committee notes this settlement was aimed at recording those who
had received leases from the zamindar. It specifically did not cover
“encroachers” i.e, those in cultivation of lands who could not
establish that they had either tenancy or lease rights under the
zamindar. This was the result of a decision of the government that
all encroachments in Kujang Block would be treated as
“objectionable”. Given the uncertainty about which areas had been
leased and which had not, the net result is that the settlement
would not have covered many of those cultivating forest lands
(Annexure B-3, page 42).
17. The Committee finally notes that in principle prior settlements are
not relevant to rights recognition under the Forest Rights Act. As
mentioned above, the Forest Rights Act was enacted as per its preamble
to rectify the failure to record and recognize rights during the declaration
of government forest lands. It is in short intended precisely to address
the failures in prior settlement operations under various laws, and such
settlement operations cannot be privileged over the Forest Rights Act
process unless the latter is to be rendered entirely infructuous.
Moreover, Section 4 (1) of the law states that “notwithstanding anything
contained in any other law for the time being in force, and subject to the
provisions of this Act, the Central Government recognizes and vests the
forest rights in the forest dwelling tribes and OTFDs in respect of all
forest rights mentioned in section 3.” Thus all prior vesting of any rights
in the State government is overridden by this law, and the vesting in
government under the Estates Abolition Act stands overridden insofar as
it concerns community and individual rights recognized by the FRA.
Since the FRA is intended to rectify the gaps in other legal mandates,
vesting under this law overrides all other mandates.
18. One may mention that the same logic applies to verification/
regularization of pre- 1980 claimants to land rights on forest land. Such
verification is done under the 1990 guidelines issued by the Ministry of
Environment and Forests under the Forest Conversation Act. One must
first note that the implementation of these guidelines has been very poor.
The same was admitted by the Ministry in an affidavit before the
Supreme Court in July 2004. (Filed in IA 1126 in IA 703 in Writ Petition
202/95, T.N.Godavarman. Thirumalpad and Ors. Vs. Union of India and
Ors on 21-7-2004) ( C 7). This can be seen, in this context, from the
fact that in the entire State of Orissa, only several thousand people have
been found eligible under these guidelines, while at least 2,33,000
individual claims have been approved in the State under the Forest
Rights Act as of September 2010. The reason for this wide discrepancy is
that, as with the Estates Abolition Act, the Central guidelines imposed
onerous requirements in the form of requiring a Primary Offence Report
from the Forest Department as the only admissible form of evidence for
pre-1980 occupation (para 1.5 of circular No.131/90/FP (I) dated 18-9-
1990). Naturally such documents are not available with the vast majority
of forest dwellers. Further, the process of verification under these orders
and guidelines is purely bureaucratic, with no scope for popular
participation or accountability. As such, the failure to record any person
under these processes cannot be considered evidence of eligibility or
otherwise under the Forest Rights Act.
II. The Historical Nature of the Project Affected Areas
19. The State government is seeking to claim that the villages of Dhinkia
and Nuagaon fell outside the forest area and therefore their residents
cannot be considered OTFDs.
20. It must first be noted that whether or not the village fell on
technically classified forest land is not of much relevance to the question
being sought to be answered. As noted above, physical occupation of
forest land is not required to show dependence on forests.
21. Second, this argument applies, in any case, to only part of the project
area. There is no dispute that the forest areas of Bhuyanpal and
Jathadar, both of which are today revenue villages (the former with a
number of residents), were forests. There is no dispute that the forest
area of Bhuyanpal included land under cultivation at the time of
declaration as a protected forest. These blocks fall within the project
area and therefore prima facie would include other traditional forest
22. Third, the State government is assuming that since the 6 villages of
Dhinkia and Nuagaon GPs were not transferred as part of 30 Kujang
forest blocks to DFO Athgarh in 1957 along with Bhuyanpal and
Jatadar (all geographically close to each other) they did not form part of
any recognized forest block. In itself the mere exclusion of these areas
does not establish that there were no forests in these villages, only that
such forests were not included in the particular blocks that were
23. Indeed, as per the village settlement maps of 1927-28 for Dhinkia,
Govindpur and Nuagaon villages, large areas within these village areas
have been classified as Gramya jungle and Jhaun jungles and tree
symbols have been depicted in and around these villages (Annexure D-1,
D-2 & D-3). The cultivated plots are scattered among or adjoining these
forest areas, clearly establishing primary residence, in the sense of the
Forest Rights Act, of the concerned cultivators and villagers on forest
24. In sum, there is evidence of the presence of forests within the villages
of Dhinkia, Nuagaon, Govindpur, Bhuyanpal and Jatadhar. In the case
of the former three villages this is conclusively established for a period
prior to 1930, along with the presence of cultivation within the forest. As
such, the Committee finds no merit in the contention that these were not
forested areas and that there were no forest dwellers in these areas.
III. Primary Residence of Persons For Three Generations
25. The next contention of the Orissa government is that the current
residents were neither resident in nor dependent on forests for a period
of 75 years.
26. We first note that, as discussed above, that the revenue maps
indicate prima facie that there were cultivators in the villages of Dhinkia,
Nuagaon and Govindpur who were primarily resident in these forest
areas in 1927 - 1928.
27. Second, documentary evidence was produced by villagers before the
Committee relating to dependence on forests and forest lands. The most
important of these types of evidence was receipts for payment of forest
cess, or bonkar. Receipts have been submitted to the committee that
belonged to people whose current descendants are still residing in
Govindpur village. There are lineages of people going back to three or
more generations. A person named Bhima Naik is shown on the cess
receipts, whose grandsons Babaji Naik, Nanda Naik and Pagali Naik are
currently resident in Govindpur. These receipts were numbered 67781,
13179, 2681 and many others (see Annexures D-6, 7,8), which were
dated1912,1923, 1926, 1933 etc. They are fuelwood, water and forest
cess receipts. Two other persons, Hadi Naik and Bhaba Dalei, are shown
on a reciept no 34532 dated 12 March, 1926; their descendants are also
still living in the village (Annexure D-9). Another lineage goes back to
Dhobei Khatua whose forest cess receipt No 30117 dated 23 December,
1938 is with his grandson Nishakar Khatua residing in Govindpur village
28. The nature of this Bonkar cess is described in the Cuttack Gazetteer
of 1996 in the following terms:
“The resident tenants were allowed to take wood
from the jungles on payment of a fee of Re. 0-4-0
(Re 0. 25) per annum for each hearth. On payment
of re. 0-4-0 the tenant obtained a permit which
entitled him to take 20 maunds of dry fuel and
certain amount of wood for agricultural
implements , as well as some creepers for
thaching. If a tenant wanted more than 20
maunds he was charged for the excess at certain
fixed rates. Six pice per maund was charged for
dry fuel. Outsiders were charged at double the
scheduled rates. Timber for house building was
obtained by the resident tenants at certain fixed
rates. The Forest Enquiry Committee have
recorded the rights and concessions in Kujang as
“A cess called Banakar at the rate of Re 0-4-0 per
family is realized. Villagers paying Banakar are
allowed to remove free 30 maunds of firewood and
other timber required for agricultural implements
per annum.” (pp 42-43)
29. The payment of a forest cess was recorded, as such, as evidence of a
concession / right as per the Forest Enquiry committee. One might also
note that, at page 41, the section of the Cuttack Gazetteer containing the
above is headed, “Rights and Concessions” and concerns the issue of
forest management. As a further reference, section 3(1) (b) of the Forest
Rights Act included nistari rights as forest rights under the Act. The
rights exercised in this area were of the same nature as nistari rights,
and, indeed, on page 28 of the Cuttack Gazetteer of 1996, these rights
are referred to as nistari rights.
30. In sum, payment of Banakar constitutes evidence of use of forests
for livelihood purposes in the sense in which the same is meant in the
Forest Rights Act, and the existence of such receipts with currently
resident families is conclusive evidence of the presence of other
traditional forest dwellers.
31. In addition to these receipts, there are also receipts for cess for
growing Betel vines in the forest areas going back to 1927. The amount
fixed is for the existence of Betel vine and the current deposit was Rs 7
11 anna, 03 pahi and local cess was Rs 03. A certain Shama Das, caste
Bauri of Dhinkia village, is recorded as having 27 decimals of betel vine
cultivation in a settlement manual, 1927, form 73 ( D 4, page). There
are paan baraj cess receipts from Govindpur village too. The Khatiyan (or
record of rights) for Pan barrage No 110 dated January 5th, 1931
belonged to Giridhari Bardhan (tenant) of Govindpur village, whose
grandsons are still living. They are Padmacharan Bardhan,
Purnachandra Bardhan and Nimaicharan Bardhan, all residing in
Govindpur village (Annexure D-5). These latter receipts also constitute
evidence of livelihood dependence on forest lands in the sense of the Act,
and therefore are evidence of the presence of other traditional forest
dwellers in these villages.
32. Oral information from local residents regarding forests and migration
history give interesting records of the type of forests with mangroves and
even man eating tigers like those of the Sundarbans. One woman aged
80 years, Sulaba Swain of Dhinkia village told the Committee that a
Britisher had come to her village to kill a tiger. She also related that her
grandfather had first come to this village. Another elder, Bhasker Manthe
of Dhinkia village (90 years) has old pattas dating back to 1889 and 1930.
33. In addition to those residing in the area, the Kujang Forest
Settlement report of 1961 records the existence of fishing rights in the
creeks of Kujang forest block. These rights were recorded in a Sanad
issued in 1851 for “Sarapentha Macchadia” for exercising their right
of fishing permanently. This was a right exercised by 99 villages
pertaining to 57 fishing areas (Annexure B-3, Page 57, 83 of the
settlement Report on Kujang Estate). Presently, as per testimony of
villagers, at least 8 areas mentioned in this list of 57 fishing areas fall
within the project area. The right of these villages to continue to receive
the fishery lease was recognized by the Cuttack High Court in FAO
34. It should be noted that fishing is a recognized community right under
section 3(1) (d) of the Forest Rights Act. As the said fishing takes place
within a forest area and constitutes dependence on forest lands for
livelihood needs, and documentary evidence exists to show exercise of
this right by these communities since 1851, those exercising these rights
are also Other Traditional Forest Dwellers in the meaning of the Forest
Rights Act and their rights are also required to be recognized.
35. In light of the above evidence, the Committee finds that there are
other traditional forest dwellers, in the sense of the Forest Rights Act,
residing in the project area and/or dependent on the project area. The
Committee sees no merit in the Orissa government's contentions in this
IV. Presence of Scheduled Tribes in the Project Area
36. As per the Census 2001 and the voter list, there are 21 adult
Scheduled Tribe persons residing in Polanga village (Gadkujang GP) and
the ward member is a female ST (in fact, the seat is reserved for STs).
The family names of these tribes are Hembram and Murmu. This village
of Polanga lies within the project affected area and would be displaced
entirely due to the project.
37. The Committee thus finds that there are also Scheduled Tribes
within the project area.
Part III. Implementation of FRA in the Project Area
37A. The State government has claimed that the Forest Rights Act
implementation in the area is complete. As no claims were reportedly
received prior to June 23, 2008, the process is now closed. The
Committee has considered the implementation of the Act on the basis of
the records provided by the Committee below.
I. Election of Forest Rights Committees in Proposed Steel Plant and
38. Across the State of Orissa, palli sabha meetings3 were called on
March 16th and March 23rd, 2008, for the purpose of initiating the
process of implementation of the Forest Rights Act and electing Forest
Rights Committees. Not all Palli Sabhas in the State met on those
dates, but these were the publicly announced days.
39. The Palli Sabhas in the area of the project are as follows:
Dhinkia Gram panchayat
Nuagaon Gram panchayat Nuagaon
Gadkujang Gram panchayat
40. The State Government has stated before the Committee that all the
six Palli Sabhas of the project area met on March 23rd, 2008 for the
purpose of electing Forest Rights Committees. It has submitted to the
Ministry of Environment and Forests, in its letter of March 15th, 2010,
3 The palli sabha, or assembly of the revenue village, has the same powers in Orissa as the
gram sabha has in other States. For the purposes of the Forest Rights Act, all
implementation in Orissa has taken place through the palli sabhas.
(Annexure A-21) a set of copies of resolutions passed in the various
Palli Sabhas on that date. The same documents have been provided to
the Committee in a more extensive form, along with some signatures,
and along with records of meetings subsequently held in the villages of
Noliasahi, Bhuyanpal and Nuagaon in January 2009. The government
has also provided a chart indicating the dates on which palli sabha
meetings were held and the decisions taken.
41. Many of these claims were disputed by various parties that appeared
before the Committee. We first note the serious problems in the evidence
brought before the Committee, then discuss the major dispute relating to
Dhinkia village, and finally summarise the events in the other villages.
II. Nature of Evidence Submitted
42. The Committee notes that neither the State government nor those
disputing its claims have been able to produce the panchayat or palli
sabha registers for this period from any village. Till date the Committee
has only seen one panchayat register, namely that of Nuagaon, and that
for the period of 2009. The documents produced by the State government
are not copies of the register but typed and cyclostyled formats which
then appear to bear signatures of government officials, the sarpanch and
various others on them. The government has said that these formats
were used throughout the State. The Committee also notes that certain
scanned versions of the purported panchayat registers were sent to its
members by the Campaign for Survival and Dignity, and it was shown
photocopies of the register during its visit.
43. None of these documents is in fact a legally valid palli sabha
resolution. A valid resolution of the palli sabha is that transcribed in
the palli sabha register or the panchayat register. Those produced by
the State government would acquire validity only if they were transcribed
in or otherwise entered in the register, while the scanned versions and
photocopies produced by various other parties cannot be accepted as
evidence unless the original is made available.
44. During the second visit to Orissa in September, 2010, the Committee
met the new Principal Secretary of Forests and Environment. The
Committee requested him to verify from the Collector, Jagatsinghpur
about the existence of Panchayat registers containing Palli Sabha
resolutions referred above. The Secretary telephonically contacted the
District Collector and was informed that there were no such written
resolutions in the registers but only those filled in government formats.
The Collector denied the existence of the Palli sabha resolution written in
the Panchayat register of Nuagaon village which was shown to the
Committee members during their visit to that village.
45. In light of these facts, the Committee has proceeded on the basis of
the submissions by various parties, but notes that it cannot verify any of
these submissions conclusively.
III. Dispute Regarding Resolution Passed by Palli Sabha of Dhinkia
on March 23rd, 2008
46. There is no dispute regarding the fact that a palli sabha meeting took
place in the village of Dhinkia on March 23rd, 2008. The State
government claims that this meeting passed a resolution electing a
fifteen member Forest Rights Committee and invited claims to be filed
within a three month time period, i.e. that the resolution passed was that
recorded in the standard format.
47. Sisir Mahapatra, the present sarpanch of the Dhinkia gram
panchayat, and several other villagers in the village, assert that a
completely different resolution was passed. This resolution, they claim,
asserted that the people of the area have been residing there for more
than 300 years, that they have individual and community forest rights,
and that the palli sabha decides under section 5 of the Forest Rights
Act to protect the forests and lands of the area. It also elected a Forest
Rights Committee. They claim that no government officials were present
at the meeting. At the time elections had not been held in the gram
panchayat of Dhinkia as a result of the conflict over the project, and Mr.
Mahapatra presided not in the capacity of a sarpanch but merely as
president of the palli sabha.
48. Mr. Mahapatra has submitted an affidavit to the Committee stating
that when he attempted to submit this resolution at the panchayat office,
the secretary refused to accept it, instead insisting that this resolution
had no value as it was not in the State government's format for electing a
Forest Rights Committee. He states that he therefore filled out the
format with the names and signed it as well. This, however, was not the
resolution of the palli sabha, he stated.
49. It is claimed by the POSCO Pratirodh Sangram Samiti that copies of
this resolution were sent by registered post on March 24th, 2008 to the
Collector, Sub-Collector, BDO Ersama and the Chief Secretary. Receipts
have been produced to this effect. (Annexure C-14). A scanned version
of this resolution has also been circulated by the Campaign for Survival
50. This resolution – referring to other traditional forest dweller status,
invoking section-5, etc. has since been referred to by various persons
and parties on several occasions. The earliest appears to be a May 16th,
2008, letter by Shri D Raja, Member of Parliament, to the Prime Minister
(Annexure C- 15) in which he referred to this resolution in these terms.
The same reference has also been made by the POSCO Pratirodh
Sangram Samiti and groups supporting them at various times, including
in the Samiti's representation to this Committee.
51. In the absence of the register, however, it is impossible to
conclusively verify either the State government's claim or the claim that a
different resolution is passed.
IV. Election of Forest Rights Committees in Other Villages
52. In C 13, the Committee has noted events in each of the villages on
the basis of the official record, as well as the disputes that have been
raised. In summary, the main findings are as follows:
(1) The quorum of 66% was not met in any of the villages during March
23rd , 2008 or subsequent Palli sabha meetings.
(2) There are disputes regarding the resolutions passed in Dhinkia and
(3) In Bhuyanpal and Noliasahi, the record states that the Palli Sabhas
first resolved not to constitute an FRC as there were no OTFDs in the
villages and then constituted one nevertheless a year later. The
Committee is unable to understand how this occurred. Moreover,
neither of the purported 2008 resolutions in these villages has any
signatures attached. Whether such a meeting took place at all in
Noliasahi is disputed by the Gadkujang panchayat samiti member,
who is a resident of Noliasahi.
(4) There appear to be two purported resolutions of the meeting that took
place in Nuagaon on 23.3. 2008.
53. In light of the above, the Committee finds that the election of Forest
Rights Committees – the first step in the forest rights recognition process
as per the Forest Rights Rules – cannot be said to have taken place
satisfactorily in the project area. The entire process has been vitiated by
lack of quorum. Moreover, the facts are disputed and there is no
conclusive evidence in favour of any party.
V. Composition of the Sub-Divisional Level and District Level Committees in the Area
54. The Forest Rights Act and Forest Rights Rules vest several specific
responsibilities and functions in the two higher bodies that function
above the village level: the Sub Divisional Level Committee and the
District Level Committee.
55. Section 6(8) of the Forest Rights Act and the concerned Rules provide
a specific composition for both the Sub Divisional Level and District Level
Committees. Each is to consist of three government officials, namely
representatives of the Tribal Welfare (or equivalent), Revenue and Forest
Departments, along with three members of the Panchayat Samiti (in
the case of the SDLC) or the Zilla Parishad (in the case of the DLC).
The latter are to be nominated by the Zilla Parishad. This 'balance'
between official and non-official representatives was a subject of debate
in Parliament as well, and the result of an assurance given by the
Minister of Tribal Affairs to the Rajya Sabha on December 18th, 2006.
The Minister informed the House that “We have already taken a view that
the Committee should be balanced. There will be six members. Three are
to be nominated by the Panchayat, of which two must be from Scheduled
Tribes, and one woman; and of the other three representatives, there will
be one each from the Revenue, from the Tribal Affairs and from the
Forest. Is it all right? I am clear about this.”
56. In the POSCO project area, the concerned Sub-Divisional Level
Committee was constituted on 18.03.2008 with the following members:
(1) Sub-Collector, Jagatsinghpur District
(2) Three Panchayat Samiti members, nominated by the Zilla
Parishad president on 17.03.2008; there appears to have been no
decision of the Zilla Parishad
(3) Two Assistant Conservators of Forest, one for Cuttack and one for
(4) The District Welfare Officer
57. The minutes submitted by the Orissa government to the Committee,
however, show an inconsistent pattern of people who have signed as
members at SDLC meetings. Such meetings were never confined to the
seven members in the original notification, and in all cases others have
signed (in the case of the last meeting for which minutes were submitted,
that on 05.11.2009, 13 people have signed).
58. Additional people who have signed as members include:
Meeting Additional Persons Signing as Members
SDPO of Jagatsinghpur; BDO of Jagatsinghpur,
BDO of Biridi, “Tdv” of Ersama, and a “WEO”.
No panchayat samiti members present.
Range Officer of Kujang; Tehsildar Ersama;
Tehsildar, Biridi; a revenue officer; a “WEO”.
Two panchayat samiti members present.
Tehsildar, Ersama; Forester, Kujang; Gram
panchayat Executive Officer in charge, Ersama
block; Executive Officer of Padmapur GP; FRC
secretary, Padmapur; BDO, Biridi; Gram
panchayat Executive Officer in charge, Biridi;
59. On March 4th, 2008, the District Level Committee was constituted for
Jagatsinghpur District with the following members:
(2) Two Divisional Forest Officers, one for Cuttack and one for
(3) “PD DRDA” Jagatsinghpur (presumably project director, District
Rural Development Authority)
(4)District Welfare Officer
(5) Three members of the Zilla Parishad, nominated by the Additional
District Magistrate, Jagatsinghpur, in consultation with the Zilla
60. Only one meeting of the District Level Committee appears to have
taken place (on 16.11.2009), at which all members were present except
one ZP member.
61. On the basis of the above, the Committee finds that neither the Sub
Divisional nor the District Level Committee was constituted as per the
statutory requirements in the Forest Rights Act and Rules.
VI. Actions of the Sub-Divisional Level Committee
62. A brief glance at the Rules and at some concerned Orissa
government orders shows that the following tasks are required of the Sub
Divisional Level Committee at this stage in the proceedings (i.e. during
the period of filing of claims):
(1) Publicity and awareness raising, including provision of claim forms
and training, and specifically training on community rights4;
(2) Provision of records, including forest and revenue maps, electoral
rolls, working plans, forest settlement reports, reserved forest
notifications, etc. to the Palli Sabha and the Forest Rights
(3) Collation of resolutions of the Palli Sabha 6
VI. 1. Publicity and Awareness Raising
63. As per the official records of the 23.3.2008 palli sabha meetings at which Forest Rights Committees were elected, government officials were present at each meeting and explained the Act to those present. This 4 Rules 6(k) and 6(l), Para 4 of “Frequently Asked Questions on Community Forest Rights”, letter dated 20.2.2009 of ST & SC Development Department.
5 Rule 6(b) and Para 7 of “Frequently Asked Questions on Community Forest Rights”, letter
dated 20.2.2009 of ST & SC Development Department, Government of Orissa.
6 Rule 6(c). point is disputed by the sarpanch of Dhinkia and the Panchayat Samiti
member of Gadkujang, who claim in their affidavits to the Committee that no government officials were present in the concerned meetings of the Dhinkia and Noliasahi Palli Sabhas (in the case of Noliasahi, it is claimed that no meeting took place on 23.3.2008 in any case, but such a
meeting took place later in that year in the absence of officials). In the case of Dhinkia, the POSCO Pratirodh Sangram Samiti has also argued that no government officials could have been present, as no officials were (or are) being permitted to enter this village as a result of
the protest blockade.
64. From the minutes supplied to the Committee, the Sub-Divisional Level Committee met for the first time on 26.11.2008. At this meeting the sub-Collector appears to have instructed the concerned BDOs to supply Oriya translations of the Act and the Rules, electoral rolls and revenue maps to the Palli Sabhas, as well as hold publicity and
awareness raising meetings through meetings of the Palli Sabhas and
Gram Panchayats. An action taken report on these points were to be
presented to the next Sub Divisional Level Committee meeting, but no
such report is referred to or appears in any of the subsequent minutes.
It is notable that this meeting took place eight months after the election
of the Forest Rights Committees and five months after the expiry of the
three month deadline for filing of individual claims.
65. In their affidavits to the Committee, the sarpanch of Dhinkia and the
Panchayat Samiti member of Gadkujang claim that they have received no
information, training, or documents from any government official in
connection with the Forest Rights Act till date.( s C 16, C 17).
VI. 2. Provision of Records
66. As noted above, the minutes of the 26.11.2008 SDLC meeting
contain the only reference in any of the minutes on record to the
provision of government records to the Palli Sabhas. The action taken
report in this regard is not referred to in any subsequent meeting.
67. On this point as well, the sarpanch of Dhinkia and the Panchayat
Samiti member of Gadkujang have stated in affidavits that they have
received no documents or records from any government official till date.
VI. 3. Collation of Palli Sabha Resolutions
68. It is not clear if the resolutions passed on March 23rd, 2008 were
collated by the Sub Divisional Level Committee. No reference is made in
any of the minutes to any of the villages of the project area.
69. Two other sets of Palli Sabhas resolutions do not appear to have
been collated. The Palli Sabhas held in January 2009 as a result of the
letter of the Department of Panchayati Raj were held specifically to
consider, inter alia, any decisions of the Sub Divisional Level Committee.
The SDLC meeting minutes of 24.01.2009 (Annexure C-18) refer to these
meetings and state that their resolutions have not yet been received by
the Committee. However, the subsequent meeting on 05.11.2009 makes
no reference to these resolutions (Annexure C-19).
70. On December 19th, 2009 (Annexure A-15) , as noted earlier, the
Collector asked the BDO Ersama to request the Palli Sabhas of the area
for their approval for diversion of forest land for the POSCO project; on
January 19th, 2010 (Annexure C- 20), this was forwarded by the BDO
Ersama to the three concerned sarpanches. According to submissions
made by the POSCO Pratirodh Sangram Samiti and the concerned
sarpanches, Dhinkia, Govindpur and Nuagaon met and passed Palli
Sabha resolutions rejecting the proposed diversion. However, no SDLC
meeting has been held after November 2009. Therefore, there appears to
have been no collection or collation of the resolutions that the Collector
71. In light of the above, the Committee finds that the Sub Divisional
Level Committee has comprehensively failed to perform several key
functions required of it under the Forest Rights Rules. In the absence of
performance of these functions, it is difficult to expect that the people of
the area would be able to claim their rights under the Forest Rights Act.
VII. Actions of the District Level Committee
72. As with the Sub Divisional Level Committee, the District Level
Committee has certain responsibilities under the Rules and other orders
which are relevant:
· Ensuring that records have been provided by the Sub Divisional
Level Committee (Rule 8(a));
· Provision of relevant documents for community forest rights to the
Palli Sabhas and SDLCs (Para 7 of “Frequently Asked Questions
on Community Forest Rights”, letter dated 20.2.2009 of ST & SC
Development Department, Government of Orissa).
73. The only meeting of the District Level Committee does not appear to
have considered the issue of records at all, being only concerned with
deciding on claims received from the village of Padmapur (outside the
project area). There also appears to have been no discussion about
74. As in the case of the SDLC, the District Level Committee does not
appear to have met again after the request to Palli Sabhas to pass
resolutions on the proposed diversion.
75. In light of the above, the Committee finds that the District Level
Committee too has comprehensively failed to fulfill its obligations under
the Forest Rights Act and Rules.
VIII. Implications of the Failure to File Claims Prior to Expiry of
Three Months after the Date of Invitation of Claims
76. The government has sought to make a general argument that no
claims were filed prior to June 23, 2008, when the three month deadline
(referred to in Rule 11(1)(a)) following the election of Forest Rights
Committees and the invitation of claims by the Palli Sabha concluded.
The government therefore contends that further filing of claims is time
barred and no rights can be recognised now, and therefore no further
question of implementation arises.
77. The Committee does not see merit in this contention. The following
may be taken note of.
78. Rule 11(1)(a) which refers to the said deadline is concerned with the
filing of individual claims before the Forest Rights Committee. The said
deadline does not apply to community claims, which are prepared by the
Forest Rights Committee.
79. The filing of claims is dependent not only on the people of the area,
but on the fulfillment by the government of its obligations.
80. The position adopted by the Orissa government in this regard is
inconsistent with its practice in other areas. Since Palli Sabhas were
held in most of the State on the same dates as in this area, this stand
would appear to imply that no claims should have been accepted
anywhere in the State after June 2008. The last publicly available data
published by the Orissa government on the Internet, which is dated
November 2009, shows that more than 21,000 claims were filed and
processed between March 2009 and November 2009. Indeed, to the
knowledge of the Committee, claims are still being accepted in other
81. This position is also inconsistent with the practice being adopted in
other parts of the country. Most states held initial Gram Sabha
meetings and Forest Rights Committee elections in the first half of 2008.
Yet claims are still being accepted in other States.
82. Unlike comparable statutes such as the Indian Forest Act, the Forest
Rights Act does not extinguish rights in the case of a claim not being
made. As such, in law, it would not be correct to disregard such rights
merely because claims have not been made.
83. The heavy presence of police and security forces in the area was
repeatedly cited by villagers as a deterrent to filing of claims. Such
persons said they feared arrest due to omnibus FIRs being filed in the
area, and hence could not be expected to procure evidence or obtain
information in order to file claims.
83. Rule 11(1)(a) also grants the Gram Sabha(Palli Sabha in this case)
the power to extend the three month deadline. The government has
sought to contend that this should be done within the initial three month
period. The Rules do not require this as such, and given the fact that no
deadline is specified for community claims, it would not seem a
84. As such, the Committee does not regard the failure to file claims
within the three month deadline as particularly material to the validity of
future claims. In any case the Committee notes that claims have now
been filed in July and August 2010.
IX. Recognition of Rights under Other Procedures
85. The Committee notes that the Orissa government has also taken the
stand that those ineligible under the Forest Rights Act should receive
rights as part of the regularisation of pre-1980 occupations of forest
86. Thus, a letter from Shri S C Mohanty, Principal Chief Conservator of
Forests, Orissa dated 25th February , 2010 (Memo No. 2779/ 9F (Misc)
75/09 (Vol –II) (Annexure C-10) to all Divisional Forest Officers, clearly
states, “Besides, regularization of pre- 1980 eligible category of forest
encroachments which are dealt with under the Forest Conservation Act,
1980 includes the cases of people belonging to both tribal and non-tribal
groups. These pre-25.10.80 forest encroachments can be processed for
regularization under the procedure laid down under FC Act. Under this
procedure , the claims of non-tribals which cannot be settled under the
ST and OTFD (RFR) Act, 2006 may be taken up. All such cases which
have already been approved under the F.C.Act can be settled in favour of
the eligible claimants, subject to compliance of the stipulations made by
MOEF, Government of India in their final approval order in this respect”.
Part IV. Clearance for Diversion of Forest Land Under the Forest (Conservation) Act
I. Implications of the Forest Rights Act for diversion of forest land under the Forest (Conservation) Act
86. The Committee first notes that the Forest Rights Act has specific
implications for the process of diversion of forest land. As the Forest
Rights Act vests community and individual rights on forest land (s. 4(1)),
empowers the Gram Sabha to function as a statutory authority with
ownership rights, protection rights and management powers (s. 3(1) and
5), and finally explicitly bars removal of any forest dweller prior to
completion of the recognition process (s. 4(5)), the forest clearance
process can no longer proceed without taking into account the rights and
powers of forest dwellers and the Gram Sabha under the Act. As the
Ministry has stated in its decision on the Niyamgiri mining case :
“In sum , the MOEF cannot grant clearance of
rights under the Forest Rights Act for non-forest
purposes unless :
- The process of recognition of rights under
the Forest Rights Act is complete and satisfactory;
- The consent of the concerned community
has been granted; and
- Both points have certified by the Gram Sabha of
the area concerned (which must be that of the
hamlet being a Scheduled area).
All these conditions, not any one, must be
satisfied. This is irrespective of the fact whether
people have filed claims or not.”
87. These requirements were spelled out in the August 3rd, 2009 circular
of the Ministry, (Annexure C-1) which required that all State
governments must submit the following documents when applying for a
final Stage II forest clearance:
(1) A letter from the state Government certifying that the complete
process for identification and settlement of rights under the FRA,
has been carried out for the entire forest area proposed for
diversion, with a record of all consultations and meetings held;
(2) A letter from the State Government certifying that proposals for
such diversion ( with full details of the project and its implications,
in vernacular/ local languages ) have been placed before each
concerned Gram Sabha of forest dwellers , who are eligible under
the FRA ;
(3) A letter from each of the concerned Gram Sabha, indicating that all
formalities/processes under the FRA have been carried out, and
that they have given their consent to the proposed diversion and
the compensatory and ameliorative measures if any, having
understood the purposes of the proposed diversion;
(4) A letter from the State Government certifying that the diversion of
forest land for facilities managed by the Government as required
under section 3( 2) of the FRA have been completed and that the
Gram Sabhas have consented to it;
(5) A letter from the State Government certifying that discussions and
decisions on such proposals had taken place only when there was a
quorum of minimum 50% of members of the Gram Sabha present;
(6) Obtaining the written consent or rejection of the Gram Sabha to the
(7) A letter from the State Government certifying that the rights of
Primitive Tribal Groups and Pre-Agricultural communities, where
applicable, have been specifically safeguarded as per section 3 (1)
(e) of the FRA;
(8) Any other aspect having bearing on operationalisation of the FRA..”
88. The Committee notes that certain specific requirements that are
stated in this circular are of particular importance. These are:
1) Certification of completion of the process under the Forest Rights
Act must be made by the Gram Sabha. This is due to the fact that
the Gram Sabha is the initiating authority under section 6(1) of the
Act. As a result, as described above, the Gram Sabha decides both
when claims can be invited and until when they can be filed. As
such, only the Gram Sabha can declare the process complete, and
this is required also by basic transparency and accountability.
2) This requirement applies regardless of whether there are eligible
people or not in the area. The Act provides no separate procedure
for determining eligibility – eligibility is decided under the same
process as the claims for rights. As such, it is only the Gram Sabha
that can make the initial determination of eligibility, particularly
where there is contestation on this issue. As the Chief Secretary of
Orissa stated in a circular to all District Collectors on 04-02-2010
(Annexure C- 2).
“The decision – making authorities under the Act are clearly spelt
out. They are the Gram Sabha/Palli Sabha, Sub-divisional Level
Committee and the District level committee. It must be noted that
the role of the officials is to render proper and timely assistance to
these communities and to ensure custody of the records. No
individual officer has been given the powers under the Act to
overrule or object to the decisions of the appropriate authority,
other than filing appeal to the next higher authority as prescribed.”
3) Finally, the certification of completion of the process and of
consent of the Gram Sabha must take place prior to the grant of
final forest clearance. Some have sought to argue that the
implementation of the Forest Rights Act is not the responsibility of
the Ministry of Environment and Forests. However, forest
clearance is not concerned with implementation of the Act; it is a
situation in which a decision of the Ministry will directly militate
against the provisions of the Act. Like any government agency, the
Environment Ministry cannot act in a manner that would result in
destruction of legal rights. Further, grant of final forest clearance
without these approvals also creates a situation of legal and
administrative uncertainty – can the land be taken or not? This in
turn has a major effect on the recognition of people’s rights and
their ability to freely exercise their rights and powers under the
Forest Rights Act. The Committee finds that this is what has
occurred in the proposed POSCO project area.
4) Mere completion of recognition of rights is not sufficient – the
consent of the palli sabha must also be taken. This is now
therefore also a requirement under the Forest Conservation Act, as
this circular was issued under the latter.
II. Grant of Final Forest Clearance for the Project
89. As said earlier, on December 29th, 2009 the Ministry of Environment
and Forests granted final stage II clearance for diversion of forest land for
the project. However, at the time and subsequently, the Ministry had not
and has not received any certificate from any Palli Sabha in the area
regarding either completion of implementation of the Forest Rights Act or
consent to the proposed diversion. Thus the clearance was issued in the
absence of the legally required materials and approvals, mandated both
by law and by the Ministry’s own order.
90. When this issue was raised by eminent persons, the POSCO
Pratirodh Sangram Samithi and political leaders in January, 2010,
the Ministry on January 8th issued a “clarification” stating that without
compliance (Annexure A-17) with its August 3rd, 2009 order (Annexure
A-13), including the consent of the people of the area, the “project cannot
91. The clearance itself was not withdrawn, however. This legally and
administratively ambiguous position has continued till date, with the
project having received final forest clearance, but simultaneously this
being “conditional” on compliance. The basis of granting the original
clearance itself remains unclear.
92. The Committee finds that the grant of forest clearance in this
manner was grossly illegal and in direct violation of both the Forest
Rights Act and the Forest (Conservation) Act. The subsequent
“clarification” has not remedied this illegality, instead producing a
situation of ambiguity. The said final clearance, being illegal, should be
IV. Process of Consent in the Project Area
93. On October 24th, 2009, the Chief Secretary of Orissa forwarded the
August 3rd 2009 order of the Ministry to all District Collectors and asked
them to furnish the certificates required therein for all proposed
diversions. Gram sabha resolutions were to be attached in Oriya with an
94. This letter was forwarded by the District Collector of Jagatsinghpur
District to the BDO Erasama on December 19th, 2009, with respect to the
POSCO India project, and specifically stating that he would furnish a
certificate based on the decision of the palli sabhas.
95. On January 19th, 2010, the said letter was forwarded by the BDO
Erasama to the sarpanches of the three concerned gram panchayats
96. It was reported in the villages that on February 3rd, 5th and 6th of
2010, the palli sabhas of Nuagaon, Dhinkia and Govindpur respectively
passed resolutions rejecting the proposed diversion, asserting their
power to protect forests under section 5 of the Act and asserting their
eligibility and exercise of forest rights. Documents purporting to be
copies of these resolutions were also given to the Committee separately.
However, the concerned panchayat registers were not shown to the
Committee during its visit.
97. The State government contests the claim that these resolutions were
98. The Committee finds that, even if the State government contests the
passage of these resolutions, it cannot deny the letters of the Collector
and the BDO Erasama requesting the convening of palli sabhas. If so, it
was the duty of the State government to ascertain as to whether these
palli sabhas were ever convened, and if so what their decision was. To
ignore the entire process appears to be a suppression of evidence.
V. Land Takeover in July 2010
99. On July 27th, 2010 the Orissa government began the process of land
takeover in the project area based on the Stage 2 forest clearance. A total
of 11 acres of forest land cultivated by 96 people was taken by the state
administration (Annexure A-26) before the Ministry sent an order to stop
acquisition based on the report of violations of FRA by the Ashish
101. The Orissa government has subsequently sought to claim that what
took place was a “voluntary surrender” of land during the socio-economic
survey of the area. However, press reports (Hindu, July 28, 2010)
indicate that the socio-economic survey of the Gadkujang Gram
Panchayat (where the lands were taken) had been completed on July 1st,
2010. Other press reports from these dates repeatedly quote government
officials talking of “land acquisition” in the area.
102. Given that compensation was paid to landholders as per the
project's R&R package and that the crops on the land were demolished, it
is quite clear that this was a diversion of forest land.
103. The Committee therefore finds that this diversion was illegal. The
final clearance was conditional on compliance with the FRA and the
August 3rd, 2009 order. Neither had implementation been completed nor
had any palli sabha resolutions to this effect, or stating consent, been
sent to the Ministry of Environment and Forests. Therefore, the land
takeover was clearly a violation of section 2 of the Forest Conservation
Act, 1980 and of sections 4(1), 4(5) and 5 of the FRA Act, 2006.
Part V. Conclusions
104. Based on the above facts the following are the Committee's findings.
105. Numerous forms of evidence point to the presence of forest dwelling STs and OTFDs, as per the definitions provided in the FRA Act, 2006 within the project area beyond any dispute.
106. The Orissa government appears to be misinterpreting the law and attempting to find pretexts for denying the existence of forest dwellers in the area.
107. The Forest Rights Act process in the area has been vitiated by the failure of any Palli Sabha meeting to achieve the required quorum and the failure of the administration to fulfill its obligations to assist, support and provide records as part of the process.
108. The Orissa government and district administration have violated the provisions of the Forest Rights Act in the following ways:
(1) Failing to provide information, awareness, training or documents as required to the people and the Palli Sabhas;
(2) Usurping the statutory authority of the Palli Sabha to determine eligibility;
(3) Ignoring the powers of the Palli Sabha under section 5;
(4) Seeking to impose an artificial and arbitrary deadline in an attempt to prevent the filing of claims;
(5) Taking over land prior to completion of recognition of rights.
109. As such, process of FRA has not been implemented as per the Act in a transparent and democratic manner authorizing/ empowering the Palli Sabhas of the project affected villages to stake their claims both individual as well as community forest rights as per the letter and spirit
of the Act.
110. The final clearance by the Ministry of December 29, 2009 contradicts and violates the letter and spirit of Forest Rights Act and should be withdrawn.
111. The process of FRA should be re-initiated in a genuine and transparent manner. Those ineligible under the Act should also have their claims considered under the pre-1980 regularization process.
112. The Orissa government's takeover of land in July 2010 was illegal and in violation of the Forest Rights Act and the Forest (Conservation) Act.
Majority Report of the POSCO Enquiry Committee Section 4: R & R
Rehabilitation and Resettlement (R & R)
1. Most large development projects in India, whether they are established on
private, government or forest land, cause some displacement of people. Such
displacement seriously affects the lives of those displaced, usually adversely. Even where
people are not physically displaced from their homes, but lands owned by them, or the
lands and resources on which they depend for their livelihood, are acquired or given
away for a project, there is considerable hardship caused. Two important aspects, that
therefore need to be ensured, whenever any development project is taken up are, first,
that the number of people to be displaced or adversely affected by the project is the very
minimum; second, that for that absolute minimum number, measures are taken to reduce
the adverse impacts as much as possible and resettle them in a manner that leaves them
better rather than worse off.
2. Because the impacts of involuntary displacement due to development projects
are often severe, the Government of India as well as some State Governments have
rehabilitation and resettlement policies in place for several years now. These policies
spell out the entitlements of the persons who will be displaced, how they are to be
resettled and rehabilitated, what are the minimum facilities and benefits that they should
get, and other such details. These policies have been improved and refined over the
years. The Govt of India’s latest R & R policy is of the year 2007 (replacing the earlier
policy, Rehabilitation and Resettlement of Project Affected Families, 2003). The Govt of
Orissa’s R & R policy (ORRP) is of the year 2006.
3. One of the tasks entrusted to the POSCO Enquiry Committee was to investigate
and ascertain the status of implementation of the rehabilitation and resettlement
provisions in respect of the POSCO project. The environment clearance granted to the
POSCO project by the Ministry of Environment and Forests, on 19 July 2007 (Annexure
A- 6) states as one of its conditions (clause (xv) of the specific conditions), Rehabilitation
and resettlement plan shall be implemented as per the policy of the State Govt of Orissa
as per the revised R & R policy in a time bound manner and report submitted to the
Ministry, its Regional Office at Bhubaneshwar, and OPCB.
4. During its visit to Orissa, the POSCO Enquiry Committee learnt, from
discussions with the State Government officials as well as with the affected people, that
between July-August, 2010, 11.85 acres of forest land containing 96 betel vine units
(each unit 10-15 decimals of land) has been surrendered by PAFs who accepted 1.36
crore rupees towards ex-gratia compensation. Land acquisition has since been stopped
because of a ‘stop’ order from MOEF as a result of FRA violations reported by the
Saxena Committee. Hence assessing the implementation of the R & R package was
therefore not possible. The Committee limited itself to examining aspects such as the
extent to which the Orissa R & R Policy had been adopted for the POSCO project, the
procedure in place to identify the displaced and project affected people; whether such a
procedure had managed to capture all those who were affected and displaced; the
adequacy of the R & R package for the people displaced or affected; their satisfaction
with it; the procedure laid down to finalise the rehabilitation package, etc.
The Resettlement and Rehabilitation Policy
I. Limited definition of ‘displaced family’.
5. The Orissa Resettlement and Rehabilitation Policy (ORRP), 2006 focuses
almost entirely on families ‘displaced’ by acquisition of land and very little on families
‘affected’ by acquisition of land. It is important to point out that under the ORRP, a
family is classified as a ‘displaced family’ only if its homestead land (i.e. the land on
which its dwelling unit is located), is acquired and the family relocated. The loss of
agricultural land, either partly or fully, does not entitle a family to be classified as a
‘displaced family’, unless its homestead is also acquired. Almost all the benefits and
entitlements spelt out in the ORRP are meant for displaced families. There is also no
mention of agricultural or other labourers who may get affected by the land acquisition.
The Policy does in some cases provide benefits for families other than ‘displaced
families’, that is for those who lose part, or all, of their agricultural land, or families who
are defined as long term ‘encroachers’ on government land, but these benefits are fairly
minimal, and the families are given a lower order of preference. (ORRP, para 9,
Rehabilitation Assistance, sub paras I and II; para 10: Benefit to landless and homesteadless
encroachers) (Annexure C-25).
II. Families displaced –discrepancy in numbers.
6. The number of families to be displaced due to the POSCO project is available
from several sources. The Rapid Environment Impact Assessment (REIA) report for the
POSCO integrated steel plant, on the basis of which Environment Clearance (EC) was
granted, mentions the number of families as being 471. Subsequently, as required under
the ORRP, a socio-economic survey was undertaken by the Xavier Institute of
Management, Bhubaneshwar (XIMB) (January 2008) (Annexure B-11) to enumerate all
the families who face displacement due to the project, ascertain of their demographic
profile, occupational status, income, ownership of assets, and other details.
7. The survey covered six villages in three Gram Panchayats, i.e. all the villages
where families are to be displaced because of the POSCO project. These are Dhinkia and
Govindpur villages in Dhinkia GP, Noliasahi, Bhuyanpal and Polanga villages in
Gadakujanga GP, and Nuagaon village in Nuagaon GP. A seventh village is also to be
affected by the project, viz. Bayanala in Gadakujang GP, but in this village, as reported,
no families are being displaced.
8. According to the socio economic survey, the number of ‘original families’ to be
displaced from all the six villages is 466 (‘original family’ has been defined under the
Orissa R & R Policy as a unit in which all members live together in a single household
with a common kitchen.) The Policy requires certain other categories of persons also to
be treated as separate families (even if such persons live together in the same household
as others). These categories are: all major sons irrespective of their marital status,
unmarried daughters or sisters above the age of 30 years, widows and divorced women,
handicapped persons and orphans who are minors. These families are called ‘extended
families’ in the socio economic survey report, and ‘separate families’ in some other
reports. The number of these families is another 252 bringing the total number of
families to be displaced in the project area to 718 (466 +252).
9. The R & R package prepared for the POSCO project covers all of these
families. In addition it covers 100% agricultural land losers, partial agricultural land
losers, families who had homes on government lands, and people who undertook
cultivation on government lands (encroachers). Figures given by POSCO indicate that
the number of 100% land losers is 418 and that of partial land losers is 582 (1000), but
since several of these persons also fall under the displaced persons category, the total
figures actually add up to 2476 from the socio-economic report by Xavier Institute of
Management consultants hired by POSCO . In the same reports the total numbers of
Project affected families are given as 3578 families. Looking at the 2001 Census for
population figures for the same villages the total number of families according to this
source of data also adds up to 3578 families. In other words there were two different
figures of 1000 families and that of 2476 families who will either partially or totally lose
their land was arrived at from the same Xavier study. As seen these two figures are in
great variance from each other. Definitely, the Xavier study had a number of
methodological problems as they themselves admit. Due to the people’s resistance they
were unable to go themselves but had to send local NGO youth at their risk to collect the
data under distant supervision. They were unable to collect specific data on landholdings
of the project affected families as the PAFs were non-cooperative. No person or family
has been recognised by the government as a ‘forest rights holder’ in this area so far and
instead have been categorised as “Encroachers”. (This matter has been separately dealt
with by the Committee in a separate chapter.)
III. Rehabilitation and Periphery Development Advisory Committee (RPDAC).
10. While the benefits to be given to displaced and project affected persons (PAFs)
are expected to follow what is laid down in the ORRP, the details are meant to be worked
out and approved by the Rehabilitation and Periphery Development Advisory Committee
(RPDAC), a body mandated under the ORRP to oversee the rehabilitation process.
11. The ORRP states as follows:
“In order to encourage participation of displaced persons and their elected
representatives in implementation and monitoring of the R & R package, to
oversee and monitor periphery development, the government may constitute
Rehabilitation cum Periphery Development Committee (RPDAC) for each or a
group of projects falling in one district. The detailed composition of the
Committee shall be notified by the government and it may include people’s
representatives, one or two leading NGOs of the affected area, and select
government officers, and any other persons to be notified by the Government.
Adequate representation will be given to women and indigenous communities
(wherever applicable) in the Committee. The Chairman of the Committee will be
at liberty to co-opt members for efficient discharge of its functions.”
12. An RPDAC has been set up for the POSCO project with the Revenue
Divisional Commissioner (RDC), Cuttack, as its head and with representation from the
affected villages and other representatives. The RPDAC has so far met twice, the first
time in 2006 (as reported to us) and the second time in 2010. The Committee was
informed that the first meeting of the RPDAC was primarily meant to make people aware
about the POSCO project. The second meeting held in August 2010, however took
several substantive decisions on a number of important matters, as is apparent from the
minutes. However, the Sarpanches of Dhinkia and Nuagaon who are members of the
RPDAC committee did not attend showing that they had boycotted this meeting. (as
reported by those villagers to the committee on their first visit). The list of members who
had attended was not sent to the committee even after repeated requests to revenue
development commissioner. The maximum government land (majority being protected
forests) to be diverted for POSCO is being cultivated by the villagers of these two GPs
alone which amounts to 87 % of the total government land cultivated by all Project
affected villagers. Hence there is strong resistance to diversion from these two GPs of
Dhinkia and Nuagaon who have much to lose. This shows that the government is
unwilling to face up to the fact that even this new R&R package has not convinced or
appealed to the majority of PAFs that the compensation package is a better deal than
retaining their lands. Only a small proportion of PAFs mostly those being displaced have
been induced to opt for this new R&R package.
IV. POSCO R & R package – Is it more of the same?
13. The POSCO package for resettlement and rehabilitation follows the ORRP
more or less faithfully, improving the rates of land compensation all around and
additionally including the betel vine growers or so called ‘Encroachers’. A statement
indicating the rehabilitation package as per State Government norms, the package
initially declared by POSCO, and the package finally approved in the RPDAC is at
Annexure C-26. In some cases, as is apparent, e.g. the rates to be given per acre to
encroachers of agricultural land, to cultivators of betel vines, payments to labourers
engaged in the cultivation of betel vines, to owners of private agricultural land, the
benefits have been significantly enhanced by the RPDAC. However, the R&R package as
it is called is more a land acquisition and one time compensation for diverting the land for
POSCO especially in the case of PAFs who are literally all families belonging to these
three project affected GPs. These are a total of 3578 families. All these families are
losing either all or partially, government land that they are cultivating since their
forefathers (Socio-economic report of POSCO project site by Xavier Institute of
Management, January 2008, Annexure B11). Each of these families are on an average
earning Rs 1,00,000 to Rs 1,50,000 per betel vine unit (each unit = 10-15 decimals of
land, 100 decimals= one acre). During the Committee’s visit to the villages we were told
that each family on an average can earn Rs. 1 lakh annually from one unit of betel vines
and add to their total earnings in a substantial way as compared to one point
compensation offered by R&R which amounts to one years annual income per betel vine
unit. (Rs 1 lakh per 10 decimals of betel vine as compensation for acquisition of this land
in the enhanced R&R package).
V. Identification of displaced people.
14. As mentioned earlier, displaced families have been identified through the
socio-economic survey conducted by the Xavier Institute of Management. In order to
verify the accuracy of the list as well as to invite claims and objections from families who
might have been left out, the RPDAC at its 2nd meeting resolved to publish the list of
displaced families in the project affected villages for a period of one month, and
thereafter to finally prepare and approve the list.
15. A similar approach has been adopted for betel vine growers. The list of betel
vine growers, prepared by the Tahsildars of Kujang and Ersama would also be approved
after publication in the villages concerned, and verification of further claims. No
mention of such verification of names of prawn cultivators, land losers, affected
fishermen, those who have houses on government land, etc. has been mentioned, but it is
presumed that the RPDAC would adopt a similar procedure. However, unless the
majority of PAFs and their palli sabhas are involved in a democratic and all inclusive
manner in the R&R process and their views taken the whole exercise of mere acquisition
of land will become another battleground in these areas.
VI. Landless Agricultural Labour and fishermen not included.
16. As mentioned earlier, one category of project affected person which does not
figure in this list at all, is the landless agricultural and/or other labourer. This is perhaps
the reason why some fishermen’s groups have approached the committee stating that
their rights of fishing (in the estuary where the captive port is to be constructed and along
the adjacent coast) have been overlooked. According to the State Government, the only
fishermen who are affected are the displaced fishermen families. A representation from
the Kaibarta fishing community indicates that traditional fishing rights along the coastline
in question has been given to some fishing communities by the Raja of Bardhaman
(owner of most of what is now the project land), prior to the abolition of estates under the
Orissa Estate Abolition Act, 1952 (Annexure B 3). It is not clear whether this right has
been subsequently recognised by the State Govt. In fact, there is a suit pending before
the District Court where in a n injunction restraining the authorities not to interfere with
the rights of the fishermen has been obtained and is still in force. The State Government
needs to look at how these fishing communities are entitled to compensation and
rehabilitation benefits, and take action on this basis. There are at least 8 fishing areas
involved in this project site with approximately 20,000 families dependent on fishing
from this port site. The Committee was unable to meet/talk with these fisher folk to get
their point of view.
17. POSCO has proposed to construct a fishing jetty to the south of Jatadharmohan, (the mouth of the creek), to facilitate the fishermen community to ply their trade, since Jatadharmohan itself where they currently carry out their fishing would be closed to them, when the captive port is constructed. The fishermen of Noliasahi seem satisfied with this. Whether other fishermen who have might have rights in the area would be satisfied as well needs to be ascertained.
18. Approximately 32 villages, mostly STs, dependent on surrounding forests
where the mining for iron ore will be done to supply POSCO steel plant will also be
either displaced or projected affected. The fate of these people has still to be decided.
VII. Is this a genuine Rehabilitation package meant to address the loss of sustainable livelihoods?
19. Often R&R does not address the loss of sustainable livelihoods that people
face when their lands they have been cultivating are either acquired or diverted away
from their use for development /industrial use. In addition to losing their lands those who
are PAFs and continue to live near polluting industries also suffer from health related
problems. The women and children and older people are the worst affected as R&R does
not address their problems. They are the most vulnerable group especially since they are
not mobile and have very little chance of getting alternate livelihoods. The women in
these project affected villages are mostly labourers on agricultural land or betel vine
cultivation. They are not land owners and due to the poor educational and other skills
they are unemployable in highly mechanised companies such as POSCO steel plant. The
youth too are poorly educated and only 2-5 % are graduates or professionals in this area.
Hence a guarantee of both a temporary or permanent job is not there. Since the hiring is
outsourced by POSCO to contractors they will not overlook or intervene in hiring of
personnel from among the displaced or project affected people. The contractor chooses
the people and most of the time the best qualified will get the jobs.
Comprehensive Rehabilitation Plan.
20. Para 5 of the explanatory note stipulates that the project proponents should
provide the requisite information required for site clearance/project clearance listed out in
the said para. (vii) Comprehensive rehabilitation plan, if more than 1000 people are likely
to be displaced, otherwise a summary plan would be adequate.
21. Even according to the project proponents 471 families have been estimated to
be displaced because of the project. This is apart from several thousands more being
affected. The 471 families will amount to more than 1,000 persons. Hence there is a
requirement on the part of the project proponent to submit a Comprehensive
22. The Minutes of the 67th EAC Meeting discloses that it was suggested that a
Comprehensive R&R Plan should prepared covering particularly the following:
(i) nature and extent of compensation to displaced persons category wise, i.e. those
to whom alternative lands are to be given, those to whom employment is to be
given and those to be compensated monetarily.
(ii) Specific training programmes for those to be given employment to be
(iii) Housing projects, if any, to be furnished.
23. The 68th Meeting it is recorded that a tentative R & R Plan has been submitted.
However a copy of this plan is not available in the file sent by MoEF as on the date of
writing this report (10.10.2010).
24. Rehabilitation and resettlement has not yet started. However details and rates of the
different components of the package are being discussed at the RPDAC meetings by the
project affected. The committee recommends that mere one point land compensation
however big it may be will not compensate the loss of sustainable livelihoods and the
only just thing would be to genuinely give equivalent land for land compensation so that
they continue eking a sustainable livelihood. Of course this means the whole process
should involve all PAFs and their people’s representatives in a transparent, inclusive and
just negotiation. If the people feel it is a better option than their present livelihoods, they
may be open to considering the options. There have been more failures than successes in
R&R. People are displaced in a hurry even before the resettlement or rehabilitation
process is in place. Many times the promises to the people are not kept and displaced
people live in greater destitution than before displacement. The whole process of R&R
implementation should also look at improving the lives of women and older people and
provide them with suitable livelihood options.
25. It appears that a large number of fishermen who may have rights in the area
have got left out. The State Govt needs to verify whether such rights exist or not and
compensate them if they do.
26. Landless agricultural and other labourers have not been included in the list of
affected persons and no benefits have been given to them (except for those working in
beetle vine cultivation and those compensated for their homesteads on government land).
Since landless workers are people at the bottom of the heap, it is not enough to relocate
them. They need to be compensated for their loss of livelihood.
27. Finally, as the socio economic survey of XIMB mentions, “displacement
amounts to uprooting them from their soil that belonged to them for generations, which
can be psychologically a traumatic event. This requires lot of empathy while handling
the process of shifting and relocation”. We would like the State Govt to bear this in mind
and engage organisations who have worked with people, to help in the process of
relocation, so as to make the relocation less traumatic if the project is found suitable to
proceed with on other environmental aspects.
Majority Report of the POSCO Enquiry Committee Section 5: EIA & EC
Environmental Clearance of Steel Plant and Port
“Every anthropogenic activity has some impact on the
environment. More often it is harmful to the environment than
benign. However, mankind as it is developed today cannot live
without taking up these activities for his food, security and other
needs. Consequently, there is need to harmonise developmental
activities with environmental concerns. Environment Impact
Assessment (EIA) is one of the tools available with the planners to
achieve the above goal”.
.. Manual on Environmental Impact Assessment, Ministry of Environment and Forest, Jan., 2001.
Part I – EIA - General
I Context for examining Environmental Clearances.
1. In the year 2007 itself, POSCO obtained all necessary clearances
to set up the steel plant and the minor port. By order dated 12.6.2007,
the State Pollution Control Board, Orissa under Section 25 of the Water
(Prevention and Control of Pollution) Act, 1974 and s. 21 of the Air
(Prevention and Control of Pollution) Act, 1981 issued the Consent to
Establish (Annexure E - 11) for the integrated steel plant.
Subsequently, the IA Division of the MOEF, New Delhi by order dated
19.7.2007 gave Environmental Clearance (Annexure A-6) for setting up
the integrated Iron and Steel plant (4 MTPA) with Captive power Plant
(4x100 MW) at Kujang, near Paradeep, Jagatsinghpur, Orissa.
2. The captive minor port received Consent to Establish (Annexure
F- 10) by order dated 9.11.2006 from the State Pollution Control Board,
Orissa under Section 25 of the Water (Prevention and Control of
Pollution) Act, 1974 and s. 21 of the Air (Prevention and Control of
Pollution) Act, 1981. Subsequently by common order dated 15.5.2007
(Annexure A-5) , the MoEF granted Environmental Clearance for
construction of a Captive Minor Port at Jatadharmohan Creek confluence
near Paradeep. The same order granted clearance under the Coastal
Regulation Zone (CRZ) Notification, 1991.
3. However at the time of constitution of the Committee in Aug-Sep,
2010, no construction work had started with regard to the steel plant or
the minor port. It is against this fact situation that we need to examine
the scope of clause (iii), (iv) and (v) of the amended TOR.
II. Scope of Terms of Reference.
4. Clause (iii) of the amended TOR of the Committee (Annexure A-
29) mandates the Committee to review the compliance with
Environmental (EIA), Coastal Regulation Zone (CRZ) and other
clearances and permissions under various statutes, rules, notifications
and so on. Clause (iv) permits review of compliance with pari passu
conditionalities imposed in items (iii) and (iv).
5. The fact that POSCO had received the different environmental
clearances was never in dispute. Hence the purpose of amending the
TOR to include the mandate to review compliance with different
clearances and permissions as stipulated in statutes, rules and
notifications could not be merely to ascertain if the clearances had
actually been obtained and if the post-clearance conditions stipulated
therein complied with. Such a limited reading makes the TOR not just
superfluous but also irrelevant and redundant.
6. In actuality, the law relating to environmental clearances (EC)
encompasses the operation of numerous laws, procedures and
notifications including the Environment Protection Act, 1986, Water
(Prevention and Control of Pollution) Act, 1974, the Air (Prevention and
Control of Pollution) Act, 1981, and numerous government policies as for
example the National Water Policy, 1986, the National Forest Policy,
National Mineral Policy and so on. The procedure contemplated in law for
grant of ECs requires the project proponent intending to set up the
industry, to comply with a variety of procedures and norms and provide
full and complete details of the project, including the risk assessment of
the project, social impact and so on based on a realistic assessment of
the fact situation. Thus any proponent who fails to satisfy the
requirements in law for complete and comprehensive disclosure of the
environmental impacts and risks of their projects, the type of remedial
measures in case of accidents occurring both due to operational as also
due to natural disasters, mitigation strategies, rehabilitation and
resettlement plans will thereby be violating the laws.
7. It is therefore logical to interpret that the TOR mandates the
Committee to review if there has been both substantial and procedural
compliance with statutes, rules and notifications governing
Environmental Clearance and CRZ clearance by the project proponent
and the various state and central authorities in obtaining/issuing the
above mentioned clearances.
III. Framework for Review of Clearances: Importance of EIA.
8.The Manual on Environmental Impact Assessment of the MoEF
(Annexure E- 1) dated January, 2001 describes EIAs as “a planning tool”
and an integral component of `sound decision making’ leading to
acceptance, modification or rejection of applications to set up new
industries or expand existing ones (Preface, pg. 1).
9. As a planning tool EIAs are now generally accepted as an integral
component of sound decision making. The objective of EIA is to foresee
and address potential environmental problems / concerns at an early
stage of project planning and design. EIA / EMP are meant to assist
planners and government authorities in the decision making process by
identifying the key impacts / issues and formulating mitigation
measures. An implicit part of the EIA process therefore is ensuring full
and comprehensive disclosure of all aspects of the industry, including
environmental impacts, dangers, risks and mitigation measures to the
following key groups:
(i) the Project Proponent;
(ii) regulatory agencies, charged (a) with the task of examining
proposals and granting approvals or ordering modification or
rejection of proposals; and (b) with the responsibility to monitor the
functioning of the industry in the post-clearance stage;
(iii) all stake holders and interest groups.
IV. Phases of the EIA and Critical Importance of presenting clear,
complete and comprehensive Information about project.
10. It is important to stress that the EIA process is governed by the
EIA Notification (first issued in 1994 and subsequently revised and
issued anew in 2006) which has statutory status under the Environment
Protection Act, 1986, the main legislation governing EIAs. Thus any
infringement of the prescribed standards will amount to a statutory
11. Central to the EIA process is therefore the quality of the data
and information collected, presented and analysed in the EIA which are
the essential substratum for the decision makers to decide over whether
to grant environmental clearance to the project or not. Equally
important, full disclosure of all aspects of an industry is critical for
communities who will be affected because of the project in order to
register their views during the public hearing.
12. The tests for evaluating adequacy or sufficiency of the
information disclosed in EIA is to firstly judge it by standards of
accuracy, comprehensiveness, clarity, relevancy, completeness,
frankness in disclosing information especially negative information about
the particular industry, suppressing vital information, providing
misleading and false information; secondly, it has to be evaluated if the
decision making process is compromised or affected on account ofany
lapses at any stage whatsoever including the proceedings of the EAC.
Either of the two will render the clearances invalid.
V. Structure of this Report.
13. This Report is structured around an analysis of the EIAs in the
manner outlined below:
1. Adequacy, Accuracy and Completeness of EIA
2. Public Hearing
3. Role of EAC and competent authorities.
VI. Sources of Information.
14. There were three broad information sources relating to the EIAs:
(i) Ministry of Environment, both the Regional Office and the main
National Office, New Delhi;
(ii) Different agencies of the Government of Orissa;
(iii) Project affected persons, NGOs and others.
The full list of documents collected and relied upon in this report is
furnished in the Annexures attached to this report.
VII. Field Trips
15. The Committee undertook its first field visit to the project area
from 27th to 30th August, 2010. During the first visit the Committee
confined its enquiry to the Forest Rights Act. The entire team visited the
villages of Dhinkia, Govindpur, Nuagaon and Noliasahi to get a first
hand understanding of the physical features and the local economy. The
Committee extensively met with the project affected persons and other
concerned citizens. The Committee also met the Principal Secretary,
Environment and Forest, CMD, IDCO, Secretary, SC & ST Department,
the Revenue Divisional Commissioner, Cuttack, District Collector,
Jagatsinghpur, Principal Chief Conservator of Forests, and other officials
of the State Government. (See Annexure E - 17, for list of names).
Representatives of different political parties formally met the Committee
and submitted representations. (Annexure –I series). Towards the end of
the visit, the amended TOR was announced expanding the scope of the
16. The second field visit of the Committee was during the period
19th to 24th September, 2010. During this visit the emphasis was on
ascertaining the facts regarding the various environmental clearances.
The team visited the port site along with senior officials of POSCO and
government officials both from RO-MoEF, Bhubaneshwar, the State
Pollution Control Board (OSCB) and the District Administration. The site
visit was followed with a meeting with delegation of senior officials of
POSCO who made a detailed presentation on both the proposed port and
the steel plant. The Committee also sought more information about the
project particularly the plan to expand operations from the initially
approved production capacity of 4 MTPY to 12 MTPY, about the sourcing
of raw materials for the plant in view of the recent high court order
rejecting the grant of prospecting licence over the Khandadhar iron ore
mine in Sundargarh district to POSCO, R & R plans and other related
17. The Committee also met the Principal Secretary, Environment
and Forest, and held discussions on EC issues as also about the
proposal to supply water for the project from Jobra barrage on the river
Mahanadi. The Committee requested the Secretary to ensure that all
documents related to the Project be made available. The office of the
Member-Secretary, Orissa State Pollution Control Board thereafter
arranged to reach connected papers to the Committee.
I. Understanding the scale of the project
18. A detailed and thorough analysis of the compliance of POSCO
to the requirements stipulated in the EIA Notification is necessitated by
two considerations: (i) the scale of the project, which stands out in
comparison with other steel projects in India; and (ii) the problems
associated with the location of the plant along harbour in an area (a)
prone to cyclones and natural disasters, (b) which has been described as
an “area having ecological significance for the productivity of the
estuarine system” (page 48) and (iii) located just about 12 km south of
Paradeep port area in a region described in the Orissa Coastal Zone
Management Plan for Orissa prepared in October, 1995 by the
Department of Forest and Environment, Government of Orissa, as “fast
deteriorating coastal environment” The fact to be noted is that in the 12
years since the above report and upto the time of the EC and CRZ
Clearance in 2007, the environmental degradation of the coast had only
II. Present environmental status of Paradeep region:
19. The EIA notification, 1994 makes special mention of the
necessity for an EIA from the Central government for industries located
in critically polluted and ecologically sensitive areas. In the note to
Schedule I of the notification it is provided as follows:
“Every project proposed to be located in –
a) a critically polluted area; or
b) within a radius of fifteen kilometers of the boundary of – (i)
reserved forests, (ii) ecologically sensitive areas which include
national parks, sanctuaries, biosphere reserves; and (iii) the
boundary of any state,
shall require environmental clearance from the Central
III. Paradeep region Highly Sensitive Zone:
20. In the Industrial Suitability map (Annexure E- ) prepared by
the Orissa State Pollution Board in the year 2003, the proposed project
site and its surrounding areas have been identified as highly sensitive
zone for Air Polluting industries and for surface water polluting
IV. Comprehensive Environmental Pollution Index (CEPI) of Paradip:
21. Ministry of Environment and Forests has come out with
environmental pollution index that can help in categorising the
industrial clusters in terms of priority of planning needs for
interventions. The new report, Comprehensive Environmental
Assessment of Industrial Clusters, (Annexure E- 16) highlights the
need for enhanced and urgent action. A Comprehensive Environmental
Pollution Index (CEPI), which is a rational number to characterize the
environmental quality at a given location following the algorithm of
source, pathway and receptor have been developed. The index captures
the various health dimensions of environment including air, water and
land. The present CEPI is intended to act as an early warning tool, which
is handy to use. It can help in categorizing the industrial clusters/areas
in terms of priority of planning needs for interventions. Application of
CEPI in 88 selected industrial clusters/areas has been an exercise
involving Central Pollution Control Board, State Pollution Control Board,
Pollution Control Committees, and IIT Delhi.
22. This report for the first time calculated a Comprehensive
Environmental Pollution Index (CEPI) for 88 key industrial clusters in
India, using a series of objective criteria. Areas having
aggregated CEPI scores of 70 and above should be considered as
critically polluted industrial clusters/ areas, whereas the areas
having CEPI between 60-70 should be considered as severely polluted
areas and shall be kept under surveillance and pollution control
measures should be efficiently implemented, whereas, the critically
polluted industrial clusters/ areas need further detailed investigations in
terms of the extent of damage and an formulation of appropriate
remedial action plan.
23. Paradeep, Orissa has a CEPI score of 69.26 which shows that it
is a severely polluted area, just bordering on the CEPI of a critically
polluted industrial cluster.
24. The EIA Manual, January 2001 (Annexure E - 1 ) inter alia
provides that the proposed project location should be reviewed in
relation to the following salient issues:
i) Ambient air, water and noise quality standards
ii) Critically polluted areas
iii) Natural disaster prone areas
iv) Ecologically sensitive areas
This concern that the Paradip area is already polluted from existing
industries was also raised during the public hearing but unfortunately it
was never addressed by any of the reviewing /decision making
25. The project proponents as well as the other authorities
including the EAC and the MoEF ought to review the location of the
whole project in the light of the current pollution status of the region, the
context of its proneness to natural disasters and ecological sensitivity of
V. Scale of Production Facilities in POSCO
26. The proposed project is to set up a steel production facility of
12 MTPY. The combined capacity of the 6 steel plants of SAIL at Bhilai,
Bokaro, Durgapur, Rourkela, Burnpur and Salem put together is 13.5
MTPY. Thus for a comparative understanding of the scale and magnitude
of the proposed steel plant at Jagatsinghpur it is clear that the capacity
of this one plant is almost equivalent to the combined capacity of the six
major steel plants of SAIL in India. The captive minor port is also being
built to handle the cargo handling requirement for the 12 MTPY steel
plant. The proposed Dead Weight Tonnage (DWT) of the ships to be
berthed at the port is 30, 000 DWT to 1,70,000 DWT. The ships in the
1,50,000 – 1,70,000 qualify to be the Very Large Cargo Carriers (VLCC)
which are generally anchored in the deep seas from where the cargo is
offloaded by use of smaller vessels.
27. Further the project is sited in an area which is admittedly
cyclone prone and where the super cyclone in 1999 produced a storm
surge of 5.5. m. above CD which inundated land up to about 30 km
inland. (pg. 50 of the REIA of the Port, (Annexure F- 2) It has also been
described as an ecologically sensitive and fragile area by the Coastal
Zone Management Authorities in the CZMP for Orissa
28. Considering the scale of the project and the ecologically
sensitivity of the proposed site it would have been more appropriate to
locate the project elsewhere. There was a critical necessity of having a
comprehensive EIA and the necessity of the Decision making / Reviewing
authorities under taking a site visit for assessing the project.
VI. Applications of POSCO for Environmental Clearance processed
under EIA Notification of 1994 and not EIA Notification of 2006.
29. As stated above the MOU between POSCO and the Government
of Orissa was signed on 22.6.2005. The EIA Report in respect of the
captive minor port and steel plant were completed in March, 2006
(Annexure F - 2) and August, 2006 (Annexure E- 3) respectively. As on
the date of preparation of the EIA Reports, the 1994 EIA Notification was
in force. It should be noted that under the 1994 Notification minor ports
were excluded from the Notification. On 14.9.2006, a new EIA
Notification was issued superseding the 1994 Notification. Minor ports
were not exempted in the new, 2006 Notification.
30. The Applications for the EIA and CRZ clearance for the minor
port was given to the MoEF in end September, 2006 and for the steel
plant on 3.4.2007. By this time the 2006 Notification came into force.
The question therefore arises whether the applications for POSCO should
be considered under the 1994 Notification or the 2006 Notification.
31. As per the 1994 Notification any person who desires to
undertake any new project in any part of India or the expansion or
modernization of any existing industry or project listed in the Schedule-I
shall submit an application to the Secretary, Ministry of Environment
and Forests, New Delhi. Schedule-I to the notification provides the list of
projects requiring Environmental Clearance from the Central
Government. Serial number 13 (a) of the list is “Primary metallurgical
industries (such as production of Iron and Steel, Aluminium, Copper,
Zinc, Lead and Ferro Alloys). As per Item 3 of Schedule-I EIA clearance is
required for ports, harbours, airports except minor ports and harbours.
32. The 1994 notification was superseded by notification dated
14.09.2006. Para 12 of the new notification specified as to how the cases
in the intermediary stage falling between the two notifications would be
dealt with. As per this para – “ From the date of final publication of this
notification the Environment Impact Assessment (EIA) notification
number S.O.60 (E) dated 27th January, 1994 is hereby superseded,
except in suppression of the things done or omitted to be done before
such supercession (sic suppression) to the extent that in case of all or
some types of applications made for prior environmental clearance and
pending on the date of final publication of this notification, the Central
Government may relax any one or all provisions of this notification
except the list of the projects or activities requiring prior environmental
clearance in Schedule I , or continue operation of some or all provisions
of the said notification, for a period not exceeding one year from the date
of issue of this notification. A circular dated 13.10.2006 was issued
pursuant to para 12 of the 14.09.2006 notification laying down the
interim operational guidelines till 13th September 2007. The circular
inter alia provided that Applications pending for EIA appraisal where the
EIA has already been done but the public hearing has not been done the
EIA would be evaluated by the Expert appraisal Committee (EAC) without
insistence on the submission of Form I/ IA required under EIA 2006. In
case the EIA document is considered complete and accurate, and if
public hearing is required under EIA, 2006 the same would be conducted
as per the provisions of EIA, 2006. In case the EIA document is
considered incomplete and /or inaccurate, the EAC would specify all the
additional terms of reference to be undertaken by the project sponsor. If
required under EIA 2006, the public hearing would be conducted as per
the provisions of EIA, 2006. When an accurate and complete EIA
document is available, together with the public hearing proceedings the
EAC would consider the same and furnish its recommendations.
33. The Schedule to the 2006 Notification provides the list of
projects or activities requiring prior environmental clearance. Item 3(a)
lists metallurgical industries (ferrous and non-ferrous) and 7(e) lists
ports and harbours.
34. Thus though minor ports were exempted under the 1994
Notification, the 2006 Notification makes no such exemption. Under para
12 of the 2006 Notification the Central Government may relax any one or
all the provisions of the Notification except the list in Schedule 1. Thus
the applications for the captive minor port was dealt with under the 2006
Notification whereas the steel plant was considered as per the procedure
prescribed under the 1994 notification. A combined public hearing was
held on 15.4.2007 at Banabihari High School, Kujanga for both the steel
plant and the minor port.
Analysis of the Rapid EIA of Steel plant
I. Rapid vs. Comprehensive Environment Impact Assessment –
Acceptable only if there is no compromise on Quality of Decision Making
35. The EIA Manual of Jan 2001 (Annexure E - 1) describes the
difference between Rapid and Comprehensive EIAs as follows:
“The difference between Comprehensive EIA and Rapid EIA is in the
time-scale of the data supplied. Rapid EIA is for speedier appraisal
process. While both types of EIA require inclusion/ coverage of all
significant environmental impacts and their mitigation, Rapid EIA
achieves this through the collection of ‘one season’ (other than
monsoon) data only to reduce the time required. This is
acceptable if it does not compromise on the quality of decisionmaking.
The review of Rapid EIA submissions will show whether a
comprehensive EIA is warranted or not. It is, therefore, clear that
the submission of a professionally prepared Comprehensive EIA in
the first instance would generally be the more efficient approach.”
36. An explanatory note dated 27th January, 1994 was issued to
the EIA Notification, 1994. As a Comprehensive EIA report will normally
take at least one year for its preparation, project proponents may furnish
Rapid EIA report to the IAA based on one season data (other than
monsoon), for examination of the project. Comprehensive EIA report may
be submitted later, if so asked for by the IAA. In other words whenever
an REIA is resorted to by the project proponents since field investigations
are carried out only for one season the same cannot be carried out
during monsoon period. It is pertinent to point out that POSCO has
prepared an REIA and not a comprehensive EIA for both the steel plant
and the captive port.
37. As the discussion below reveals, it is evident that considering
the scale of the project, the ecologically sensitive area in which it is sited,
the disaster prone nature of the location all warranted a comprehensive
EIA. Apart from this, the various agencies at different points in time have
also pointed out to the inadequacies of data and studies on which the
REIA relies in many aspects. In this context it is also pertinent to point
out that in the proceedings of the OSCZMA dated 7.8.2006 (Annexure F
- 7) there was an assurance by the Company representative that the
comprehensive EIA was under preparation which would cover many of
the issues raised by the authorities at the meeting in respect of the minor
38. The Committee members pointed out to this reference and
sought clarification from POSCO representatives through email. In an
email reply dated 1st October, 2010, Mr. Yong-Kwan Kim, Director of
POSCO stated (Annexure E-18) that the Comprehensive EIA for both
steel plant and minor port were prepared in July, 2007 and handed over
to the authorities, including the Regional Office of MoEF in
Bhubaneshwar. Hard copies were promised to be sent to the Committee
39. The Regional Office of MoEF through a written email message
dated 6.10.2010 (Annexure E - 20) informed that they had not been
received any copies of the Comprehensive EIA. The National Office of
MoEF also denied having received the same. However the Regional Office
subsequently informed the Committee that the Comprehensive EIA
Reports had been handed over to them by POSCO officials after the
recent email correspondence. Hard copies of the Comprehensive EIA were
received by the committee members on 11.10.2010.
40. At any rate the Comprehensive EIA is the primary basis on
which the EAC and the Government adjudges the desirability of granting
environmental clearance. Hence submitting it long after the
clearances have been given is an empty formality.
II. Inadequacy of REIA.
41. The Rapid Environmental Impact Assessment (REIA) for 4
Million Ton per Year (MTPY) Integrated Steel Project was submitted in
August 2006 (Annexure E - 3 ) as per the Environmental Impact
Assessment Notification, 1994. Paragraph 2.I.(a) of the EIA Notification,
1994 (“Requirements and procedure for seeking environmental clearance
of projects”) states:
“The application shall be made in the proforma specified in
Schedule II of this notification and shall be accompanied by a
project report which shall, inter alia, include an Environmental
Impact Assessment Report/Environment Management Plan and
details of public hearing as specified in Schedule IV prepared in
accordance with the guidelines issued by the Central Government
in the Ministry of Environment and Forests from time to time.”
42. Further a guideline “Environmental Impact Assessment: A
Manual” was issued by the MoEF in January 2001.according to which
“All project proposals requiring Environmental Assessment (see Chapter
3 of this Manual) may be examined according to the following review
process. The Review Checklist comprises two sections: (A) Pre-Appraisal
and (B) Appraisal.” The Review Checklist for project appraisal contains
specific criteria for reviewing the adequacy of “Baseline Environmental
Information.”7 These criteria are stated as follows:
“3.7 - Have the components of the environment likely to be
affected by the project been identified and described sufficiently for
the prediction of impacts?
“3.8 - Does baseline information account for seasonal
43. Volume II of the REIA for steel plant (Annexure E - 3) contains
a “Report on Ecological Aspects of Paradip Area in Jagatsinghpur
District, Orissa”. Page 1 of this report states:
“As per terms of assignment, the field investigation was carried out
in the months of January/February 2006. This report presents the
prevailing terrestrial and aquatic ecological status of the study area
covering up to about 10 km aerial land coverage from the project
site. Marine ecological status is not covered in this Report.”
The above referred passage reveals that the field investigations were
carried out only for 2 months and not even for an entire season. Further
in view of the fact that the plant site is located adjacent to the coast with
effluents being discharged into the sea and large scale dredging and
dumping of sand in the sea, increased ship traffic etc, failure to have a
marine ecological status is a serious deficiency affecting the
completeness of the report. Considered against these measures, the
methodology used by the agency which prepared the REIA for
POSCO is woefully deficient.
III. The REIA fails to delineate the location of wetlands or assess
44. The REIA for steel plant describes the topographic features of
the area as including an intricate network of “tortuously meandering
channels” (page 4-2, 3) some of which are the distributaries of the
Mahanadi river which drains into the Jatadharmohan creek. The
geomorphology of the area is said to be “variable with low levee on banks
of the distributaries inter distributory marshes in between the
distributaries, stranded beach ridges amidst flood plains, wide mudflats,
lagoons, creeks, sand bars, barrier beach / sandpit and active dune
berm beach face complex”.
45. It is further stated that the study area is drained by the
Mahanadhi river and its distributory channels Chandpur river and
Although pages 4-5 to 4-6 of the REIA of the steel plant (Annexure
E - 3) discuss drainage patterns of the study area, this discussion does
not include any information about the extent of wetlands in the study
area, nor any discussion of the significance the loss of the these
46. In February 2007, the Government of India published the
following “Conservation of Wetlands in India: A Profile (Approach and
Guidelines)” which state:
“Wetlands offer several substantive benefits. Unfortunately, they
are often not fully understood. Some of the most obvious
advantages are listed below.
- Life support systems.
- Winter resorts for a variety of birds for shelter and feeding.
- Suitable habitats for fish and other flora and fauna.
- Effective in flood control, waste water treatment, reducing
sediment loads and recharging of aquifers.”
47. The “Environmental Impact Assessment: A Manual” (Annexure
E - 1) issued by the Impact Assessment Division of the MoEF in January
2001 states: “To make the Manual comprehensive and self-contained,
information pertaining to legislative regime, base line data generation
and monitoring, thumb rules for pollution control measures etc. have
been annexed to the main text.” One of the Annexures is Annex VII
(“Good Practices of Prediction”).8 Under the heading of "Habitat
Diversity" one of the "Relevant Good Practices of Prediction" is use of the
“Wetlands Evaluation Technique (WET)” a methodology for identifying the
location, extent and functions of wetlands within a specified area.
48. As stated above, the REIA does not include any information
about the extent of wetlands in the study area. There are likely to be
dozens of additional wetlands in the study area, comprising a substantial
amount of hectares, which would be impacted. Contrary to the Good
Practices of Prediction cited in the Environmental Impact Assessment: A
Manual, the REIA fails to identify wetlands in the study area or assess
the significance of the loss of the substantive benefits wetlands provide,
as identified by the MoEF in 2007
IV. Mismatch between ultimate capacity and the application for EIA clearance.
49. The MOU (Annexure A-1) contemplates a 12 million tonnes per
annum (MTPY) capacity integrated steel plant. The area of approximately
4004 acres required for the project is for the complete 12 MTPY capacity
integrated steel plant. The proposed captive minor Port at the
Jatadharmohan creek is to handle cargo for a 12 MTPY capacity
integrated steel plant. The estimated additional requirement of 2000
acres of land for an integrated township (one Korean township and one
Indian township as per the SEZ project application submitted in July,
2006, (Annexure E - 2) is to cater to the employee strength for a 12
MTPY capacity integrated steel plant. In all the applications,
correspondence and clearance letters by the Project proponent and the
various authorities it is stated that the ultimate capacity of the plant is
intended to be 12 MTPY capacity integrated steel plant to be built in
three phases with an additional 4 million capacity to be added every two
years. But however the project proponent chose to apply for EIA
clearance in respect of a 4 MTPY capacity steel plant alone.
50. Along with the increase in the capacity of the steel plant, the
capacity of the support infrastructures will also have to increase. For
example the captive power plant will have to be expanded from 400 MW
to 1300 MW by the end of the third phase to meet the requirements of a
plant with 12 MTPY capacities. Similarly there will be corresponding
increase in al other support infrastructure.
51. Presumably since the plan contemplates implementation of the
project in 3 phases and the construction of only a 4 MTPY capacity steel
plant is envisaged in the first phase the project proponent applied for EIA
clearance and consent to establish only in respect of a 4 MTPY capacity
steel plant. However, as the law stand today, extension of production
capacities is not automatic and each expansion proposal will have to get
prior EC requiring the project proponent to go through the EIA process
52. When the committee members pointed out this fact to the
officials from the POSCO company during their discussion on
22.9.2010, they seemed to be under the impression that once clearances
for the first phase was obtained the clearances for the next two phases
automatically follow. The committee members pointed out that at every
phase of expansion the project proponent will have to go through the
process of preparing fresh EIA reports, public hearing and obtain
clearances and there is every possibility that the clearance could be
rejected for any given phase if the authorities decide that the `carrying
capacity of the area’ has been saturated or for any other reason. The
officials representing the project proponent categorically stated to the
Committee during their presentation on 22.9.2010 that the project is
profitable only for 12 million tonnes capacity integrated steel plant the
project will not be profitable for them and if they were restricted only to 4
MTPY capacity plant then they would have to reconsider their options.
The senior officials also categorically pointed out that the project would
be economically unviable, would seriously affect their profitability
especially in the global market context and unattractive as an economic
activity. They also stressed that in such an eventuality, the company
would have to consider alternative options including to set up plant in
other locations closer to the source of iron ore.
53. The committee is of the opinion that since the land and other
infrastructure has been planned for a 12 MTPY capacity integrated steel
plant, the project proponent ought to have applied for clearance in
respect of the total capacity and not for part of the capacity. This is
especially so when the expansion plans are not sometime in the distant
future. Expansion is contemplated at the rate of increase of 4 million
tonnes every two years. Other wise, the logical step would have been to
restrict the requirement of land and the size of the port to the
requirements of a 4 MTPY capacity plant. This would reduce the land
requirement substantially and thereby reduce the number of persons to
be displaced, number of persons whose livelihoods would be lost. It
would also significantly reduce the pollution load in numerous ways. The
corresponding alterations to the landscape of the area would also be
reduced thereby reducing the adverse impact it may have on flow of
flood waters into the creek etc.
54.The committee members are of the strong view that MoEF
should not have given EC for part of the project when all other
components /infrastructure of the project such as land, displacement of
people, ecological destruction, port construction etc have aimed for full
project, that is, 12 million tons. It puts a question mark on the scientific
prudence of the MoEF.
V. Fragmented EIA: Non-consideration of combined environmental
impact of other project components
55. The MOU contemplates apart from 12 MTPY steel plant and
port, railways, transportation by road, township for 18,000 people, coal
mining, manganese mining and pipeline for water for 86 km from Jobra
barrage. The MOU dated 22.06.2005 describes these as `related
infrastructure based on the needs of the steel project. In the REIA report
dated August, 2006 the Project aim is stated to set up a 12 MTPY
integrated steel complex with a captive minor port. Under the caption
other infrastructure requirement it is stated as follows - `captive minor
port integrated with the steel plant, road network connecting the State
highway, rail linkage from Paradeep and steel township and laying of
water pipeline from the Jobra barrage.
i) Setting up of rail infrastructure: In the Project Report dated
July 2006 (Annexure E - 2) submitted before the Board of Approval
Special Economic Zone, Ministry of Commerce and Industry,
Government of India, the project proponent, POSCO, describes the
requirement of rail infrastructure. According to this report the railway
will serve not only as a route for procuring iron ore, coal and auxiliary
materials from various sources but also as a distribution channel for
finished products and slag. The existing railway route could handle the
transport of materials during the first phase alone. They had already
submitted an application in this regard to the Rail Vikas Nigam Ltd
(RVNL) and the feasibility study for selecting optimal routes has been
undertaken by Rail India Technical and Economic Services (RITES). The
target date for completion was to be 6 months before the scheduled
operation date of the I Phase of the Steel Works.
i) Construction of coastal road: The Report also states that there
is a proposal for the construction of 6.7 km coastal road from Paradeep
to POSCO India. The road will serve for the transportation of
construction equipment and materials through Paradeep port. It will
provide easy access to the site in the I Phase of construction and during
construction of the dedicated port. Feasibility and alignment of the
coastal road was reported to have been finalized. This road was to be
constructed together with 2 other companies.
iii) Access Roads to NH-5 A / SH 12: Apart from the road on the
coastline, POSCO India also plans to construct 11 km access roads from
the site to NH 5-A and SH 12.
iv) Construction of 86 kms long water pipeline: The Report
states that POSCO India will draw and use water from Jobra barrage on
Mahanadhi river and supply to the site by a pipeline of diameter 1350
mm over a 90 km route. (It may be noted that the diameter of the
pipeline in Sch. II format of Application for Environmental Clearance at
col. V-C is specified as a 86 km pipeline of diameter 1400 mm). This
pipeline will supply the total volume of water for the steel works and
domestic water for townships.
v. Township As part of the social infrastructure, the same
document discloses that POSCO India will build an Indian township and
a Korean township with modern amenities and facilities to provide
residential facility to each and every employee of POSCO India. The
townships are to be located in an area of `200’ acres at some distance
from the steel works. In the Application dated 14.9.2006 (Annexure E- 5)
for Consent to Establish the steel plant under the Water and Air Acts, in
the data sheet at item A – 11.14, to the query about proposal to build a
township, the Company had answered “Yes” and has stated that the
planned area allocated for the same is 2000 acres to accommodate a
population of 18,000 (5,000 families) within 4-5 km of the plant site. The
application states that the Master Plan for the township is under
preparation. In the Application dated 23.8.2006 (Annexure F -6) for
Consent to Establish the port under the Water and Air Acts it is stated
that the employees of the port would be accommodated in the steel
56. From the above, it is amply clear that the integrated steel
project encompasses several components which are considered basic and
related infrastructure for the construction and functioning of the steel
plant. While so, curiously, the Rapid EIA has been done for 4 MTPY steel
plant and minor port alone. Even here, the REIA’s have been prepared
separately. Applications for clearances have been submitted separately
on different dates resulting in the applications being considered by two
separate Expert Appraisal Committees (EACs). Such compartmentalized
applications have prevented a comprehensive appraisal of the combined
environmental impact of the entire project. This fragmented EIA
application process and appraisal may have serious implication in view
of the fact that the project is proposed to be set up in an environmentally
fragile coastal area which has repeatedly been subject to severe cyclonic
storms and is a well known disaster prone area.
57. The committee is of the opinion that the entire Environmental
Clearance process is seriously flawed and hence the clearance itself
stands vitiated. The failure to conduct a comprehensive EIA, the failure
to assess the environmental impact on the basis of the ultimate capacity
of the steel plant of 12 MTPY and of the various other attendant
infrastructural needs which are basic to the steel plant, the fragmented
EIA which has failed to incorporate the environmental impacts of the
various components of the plant , the failure to obtain baseline data of
seasonal variations renders the EIA seriously compromised in terms the
Adequacy, Accuracy and Completeness of the EIA.
58. The committee members are of the strong view that MoEF
should not have given EC for part of the project when the environmental
impact assessment for all other components /infrastructure of the
project has not been assessed. It once again puts a question mark on the
scientific prudence of the MoEF.
VI. Objections raised by Technical Committee, Iron And Steel
Sector, State Pollution Control Board, Orissa with respect to REIA of Steel Plant
59. The report dated December 01, 2006 of the Technical Committee , Iron and Steel Sector, State Pollution Control Board, Orissa
(Annexure E - 6) considered the REIA for the proposed integrated steel
plant. The minutes of the meeting recorded that the infrastructural
support for the plant is reported as:
Captive minor port at Jatadharmohan creek with berthing facility of
20,000 DWT to 1,00,000 DWT ships.
About 86 kms of pipeline from Jobra barrage on the river Mahanadi
to bring water for the plant and the township.
6.7 kms of foreshore road and connecting road of about 10.5 kms.
6 kms of railway lie to the plant from Paradeep Railhead.
60. The Technical committee also pointed out to the following
i) FINEX process is relatively a recent process being practiced
by only M/s POSCO. Detailed technical information is also not
found in literature. However the specific raw material consumption
of this process as submitted by the Consultants was found to be
comparable to COREX process.
ii) However, adequate literatures on the performance on
FINEX process are not available the basis of the claims made by the
project proponent are difficult to verify. It is therefore recommended
that a team should visit the existing FINEX plant to conduct
further assessment of in situ performance of this process.
iii) The project proponent should submit the method of
grinding and screening of raw material as well as of solid waste
such as BOF slag and the size analyses of fines. The details of
pollution control equipments in grinding and screening plants
should be submitted by the proponent. The proponent has to
submit a gas balance diagram for future reference.
iv) Besides this, once the sea water cooling system shall be
adopted in the power plant it will discharge about 92960 m3/hr of
hot (cooling) water in to the sea. The effect of thermal discharge of
once through cooling system has not been discussed in the report
and may be taken in to consideration while designing the system,
so that the impact is minimized.
v) The steel plant is potentially an air polluting industry.
The emission from various processes takes place either through the
stack or fugitive. The stacks can be broadly grouped into two
categories. One is cool stack and mostly used in a dust extraction
system and the other category is combustion stack. There could be
many dust extraction stacks, but for the purpose of environmental
evaluation dust extraction stacks with discharge rate of 5,000
Nm3/hr are taken as the major ones. The proposed industry will
have 21 major dust extraction stacks and 13 combustion stacks.
The estimated quantity of emission load at 4 MTPY production level
is given in the Table – 7. These estimates however, require further
verification from an operating plant.
vi) The project does not visualize a township of its own.
However, an industrial activity of this size will need substantial
civic facilities. Thus, a master plan for Paradeep and adjoining area
should be drawn up taking into consideration the industrial
vii) The effect of thermal discharge of once – through cooling
system has not been discussed in the report and may be taken into
consideration while designing the system, so that the impact is
viii) The details of the fluidized bed reactor, temperature
and pressure is not given in the report. The state Pollution Control
Board may ask the proponent to furnish these details. If the reactor
pressure is around one bar then it is not a matter of serious
concern. However, reactor pressure of more than one bar may
cause fugitive emissions and therefore State Pollution Control
Board should stipulate appropriate conditions for installing
additional air pollution control equipments to contain the emission.
ix) The project proposal is very vague about the relative
amounts of various domestic vs imported raw materials (Table 3-2
of the report) and ore fines to ore lumps. Obviously generation of
fines and their transportation & storage have a significant impact
on the environment.
61. The Technical Committee of the PCB has raised many issues of
substantial importance which curiously have not been followed up to its
logical end. The records supplied to us do not reveal that these issues
were ever addressed before the clearances were given.
62. However even before these queries have been satisfactorily
answered by the project proponent, the company has been recommended
for clearances and issue of Consent to Establish. This is a serious
abdication of statutory responsibility by the Orissa State Pollution
VII. Water Requirement and Water Balance for the Steel plant and the Port:
63. The application format of the EIA notification requires the
project proponent to give the application in ‘Form A’. Water Requirement
and Water balance is one of the categories of information that has to be
provided. The following details are called for in the format -
(a) Water balance at site:
(b) Lean season water availability;
(c) Source to be tapped with competing users (River, Lake, Ground,
64. POSCO in its application for EIA clearance stated that water
will be taken from the Jobra barrage over the Mahanadi River by laying
an 86 km long pipeline. It is also reported that the Department of Water
Resources, Government of Orissa vide Deptt. Letter No.19668 dated
19.06.2006 granted `in principle’ approval for withdrawal of 10 MGD
water from the Jobra barrage. As per the EIA for steel plant the Company
will have in its premises reservoir for storing water requirement for a
period of three days (pg. No. 3-10).
65. It is to be noted that Clause No. 7 of the MOU (Annexure A-1)
dated 22.6.2005 permits drawal of water from the Mahanadhi barrage at
Jobra, or any other suitable source subject to availability. By letter
dated 28.7.2005, POSCO sought allocation of water @ 75000 m3 water
per day for each of the 3 phases of the POSCO project. Subsequently by
application dated 22.10.2005, the company asked for temporary
allocation of 3400 m3 / day for construction purposes. Subsequently the
DoWR by letter dated 19.6.2006 accorded `in principle’ permission for
drawal of water as follows:
(i) from Hansua Nallah @ 3,4000 cu.m per day (or 0.04 cumec),
from Feb. 2006- 2009 for construction purpose;
(ii) industrial water from Mahanadi Barrage at Jobra @ 75,000
cu.m per day (or 3.47 cumec) from June, 2008 onwards.
It is to be highlighted that there was no complete disclosure in EIA or in
Applications for Consent to Establish that permission was granted for
drawal of water from Hansua Nallah alone and not from the Jobra
Barrage during the construction phase. This raises two issues:
firstly, if permission was granted only to draw water from Hansua
Nallah during construction phase, which according to the project
proponent was unacceptable as the water did not meet its
requirements, then what is the source of water for construction
work needed to be disclosed
Secondly if water is to be drawn from Hansua Nallah or any other
source (other than Jobra Barrage) the Environmental impact has to
be assessed and incorporated into the EIA and an opportunity to be
heard given to the affected parties ought to have been given to the
affected parties. The effect of non-disclosure of this vital
information has deprived opportunity for people who are likely to be
impacted due to the water drawal.
This failure affects the completeness of the EIA process.
VIII. Post Clearance – Uncertainty over Water Sourcing .
66. There appears to be further exchange of correspondence
between the DoWR, GoO and POSCO India subsequent to the grant of
EC. In a letter dated 29.9.2007, POSCO India stated that the alternative
proposal for sourcing water from Hansua Nalla was not acceptable as (a)
the water was saline due to tidal effect; (b) was contaminated with
pesticide due to surface run off from agricultural land; (c) no sufficient
quantity of water available in lean period to meet their requirement and
(d) wide range of construction work such a lining of Taldanda canal,
control sluice, desiltation was required which could not be carried out by
them as a private company.
67. In the Letter No. WP-IWS-135/07 17177 dated 1.11.2008
(Annexure G - 2 ), the Chief Engineer, Water Resources, taking into
account the objections of POSCO for the use of water from Hansua
Nallah recommended the sourcing of water from Mahanadi Barrage. The
letter also discloses that the recommendation for the pipeline route
alignment was already made and was pending with the government for
68. However vide letter No.1695/WR., Lrr-ll-170/2009 dated
25.01.10 (Annexure G - 3) Special Secretary, Department of Water
Resources, Government of Orissa has informed the Deputy Managing
Director, POSCO – India that the `in principle’ allocation of water made
earlier was now subject to some additional conditions including that the
water for the steel plant was subject to availability of water during nonmonsoon
and lean period in Mahanadi and Hansua Nallah. The letter
dated 25.01.10 grants permission to draw water to the tune of 0.04
cumecs from Hansua Nallah at Nagari sluice for construction purposes
and 3.47 cumecs of water from Jobra barrage for operational purposes.
The permission was subject inter alia to the condition that Department
of Water Resources (DOWR) will not be responsible for non –availability
of water due to dry season, disruption, repair & maintenance of
River/Canal/Reservoir and POSCO-India will have to make their own
arrangement for storage of water to meet its requirement during nonmonsoon
and lean period or scaling down of water drawal as per
availability and as per direction of the Basin Manager.
69. In view of this modified permission it is not clear from where
the company will meet its water requirements and what are its
alternative water resources and the consequent environmental impact of
drawing such huge quantities of water from the alternate water source if
70. Apart from the fact that the lean season availability of water
has not been indicated the EIA does not provide information on
competing users for the water from the Jobra barrage and Hansua
Nallah. The water from the Jobra barrage is provided to farmers for
irrigation in the Cuttack district. It also caters to the drinking water
requirement of Cuttack. These issues have been raised during the public
hearing but there is no factual assessment of the competing users and
the adverse impact if any the drawal of water will have on the competing
users. There is already shortage of water for meeting peoples demand
during lean season.
IX. Failure to apply for CRZ Clearance for CETP pipeline of the steel
plant into the sea.
71. The issue of CRZ violations is being elaborated in the latter part
of the report. However for the sake of completion of facts on the steel
plant this issue is being dealt with here. As per the REIA report for the
Steel plant (Annexure E - 3) a Common Effluent Treatment Plant (CETP)
will be set up to take care of the untreated process effluents and treated
plant sanitary wastewater. As per the report the treated water of CETP
after partial use in green belt and plant landscape maintenance will be
let into the sea by a submarine pipeline at 18 to 20 metre depth by jet
diffusion. The pipe line will definitely have to pass through the CRZ area.
72. Laying a pipeline for the purpose of waste disposal is a
permissible activity under the CRZ notification. However the company
has to obtain the necessary clearance under the notification from Mo EF.
From the records it is clear that no such application was even made to
the MoEF by the Company. In the note dated 30.05.2007 prepared by the
Additional Director, MoEF it is recorded that the issues to be discussed
in the EA (I) meeting is regarding a) the CRZ clearance for the discharge
of effluent into the sea; b) study report regarding impact of effluent
discharged on marine ecology . However the minutes of the 67th meeting
held on 5th June , 2007 (Annexure E - 10) does not disclose that any of
these issues were discussed. This issue is not discussed any further and
clearances have been given.
Analysis of the Rapid EIA of Captive Port
I. TOR not in accordance with procedure prescribed under EIA 2006.
73.The files of the MoEF reveal that the REIA prepared by POSCO
as per the interim guidelines of the ministry was be discussed at the EAC
meeting on 16.11.2006 for scoping the project and see the adequacy of
REIA prepared. The minutes of the 46th meeting of the EAC on
infrastructure records that that they directed POSCO to incorporate
several studies in their TOR. The committee advised POSCO to
incorporate the following TOR in the Environmental Impact assessment
and submit to the ministry along with the public hearing proceedings,
for further consideration of the committee
i) Feasibility report to be provided
ii) Coastal Regulation Zone map indicating the various facilities
along the high tide line demarcated by the authorized agencies to
iii) Bathymetry survey details of the approach channel to be
iv) Cross section of the approach channel to be provided.
v) Dimension of the fore shore facilities
vi) Details of the various cargo handling facilities
vii) Tranquility condition inside the basin
viii) Littoral drift of the area along the shore and its impact due to
ix) The dumping site if it effects the Paradip navigation channel.
x) Impact of the project on the olive ridley turtle migraton and the
horse shoe crab eco system.
xi) Dredging of the estuary could lead to erosion of the inner creak
affecting the shore vegetation and precautionary measures taken to
reduce the impact.
xii) Details of the break water and its impact on the hydro dynamic
of the area including siltation, by passing of the sediment etc.
xiii) Shore evaluation study to be done upto 15 years and shore
protection works to be elaborated.
xiv) Measures to be taken to prevent flooding due to the rise in the
xv) Disposal of domestic waste water and sewage.
xvi) Details of fire fighting equipment an disaster management.
xvii) Details of green belt development
xiii) Raw material and mode of transport for transporting the raw
material for construction of the project including break waters.
xix) Wave plume studies
The committee was also of the opinion that a sub committee should visit
the site for purposes of scoping so that the environmental impact
assessment takes into account all the issues and place before the public
for the public hearing.
74. But the records do not disclose that such an exercise of
carrying an EIA on the basis of the revised TOR was ever done by
POSCO. From the records it is evident that the public hearing was held
on the basis of the REIA which was prepared as per the interim
guidelines and which was found to be inadequate by the EAC.
75. The next meeting of the EAC was held on 20.04.2007 in which
the POSCO port project was again discussed. At this EAC meeting
POSCO was directed to provide the following additional studies –
i) The numerical wave modelling for Wave agitation and down time
ii) Numerical Wave modelling for Harbour Oscillation and
iii) Storm surge Assessment
iv) Changes in Ocean environment
v) Littoral Drift study
vi)Water circulation and capacity analysis
vii) Ship maneuvering simulation study.
76. Strangely though the EAC called for a number of studies to be
done as part of the TOR for preparing an EIA on the basis of which the
public hearing was to be conducted, the committee without even waiting
for all the reports to be furnished went ahead and recommended the
grant of EIA clearance for the port. Curiously they also waived the site by
a sub –committee which was considered necessary in the earlier meeting.
77. The committee was provided a copy of the comprehensive EIA of
the port and the steel plant by the company prepared in 2007 at the fag
end. It has already been pointed out elsewhere in the report that the
comprehensive EIA reports were never submitted to any of the State or
Central agencies until the committee raised the specific issue after which
alone it was submitted. A quick check of comprehensive EIA report of the
Port reveals that even in this report, the studies called for in the EAC
meetings were not complied with. For instance the following studies are
not reflected even in the comprehensive EIA report.
i) Dredging of the estuary could lead to erosion of the inner creak
affecting the shore vegetation and precautionary measures taken to
reduce the impact.
ii) Measures to be taken to prevent flooding due to the rise in the
iii) The numerical wave modelling for Wave agitation and down time
iv) Numerical Wave modelling for Harbour Oscillation and
v) Storm Surge Assessment
vi) Water circulation and capacity analysis
vii) Ship maneuvering simulation study.
78. As far as the impact on the Pradip port is concerned apart from
merely asserting that it will not be affected (Pg. 139 of the CEIA) no
studies have been provided to substantiate their statement. Even in
respect of storm surge assessment the report merely gives historical data
of storm surges in the area but there is no impact assessment of the
surges on the project or neighbouring areas . It is evident that even the
comprehensive EIA is not as per the TOR given by the EAC. The fact that
it was never placed before any of the government agencies is another
aspect of the matter.
II. REIA of Port done during monsoon period and hence not valid.
79. According to the REIA of the port (Annexure F - 2) at para 1.3
it is stated that the investigations were done during the period from
September to November 2005. At para 3.2.2 of the report in the section
labeled ‘Rainfall’ it is stated that generally, the wet season was during
southwest monsoon, from June to October. In Table 3.3 the monthly
average rainfall is given.
From the table given above it is clear that the rainfall for the months
beginning June to October is very high averaging between 206.3 to 345
mm. Even in the month of November the average rainfall is still high at
an average of 108 mm. Data of the field survey collected during this
period cannot be scientifically extrapolated for the entire season and
therefore not valid. Further it is precisely for this reason made legally
impermissible and hence not valid.
III. Objections raised by the State Pollution Control Board, Orissa on
Captive Minor Port of M/s POSCO India Ltd, Jatadharmohan Creek,
80. As mentioned in the minutes of the meeting in reference
No.27330/IND-II-NOC-4447 dated 08.11.2006 the project proponent
made a presentation on 20.09.2006. At that meeting the PCB pointed out
to certain gaps/limitation in the REIA and requested that these aspects
should be covered in the final EIA. The following are some of the more
significant issues which were pointed out in the proceedings.
i) “As mentioned, the dredged material will be used for land
reclamation which will be developed as “Steel Plant Site”. But
schematic presentation on ‘dredging sites’ vis-à-vis
‘reclamation site’ along with path of transportation of material
is required to be discussed clearly in EIA report. This is
essential to get an idea on impact of dewatering process of
reclaimed area upon the immediate vicinity.”
ii) “There has been a special mention on “horse shoe crab”
which has adapted itself to changing climate for more than 400 million
years. But impact of the project upon this species has not been
iii) It has been made clear that the core area of Gahirmatha
Sanctuary (where total restriction on fishing imposed) is 35 KM
away from port site. But the most important point is that any
criss-crossing of turtles migration route with navigation route
shall have serious impact upon this species. A Map showing
the migration path of turtles and navigation route of ships may
be required to ensure that a safe distance is mentioned
between the two routes.
iv) As mentioned, mangrove vegetation is totally absent in the
study area. But from the maps available of that locality, it
appears that mangrove spp are existing at 6 to 7 K.M. away
from the site. Since mangrove vegetation plays a vital role on
marine ecosystem of coastal Orissa its impact needs to be
v) About 12.2 million m3 of dredged material will be disposed of
in sea. The clay particles, if disposed of during March-May will
get deposited in navigational channel of Paradeep Port under
the effect of sea current. A quantitative estimate of such
siltation within Paradeep Port area may be made.
vi) Deepening of creek and providing new opening will increase
current and volume of water entering into these inlets during
flood tides. This will result is increase in erosion of inner creek
segments destabilizing the near-shore vegetarian. The
measurable impact if assessed may be presented.
vii) During construction phase, dredging will cause destruction
of habitats in creek and near-shore region. The bottom
communities in an area of 5.6Km2 inside the creek and 2.25
Km2 in near-shore region will be permanently lost. Basis of
arriving these figures not furnished. A list of bottom
communities apprehended to be lost needs to be furnished.
viii) Handling of iron ore & coal only are envisaged. But looking
at the ultimate capacity of the Steel Plant, the Port may handle
various other materials, chemicals, in future depending upon
the product spectrum.
ix) Water pollution from various sources especially ballast
water, bilge water etc. have been mentioned. But the quantity
of effluent generation, specific treatment facility & capacity of
such facilities have not been furnished. All such sources shall
have effluents contaminated with oil.
x) Chronic release of such wastes in confined water of Jatadhar
Muhan Creek would lead to damage of ecosystem with
elimination of sensitive organisms. List of such vulnerable
species have not been enumerated. Nowhere in the report,
handling of petroleum products or fuel (HSD,LDO,FO,LPG etc)
has been mentioned. Even, storage of fuel for ships also have
not been envisaged at port site. This needs to be clarified.
xi) Location of release of treated waste water has not been
mentioned. This has to be defined clearly so as to ensure
required dilution with respect to the parameter of “oil &
xii) The ultimate change in shore line (which will take place
over a span of 7 years) vis-à-vis CRZ regulations (if at all it
attracts) needs to be examined.
xiii) There may be restriction on fishing within a certain region.
The region needs to be demarcated in a map and loss of fish
harvest during such restriction may be estimated for socioeconomic
xiv) Though it’s a rapid marine EIA where marine parameters
are of utmost importance, still a fairly strong socio-economic
impact is likely to be caused due to restriction of fishing and
loss of potential (due to project activities) which needs to be
studied since fishing has been the main source of livelihood in
Facilities of oil handling and storage at port site needs to be
prepared. The impact of fire hazard as “stand alone” case as well
as the threat from IOCL’s refinery needs to be examined since
IOCL will also be handling its raw material through pipelines in
vicinity of this port site.
ii) The main bulk of material to be handled and stored at port
site will be coal. Fire hazard potential arising out of it needs to
iii) Disaster Management Plan to be prepared keeping the
following in view (in addition to the issues enumerated at 7.2.1)
a) Fire caused at oil storage facility.
b) Fire caused at IOCL or its allied installations.
c) Oil spill caused at port area due to its own activities.
d) Oil spill caused at IOCL (or its Pipelines) affecting the creek.
e) Fire hazard caused in coal handling, storage and movement
f) Earthquake (if risk exists according to seismic zone map)
g) A region oil spill contingency plan in coordination with all
potential hazardous units in this regard.
a) The socio-economic study especially related to fishing,
infrastructure development etc. needs to be studied. Certainly a
large scale infrastructure like road network, railways, power
lines etc. will develop in the vicinity of Paradeep due to this
project township and steel plant.
b) Comprehensive structure of “pollution control cell” and the
infrastructure facilities to be developed etc are to be detailed.
c) Area to be acquired for the project and its present ‘land use, is
d) A comprehensive green belt plan has to be prepared.
e) Details of air pollution control devices to be installed at coal
storage area at Port site & transport to plant site.
f) Through it is marine EIA, but ambient air quality and noise
level of project site should have been incorporated to record it as
back ground concentration which shall be used for reference
during post-project period.
g) Though it has been prescribed that layout of various schemes
meets the requirements of CRZ Notification, but a map showing
the “Project layout” super imposed on “CRZ map” would make it
h) It is mentioned that the surplus dredged materials will be
disposed at a pre-identified location which has not been revealed
in the report. However, the average water depth of such disposal
site would be 22 meters indicating that the site will not be too
far from the shore. A map indicating the disposal site vis-à-vis
project site and predominant sea current path shall better clarify
The proponent has to incorporate the above in the final EIA.”
81. On a reading of the issues raised it is evident that the
State PCB raised crucial issues of serious concern, but from the
records made available to the Committee it appears that many of
these issues were never seriously pursued. Unfortunately neither
the PCB, Orissa nor the EAC / MoEF insisted on answers for these
issues before the clearances were given.
III. Comments of Orissa CZMA on REIA of the Captive Port.
82. A meeting of Orissa State Coastal Zone Management Authority
was held under the chairmanship of Principal Secretary Forest and
Environment Department on 7th August, 2006 (Annexure F - 5) to
consider the environmental impact of the captive minor port. Dr.V.Sanil
Kumar, Scientist of National Institute of Oceanography, Goa presented
the Rapid Environmental Impact Assessment study conducted for the
area. The following issues were raised by the members:
i) The duration of study for biological analysis has not been
mentioned. The phytoplankton study did not have any details such
as date of collection of samples, centre of deposit, voucher number
and photographs of each organism. There has not been any
mention of sea weed and sea grass in the report.
ii) As the Regional Research Laboratory (RRL) is monitoring
the coastal water of Orissa since last few years, data are available
and these data could be taken advantage of in the preparation of
comprehensive Environmental Impact Assessment (EIA) report as
iii) It was pointed out that the CRZ maps which have been
supplied by ORSAC and the maps enclosed in the report do not
iv) Steps proposed for protection of beach erosion need to be
iv) Issues like socio-economic aspect, horseshoe crab, impact
of handling materials other than coal and iron ore in the port,
water pollution problem including treatment facility and location of
discharge have not been addressed in the impact assessment
vi) Mr. S.P.Nanda, Principal Secretary and Chairman of the
Authority wanted to know the truth in the apprehension and
concern of general public about threat to the Paradeep Port.
In response to the issues raised above the following
clarification were given by the consultant.
(a) Sea weed and sea grass studies are to be included in the
comprehensive EIA. Details of sample, i.e., date of collection,
photographs and voucher would be provided in the comprehensive
(b) Comprehensive environmental impact assessment
report is under preparation which would cover all seasonal data
pertaining to environmental parameters. N I O is currently
carrying out seasonal observation for water quality and biological
parameters. Data available from other sources would also be
c) The issue regarding mismatch between CRZ map prepared
by Government of Orissa and the map submitted by the project
proponent would be sorted out immediately.
d) The Consultant also indicated that during construction of
Paradeep port counter measures for shoreline erosion had not been
visualized properly whereas in the present case countermeasure
such as sand bypassing with additional engineering measures for
beach nourishment would be adopted which would maintain the
shoreline. Annual natural sediment transportation would not affect
the Paradeep port because the effect can be felt upto a maximum
distance of about 5 kms towards Paradeep port. But Paradeep port
is located at a distance of 12kms. Hence, the apprehension is not
e) Socio economic aspect would be dealt with in detail in the
comprehensive report. The points raised such as water treatment
facility and location of disposal of waste water would be
immediately furnished. The representative of POSCO clarified that
no other material other than iron ore and coal would be imported
through the port. The air quality measurements would be
mentioned in the comprehensive report. In connection with a
query regarding dust control measures, the consultant clarified
that dry fog arrangements with vacuum cleaners would be adopted
which would require less water and there would be no generation of
waste water from such treatment.
f) Some members desired to go on a site visit. After
detailed deliberation, the Authority in principle agreed to
recommend the proposal of M/s. POSCO for establishment of
captive minor port at Jatadharmohan creek, to Ministry of
Environment & Forest, Government of India for considering grant
of CRZ clearance.
83. The above referred minutes disclose that apart from the
PCB the OSCZMA has also raised several pertinent issues which
were promised to be studied by the project proponent in the
comprehensive EIA which was under preparation. But the
clearances were rushed through without waiting for the
comprehensive EIA reports..
IV. Objections raised by the MoEF, Regional Office, Bhubaneshwar.
84. The Regional Office (RO) of MoEF at Bhubaneshwar sent their
detailed comments to the IA Division, MoEF on the Rapid EIA of port
through proceedings Ref. No. 106-90/EPE dated 7.8.2006 (Annexure F -
4). The following are the comments sent to MoEF.
Port projects are highly significant and mostly are built in sensitive
areas i.e CRZ I and create a sizable impact on marine as well as
terrestrial eco systems.
· The present project is located 12 km south of Paradeep port and
the impact of developing this project on the functioning of existing
port needs to investigated mainly on the angles of dredging and
dumping of spoils, nutrient loading on the coastal shore of
Paradeep due to increased activity (cumulative impact) and
availability of urban infrastructure to absorb the increase in influx
particularly transport, population and land requirement.
· The Indian oil Corporation Refinery is also coming up between
Paradeep port and the present proposed site.
· As per the EIA report the project involves capital as well as
maintenance dredging. The dredge material is proposed to be
dumped on the shore and the sand beach. As per the approved
CZMP of Orissa, para A (xiv), the dredge material should not be
disposed within the CRZ area.
While according approval of CZMP of Orissa, the ministry has not
approved the categorization of Paradip port area… thus, the
categorization of CRZ areas by the project authorities may not be
agreed by the ministry.
· In light of the above points, it is requested that clearance under
CRZ regulation may be considered with the following points and
a) The project is highly significant as far as impact on ecology
of Paradeep area is concerned…necessary clarification on “
Minor” and “Major” terms may be given by the ministry.
b) Rapid EIA exercise may not be considered by the ministry
as appraisal may not be easy due to lack of 3 seasons data i.e
from December to August. The marine biology is very complex
and different from terrestrial habitats with many biotic
groups completing their whole life cycles with a season. The
physical and hydro-geological parameters of ocean and
current behavior differ much from season to season and so
the impact of these changes on environmental settings. Thus,
omitting a season means incomplete assessment of total
bio diversity (emphasis ours).
c) A special report is needed on the impact of the project on
Olive Ridley turtles. These organisms remain in this area
between Ganjam Coast and Bhittarkanika for at least 6
months for mating and laying eggs. The hatchlings also
emerge from the sandbars of some of the areas of Orissa coast
in late winter to finally reach to the marine water. Any activity
during these periods may harm the existence of Olive Ridley
d) It has also been felt that there is a difference in the maps of
the project and the forest department and the Topo sheet
regarding the type of land being proposed (114.8 acres) there
was a discussion that some portion of the proposed area is in
fact, forest lands attracting the provisions of Forest
( Conservation) Act, 1980.
e) Since the port is a captive project of the steel plant, the
impact of steel plant activities on the functioning of port also
needs to be assessed. Project may be advised to make a
comprehensive EIA for clearance under EIA Notification. The
activities linking the port and steel plant has not been
considered in Rapid EIA report.
f) The steel plant portion of the project site will require large
area of forest land for which clearance under F© act is
required. Once a single proposal is made, the present
disagreement about the involvement of forest land in port
project will be completely taken care of.
g) We may consider taking opinion of Paradeep Port Trust on
likely environmental impact of proposed activities on the
existing Paradeep port.
85. In addition to the above the RO, MoEF, Bhubaneshwar in its
letter dated 9.4.2007 (Annexure F - 11) brought to the notice of the
MoEF, New Delhi that the Paradeep area is being considered for
establishment of several industries which will have environmental
implications on aquatic and terrestrial eco systems. The Ministry may
(a) initiating studies on ecological implications of development;
(b) Long term study on the impacts due to erosion of creeks /
banks, deepening of the creek and widening of the river mouth;.
(c) on the population and community ecology of phytoplanktons
and zoo planktons and impact of increase of oil and grease
concentration in the sea water on these organisms.
(d) Changes in primary productivity near the project discharge
areas and areas inside the sea not affected by the development to
document the species behaviour and survival.
(e) Impact of regular dredging by port authorities.
(f) continuous monitoring on ecology of Olive Ridley turtles.
Though these comments were sent much prior to the clearances,
none of them seem to have been seriously considered by the EAC.
86. It is evident that at least three committees - Technical
Committee, Iron And Steel Sector (Annexure E - 6), State Pollution
Control Board, Orissa with respect to REIA of Steel Plant, and the Orissa
State Coastal Zone Management Authority on Captive Minor Port
(Annexure F -5) have raised important queries calling for further
information and a comprehensive EIA from the Project proponents both
on the steel plant and the port. However on a perusal of the minutes of
the EAC in respect of the port and the steel plant reveals that these
queries have been completely ignored. Many of the issues raised by them
have not been followed through by the authorities themselves. For
instance the members of the Orissa State Coastal Zone Management
Authority desired to go on a site visit. However the records do not reveal
if such a site visit was ever undertaken. Similarly the Technical
Committee, Iron And Steel Sector, State Pollution Control Board, pointed
out that the FINEX technology is unknown with no literature available
and hence it would be necessary to observe an actual operational plant
to verify the claims of the company. However the records once again do
not disclose that such an exercise was undertaken.
87. The EAC minutes for the port reveal that at its meeting on
16.10.2006 (Annexure F - 8) the EAC wanted to undertake a site trip.
The same was again abandoned as recorded in the minutes dated Nov,
2006 (Annexure F - 9) where a decision to grant the CRZ and EIA
clearance was taken.
V. Impact on Paradeep Port.
88. Concerns regarding the impact of the POSCO port on the
existing Paradeep Port have been repeatedly voiced by the authorities as
well as by the public. The project proponent has merely asserted that
there will be no adverse impact on the Paradeep Port. From the records
made available to the committee members it appears that these
assertions are not based on studies/ reports which were made available
to the various authorities / public. A close scrutiny of such studies if
any, by independent authorities as well as by members of the public who
may have expertise in the area can alone satisfy the concerns. A mere
assertion by the project proponent and a meek acceptance of the
same by the EAC is not at all a satisfactory approach.
89. Further contrary to the claims of the project proponent Ministry
of Shipping, Road Transport and Highways, Government of India appears
to have a different view. An Unstarred Question No 4005 was raised in
the Lok Sabha to the Ministry of Shipping, Road Transport And
Highways, Government Of India as to
(a) Whether the private port being set up near Paradip Port will
have any adverse effect on the existing Paradip Port;
(b) If so, the steps taken to examine the proposal to set up the port
in the private sector; and
(c) The reaction of the Government thereon?
90. The query was answered on 20.12.2005 by Minister of
Shipping, Road Transport and Highways (Shri T.R. Baalu) (Annexure F -
1). The reply was as follows:
“The proposed minor port for POSCO steel plant may lead to severe
erosion along the coastline posing a threat to the port facilities at
Paradip. Government of India as well as Paradip Port Trust have
impressed upon the State Government of Orissa that Paradip Port
after deepening of its channels will be in a position to develop its
deep draft dock system and the facility can be made available on
captive basis to POSCO. The State Government of Orissa has been
urged to undertake intensive and detailed study regarding erosion
if they decide to develop minor port for POSCO plant and associate
Government of India and Paradip Port with such studies.”
91. The committee members met the chairperson of the Paradeep
Port and pointed out the facts mentioned above. But apart from a
cursory statement that nothing will happen he did not provide any
satisfactory explanation to us. It is most unfortunate that despite the
fact that this issue was raised as early as December 2005 in the
Parliament and the concerned Minister has categorically stated
that this will adversely effect the Paradeep Port , the EAC and the
MoEF have not chosen to call for reports from the Ministry of
Shipping, Road Transport And Highways, Government of India
before clearances were given.
VI. Requirement of Comprehensive EIA not pursued by State
92. It is has already been pointed out that the State PCB has
already raised doubts about the sufficiency of data with regard to FINEX
technology. It has also raised several queries on other issues. They called
for comprehensive / further studies in some area. However the EAC did
not go into the issue of sufficiency of REIA and EMP and the requirement
of a comprehensive EIA even though it is one of the largest projects ever
considered and it was being set up in an environmentally fragile area
which is at the receiving end of severe cyclonic storms.
93. In Baldev Singh and Ors. Vs. State of H.P. and Ors.
(2006(3)ShimLC135) a Division Bench of the Himachal Pradesh High
Court in its order dated 27.07.2006 interpreted the scope of the
Explanatory Note regarding the Impact Assessment Notification dated
27th January, 1994. The Court held that the notification envisages that
a comprehensive EIA report must be submitted based on one year's data.
It is only in case the project is unlikely to cause significant impact on the
environment that this requirement may be dispensed with. A project
proponent must satisfy the IAA that a comprehensive EIA can be
dispensed with in the peculiar facts and circumstances of the case. …..
Since there is no comprehensive EIA or a properly conducted Rapid EIA
and no report of the Impact Assessment Authority, whether a
comprehensive EIA is required or not we are of the opinion that there has
been no compliance with the provisions of the EIA notification.
94. A combined public hearing for both the steel plant and minor
port was organized on 15.4.2007 at Banabehari High School, Kujanga by
the Orissa State Pollution Control Board. As per the Interim Operational
Guidelines dated 13.10.2006, in respect of projects where EIA document
has been submitted prior to the 2006 EIA Notification and where the
Public Hearing has not been conducted, it would be conducted as per the
procedure of EIA 2006.
95. Before embarking on an examination of the manner in which
the Public Hearing was conducted in the POSCO case, we need to
understand the importance accorded to `Public Hearing’ or `public
consultation’ process in law. It should be stressed that in law, public
consultation is much broader than public hearing.
I. Public Hearing as part of Public Consultation
96. The 2006 EIA Notification placed a lot of emphasis on public
consultation process. Clause 7 outlines 4 stages in Prior Environmental
Clearance (EC) Process for new projects which include the stages of (1)
Screening, (2) Scoping, (3) Public Consultation and (4) Appraisal.
97. “Public Consultation” was described to be the process by which
the concerns of local affected persons and others who have plausible
stake in the environmental impacts of the project or activity are
ascertained with a view to taking into account all the material concerns
in the project or activity design as appropriate. (emphasis ours).
98. Public consultation was conceived to have 2 components:
(i) a public hearing at the site or in its close proximity- district wise,
to be carried out in the manner prescribed in Appendix IV, for
ascertaining concerns of local affected persons;
(b) obtain responses in writing from other concerned persons
having a plausible stake in the environmental aspects of the project
or activity. (Stage III, 2006 EIA Notification).
Appendix 4 of the EIA Notification, 2006 sets out the procedure for
conduct of Public Hearing.
99. It should be stressed that the emphasis on public consultation
was not a mere procedural requirement. The law conceived of the wider
public as having a direct and vital stake in the decision regarding the
siting and establishment of any industry. Thus it was imperative that
there was full and complete disclosure about the environmental
implications of a project to citizens who would be vitally affected by the
project as also others who have a wider environmental stake about the
project. The issue of consultation therefore encompassed issues of
availability and access to full information about the proposed project, the
environmental risks, mitigation measures and other such critical
information. Apart from provision and availability of information, was the
element of free and unhindered participation in the public hearing itself
with the opportunity of expressing views each persons concerns about
the environmental implications of the project. The broader perspective
underlying public hearings is outlined in the EIA Manual of Jan 2001.
II. The Role of the Public
100. According to the EIA Manual, 2001 the public has an
important role to play in EIA. The concerned persons will be invited
through press advertisement to review information and provide their
views on the proposed development requiring environmental clearance.
101. Law requires that the public must be informed and consulted
on a proposed development after the completion of EIA report. Any one
likely to be affected by the proposed project is entitled to have access to
the Executive Summary of the EIA. The affected persons may include:
bonafide local residents;
environmental groups active in the area, and
any other person located at the project site / sites of displacement
They are to be given an opportunity to make oral/written suggestions to
the State Pollution Control Board.
III. Manner of holding Public Hearing - Framework for analysing
102. There should be dissemination and availability of Summary of
EIA and Draft EIA Report to Public. The procedure for arrangement and
conduct of public hearings is elaborated in Appendix IV of the EIA
Notification, 2006. Clause 1 provides that the concerned State / Union
Territory Pollution Control Board arranges for the Public Hearing which
“shall be arranged in a systematic, time bound and transparent manner
ensuring widest possible public participation at the project site(s) or in
its close proximity district wise” (emphasis ours).
103. Clause 2.3 requires the project proponent (termed Applicant in
the Notification) to supply 10 hard copies and equivalent number of soft
copies of the draft EIA Report including the Summary EIA Report in
English and local language , prepared strictly in accordance with the
terms of Reference communicated after scoping. This was to be sent to
MOEF, New Delhi as also to the following state level authorities or
offices, within whose jurisdiction the project will be located:
(a) District Magistrate/s
(b) Zila Parishad or Municipal Corporation
(c) District Industries Office
(d) Concerned Regional Office of the Ministry of Environment and
104. Clause 2.3 provided that on receiving the draft Environmental
Impact Assessment report, the above-mentioned authorities (except the
MoEF), shall arrange to widely publicize it within their respective
jurisdictions requesting the interested persons to send their comments to
the concerned regulatory authorities. They shall also make available the
draft EIA Report for inspection electronically or otherwise to the public
during normal office hours till the Public Hearing is over.
105. Similarly, clause 2.4 stipulated that the State / UT PCB or
UTPCC concerned shall also make similar arrangements for giving
publicity about the project within the State/Union Territory and make
available the Summary of the draft Environmental Impact Assessment
report (Appendix III A) for inspection in select offices or public libraries or
panchayats etc. They shall also additionally make available a copy of the
draft Environmental Impact Assessment report to the above five
authorities/offices viz, Ministry of Environment and Forests, District
106. The date, venue and time of the Public Hearing itself was to be
widely publicized in one major national and one Regional Vernacular
Daily newspaper and 30 days minimum notice period shall be provided.
107. The Public Hearing itself shall be supervised and presided over
by the District magistrate or his/her representative not below the rank of
an Additional District magistrate. A summary of the proceedings
accurately reflecting all the views and concerns expressed shall be
prepared by the representative of the State PCB, read over to the
audience at the end of the proceedings and explained in the local
language and agreed upon Minutes had to be signed by the District
Magistrate or their representative on the same day itself (cl. 6.1).
Similarly, a statement of issues raised by the public and comments of the
Applicant shall also be prepared in local language and English and
annexed to Proceedings. The Proceedings of public hearing shall be
conspicuously displayed at the office of the Panchayats within whose
jurisdiction the project is located, and in the offices of the Zilla Parishad,
District Magistrate (Collector), and the State PCB. (Cl. 6.6).
IV. Reviewing the Adequacy of Consultation Process
108. Clause 3.1.3 of the EIA Manual, 2001 explains the process of
reviewing the conduct of public consultation process and provides that in
reviewing the adequacy of the consultation process, together with the
incorporation of its results into the detailed EIA, the Impact Assessment
Agency should examine whether the procedure has been followed as per
MoEF notification and
a) An overview of the issues discussed
b) How the concerns raised were responded to by the project
c) How these responses were conveyed back to those consulted
d) What are the public hearing panel's observations.
109. To assist the review in appraising the adequacy of the
consultation process, a checklist of programme objectives and issues
for verification was presented.
Objective Issues to verify
Is the Project Proponent aware of all those groups
and individuals who will be directly affected by the
social or environmental impacts of the project?
Has project proponent addressed to mitigation
options. Have all social and environmental impacts
of significance to the local population and other
stakeholders been assessed in the EIA (including the
indirect social impacts)
Has the project proponent addressed the issues of
project compensation and rehabilitation as per the
Have project-affected groups been proposed to be
involved in monitoring the effectiveness of social and
environmental impact mitigation and is a plan for
the same presented?
Is proponent working to promote local development
within the wider community?
Having considered the framework for analysing the adequacy of the
public consultation and public hearing process, we shall now examine
the specific situation of the Public Hearing conducted in the POSCO
project on 15.4.2007.
V. Review of Adequacy of Public Hearing conducted on 15.4.2007.
110. The Committee went through the copies of the report of
Proceedings of the public hearing (Annexure E - 7), the list of issues
raised in the hearing and the reply of the POSCO officials. The MoEF,
New Delhi also provided the Committee with copies of objections received
by them from various individuals, groups and organizations about the
public hearing sent in both Oriya and English. Additionally, during the
field visits when the Committee met with villagers, some of the objections
given earlier was handed to the Committee and in the course of
discussions with different persons, there was reference to the conduct of
the public hearing.
111. The following analysis is based on the variety of material
gathered from different sources. We are however taking care to refer to
contemporaneous documents about the public hearing wherever
VI. Objections raised during the Public Hearing
112. A number of objections were raised during the public hearing
itself. This is evident from the record of proceedings (Annexure E - 7).
i) EIA Reports not available at the Panchayat office.
Though the Notification stipulates that the EIA Report should
be made available at the office of the 8 panchayats, according to
some of the participants in the Public Hearing, the EIA reports were
not available at the Panchayats of the 8 project affected villages.
There was also a complaint that the soft copy of the REIA vol. 2
containing the Field Survey was not available. (See representation
titled “Objections: Ten Reasons as to why I object to the EIA
Reports for POSCO” dated 15.5.2007 given by Premasi Nayak of
Erasama. Jagatsinghpur, found in the MoEF Files).
ii). Place of Public Hearing inconvenient.
The public hearing was held in Kujanga, about 15 kms away
from the affected villages. During the hearing, many people
complained that because of the prohibitive distance, many villagers
could not travel to participate in the Public Hearing. They also
demanded a rehearing in a more accessible place closer to the
project affected villages. (representations submitted to authorities
as found in MoEF files).
iii) Other project affected people like traditional fishing
community and farmers not covered by the public hearing.
a) Another demand was that a separate public hearing should
be held for farmers who are going to be affected by the diversion of
water from the Jobra Barrage 86 kms or so away from the POSCO
plant site. Similarly there was representation by the traditional
fishing community who fish along the Jatadharmohan coast, of
b) A representation dated 15.04.2007 was sent by the Kalinga
Karnadhar Kaibarta Solabhai Sabha, Kujang, Kalinga Kaibarta
Bhaban, Atharbanki, Paradip – 754142 to the OPCB pursuant to
advertisement dated 14/15 March 2007 in `The Dhatri’ newspaper
spelling their objections to the setting up of the POSCO plant at the
site proposed. Copy of this was sent to the MoEF,New Delhi
(thisletetr was found in the MoEF file). In a clear manner they also
expressed their fear that if allowed to be set up, the hazardous
waste materials emanating from the steel plant, both air and liquid,
would seriously damage and threaten the local environment,
marine life, seasonal crops, water, thereby causing serious health
hazards and affect their livelihoods. (Present in the files sent by
MoEF with regard to Steel plant EC)
c) According to this representation, villager of 99 villages
especially the Kaibartha community of erstwhile Kujanga Estate
have enjoyed fishing rights upon 57 tidal rivers and creeks for
several generations known as “Saharapentha Machhaaida”. These
rights were conferred upon them by Sendha Raj in 1860 by way of
permanent lease known as ‘sananda’. The State government has
recognized these rights even after vesting of the Estate. It includes
the area in in Mouza Jatadhar in Khata No. 2.
d) A representative suit was filed by the Association in C.S.
No. 93 of 93 before the Court of Civil Judge (Sr. Division)
Jagatsinghpur for occupancy rights and injunction restraining the
Collector Jagatsinghpur, Kendrapara in the matter of exercising
fishing rights in respect 57 rivers and creeks.
e) An order dated 09.11.93 was passed in I.A No. 235 of 1993
in C.S. No. 93 of 93. A Civil Revision Petition No. 155 of 2001 was
filed before the Orissa High Court as against the order in the I.A
235 of 1993 in C.S. No. 93 of 93. The High Court passed an order
dated 02.07.2002 in Civil Revision Petition No. 155 of 2001
restraining the authorities from disturbing the rights of the
Petitioners to catch fish so long as they pay lease amount
determined by Tahsildar.
f) Due to subsequent events, the Petitioners sought
permission in the Revision petition to withdraw CS/ T.S. 93 of 93
and file fresh suit. They were directed to approach civil court. C.S.
No. 43 of 2001 was filed before the Court of Civil Judge ( Sr.
Division). By order dated 26.03.2003, I.A. No. 68 of 2003 for
injunction restraining the collectors of Jagatsinghpur and
Kendrapur from interfering with their rights was dismissed. As
against this FAO No. 352 of 2005 was filed before the Orissa High
court. The High Court by its order dated 19.05.2006 directed that
lease shall be granted to the Petitioners on payment of lease
amount until disposal of the suit.
g) According to the representation, the POSCO site falls in the
area under Lease Case No. 36 of 2005. There is also a reference to
order of Supreme Court in W.P. Civil No. 561 of 94 where in the
context of CRZ the Court held that rights of traditional fishing
communities will be protected. According to the Association the
location of POSCO plant in the proposed site was in violation of
their rights protected by the court order.
There is no discussion or consideration of these claims
and objections by any of the authorities including the EAC.
iv). Large scale Police presence inhibiting local participation
Some of the participants pointed out that a strong police
force of over 1,000 personnel were present at the venue of the
public hearing a day prior to the hearing itself. This served as a
deterrent to free participation by local villagers, who were opposing
the project. Some also stated that there was large scale presence of
ruling party (BJD) cadres and hence they apprehended violence.
This also served as another factor for non-participation of many
residents from villages like Dhinkia from participating in the public
hearing (as told orally to the Committee by local villagers).
VII. Some of the main environmental concerns raised in Public Hearing regarding steel plant and the response of POSCO India.
Sl. No Environmental Concerns raised in Public Hearing Reply of POSCO
1 Drawal of water from the Mahanadi river will affect supply of drinking water, irrigation and
cultivation and the impact of drawal of 10 MGD/16.5 MGD water not studied as in
summer the Mahanadi dries up and withdrawal of water during that time will
effect the present users.
2 The environmental impact of 87 km pipeline from Jobra Barrage to plant site which is in
integral part of the plant not included in the EIA.
3 There is no precise identification of the 900 acres of land which will be used for solid waste dumping.
4 The chemical characteristics and leachability of toxic heavy materials in solid waste not assessed.
5 Dumping site is located close to the Jatadharmohan creek.
6 Paradeep area is already polluted severely Not addressed because of other industries in the area.
7 Waste water from the Central Effluent Treatment Plant is to be released into the sea
through a pipeline. There has not been any assessment of impact on marine
environment and ecology
8 Finex technology is unknown and a query was raised as to whether this technology had
been certified and validated by any international technical accreditation agency.
9 There should be no industrialization within 150 m of the tidal zone of the
10 The project would adversely affect the health of persons living in that area
The reply states that they plan to have extensive air pollution control
measures and the present air ambient quality will be preserved.
11 Rapid EIA is not sufficient and a comprehensive EIA should be done.
Report is complete on one season baseline data.
Note: The reply is evasive and does not address the importance of a Comprehensive EIA covering seasonal variations across a full year.
12 The figure of 471 displaced families as given in the EIA is incorrect and the actual figure
could be as high as 2843 families.
The figure of 471 families is said to be based on first hand information.
13 CRZ notification has to be followed in respect of location of steel plant.
Steel plant does not come under CRZ regulation and CRZ clearance of proposed site
has been evaluated by the OCZMA and report of the National Institute of Oceanography
(NIO) is available with the OCZMA
VIII. Environmental concerns raised in Public Hearing regarding port
Environmental Concerns raised in Public Hearing Reply of POSCO
1 It will affect fishing activities in the creek.
POSCO India will invest in fishery culture development with active participation of local people.
Note: This reply does not address the issue raised of traditional fishing rights of
2 Dredging would affect Atharbanki creek Not addressed
3 Dredging for the port would result in soil erosion beyond north break water and sand
filling near southern break water. This aspect has been extensively studied by the
Danish Hydrology Institute, Consulting Engineering Services, New Delhi and the NIO, Goa with
mathematical simulation modelling, the quantum of dredged sand has been calculated and its disposal for site reclamation and at far off shore has been considered.
4 There would be adverse effect on discharge of flood water during rainy season.
The mouth of Jatadarmohan creek will be kept open and the creek widened and dredged to deepen it for accessibility of ships to harbour. This will facilitate quick discharge of storm water.
Note: This reply does not address the issue of the drainage of flood waters currently emptying into the JM creek which will be obstructed on account of the raised elevation of the steel plant
site by more than 6+ m or 25 feet.
5 Paradeep port would be adversely affected The feasibility study of port has considered the
effect on Paradeep port. Simulated model studies has been done by the Danish Hydrological
Institute and the Consulting Engg. Services which confirms that there will be no adverse effect on the Paradeep port.
Note: None of the above reports have been incorporated into the EIA or annexed thereto.
Barring the bald assertion of the company there is no material to ascertain the statement.
6 Dredging of sand dumping it in the sea would destroy the habitat and migratory
route of Olive Ridley turtles. Turtles avoid turbid waters
7 Port illumination would also have an adverse effect on Olive Ridley turtles, and endangered species
8 Indo-pacific hump back dolphin, common dolphin, porpoise and spinner dolphins
would be adversely impacted as the river mouth is the breeding and foraging ground
for marine mammals.
9 The Jatadari river mouth is an important migratory route for hilsa and other marine
fishes of high market value.
10 The current measurement and the off shore water were recorded between 5.9.2005 and
8.10.2005 (ref. para 188.8.131.52 of REIA Report of Port). Hence the reading has been done
only for 34 days and not even an entire season. Hence the REIA is flawed.
11 The specific area at which the dredged sand would be dumped not identified and no
study of the effect of this dumping on food chain and habitat of sea turtles was done.
12 No comprehensive risk analysis, especially of worse case oil spill scenario.
13 No assessment of cumulative impact of various port projects along the coast on Olive
Ridley turtles which is a protected species under Schedule I of the Indian Wildlife
Protection Act, 1911.
14 HAZOP study not done. Not addressed
IX. Failure to address all the material environmental concerns
raised in the public hearing by the project proponent.
113. As per the EIA notification, 2006 after completion of the public
consultation, the applicant shall address all the material environmental
concerns expressed during this process, and make appropriate changes
in the draft EIA and EMP. The final EIA report, so prepared, shall be
submitted by the applicant to the concerned regulatory authority for
appraisal. The applicant may alternatively submit a supplementary
report to draft EIA and EMP addressing all the concerns expressed
during the public consultation.
114. In response to the objections raised in the public hearing the
project proponent gave a response which was submitted as Annexure 1
to the public hearing proceedings submitted to MoEF. These responses
do not cover many significant issues raised in the public hearing as
shown in the tables above.
Expert Appraisal Committee
I. Role of Expert Appraisal Committee:
115. The EAC is the highest recommendatory body of the MoEF.
While technically the recommendations of the EAC can be accepted or
rejected by the Ministry, in practice the recommendation of the EAC is
normally acted upon. So functionally, the EAC is the last word on the
matter. Hence the role of the EAC is very crucial and a complacent and
complaint EAC would render the entire EIA procedure meaningless and
toothless. Considering the fact that damage to environment is irreversible
and its impact felt over generations often well beyond the geographical
boundaries of project sites the responsibilities of the EAC is that much
more onerous. Any mechanical or ritualistic approach to its duties will
spell the death knell for our environment and people.
116. A Division Bench of the Delhi High Court in its order dated
26.11.2009 in `Utkarsh Mandal .Vs. Union Of India’ ( Writ Petition
(Civil) No. 9340/2009)has spelt out the role of the Expert Appraisal
committees constituted by the MoEF to assist it in the decision making
process of granting or refusing clearances and approvals under the EIA
and CRZ notifications. It lays down the following important principles:
(i) EAC as a delegatee of Ministry of Environment and Forests
performing a public law function;
(ii) Providing reasons for its decisions as an essential concomitant
of acting fairly;
(iii) EAC has to apply its collective mind to the objections raised in
public hearing and give reasons why any or all of such objections
were accepted or negatived. Failure to give reasons will vitiate the
(iv) EAC should not consider more than 5 applications at a single
117. The High Court elaborated as follows -
“In the first place it needs to be noted that the MoEF has
constituted the EAC (Mines) as a twelve member body for
evaluating the Project proposal as well as the EIA Report and
advise the government on whether environmental clearance
should be granted. It is in essence a delegate of the MoEF
performing an "outsourced" task of evaluation. The decision of
the EAC may not necessarily be binding on the MoEF but is
certainly an input into the decision making process.
Considering that it constitutes the view of the expert body, its
advice would be a valuable input. In terms of the procedure
evolved by the MoEF to deal with applications for EIA
clearance, the objections at the public hearing and the
response thereto of the project proponent are placed before
the EAC (Mines) for evaluation and for taking a decision
which will constitute the advice to the MoEF on such project
proposal. The EAC is therefore performing a public law
function and is expected to adhere to those very standards
which law requires the MoEF to adhere to.
The requirement of an administrative decision making body to
give reasons has been viewed as an essential concomitant of
acting fairly. Given that such a decision is in any event
amenable to judicial review, the failure to make known the
reasons for the decision makes it difficult for the judicial body
entrusted with the power of reviewing such decision as to its
reasonableness and fairness. The decision must reflect the
consideration of the materials available before the decision
maker and the opinion formed on such material.”
The court further observed that “ para 4 of the EIA
notification defines Appraisal as: "Appraisal means the
detailed scrutiny by the Expert Appraisal Committee or State
Level Expert Appraisal Committee of the application and other
documents like the EIA report, outcome of the public
consultations including public hearing proceedings,
submitted by the applicant to the regulatory authority
concerned for grant of environmental clearance......."
(emphasis supplied) Consequently, the exercise expected to be
performed by the EAC (Mines) is a serious one and has to
include a consideration on merits of the objections raised at
the public hearing. Its decision must reflect this. We do not
accept the contention of the learned ASG that as long as the
MoEF while taking the ultimate decision has applied its mind
to the objections raised at the public hearing, the requirement
in law would be satisfied. The whole purpose of "outsourcing"
the task to an EAC comprised of experts was to have a proper
evaluation of such objectives on the basis of some objective
criteria. It is that body that has to apply its collective mind to
the objections and not merely the MoEF which has to
consider such objections at the second stage.
We therefore hold that in the context of the EIA Notification dated 14th
September 2006 and the mandatory requirement of holding
public hearings to invite objections it is the duty of the EAC,
to whom the task of evaluating such objections has been
delegated, to indicate in its decision the fact that such
objections, and the response thereto of the project proponent,
were considered and the reasons why any or all of such
objections were accepted or negatived. The failure to give such
reasons would render the decision vulnerable to attack on the
ground of being vitiated due to non-application of mind to
relevant materials and therefore arbitrary.”
As regards the functioning of the EAC, from the
response of the MoEF to the RTI application referred to
hereinbefore, it appears that the EAC granted as many as 410
mining approvals in the first six months of 2009. This is
indeed a very large number of approvals in a fairly short time.
We were informed that the EAC usually takes up the
applications seeking environmental clearance in bulk and
several projects are given clearance in one day. This comes
across as an unsatisfactory state of affairs. The unseemly
rush to grant environmental clearances for several mining
projects in a single day should not be at the cost of
environment itself. The spirit of the EAC has to be respected.
We do not see how more than five applications for EIA
clearance can be taken up for consideration at a single
meeting of the EAC. This is another matter which deserves
serious consideration at the hands of MoEF”.
II. Failure of EAC to consider adequacy of REIA and requirement for
118. As per the Interim Operational Guidelines dated 13th October
2006, in cases where EIA has already been prepared, and PH conducted
as per EIA 1994: The EIA would be evaluated by the Expert Appraisal
Committee (EAC), without insistence on the submission of FORM I/IA
required under EIA 2006. In case the EIA document is considered
complete and accurate, the EC would consider the same, together with
the PH proceedings, even if PH is not required under EIA 2006, and
furnish its recommendations. In case the EIA document is considered
incomplete and/or inaccurate, the EAC would specify ALL the additional
Terms of Reference (TORs) to be undertaken by the project sponsor. In
case PH is required under EIA 2006, the proceedings of the PH
conducted as per EIA 1994 would be considered along with the EIA by
the EAC, which would provide its recommendations.
119. In the note dated 30.05.2007 (Annexure E - 14) prepared by
the Additional Director it is recorded that one other issue to be discussed
in the EA (I) meeting is regarding adequacy of REIA and the EMP and
awarding of additional TOR if any. In the case of POSCO the REAI for
the port was conducted in the monsoon period which is prohibited. The
REIA for the steel plant does not collect data for the whole season but for
just a few days in a three month period. The OSPCB and OSCZPA have
called for a comprehensive EIA and the MoEF Regional office also pointed
that that the REIA is inadequate. From the minutes of the meeting of the
EAC it appears that this issue was never considered by the EAC. It thus
appears that the EAC never applied its mind to the issue of adequacy or
other wise of the REIA and the requirement of a Comprehensive EIA.
III. Manipulation of minutes of the EAC minutes.
120. On a perusal of the files of the MoEF the Committee found
that there were two sets of Minutes in respect of the 67th Meeting of the
EAC (Annexure E - 10) dealing with POSCO steel plant project. The first
set of Minutes was prepared by the Additional Director, who was also the
official representatives of the MoEF in the EAC. It appears from the
records that these minutes on circulation to the Chairperson of the EAC
were altered in some significant aspects dealing with environmental
impact. An email correspondence dated 10.6.2007 from the Chairperson
of the EAC (I) asserts that the revised Minutes “represent the actual
content of discussions”.
121. While the Chairperson of the EAC may have the prerogative to
correct and finalize the Minutes of the Meeting what is of great
consternation is the nature of revision carried out which seemed to
unduly favour the project proponent. The revision appears to have been
done in order to facilitate the EC without delay and to get over the
requirement of further studies and investigations on the environmental
impact as recommended by various expert bodies as also during the
122. Given below is the comparative Table of the first and second
Minutes wherein the implications of the revision made are selfexplanatory.
Comparative Statement of Minutes of 67 th Meeting of EAC.
First Minutes Second Minutes
Ultimate capacity will be 12 MTPA in 3 phases, however present
application is for 4.0 MTPA only.
The words, “however present application is for 4.0 MTPA
only” were deleted.
In house and VAI -Austria technology known as FINEX process
will be used.
“State of art technology” words introduced.
Public hearing meeting was held and point wise
clarification to the issues raised have been
Public hearing held- issues raised clarified “as beseems”
Public hearing held by OPCB on this basis
(integrated steel cum port).
Committee was in broad measure satisfied with
the production process from the environment
point of view. However, certain critical aspects
require to be further gone into and even recast.
Public held………on this components and is in order.
Committee was largely satisfied
with the process, environment & parameter of the project.
However, certain aspects require attention & re-cast.
Area earmarked for Solid Waste is about 1000
acres. This area would also be utilized for the
greenery and tree planting. It was admitted
by the company that no plantation can be raised
on this area within 15 years. How any
plantation can at all be raised in this area where
sludge is to be disposed off is not clear.
Within the area reserved for Solid Waste Management it
would take 15 years to develop a full plantation & this would
have to be done in stages.
Plantation would have to be raised in one section while
sludge is dumped in another.
Thus the dump will graduate in stages to a forest in 15 years.
Thereafter one needs to know where and how the sludge will
Alternative arrangements for sludge / solid waste
disposal shall be made and plans and modification to ensure
this arrangement be furnished.
Better management of sludge including perhaps the
possibility of its conveyance outside the plant. The company
needs to work on these alternatives.
0 Committee decided that conforming to the South
Korean model, a minimum of 25% of green belt should be
provided within the plant.
The Committee felt that conforming to the South Korean
model, 25% of green area can be provided within the
plant by more meticulous planning’ acquisition of
marginally more land.
Committee noted that numerous issues had
been raised at the public hearing which would
have a bearing on human settlements,
habitations, agricultural occupation in the village
nearby and the farmlands.
……..Members desired to go into each significant
Committee was convinced that a sunrise industry of great
importance is proposed presenting a leap forward in
steel production and needs expeditious, prompt clearance
by the Government. Certain issues have been raised at the
public hearing that may have a bearing on human settlements,
habitations, agricultural occupation in the villages and farmlands nearby.
These must issue or objections raised in detail to satisfy themselves that the
project poses no threat or insurmountable problem whatsoever from
an environmental point of view to the neighboring areas. The
members will study the issues, objections and
concerns raised and offer their specific views on
these at the next meeting.
be looked into and resolved………………It was decided to look into these
matters at the next meeting of the committee.
123. It is to be noted that in the 68th Meeting of the EAC held on
20th June, 2007 cleared the POSCO project subject. The Minutes of the
68th Meeting (Annexure E - 12) state that the project authorities
submitted additional information relating to (i) green belt development
plan, (ii) Consent to Establish by the PCB, Orissa, (III) tentative R & R
Plan, (iv) CD of Public Hearing. The required layout plan of the plant
providing for 25% green cover was also provided. With this the
Committee was satisfied and the EC was recommended subject to certain
special and general conditions.
124. It is evident from the Minutes that despite the Committee
Members expressing the desire to examine each and every objection
raised regarding environmental concerns of the project, without much
ado the EC was recommended. As already noted the various authorities,
including the public, had raised many significant issues of great import.
None of these seem to have been even discussed or considered by the
EAC. The Minutes do not disclose any deliberations on this point, much
less any reasons accepting or rejecting the various objections raised
about the project. It is in this background, that the alterations of the
Minutes of the 67th meeting become suspect.
IV. Interference by the Ministry of Finance?
125. A perusal of the files of the MoEF reveals that there is file
noting on 8.5.2007 that an update on POSCO was sought by the
Ministry of Finance. There was a letter dated 09.05.2007 from the
Director, Department of Disinvestment, Ministry of Finance requesting
that the status of the POSCO proposal on the integrated steel plant be
provided to the Ministry by 18.05.2007 as the Finance Minister was
meeting the members of the Investment Commission on 24.05.2007. The
clearance for the port was granted on 15.05.2007.
126. Similarly, there was another letter dated 4.06.2007 once again
from the Ministry of Finance seeking the status of the Application for the
clearance by 11.06.2007 as a high level review meeting regarding
progress of POSCO was slated for 15 .6.2007. The EAC hastily cleared
the steel plant at its meeting on 20.06.2007.
127. The committee is constrained to comment that the proximity
of dates between the letters from the Finance Ministry and the hasty
processing of the approvals by the MoEF and the EAC despite the serious
shortcomings and illegalities is more than a mere coincidence. It is very
clear that not all is well with the functioning of the MoEF. We are also
constrained to observe that the brazen interference by the Ministry of
Finance into functioning of another Ministry is most unfortunate, highly
improper and against public interest.
I. Failure to provide all documents to the Committee
128. At the time of preparing this draft on 10.10.2010, the
following documents were still not made available to the Committee
despite repeated requests and assurances that they had been
dispatched. These include:
1. Detailed Project Report (DPR) of both steel plant and port;
2. Technical feasibility Report; (It was reported by the MoEF that
these documents were misplaced and not available with the Ministry.)
3. The project proponent POSCO India engaged Dastur and Co.
Kolkota to prepare the EIA. From the records it appears that the said
Dastur and Co. has in turn sub-contracted sections of the EIA to 3
different agencies, viz., Danish Hydraulic Institute (DHI), National
Institute of Oceanography (NIO), Goa and Consulting Engineering
Services (CES), New Delhi. Each of these agencies seem to have
submitted separate reports with regard to the tasks assigned to them.
However it is not clear if copies of the reports were submitted to the
various authorities including MoEF at the time of application for EIA and
CRZ Clearance. These Reports do not form part of the records given to
the Committee Members.. However it needs to be mentioned that POSCO
India furnished to the committee a copy of the NIO Report in respect of
HTL demarcation along with the maps.
129. As pointed out earlier, the Report and the Maps disclose that
portions of the steel plant fall within CRZ 1 and III area. However this
fact has not been disclosed in the EIA Report of the steel plant. The
incorporation of the contents of the NIO Report in the EIA by Dastur and
Co. is not only selective but also calculated to mislead that the steel
plant is located outside the CRZ area. Such misrepresentation is not only
unprofessional and unethical but also a cause of great concern. It
appears that all the authorities went by the word of the consultants and
took the statement about the steel plant being located outside CRZ 1
area at its face value. The veracity of the statement was never
counterchecked with the actual maps and report.
II. Lapse of MOU
130. The MOU between POSCO and the Government of Orissa
lapsed in June, 2010. At the time of writing this Report on 10.10.2010
even though 4 months had passed, it is reliably learnt that the MoU has
not been renewed. Though this by itself does not render the period of
validity of the clearances already granted invalid, it is a factor to be borne
in mind in the event of the project being reviewed by the Ministry.
III. Cancellation of mining license to POSCO by Orissa High Court.
131. Further an integral component of the MOU was the assurance
of assignment of captive iron ore, coal and manganese mines in
Sundargarh and Keonjhar districts to POSCO India. On 9.1.2009, the
Government of Orissa made recommendation to Government of India to
grant mineral prospecting license in respect of iron ore mines in
Sundargarh in favour of POSCO. The recommendation was made even
when several applications were pending regarding grant of licences by
other companies who had made application almost 14 years previously.
132. The Division Bench of Orissa High Court at Cuttack by
judgement dated 14th July, 2010 in WP (C) No. 23 of 2009 not only set
aside the recommendations made by state government dated 9.1.2009 in
favour of POSCO but also expressed “grave dissatisfaction in the manner
in which the mineral resources of the State have been dealt with”. The
High Court commented that such action of the State Government was a
“conscious decision” not in one case but in 15 cases and no Government
Officials has committed any mistake as pleaded”. The Court directed the
Government of Orissa to decide afresh the petition of M/s Geomin
Minerals and Marketing 9P) Ltd for preferential right over the mining
areas in Sundargarh district.
133. The entire issue is the subject matter of further litigation. In
the light of this it is not clear from where POSCO India is going to source
its iron ore. This source and quality of this vital raw material will have a
significant influence on the environment impact assessment.
Grounds for revocation of clearances.
I. Provision in the EIA notification.
134. Concealing factual data or submission of false, misleading
data/reports, decisions or recommendations would lead to the project
being rejected. Approval, if granted earlier on the basis of false data,
would also be revoked. Misleading and wrong information will cover the
i) False information
ii) False data
iii) Engineered reports
iv) Concealing of factual data
v) False recommendations or decisions
The Committee is of the opinion that POSCO, India is guilty on all the
counts mentioned above. Preparing the REIA during monsoon period
knowing fully well that it is not valid, concealing the fact that the steel
plant is located in CRZ area despite the clear report of NIO, preparing a
fragmented EIA for only some components of the project leading to
misleading conclusions on the pollution load and environmental impact,
failing to incorporate all the studies recommended by the EAC for the
port and the other facts delineated above in this section would all
amount to providing false information, false data, concealing data,
engineering reports and giving false recommendations or decisions on the
basis of such data.
Findings and Conclusions
1. MoEF ought to have insisted on a Comprehensive EIA as pointed out
various state agencies and the Regional Office of MoEF and should not
have granted ECs on the basis of REIA.
2. The REIAs of steel plant and minor port submitted is also insufficient
and incomplete in as much as it has not assessed the full environmental
impact of the plant with its total capacity of 12MTPY and the total
capacity of the various integral components of the project.
3. The POSCO project is an integrated project. However many important
components of the project like the township, pipeline, road and
transportation etc have been left out of the scope of REIA.
4. Other data provided in the REIA like baseline data is insufficient and
5. The field survey of the REIA for the port was done during monsoon
period which is impermissible and unscientific.
6. The steel plant is located in area designated as CRZ- I and III. It is
prohibited under the CRZ Notification.
7. No CRZ Clearance has been obtained for laying the pipeline from the
CETP to the sea for the discharge of effluents.
8. Public Hearing is defective and not in compliance with the rules as it
failed to provide copies of the EIA to panchayats and all the project
affected persons were not given opportunity to be heard and for other
reasons stated in detail in an earlier portion of this report.
9. Project proponent has failed to answer all the objections raised during
the Public hearing.
10. The EAC has failed to apply its mind to the objections raised by
various authorities and the public and have also failed to consider the
available material on record.. The EAC has also failed to record any
reasons in respect of accepting or rejecting the objections raised. All
these infirmities vitiate the recommendation made for grant of clearance.
11. The Project proponent had failed to disclose the source of water
during the construction phase.
12. All communities who would be affected by the project including
fishing community of the coast in which Jatadharmohan creek lies,
farmers at Hansua Nallah and Jobra Barrage and others were not given
an opportunity to participate in the public hearing. Nor were copies of
the EIA made available to them..
For these amongst other reasons, the Environmental Clearance
dated 15.5.2007 for the minor port and 21.7.2007 for the steel plant
should be immediately revoked.
Majority Report of the POSCO Enquiry Committee Section 6: CRZ
Compliance of Coastal Regulation Zone (CRZ)
1. POSCO-India submitted a proposal to Orissa Coastal Zone Management
Authority in June 2006 seeking CRZ clearance for establishment of a captive port
on Jatadharmohan Creek located at about 12 km south of Paradeep port which will
be integral part of the proposed steel plant. Jatadharmohan creek is a tidal creek
separated from the sea by an elongated sandy barrier spit having an average width
of 400m and runs almost parallel to the shoreline of the sea having length of about
9km from the mouth. The proposed port will be used for importing raw material
and exporting steel products. The total capacity of the port will be about 11
million tons per year in the first phase when the steel production is 4 million tons
per year and will reach about 28 million tons by third /final phase when steel
production reaches to 12 million tons. The planned bed levels at the berthing basin
of the raw material berth and product berth will be 20 m and 12 m below the chart
datum (CD) respectively where as water depth of the approach channel is designed
to be 21 m below CD. The width of the approach channel will be initially 250 m
for one lane and will be progressively widened to 500 m. The size of vessels
would vary from 30,000 DWT to 1, 70,000 DWT. Two breakwaters are planned to
provide tranquil condition inside the port, one of 1600 m length in the south side
and other of 1070 m in the north side.
2. Two study reports commissioned by POSCO through its consultant
National Institute Oceanography (NIO) entitled ‘Rapid Marine Environmental
Impact Assessment of March 2006’ and ‘Delineation of Coastal Regulation Zone
(DCRZ) Boundaries of February 2006’ formed the main supporting documents for
the proposal. The proposal was discussed by the State Coastal Management Zone
Authority (SCZMA) on 7 Aug 2006 and consented by the State Pollution Control
Board Orissa vide letter No. 27466/Ind-II-NOC-4447 dated 9 Nov 2006
(Annexure F-10) (The Ministry of Environment and Forests, Government of India
finally accorded the environment clearance to the project vide letter No. 10-
9/2006-IA-III dated 15 May 2007 (Annexure A-5) as required under CRZ
Regulations. All the committee members made field visit and could see part of the
Jatadharmohan creek including the mouth. The constructional activity of the port
at Jatadharmohan creek has not yet started so as to make assessment about the
CRZ Rule position in brief
Under the Environment Protection Act 1986, the Union Ministry of
Environment and Forests vide notification in 1991 and in subsequent
modifications declared the coastal stretches of sea, bays, estuaries,
creeks, rivers and back waters in India which are influenced by tidal
action (in the land ward side), upto 500 meters from the High Tide Lines
(HTL) and the land between HTL and Low Tide Lines (LTL) as Coastal
Regulation Zone. The HTL as defined is the line on the land up to which
the highest water line reaches during the spring tide. The distance from
the high tide line applies to both sides in case of rivers, creeks and
backwaters and may be modified on a case by case basis for reasons to
be recorded in writing while preparing the Coastal Zone Management Plan.
However, this distance shall not be less than 100 m or the width of the
river, creek and backwaters whichever is less. The distance upto which
development along rivers, creeks and back-waters is to be regulated shall
be governed by the distance upto which the tidal effect of sea is
experienced in rivers, creeks or back-waters, as the case may be, and
should be clearly identified in the Coastal Zone Management Plans.
A number of activities within the Coastal Regulation Zone are
declared as prohibited and include setting up of new industries and
expansion of existing ones, discharge of untreated wastes and effluents
from industries etc, dumping of ash and other waste from thermal power
plants, land reclamation, bunding or disturbing the natural course of sea
water except those required for port etc, dressing and altering of sand
dunes, hills, natural features including landscape changes, harvesting or
drawal of ground water and construction of mechanisms thereof within
200 m of HTL except where permitted, any construction activity between
the Low Tide Line and High Tide Line except facilities for carrying treated
effluents and waste water discharges into the sea.
Some activities are permissible within the Coastal Regulation
Zone only if they require water front and foreshore facilities subject to
environmental clearance from the Ministry of Environment and Forests,
Government of India. Such activities include;
· Construction activities related to projects of Department of
Atomic Energy or Defence requirements for which foreshore
facilities are essential such as slipways, jetties, wharves, quays;
except for classified operational component of defence projects for
which a separate procedure shall be followed. (Residential
buildings, office buildings, hospital complexes, workshops shall not
come within the definition of operational requirements except in
very special cases and hence shall not normally be permitted in the
· Operational constructions for ports and harbours and light houses and
constructions activities of jetties, wharves, quays and slipways, pipelines,
conveying systems including transmission lines;
· Exploration and extraction of oil and natural gas and all associated activities and
For regulating development activities, the coastal stretches within
500 metres of High Tide Line on the landward side have been classified
into four categories, namely:
CRZ -I (i) Areas that are ecologically sensitive and important such as
national parks/ marine parks, sanctuaries, mangroves, coral reefs,
areas close to breeding and spawning ground of fish and marine life,
(ii) Areas between LTL and HTL
CRZ -II -The areas that have already been developed upto or close to
CRZ –III- The areas that are relatively undisturbed and do not belong
to CRZ-I or CRZ-II. These include coastal zone in the rural areas
(developed or undeveloped) and also areas within municipal limits or
other legally designated urban areas which are not substantially built
CRZ –IV- Coastal stretches in the Andaman & Nicobar, Lakshadweep
and small islands, except those designated as CRZ-I, CRZ-II or CRZIII.
The Coastal States and Union Territory Administrations were required to prepare Coastal
Zone Management Plans (CZMP), within a period of one year from the date of
Notification of these regulations, identifying and classifying the CRZ areas within their
respective territories and obtain approval of the Ministry of Environment & Forests.
Coastal Zone Management Plan of Orissa
The Government of Orissa prepared the CZMP and obtained approval of the
Ministry of Environment and Forests vide letter no. J-17011/11/92-IA dated 27-09- 1996.
Though the Ministry did not approve the categorization of areas into CRZ I/ II/ III/IV as
proposed by the state Government vide letter No 20750/E&F/EE-11/96 dated 11-09-
1996, the following slab system was approved for demarcating Coastal Regulation Zone
along the banks of rivers, creeks and back waters, except in case of the riverine stretches
of Mahanadi and Bhiterkanika areas where the CRZ shall be 500 m.
· 150 m in case the width of the river, creek and backwater is more than 350 m
· 100 m in case the width is between 100 m to 350 m
· 100 m or the width of the river, creek and backwater, whichever is less, in case the
width is less than 100 m
Delineation of the CRZ boundaries for POSCO’s Captive minor port and
The National Institute of Oceanography (NIO), Goa undertook the exercise
through M/S M.N. Dastur and Company Pvt Ltd for demarcation and delineation of
Coastal Regulation Zone (CRZ) boundaries for the captive minor port at Jatadharmohan
and Steel Plant of POSCO. Besides demarcation of relevant HTL and LTL as per
prescribed norms and procedure of MoEF, delineation of setback lines of 500 m and 200
m for open sea and 150 m for the Jatadharmohan creek and width of the creek for
Balituta creek from the HTL boundary to determine the jurisdiction of CRZ and the
consequences has been done. The geo-coordinates of the proposed port area were
provided by POSCO-India Pvt Ltd and Vishakhapatnam center of NIO carried out all the
technical and ground work. It is to be noted that NIO is one of the authorized agencies by
the Ministry of Environment and Forests for undertaking demarcation of HTL and LTL
across the coastal States in India.
Indian Tide Table published by Survey of India was used to design tide levels with
reference to Chart Datum (CD). The highest range of spring tide and its horizontal run up
on the land was identified by way of morphological features, permanent vegetation line
and flotsam and delineation of HTL was carried out using Differential Global Positioning
System (DGPS). However, for demarcating LTL land-use map provided by POSCO
was used and LTL was measured with reference to CD. Finally the positions of HTL and
LTL and CRZ boundary lines were marked on the local CZM maps on 1: 25,000 and
Setting up of Steel Plant in CRZ is a prohibited activity:
As stated earlier according to the CRZ notification setting up of
new industries and expansion of existing industries, except (a) those
directly related to water front or directly needing foreshore facilities; (b)
Projects of Department of Atomic Energy; and (c) Non-polluting
industries in the field of information technology and other service
industries in the Coastal Regulation Zone of Special Economic Zones
A steel manufacturing plant is not an industry directly related
to waterfront or directly needing foreshore facilities. It is true that
POSCO is proposing a port facility that would supply raw materials to the
proposed steel manufacturing plant. However, there is no need to locate
a steel manufacturing plant in such close proximity to a port facility so
that the steel manufacturing plant is also within the CRZ. The fact that
the REIA (Annexure E-3) (at pages 2-1 to 2-4) considered alternative
sites at Dhamra and at Duburi for the steel manufacturing plant that are
entirely outside the CRZ seems to prove the point that the proposed steel
manufacturing plant is not directly related to waterfront or directly
needing foreshore facilities.
POSCO, India engaged the National Institute of Oceanography,
(NIO) Goa through its consultants Dastur and co. to demarcate the high
tide line, low tide line and delineation of the coastal regulation zone
(CRZ) boundaries for a captive minor port and steel plant . The NIO gave
its report dated February 2006, ( Annexure ----- ) . It consists of the
salient observations from the CRZ map and four maps of the CRZ
boundaries with the sketch of the steel plant super imposed on it.
According to the report the whole study area falls within CRZ I and
CRZ III. Since most of the proposed port area is adjacent to the northern
part of the Jatadharmohan creek and also since the width of the creek is
more than 350 m. the set back line of 150 m from HTL of the creek is
considered and drawn on the maps. However , towards the north near
the village Dhinkia, the set backs (200m, 500m) with reference to the
open coast are more relevant, as width of the creek narrows down in this
part. .(para 6.1 of the report).
At para 6.2 of the said report it is stated that much of the plant
area comprises of protected forests and agricultural lands. On the
northern side of the confluence point, sand dunes of significant relief are
existing along the coast line in the proposed plant area. Sharp
escarpments are noticed sea ward of the dunes. The proposed plant area
does not fall under environmentally sensitive areas like natural parks,
sanctuaries, mangroves, coral reefs or areas rich in genetic diversity
except sand dunes, sand bars and protected forest.
In chapter 7.0 the conclusions are given. The last para of the
section states that “in the northern zone where the CRZ refers to the
open coast, having a 500m. set back line, part of the steel plant falls
under the CRZ I(i) and CRZ III. Only coal/ore and slag yard are
planned in the zone. In the remaining part all the facilities of the
proposed steel plant are beyond the set back line of 150m. However this
zone has patches of protected forest.”
Though the report states that only coal/ore yard and slag yard are
in the CRZ area, a perusal of the maps annexed to the report it is evident
that the following units of the steel plant are located within 500 mts. of
sea coast or 150 m. of Jatadharmohan creek which is categorized as CRZ
(I) and CRZ III areas.
1. Coal/ore yard (CRZ I area according to NIO as there are sand
2. Central store yard (CRZ III)
3. Slag yard (CRZ III)
4. Treated effluent guard pond (CRZ III)
5. Scrap yard. (CRZ III)
Generation and disposal of process dusts from steel Production
prohibited in CRZ:
Manufacture or handling or storage or disposal of hazardous
substances as specified in the Notifications of the Government of India in
the Ministry of Environment & Forests. No. S.O. 594(E) dated 28th July,
1989, S.O. 966(E) dated 27th November, 1989 and GSR 1037(E) dated
5th December, 1989; except transfer of hazardous substances from ships
to ports, terminals and refineries and vice versa, in the port areas:
Provided that, facilities for receipt and storage of petroleum products and
Liquefied Natural Gas as specified in Annexure III appended to the
notification and facilities for regasification of Liquefied Natural Gas, may
be permitted within the said Zone in areas not classified as CRZ-I (I),
subject to the implementation of safety regulations including guidelines
issued by the Oil Industry Safety Directorate in the Government of India,
Ministry of Petroleum and Natural Gas and guidelines issued by the
Ministry of Environment and Forests and subject to further terms and conditions for
implementation of ameliorative and restorative measures in relation to
the environment as may be stipulated by the Government of India in the
Ministry of Environment and Forests].
S.O. 594(E) dated 28th July1989 is the Hazardous Wastes
(Management and Handling) Rules, 1989. In 2006, the year that POSCO
applied for Environmental Clearance, these Rules had been amended by
the Hazardous Wastes (Management and Handling) Amendment Rules
2000 and 2003. Under these amended Rules, hazardous wastes are
specified in Schedules to the rules. Items from two of these schedules
apply to POSCO’s proposed steel manufacturing plant.
The first item is from Schedule I “List of processes generating
hazardous wastes” Process13: Production of iron and steel including
other ferrous alloys (electric furnaces; steel rolling and finishing mills;
Coke oven and by product plant), Hazardous Waste 13.1: Process dust.
Page 5-9 of the REIA for the proposed project contains a Table
5-5, inventory of solid wastes generation at 4 MTPY production level.
Item 4 of this list indicates that the proposed project would generate
600-700 tons per day of dusts from dust extraction systems.
Furthermore, page 6-25 of the REIA for the proposed project contains a
Table 6-3, proposed management scheme for solid wastes disposal. This
table indicates that 65-70% of these dusts would be dumped. A plain
reading of the CRZ notification as extracted above indicates that both
the generation and disposal of these dusts within the CRZ would be
prohibited under paragraph 2(ii) of the Coastal Regulation Zone
Location of waste treatment processes in CRZ prohibited.
The second item from Schedule I is “List of processes generating
hazardous wastes” Process 36: Waste treatment processes, e.g.
incineration, distillation, separation and concentration techniques; 36.2
Ash from incineration of hazardous waste, flue gas cleaning residues.
Pages 6-26 to 6-28 of the REIA for the proposed project describes an
incinerator that the project proponent would use to dispose of an 10 to
20 tons per day of hazardous waste production facilities would generate.
Page 6-27 of the REIA states: “The non-toxic ash collected will be
dumped in the containment area.” Regardless of whether the REIA
characterizes this ash as “non-toxic,” it is still a hazardous waste under
the Hazardous Wastes (Management and Handling) Rules applicable at
the time. Both the generation and disposal of this ash from the
incineration of hazardous wastes within the CRZ would be
prohibited under paragraph 2(ii) of the Coastal Regulation Zone
Storage of Liquid Oxygen a hazardous chemical in CRZ area
S.O. 966(E) dated 27th November1989 is the Manufacture, Storage
and Import of Hazardous Chemical Rules, 1989. In 2006, the year that
POSCO applied for Environmental Clearance, these Rules had been by
amended by the Manufacture, Storage and Import of Hazardous
Chemical (Amendment) Rules, 2000.
See: http://envfor.nic.in/legis/hsm/msihcar.html Under these amended
Rules, a list of Hazardous Chemicals is given Schedule I, Part II. This list
includes oxygen (liquid).
Page 3-10 of the REIA indicates, under the heading of “Other
Facilities” that POSCO’s proposed 4 million metric ton per year steel
project would include a facility for separation of oxygen from air.
According to page 3-12 of the REIA, in Table 3-3 - List of proposed
principal production facilities - this facility would produce 3100 tons per
day of oxygen. Although it is not stated explicitly in the REIA, it is likely
that this facility would include a cryogenic facility for the storage of liquid
oxygen. If it does, then, establishing this facility within the CRZ would
be prohibited under paragraph 2(ii) of the Coastal Regulation Zone
Page 6-5 of the REIA states: “The layout of the present production
facilities will not encroach the CRZ area. The proposed production
facilities of 4 MTPY will be set up at a distance of 150 m away from the
HTL of Jatadharmohan River Creek and 500 m away from the HTL of
sea.” It is unclear whether this is true or not, and, if so, whether the
term “production facilities” referred to by this page of the REIA includes
the generation or disposal of process dust, the generation or disposal of
incineration ash, or the generation or storage of liquid oxygen - all of
which cannot take place in the CRZ.
Location of slag yard in CRZ area prohibited.
Setting up and expansion of units / mechanisms for disposal of
wastes and effluents, except facilities required for – (a) discharging
treated effluents into water course with the approval under the Water
(Prevention and Control of Pollution) Act, 1974; (b) storm water drains;
(c) treatment of wastes and effluents arising from hotels and beach
resorts located in Coastal Regulation Zone areas other than Coastal
Regulation Zone –I and disposal of the treated wastes and effluents;
Slag is a waste by-product of smelting iron ore to separate the
metal fraction from the unwanted fraction. It is not usually a hazardous
waste, but it is waste. Page 5-9 of the REIA for the proposed project
contains a Table 5-5, inventory of solid wastes generation at 4 MTPY
production level. Item 4 of this list indicates that the proposed project
would generate 3600-2700 per day of FINEX slag and 1100-1200 of BOF
(Basic Oxygen Furnace) slag, necessitating disposal. Page 6-6 of the
REIA states: “The land to be acquired will be broadly divided into six
zones as shown in Fig. 3-4 in Chapter 3. The Disposal Area will be
earmarked for slag dump, waste recycling, effluent treatment plant,
incineration etc for non-production use.” As per the report of the NIO
the slag yard is located in CRZ area. Any disposal area for slag
within the CRZ would be prohibited under paragraph 2(ii) of the
Coastal Regulation Zone Notification.
Reclamation of land in CRZ area for the Steel Plant is prohibited.
Land reclamation, bunding or disturbing the natural course of sea
water except those required for conservation or modernisation or
expansion of ports, harbours, jetties, wharves, quays, slipways, bridges
and sea-links and for other facilities that are essential for activities
permissible under the notification or for control of coastal erosion and
maintenance or clearing of waterways, channels and ports or for
prevention of sandbars or for tidal regulators, storm water drains or for
structures for prevention of salinity ingress and sweet water recharge;
provided that reclamation for commercial purposes such as shopping
and housing complexes, hotels and entertainment activities shall not be
Page 6-5 of the REIA states: “The land is low lying of elevation
around 4.7 m from chart datum (CD) of the sea. Considering tidal range,
wave height, storm surge, it has been planned to raise the site level to
+6.5 m above CD; one metre reserved height for storm surge due to
cyclone as shown in Fig. 6-1. In order to raise the elevation of the site,
the fill material will be dredged sand from the navigation channel and
turning basins of the dedicated port.”
This proposed reclamation is certainly NOT for conservation or
modernisation or expansion of ports, harbours, jetties, wharves, quays,
slipways, bridges and sea-links. This proposed reclamation is also NOT
for control of coastal erosion and maintenance or clearing of waterways,
channels and ports or for prevention of sandbars or for tidal regulators,
storm water drains or for structures for prevention of salinity ingress and
sweet water recharge. So, if this proposed reclamation is also NOT for
other facilities that are essential for activities permissible under the
notification, then, this reclamation would be prohibited under paragraph
2(viii) of the Coastal Regulation Zone Notification.
Any construction activity for Steel plant in CRZ prohibited.
Construction activities in [CRZ-I] is prohibited except as specified
in Annexure I of the notification. None of the activities specified in
Annexure I of the CRZ Notification, 2006 would allow construction of any
components of a steel manufacturing plant within areas designated
as CRZ Category I. However it is noticed that the construction of a
coal /ore yard is contemplated by POSCO in CRZ I area.
No CRZ Application for CETP pipeline of the Steel Plant into the sea
As per the REIA report for the Steel plant a common Effluent
Treatment Plant will be set up to take care of the untreated process
effluents and treated plant sanitary wastewater. As per the report the
treated water of CETP after partial use in green belt and plant landscape
maintenance will be let into the sea by a submarine pipeline at 18 to 20
metre depth by jet diffusion. The pipe line will definitely have to pass
through the CRZ area.
Laying a pipeline for the purpose of waste disposal is a permissible
activity under the CRZ notification. However the company has to obtain
the necessary clearance under the notification from MoEF. From the
records it is clear that no such application was even made to the MoEF
by the Company, leave alone obtain a clearance for the same. In the note
dated 30.05.2007 prepared by the Additional Director it is recorded that
the issues to be discussed in the EAC (I) meeting is regarding a) the CRZ
clearance for the discharge of effluent into the sea; b) study report
regarding impact of effluent discharged on marine ecology . However the
minutes of the 67th meeting held on 5th June , 2007 does not disclose
that any of these issues were discussed. This issue was not discussed
any further but all the clearances have been given .
Observations of the committee
The committee scrutinized NIO report on delineation of Coastal
Regulation Zone, maps (1: 5,000 scale) delineating HTL, LTL and 150 m
lines provided by the POSCO, CZMP submitted by Orissa government to
the Ministry of Environment and Forests in 1995 as well as related
correspondence. Theoretically the NIO has followed the correct procedure
for demarcation of the CRZ, HTL and LTL lines. DGPS used for marking
the locations on ground and on map to draw the HTL are quite precise.
However, the satellite imagery used for the identifying the course of the
creek is quite old, that is of 1996. Since no action has been taken by the
POSCO-India on the site relating to establishment of the port and the
steel plant so far, it was not required to assess compliance of the
approved conditions. The committee however observed the following
The CZM Plan of Konark -Paradip stretch submitted by the
Government of Orissa in 1995 to the Ministry of Environment of
Forests includes the belt of Jatadharmohan creek. Because the
area falls under estuary zone and is ecologically sensitive, barrier
spits mouth and channel bars occurring nearby the estuarine
mouth has been categorized as CRZ-I. Only the areas studded with
agriculture fields and settlements are to be categorized as CRZ-III
near the Dhinkia village. The NIO report has not specifically
indicated the extent of area/ length along the creek/shore line
falling under CRZ I and CRZ III.
Further, the limits of the CRZ lines drawn on 1:5,000 scale
maps by NIO at 500 m towards the northern portion of POSCO site
and at 150 m on the creek side are not very clear. The limits and
extent upto which these lines exists should have been well defined
by the geo-coordinates in the maps as well as in the text. But it
has not been mentioned in either of the documents. In the absence
of such geo-coordinates it would be impossible to draw lines on the
ground. The main worry is who is going to verify these lines and
distances from the HTL on the ground? No permanent marking
has been done on the ground. Orissa state government was not
associated in the CRZ survey of the POSCO site and NIO depended
on the land use map and geo-coordinates provided by POSCO.
Except for port, any activity relating to steel plant, be it storage
of raw material, cannot be allowed within the CRZ (500 m from
HTL) as per CRZ Regulations. On the other hand NIO has
recommended for establishing coal/ore and slag yard which are
parts of steel plant in the CRZ I (i) & CRZ III areas facing open
coast in northern side ( page 18 of the NIO-DCRZ Report). This
amounts to violation of the CRZ regulations.
The State Coastal Management Zone Authority while
discussing the port proposal of POSCO - India on 7 Aug 2006
found a mismatch between CRZ maps prepared by ORSAC and
NIO. This was to be reconciled by the POSCO-India but no
document for such reconciliation has been provided to the
Dressing or altering of sand dunes, hills, natural features
including landscape changes for beautification, recreational and
other such purpose are prohibited , except as permitted under the
notification. During the visit of the committee on 21 Sep 2010, the
representative of the POSCO-India Mr. S.N. Singh informed the
members that the existing mouth of the Jatadharmohan creek will
be used as a approach channel for one lane for vessels and will be
progressively widened to 500 m. The map provided by POSCO,
however, shows that existing mouth will be filled and sandy barrier
spit at about 500 m away towards south will be cut to make the
approach channel. Such a cutting and filling of sand bars amounts
to change of the natural course of the creek and are in
contravention of the CRZ notification. In a clarification sought
from the POSCO it was replied that the mouth of the
Jatadharmohan creek originally existed at the proposed site in
1998 and in last 10 years the Jatadhar Mouth has shifted towards
north and has acquired the present form. The site of the old mouth
has been therefore chosen for making approach channel. The
committee did not find such explanation convincing. Further in the
common clearance/approval dated 15.05.2007 given for CRZ and
EIA for the port one of the conditions imposed is that sand dunes
will not be disturbed. It is not clear how it is possible to dredge
through the sand pits and reclaim land for the port as well as steel
plant without disturbing the sand dunes.
In view of the above observations the committee feels that POSCO-India
Pvt Ltd has not been able to address all the issues relating to CRZ
notification. The proposal in its present form is not fit for approval as
there are a number of serious lapses and violations. The environment
clearance given by the Ministry of Environment and Forests vide letter
dated 15 May 2007 should be therefore suspended till the company
makes the necessary modifications as per the provisions of the CRZ
Majority Report of the POSCO Enquiry Committee Conclusions & Recommendation
Conclusions and Recommendations
Part I – Project Specific
In summary, the Committee has therefore reached the following conclusions:
I. Preliminary issues.
1. The MOU between the Government of Orissa and the POSCO lapsed as June 2010 and
has not been renewed till date. While this by itself may not automatically render the
clearances invalid it is a significant factor to be taken into consideration while reviewing
the project as the MOU is the starting point of the process and failure to renew
undermines the very basis of the project
2. The prospecting license for mining in Sundergarh district granted to POSCO has been
set aside by the Orissa High Court in its order in W.P. No. (C) 23/2009 of July, 2010 and
remanded for fresh consideration to the government. It is learnt that the order is likely to
be appealed against. This litigation again raises very fundamental issues as to sourcing of
raw materials for the project by POSCO. This crucial issue remains un resolved till date
and may continue to be so in view of the pending litigation. It is difficult to assess the
environmental impact of the project in the absence of this vital information about the
sourcing of the iron ore, the quality of the ore, the attendant transportation, storage
3. The approval for withdrawal of water for the construction phase has been granted by
the Orissa Government only from Hansua Nalla and not from the Mahanadi at the Jobra
barrage. This arrangement is not suitable for POSCO as the water from Hansua Nalla
does not meet its requirement. Further all clearances have been granted on the basis of the
initial approval to with draw water from the Mahanadi at Jobra barrage and this fact
situation has been fundamentally altered. Thus the sourcing of water for the construction
phase remains un resolved.
4. No work has commenced at the site. The project proponent has not even taken
possession of the site.
The above mentioned preliminary issues may be borne in mind while appreciating the
rest of the findings and recommendations.
II. Conclusions on the Implementation of the Scheduled Tribes and Other
Traditional Forest Dwellers Recognition of Rights Act, 2006 (FRA)
1. The Committee finds that the government's own records such as census reports and
voters list confirm that there are both other traditional forest dwellers (OTFD) and forest
dwelling Scheduled Tribes in the project area and the statement of the District Collector
of Jagatsinghpur to the contrary is false.
2. There is ample documentary and archival proof in the form of village maps and
District gazetteers to establish the existence of forests of some nature or the other in and
around the area. The contentions of the State government in this regard have no merit.
3. There is substantial documentary and archival evidence in the form of nistar receipts
and district gazetteers to establish that the OTFD have been residing in the area for the
requisite period of 75 years stipulated under the Act and there is prima facie material to
establish their dependency on the forests for their livelihood needs for generations.
4. The State government has failed abysmally in assisting the Gram Sabha and has failed
to provide the requisite maps, and other assistance contemplated under the rules to initiate
the process of recognition of rights. The process of implementation has been vitiated
from the start and no valid palli sabha meetings have taken place in this area; the quorum
has never been met, and in some cases “resolutions” are being cited that have barely 30
5. There are serious doubts regarding the authenticity of the palli sabha resolutions in
forwarded by the District Collector which supposedly record that there are no eligible
persons (in the case of Bhuyanpal and Noliasahi). The balance of evidence indicates that
these are fabricated.
6. Since the committee is completely satisfied that the FR Act is applicable to the project
area , the statutory power of determining and recording the recognition of forest rights
vests solely with the palli sabhas/gram sabhas and the District Administration has no
powers to intervene except in its capacity as the appellate authority.
7. The in principle forest clearance and the subsequent final forest clearance granted by
the Ministry of Environment and Forests was a hasty and premature act in violation of
law. The subsequent letter making the clearance subject to implementation of the FRA
appears more a face saving act and does not remedy the illegality of the final clearance
8. Since the Forest Rights Act recognises individual and community forest rights and
moreover empowers the palli sabha with specific forest protection powers, there can be
no diversion of the forest land for non forest purposes without the express consent of the
palli sabhas/gram sabhas. Further the circular of the MoEF dated August 3rd, 2009, also
provides for the same, and such executive instructions have the force of law and are
9. Though the MoEF is not the nodal agency for the implementation of the FRA Act,
since any approvals given for diversion of forest land for non forest purposes under the
Forest Conservation Act will have the effect of destroying rights and violating the powers
of the palli sabhas as statutory authorities, the Ministry cannot proceed with clearance
until the FRA process is complete in all respects and consent has been granted. Like any
other government agency, the Ministry cannot proceed in a manner that would directly
violate a law. As stated above this is also now required by the August 3rd, 2009 order.
10. The Committee hence in no uncertain terms comes to the definite conclusion that the
FRA Act has not been implemented in the project area and in fact the process had hardly
begun before it was sought to be scuttled by the District and State Administration.
11. The takeover of land in Gadkujang gram panchayat in July 2010 was in direct
violation of the Forest Rights Act and the Forest Conservation Act.
III. Recommendations on the implementation of the FRA.
1. The final clearance dated December 29, 2009 under the Forest Conservation Act, 1980
for diversion of forest land for non forest purposes granted by the MoEF should be
2. There should be no evictions whatsoever or attempts to acquire the lands from the
people residing in the project affected villages.
3. The process under the FRA for the recognition of forest rights should immediately be
re-initiated in the villages under issue.
4. The District and State Administration should render complete and whole hearted
assistance by readily making available all materials and assistance of surveyors etc to
assist the FRC and the palli sabhas/ gram sabhas to effectively fulfill their statutory
responsibilities under the FRA.
5. Police presence and police surveillance should be forth with withdrawn from the
project area to restore the confidence of the people and to facilitate full and free
participation in the entire process of recognition of rights under the FRA.
6. All documents relating to the proposed diversion and project should be placed before
the gram sabha before it decides on its consent and the same should be duly explained.
Evidence to this effect should be required prior to consideration of final clearance.
IV. Conclusions on the compliance with the provisions of EIA and CRZ
1. There is a flagrant violation of all substantial and procedural rules and regulations in
granting the EIA and CRZ clearances to POSCO. The entire clearance process has been
reduced to a farcical and empty formality by all concerned. The environmental clearance
process has been severely compromised by a complete lack of application of mind by the
concerned authorities, and a deliberate failure to assess the project in accordance with
law. From the stage of preparation of the REIA, conduct of public hearing, to the
assessment process by the Expert Appraisal Committee at every stage there are
illegalities which render all the clearances given both under the EIA notification and the
CRZ notification invalid and illegal.
2. The environmental impact assessment for the port and steel plant has been severely
compromised on account of the following -
i) Preparation of an REIA (that too in the monsoon period for the port which is
prohibited) instead of a comprehensive EIA, for both the port and steel plant;
ii) Failure to incorporate both in the REIA and the Comprehensive EIA of the port
all the Terms of Reference stipulated by the Expert Appraisal Committee.
ii) Preparing an REIA for the steel plant for only a partial capacity of 4 MTPY of
the steel plant (I Phase) instead of the ultimate capacity of 12 MTPY ;
iii) not including all components of the integrated project such as rail and road
transportation, water pipe line, town ship etc in the REIA for the steel plant ;
3. The Committee is of the opinion that the project affected people and the other stake
holders have not been given adequate opportunity during the public hearing thereby
violating principles of natural justice for the following reasons –
i) Public hearing was conducted on the basis of an REIA for the port which was
found to be inadequate by the EAC;
ii) The contents of the reports of the NIO that the steel plant is located in CRZ area
was not disclosed to the public.
iii) The EIA reports were not made available with the Panchayats.
iv) The venue for public hearing was not convenient and not close to the project
v) Public hearing was not conducted in all the areas where the impact of the
project is likely to affect communities such as fishing communities, farmers at
Jobra barrage etc. despite stipulation to that effect in the EIA notification ,2006.
4. The Committee is deeply concerned that as a result of the above failings, potentially
very serious impacts – such as flooding, increased vulnerability to cyclones, damage to
fisheries and wildlife, pollution and a severe decline in water availability – have not even
been assessed, leave alone planned for. Such impacts could harm the entire district and
beyond and could even lead to loss of lives. The cavalier and reckless attitude of the
concerned authorities to such potentially disastrous impacts is horrendous and shocks the
collective conscience of the Committee.
5. The CRZ clearance for the port has been given mechanically and as a matter of routine
merely because building of the port in the CRZ area is a permissible activity. The MoEF
has failed to even make an attempt to assess the environmental impact on the fragile
coastal ecology before the CRZ clearance for the port was recommended.
6. The EAC in its 48th and 52nd meeting recommended several studies to be incorporated
into the TOR for the port for preparing an EIA on the basis of which the public hearing
was to be held. A site visit by a sub committee for the purpose of scoping so that the EIA
could take into account all the issues was recorded in the minutes of the 48th meeting of
the EAC. Further studies were recommended in the 52nd meeting as well. But without
awaiting the studies the project was recommended for clearance at the 52nd meeting itself.
The site visit was waived. The public hearing was conducted only on the basis of the
REIA which was found wanting by the EAC, thereby depriving the local people a fair
opportunity of being heard on all issues. No reasons were given by the EAC for back
tracking on its own earlier recommendations.
7. The Comprehensive EIA reports prepared by the company in July 2007 were never
submitted to any agency- Central or State. It was disclosed only when a specific query
was raised by this Committee. Even this so called Comprehensive EIA report of the port
severely and substantially falls short of the studies directed to be incorporated into the
TOR by the EAC in its 48th and 52nd meeting.
8. POSCO has suppressed material fact that parts of the steel plant are located in the CRZ
I and III areas which is clearly impermissible and hence illegal. Both the REAI and CEIA
are misleading in stating ambiguously that the production facilities of the steel plant are
not located in the CRZ area. What they conveniently failed to disclose is that the storage
yard, the slag yard and the effluent pond are located inside the CRZ area.
9. All the State and Central agencies have chosen to completely turn a blind eye to the
fact that the steel plant is located in CRZ I and CRZ III area which is clearly a prohibited
activity. Since the report of the NIO, Goa and the maps of the report clearly spell this out,
the EAC and the MoEF have either not bothered to even read the material before them
before recommending and granting clearances or have colluded with the company to
brush this gross illegality under the carpet.
10. A CRZ clearance was not even sought for by POSCO for laying the pipeline into the
sea from the Common Effluent Treatment Plant of the Steel Plant. This illegality though
noted by the MoEF was subsequently overlooked.
11. There appears to be a pre dominant belief that conditionalities in the EIA/ CRZ
clearances are a substitute for comprehensive evaluation and assessment of the
environmental impact by the authorities. Imposing vague conditionalities seems to be a
way out for the various agencies from taking hard decisions on crucial issues. It also
appears to be the popular mechanism to evade responsibility for clearances given by
falling back on the conditionalities - no matter that it was impossible to have the project
with those conditionalities in the first place. The conditionalities are often so broad and
generalized that they are rendered meaningless. For instance conditionalities in the
clearance for the port states that sand dunes will not be disturbed. This is an absurd
condition because the port is to be constructed after dredging the sand pit and the entire
area between the port and the steel plant is to be raised by at least six feet. This obviously
cannot be done without disturbing the sand dunes. One cannot but draw a parallel to
Portia’s condition of permitting Shylock to cut the pound of flesh but without spilling a
drop of blood!
12. The resettlement and rehabilitation package on offer is focused on payment of one
time compensation. This compensation too is very small as compared to the incomes
people derive in this area, particularly in the case of betel vine cultivators. There is no
comprehensive `resettlement’ or `rehabilitation’ package even proposed despite a specific
request for the same.
V. Recommendations regarding the EIA and CRZ notifications.
1. The Committee recommends that in view of the glaring illegalities which render the
clearances granted illegal, the EIA and CRZ clearances dated 15.05.2007 for the port and
the EIA clearance dated 19.7.2007 for the steel plant should be revoked after following
the due process of law.
2. The project proponent if it so desires may prepare a comprehensive EIA for both the
port and the steel plant in accordance with the notifications now in force including all the
various components of the project such as rail and road transportation, pipe line,
township, mining etc for the full capacity of the plant and its components .
3. If the project proponent applies, a fresh public hearing may be conducted on the basis
of the new comprehensive EIA to be prepared by the company.
4. In the meantime no body should be dispossessed of their land and since all clearances
are to prior to the commencement of construction no alterations of any nature should be
permitted on the ground.
Part II – General Recommendations
I. Lessons from the POSCO Project
As this report has demonstrated, when considering large projects, both State and
Central governments are prone to abdicate their statutory responsibilities. The state
machinery functions as if it is meant to facilitate a project rather than to regulate it. This
certainly seems to have occurred in this case.
In order to avoid such outcomes in future, the Committee believes that certain key
lessons can be drawn from the POSCO project. We seek to outline these lessons here.
First, aside from the process-specific safeguards that are required (for which see
below), there is a fundamental need to ensure respect for democratic processes. The
strongest check on the machinery is not internal procedural safeguards but the active
involvement of the people, and particularly of those who will lose the most. In this sense,
the two spaces for public involvement in the existing processes – the public hearings
under the EIA and the requirement for gram sabha consent for forest land diversion –
should be respected and expanded. Rather than being treated as mere formalities, these
should be central to the decision making process and a failure to comply with them in
letter and spirit should be treated as sufficient cause for rejection of clearance.
In the case of the POSCO project, the area has witnessed agitations for more than five
years and repeated violence. Lives have been lost and the security forces deployed in the
area for years on end. Such a situation indicates a total failure on the part of the state to
engage with those who are opposing the project and to seek a democratic consensus on
development plans in the area. In such a climate, it is not surprising that few
environmental norms appear to have been properly implemented and that forest rights
laws have been ignored.
Second, decision making bodies such as the State Pollution Control Boards, the
Expert Appraisal Committee and the Forest Advisory Committee need to be strengthened
and given the time, capacity and resources required to perform their duties in a
meaningful manner. The responsibilities placed on these bodies are onerous and require
in depth application of mind. The Delhi High Court has pointed out that the EAC is often
required to decide on 25 to 45 projects in a single session. In the case of centralised
decision making such as grant of environmental and forest clearance, the resulting hasty
and mindless actions by these bodies nullify the entire process and render the statutory
Third, there is a need to enforce accountability for violations of statutory, legal
and environmental norms. Where officials have colluded with project applicants or been
negligent of their duties, prosecution under the respective statutes should be
automatically initiated. At present numerous such violations are brought to light on a
regular basis, but no one is held to account for them. In the absence of such
accountability, violations will simply continue.
Fourth, there is a need to shift from project-specific clearances to development
planning at the village and district level. The current model of clearances gives an
incentive to applicants to break up projects and apply for piecemeal clearances, as
POSCO has done. Even where this does not occur, it is not possible to assess the overall
impact or the real situation of an area by examining each project individually. Steps such
as the zonal environmental atlases and pollution indices are therefore steps in the right
direction, but are insufficient in themselves; rather, there is a need for the clearance
process itself to be integrated in a larger system of development planning, which in turn
should be democratic in nature.
Fifth, rather than seeing these processes as hindrances to investment and
development, there is a need to shift to an overall industrial planning approach in which
these concerns and requirements are integrated into project planning from the start. For
this a clear rules-based regime is required, with transparency, clear procedures and
effective enforcement. Closed door bodies making arbitrary decisions only encourage
attempts at escaping regulation.
II. Process-Specific Changes: Environmental Clearance Process
In the course of preparing this report the committee members both jointly and
individually had informal but extensive discussions with several experts who were
involved in one way or the other with the EIA process. This experience has given
valuable about the entire EIA process and the gaping gaps through which genuine
environmental issues often slip through. It was disconcerting to note that an issue which
repeatedly came up was the off the record statements that most EIAs were manipulated
and often a copy paste job. We were reportedly told about the compulsions under which
the consultants function. The private consultants have to necessarily please their clients
for their continued survival and negative EIA reports recommending that the project is
not environmentally sustainable would spell their death knell. Even the government
organizations facing cuts in government funding are have to fend for themselves
financially by procuring projects which fetch money. Hence for most consultants giving
EIA reports to suit the client needs rather than reporting the truth is a financial
compulsion and a survival issue. The more obvious issues which cannot be hidden are
couched in appropriate language which meets the project needs but often overlooks the
environmental needs. In this whole business enterprise of consultancies and project
proponents a genuine and unbiased environmental impact assessment is the first casualty.
Thus the process is derailed even before it has started. Since the EIA is the back bone of
the entire clearance process the Committee is of the strong view that unless radical
changes are introduced to the process , environmental clearances will be a sham and an
eye wash. The Committee gives the following general recommendations which are
lessons learnt from the POSCO experience but which go beyond it.
A. Preparation of EIA.
1. EIA should be prepared by accredited agencies. It is learnt that in an effort to streamline
the system, procedure, mechanism and to involve competent environment professionals
in the whole process of preparing and implementing EIA/EMP as per Environment
Impact Assessment (EIA) Notification, 2006, the MoEF has taken initiative to accredit
qualified and experienced Consultants including those working in public sector undertakings/
laboratories through Quality Council of India (QCI) / National Accreditation Board
of Education &Training (NABET). While this is a welcome first step it is abysmally inadequate
2. As part of the accreditation conditions the consultants should be made responsible and
accountable for every aspect of the EIA prepared by them. The Office Memo dated 28th
June, 2010 of the MoEF states that the EIA/EMP document is the responsibility of the
Project Proponent, who would be accountable for any misinformation/errors, if any irrespective
of who prepared it. While project proponents should definitely made accountable
for the EIA and other reports , it has to be borne in mind that their liability is more vicarious
in nature as being the Principal player. But however the consultants should be
made equally responsible as often the project proponents themselves may have no knowledge
of the technical aspects of a project and tend to go by the advice of the consultants.
3. It is suggested in order to ensure objectivity and to ensure that consultants are free to
give an unbiased and true statement of impacts in the EIA reports without being
financially obliged to the project proponent who is their pay master, the EIA should be
done by accredited agencies to be engaged directly by MoEF and not by the
project proponent .
4. The Project Proponent can be required to deposit the necessary/ estimated consultation
fee along with the application seeking EIA with the MoEF. Additional fees can be
charged for additional studies/ investigations recommended by the EAC or other
5. The allotment /assignment of the EIA studies to the various accredited agencies should
be done in a transparent manner in order to ensure maximum objectivity. A list of
consultants can be drawn on the basis of subject expertise and capacity. The contracts can
be awarded in strict rotation basis from among the list of accredited agencies unless there
are situations where the available expertise in an area is limited. This will eliminate the
fear of the consultant that they may not get the next consultancy.
6. Quarantine period for consultants who are engaged for preparing the EIA of a
particular project should be stipulated If a particular consultant/agency has done EIA for
a particular industry they should not be permitted to do any other consultation for that
group of companies for a stipulated period in order to avoid conflict of interest. It can be
made one of the conditions of accreditation.
7.There must be total accountability of consultants to the reports given by
them. Consultants whose EIAs are inaccurate, misleading, deliberately ambiguous, not
based on first hand field survey etc should be blacklisted and put up in the MoEF
8. It is noticed that often consultants engaged by the project proponent sub -contract
portions of EIA to other agencies. Ideally no sub- contracting should be permitted. If the
components of an EIA has to be apportioned to different agencies on account of
requirement of different expertise such assignment/apportionment must be done by the
MoEF itself and not by the lead consultant. In the alternative if such sub- contracting is
permitted it should be only from among the accredited consultants who are equally bound
by the conditions of transparency and accountability.
9. It is noticed that when a lead consultant engages several consultants for various aspects
of a project the separate reports of such sub- contracted agencies is not fully disclosed
either to the government authorities or to the public for the purpose of the public hearing.
Portions of the reports are merely incorporated into the EIA by the lead or main
consultant. The inclusion is often selective to suit the project proponent as is noticed in
the POSCO report where the NIO report on delineation of the CRZ areas was selectively
and misleadingly incorporated. If the full report with maps were made available to the
public they would have been in a better position to effectively participate in the public
hearing. Hence when sub contracted the full report of the sub contracted agency along
with annexures if any must be annexed to the EIA report. Soft copies of these reports
should also be made available along with the soft copy of the EIA.
10.. Compliance with the guidelines/instructions made in the sector wise manual of the
industry should be made mandatory. The EAC can add to the mandatory list.
11. Treating integral elements of a project in a disaggregated manner for purposes of
EIA, public hearing, clearances etc should be prohibited.
12. Making fraudulent statements, failure to follow TOR, plagiarism etc should be made
prosecutable offences under EIA Notification.
13. The EIAs must be required to contain a Social Impact Assessment as well. The World
Bank/IMF guidelines for preparation of EIAs require consultations to form a basis for
preparation of these documents. Relegating consultations to the public hearing alone is a
14. Entire EIA reports along with the Detailed Project Report and Feasibility report must
be available to members of public electronically, on payment of a fee (for above poverty
level) and free of cost to BPL.
15. All EIAs should be comprehensive and REIA should not be permitted.
B. Public Hearing
Another issue which the committee felt should be flagged is the issues concerning
the public hearing process. There are reports of the project proponents packing the
meetings with their supporters and intimidating the genuine project affected persons from
participating. If the project is supported by the ruling party of a State the situation
becomes worse with private intimidation being backed by police force. Public hearings
are increasingly held in tense atmosphere under a cloud of fear of violence. There are also
reports that often the District Administration does not report all objections and often
communicates misleading and even false reports. Above all an issue which doggedly
pursued us is the question what is the weightage given to public opinion at the end of the
hearing. If the projects are to be cleared no matter what the public opinion then is the
hearing an empty formality?
1. Combining Public hearings of several projects should be prohibited.
2. The number of security forces deployed at the time of the public hearing should be
included as part of the report of the hearing and the administration required to explain
their presence, if any, in writing.
3. The signatures of a minimum number of local residents should be required on any
public hearing report.
4. Public hearings in the current fashion should be replaced with gram sabha meetings
with a minimum quorum (such as 50%).
5. Considerable weightage should be given to the public opinion for deciding the grant of
C. Expert Appraisal Committees.
Expert Appraisal Committees play a pivotal role in the EIA process. The following
are our recommendations in this regard.
1. Delhi High Court has already pointed out that EACs are processing an unrealistically
high number of proposals per sitting. (25 to 45 proposals) Court has recommended that
only about 5 proposals per sitting should be considered. So the MoEF must ensure that
not more than 5 projects are entrusted to each EAC member per sitting . There must be
ceiling on the total number of projects that one EAC member can handle at any given
point in time since records are voluminous and the members must be given enough time
to read. .
2. It is noticed that EIA reports and documents are sent only a few days in advance to all
the EAC members. It is humanly impossible for members to get acquainted with the facts
and effectively participate in the evaluation process. Hence a time period should be
prescribed before which EIA reports should be supplied to all members of EAC .
3. EAC members should have no conflict of interest. If there is a conflict the same has to
be disclosed openly and the member has to recuse himself or herself. (for instance the
Delhi HC pointed out in its order that the EAC Mining chairperson was himself a
Director in several mining companies).
4. Every project has a very huge social component to it. But the MoEF appears to view
the evaluation process as purely an issue of science forgetting the large scale social
impact. The current composition of EAC does not including social scientists . The MoEF
should remedy this by including at least two social scientists into the EAC
III. Process-Specific Changes: Forest Clearance Process
· The Forest (Conservation) Rules should be amended to include the requirements
of the August 3rd, 2009 order.
· The Rules should also clearly state that n o application for final clearance should
be allowed to proceed in the absence of fulfillment of the requirements of the
Forest Rights Act, as spelled out in that order.
· The system of “in principle” clearances, which encourages arbitrariness and
corruption, should be abolished. Despite repeated statements that this will be
done, the system continues to operate.
· As has been done with the EIA notification, the Forest (Conservation) Rules
should also be amended to bar piecemeal applications.
In the absence of these changes we fear that projects such as this one will continue to
be cleared without adequate scrutiny, resulting in increasing displacement,
environmental destruction, impoverishment and conflict. The POSCO project is an
example of how a mirage of “development” can be used in an attempt to bypass the
law. Such attempts, if allowed to succeed, will result in neither development nor
environmental protection, but merely in profiteering. This will cause immeasurable
harm to the nation and to the rule of law and justice in our society.
REFERENCES / ANNEXURES
Annexure No. Date Description Page No./Letter No.
Annexure – A: TOR, Background to Committee
A-1 June 22nd 2005 MOU with POSCO
A-2 July 24th 2007 Site Inspection Report, MOEF,
Eastern Regional Office, Bhubaneshwar. No. 5-ORA054/2007-BAU
A-3 July 16th, 2010 Orissa High Court Order on Mining Licence to POSCO.
WP (C) 23/2009
A-4 2005 POSCO Pratirodh Sangram Samiti.
A-5 May 15th, 2007 E.C. for captive port, POSCO. No. 10-9/2006-IA-III
A-6 July 19th, 2007 E.C. for steel plant. F.No. J-11011/285/2007 –IA II (I)
A-7 Dec 27th, 2007 Letter to Hon’ble Justice Shri Rajendra Babu, Chairperson of N.H.R. Commission.
A-8 Aug 9th, 2007 E.A.C. MOEF proposal for clearance of Forest Land. F.No-8-63/2007-FC
A-9 April 27th, 2007 Supreme Court order T.N Godavaraman Thirumulpad case.
WP No.(CIVIL) 202/1995
A-10 Nov 14th, 2007 CEC recommends Forest Clearance. F.No.8-63/2007-FC
A-11 Sept 18th, 2008 In-principle final clearance by MOEF. F.No.8-63/2007-FC
A-12 July 30th, 2009 MOEF Circular F.No. 11-9/1998-FC/PF
A-13 Aug 3rd, 2001 MOEF Circular F.No.11-9/1998-FC(PT)
A-14 Oct 24th, 2009 Chief Secretary, Orissa Govt. to all Collectors.
DO.No. 17593/ICS/FAC/10F (Cons.) 96/2009 (PS)
A-15 Dec 19th, 2009 Collector of Jagatsinghpur writes to BDO, Ersama.
A-16 Dec 29th, 2009 Final clearance by MOEF. F.No. 8-63/2007-FC
A-17 Jan 8th, 2010 MOEF clarification letter of Court “conditional clearance” to compliance with Aug 3rd 2009 order. F.No. 8-63/2007-FC
A-18 Feb 1st, 2010 Principal Secretary – ST/SC Circular for compliance with FRA.
A-19 Feb 25th, 2010 PCCF Orissa Shri Mohanty’s Circular to all DFOs concerning
regularization of Pre-1980 eligible category of forest encroachments.
Mem. No. 2779/9F (Misc) 75/09(Vol-II).
A-20 Feb 20th, 2010 Collector, Jagatsinghpur’s letter to State Govt.139
A-21 March 16th, 2010 Orissa State Govt.
letter to MOEF No.10F(cons)-54/2007- 5318/FNE
A-22 April 15th, 2010 Reply of MOEF to Orissa State Govt.
A-23 June 29th, 2010 Special Secretary, Orissa Govt. sent English translations of Resolutions to
MOEF. N 10F (cons)-54/2007-11733 F & E
A-24 July 8th, 210 2nd RPDAC Minutes of the Meeting.
A-25 July 24th, Saxena Committee 2010 Report.
A-26 July 27th, 2010 U.N. Behera, Special Secretary, letter to MOEF.
No. 10 F(Cons) –54/2007-18564/F&E.
A-27 Aug 5th, 2010 MOEF “stop orders” to Orissa Govt.
A-28 July 20th, 2010TOR of Committee by MOEF
A-29 Aug 27th, 2010 TOR of Committee amended
Annexure – B: Archival Gazetteers and Reports on Coastal Land Use
Ecology and Socio-Economic Studies.
B-1 1996 District Gazetteer year, Cuttack Pages 28, 58, 197, 549
B-2 1933 Bihar & Orissa Gazetteer Year, Cuttack. Pages 89-90
B-3 1970 Final Report on Settlement of Kujang Forest block 1959-66, by Sri N. R. Hota.
Pages 9-11, 34-39, 42
B-4 Feb 2006-07 Vegetation analysis of POSCO area. By spatial planning and analysis research center, Bhubaneshwar, Orissa. XX111
B-5 2005 REIA of captive port, POSCO Pages 33-34
B-6 Aug 28th, 2010 Letter of Prafulla Samanthra, President, Lok Shakthi Abiyan, Orissa.
B-7 April 13th 2007 Letter by Prafulla Samanthra,President, Lok Shakthi Abhiyan, Orissa, wild life society to Orissa State Pollution Control Board.
B-8 April 14th 2007 Letter of Dr. Karthik Shankar, Ashoka Trust to Orissa State Pollution Control Board.
B-9 March 2006 Disaster Dossier by Richard Mahapatra, Info Change News and
B-10 February 2009 Striking while the iron is hot by Manshi Asher Pages 14-15
B-11 January 2008 Report on Socio-Economic Survey of village in POSCO
Project site by Xavier Institute Management, Part-I, Vol.2 Pages 4-6
Annexure – C: FRA Circulars, Notifications, Clearances and letters
C-1 Aug 3rd, 2009 MOEF Circular to Orissa State Govt.
C-2 Feb 4th, 2009 Chief Secretary, Orissa to all Collectors on implementation of FRA N. 6061/SSD TD-11-51/108
C-3 June 2010 Ministry of Tribal Affairs D.O No.23011/24/2009-7 RD
C-4 Aug 13th, 2010 Principal Secretary, Environment and Forest to MOED.
C-5 Oct 4th, 1961 Govt. of Orissa in Development (Forest) Dept. Notification U/S 29 of Indian Forest Act, 1927
C-6 June 9th, 2008 Ministry of Tribal Affairs, implementation of Circular No. 17014/02/ 2007.
PC/Vol. III. FRA and compliance.
C-7 July, 2004 MOEF affidavit before Supreme Court. IA 1126 in IA 703 in W.P. 7 of 2004.
C-8 March 6th, 1956 Revised working plans for Reserve Forest, Athagarh Forest Division.Page 110
C-9 Feb 25th, 2008 Commissioner-cum-Secretary, Revenue and Disaster Management, Govt. of Orissa to all Collectors. GE(GL) S-22/2007/9775/R&DM
C-10 Feb 25th, 2010 PCCF, Orissa to all DFOs Memo No. 2779/9F (Misc) 75/2009 (Vol.II)
C-11 Dec 26th, 2009 Special Secretary, Govt. of Orissa to all Collectors. No. 456639, TD-II-32/08
C-12 Jan 23rd, 2010 Collector, Jagatsinghpur to Special Secretary, Govt. of Orissa.
C-13 March 2008-2009 Table of village wise events of palli sabha meetings. Pages 1-13
C-14 March 24th, 2008 Receipt of palli sabha resolutions to Collector, Sub-Collectors & BDO.
C-15 May 16th, 2008 Letter of Sri D. Raja, M.P. to Prime Minister of India.
C-16 Sept 2010 Affidavit of Sarpanch, Dhinkia
C-17 Sept 2010 Affidavit of Panchayath Samithi Member of Gadkujang
C-18 Jan 4th, 2009 STLC Sub–District level Committee Minutes of Meeting
C-19 Nov 5th, 2009 STLC Sub–District level Committee Minutes of Meeting
C-20 Jan 19th, 2010 BDO Ersama forwarded letter to concerned sarpanch
C-21 Nov 16th, 2009 Minutes of District level Committee Meetings.
C-22 Oct 24th, 2009 Chief Secretary to Orissa to all Collectors.
C-23 Feb 11th, 2010 Commissioner-cum-Secretary, Govt. of Orissa to
all Collectors to grant title to eligible STs and OTFDs No. GE(GL)-S-23/09 (PT-1)-5309.
C-24 Nov 21st, 2008 Under Secretary to Govt. of India, subject of the letter
frequently asked questions on implementation of FRA.No. 40373 TD-II-51/08
C-25 2006 Orissa Resettlement and Rehabilitation Policy.
Para 9 benefit to landless and homestead less encroachers, subpara 1 & 2; para 10.
C-26 July 2010 RP DAC (R&RPackage)
Annexure – D: Archival documents, receipts of Nistar Rights, Forest Cess, Sabak Village maps (1927-28)
D-1 1927-28 Sabak map of Dhinkiya Village,
Gramya Jungle, Plot Nos. 2254, 2255, 921
D-2 1927-28 Sabak map of Govindpur Village, Ghauj Jungle, Plot Nos. 1293 & 1294.
D-3 1927-28 Sabak map of Naugaon Village, Gramya Jungle, Plot Nos. 2515 & 2552.
D-4 1927-28 Sham Das betel wine cess
D-5 1931 Katiyan Receipt of Giridhar for Pan Barag.
D-6 March 10th, 1912 Forest Cess of Bheema Naik, Govindpur Village. 66781
D-7 March 13th,1912 Forest Cess receipt of Hadi Naik. 13179
D-8 Dec 22nd 1938 Forest Cess receipt for fuel wood of Hadi Naik. 2681
D-9 March 12th, 1926 Receipt Land Rent (0.13 decimal) of Hadi Naik and Bhaba Dalei. 34532
D-10 Dec 23rd, 1938 Dhobei Khatua, Khatiyan Receipt from Bardhman Raja. 30117
D-11 Jan 5th 1931 Name of the Tenant: Giridhari Bardhan, Govindpur Village, Katiyan Receipt for Panabaraja (betel vine). Receipt No. 110
D-12 Dec 10th, 1954 Dhanu Khatua, Collection of fee towards betel vine in 1360/61. 17208
D-13 Nov 13th 1929 Betel vine cess Baje Chalan 6328, Bharadwan Raja.
D-14 1930-31 Shama Das Kast Baurie panabaraja(betel vine), 20
decimal land, Khasada No. 325 Dinkiya Village.
Annexure – E: Rapid EIA of Steel Plant
E-1 Jan, 2001 Manual on EIA of MoEF
E-2 July, 2006 Application by POSCO for SEZ Status
E-3 August, 2006 Summary of Rapid EIA for Steel Plant
E- 4 /06 Proceedings of OCZMA
E- 5 14/9/06 Consent to Establish-Application
E- 6 01.12.06 Report of Technical Committee on Iron & Steel Sector
E- 7 14.04.07 Public Hearing -Proceedings
E - 8 17.04.07 Comments of ROMoEF No. 252/EPE
E - 9 02.05.07 Extract of Proceedings of Consent to Establish Committee
E - 10 05/06/07 67th Meeting ofEAC
E - 11 12.6.07 Consent to Establish
E - 12 21.06.07 68th Meeting of EAC E - 13 19.07.07 EC-Steel Plant
E -14 30.05.07 Reply by Addl Director.
E -15 2009 Industrial Clusters
E -16 Dec 2009 Comprehensive Environmental Assessment of Industrial Clusters
E -17 29.8.10 List of Officials who met Committee Members in Bhubaneshwar
E - 18 4.10.20 Email Reply of POSCO Director
E – 19 4.10.2010 Email reply by PCB Official, Orissa
E- 20 6.10.10 E-mail reply from RO, MoEF, Bhubaneshwar
Annexure – F: Rapid EIA of Captive Minor Port
F- 1 20.12.05 Minister of Shipping gives reply in Parliament to query on impact of Posco port F - 2 2006 Summary of REIA Port
F – 3 11.7.06 Letter asking for Comments
F - 4 07/08/06 Comments of ROMoEF
F -5 07/08/06 Minutes of Meeting of OSCZMA
F – 6 23/08/06 Application for Consent to Establish
F - 7 01-09-2006 Proceedings of OCZMA F – 8 16.10.06 EAC meeting on port / CRZ raises queries
F –9 .11.06 EAC Meeting recommends EC F –10 09/11/06 Consent to Establish No. 27466/Ind-11-NOC-4447
25/09/06 Proceedings of CE Meeting for Port
F – 11 9.4.07 Letter from RO, MoEF about industrial pollution in Paradeep area N. 101-256/EPE
F - 12 .05.2007 Proceedings of EAC Meeting which recommended EC and CRZ Clearance
F- 13 15.5.07 EC for Port N. 10-9/2006-IA-III
F-14 15/12/08 ATR Report
F - 15 02.04.10 POCO –Compliance Report
Annexure G – On Water Allocations and Resources
G – 1 11.02.2008 Letter from Posco to Chairman, Water Allocation Committee regarding suitability of water from Jobra Barrage on Mahanadi
G- 2 1.11.2008 Letter from Engineer-in-Chief to Principal Secretary, Dept. of Water Resources recommending sourcing of water from Mahanadi Barrage by Posco
G - 3 25.1.2010 Letter from Special Secretary, Department of Water Resources to Posco regarding allocation of water for steel plant from Hansua Nallah for construction purposes and Jobra Barrage for operational purposes
G-4 15-09-2010 Letter of Sripad Dharma Adikari, Manthan, Adhyan Kendra, MH written to POSCO Committee voicing serious concerns of water requirement by POSCO Project.
Annexure – H : CRZ
H - 1 Oct 1995 CZMP for Orissa –Government of Orissa
H - 2 14.8.2006 CRZ Clearance for Captive Minor Port –Clarifications on queries in Expert Committee Meeting given by POSCO·
H - 3 27.9.1996 Letter from MoEF to Chief Secretary, GoO about approval for Coastal Zone Management Plan (CZMP)
H - 4 14.9.2006 Recommendation of OSCZMA to MoEF for
establishing minor port and to accord CRZ / EC.
H - 5 2.11.2006 MoEF Letter to POSCO to appear before Expert Committee on Infrastructure Development on 16.11.2006.
H - 6 16.11.2006
NIO - Terms of Reference for CRZ Demarcation
Annexure I: Representations received by Committee
I- 1 25.8.2010 Posco Pratoridh Sangharsh Samiti (PPSS)·
I - 2 29.8.2010 Utkal State Council-Communist Party of India·
I -3 29.8.2010 Communist Party of India(Marxist)
Odisha State Committee·
I - 4 29.8.2010 Samajwadi
Party, Odisha 259/S-P·
I - 5 9.9.2010 Submissions
by Kanchi Kohli and 27 others.
I - 6 17.9.2010 Open Letter
from civil groups of South Korea
I - 7 17.9.2010 US Based
received by email
I - 8 21.9.2010 Sankhanad
Behera, Bhumiputra Multipurpose
I - 9 22.9.2010 Wildlife
Society of Orissa
I - 10 22.9.2010 Shri. Kanungo, former
Finance Minister, GoO.
Note : The committee has referred to all these annexures/references. Only
those annexures which are ticked are included in the hard copy. The rest of
the annexures were not included to avoid making the hard copy bulky.