Cuttack, Sept. 9: Orissa High Court today ruled that the state government had “every power” to acquire forestland and refused to pass a stay order on a writ petition challenging the diversion of such land for the proposed Posco Steel plant.

The court approved that the forestland was agreed to be transferred through Idco for the steel plant “which will provide employment and will augment revenue for both central and state governments and serve public interest”.

The court, however, issued a status quo order on the acquisition of private land in five villages.

The court passed the interim orders on two separate writ petitions for quashing of the forest clearance granted by the Union ministry of environment and forests (MoEF) and the land acquisition proceedings initiated by the state government. Nishakar Khatua and five other villagers of Govindpur-Dhinkia-Nuagaon under Kujang police station area in Jagatsinghpur district had filed the writ petitions and followed up with petitions for interim stay orders.

The project is proposed to be established in 1,620.49 hectares that include 1,253.22 hectares of forestland.

There are at least 3,575 families including the petitioners, who would allegedly be affected in terms of livelihood and face displacement by the diversion of the forestland, the petitioners had contended alleging violation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights), Act, 2008.

“Petitioners have not made out a prima facie case for grant of interim relief. Even assuming that the petitioners have made out a prima facie case, the balance of convenience is not in their favour”, the division bench of Justice V. Gopala Gowda and Justice B.N. Mohapatra ruled, while expressing disinclination to grant any interim relief.

“The Other Traditional Forest Dweller (OTFD) rights of the persons under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights), Act, 2008, claimed through public-spirited persons is very minimal and such right is claimed. State government has every power to acquire such land,” the division bench observed.

The central government counsel had contended that the forest clearance was based on assurance by the Orissa government that rights endowed under the Forest Rights Act, 2006, does not apply to the communities affected by the project.

As the state government has the primary responsibility of ensuring and guaranteeing compliance with the Forest Rights Act, 2006, it was asked to give categorical assurance that none of those claiming to be depending on or cultivating land in the Posco project area fulfil any of the three conditions required to be considered as Other Traditional Forest Dweller (OTFD).

For being considered an OTFD, they should have primarily resided in the forest for 75 years prior to December 13, 2005, or should be, at present, dependent on the forest or forestland for bona fide livelihood needs or should have been in occupation of the forest land before December 13, 2005, it was clarified on behalf of the MoEF.

In his reaction, advocate-general Ashok Mohanty said: “We are happy, but would have been happier had both the interim orders gone the state government’s way.”

In its interim order on the petition challenging land acquisition proceedings, the court said: “Petitioners have a very strong case of violation of fundamental, constitutional and statutory rights.”

“We accordingly direct that status quo as on today in respect of private lands in question of the concerned village as per Annexure – 2 (Revenue department notification dated January 4, 2006) be maintained till disposal of the case”, the order said.

Following the notification, the government intended to acquire 433.24 acres in five villages, including 284.97 acres in Dhinkia village.

According to the petitioners, ground realities had remained unchanged on account of non-implementation of the notification for five years. The government had recently announced to act according to the notification.

The petitioners had alleged that the notification had waived sections of the Land Acquisition Act “so as to deny the concerned land owners and other interested parties from raising objections”. The waiver is not permissible on account of land for a private limited company.