The Vedanta Alumina plant in Lanjigarh at the foothills of Niyamgiri in Odisha

New Delhi, April 25: Tribal affairs minister V. Kishore Chandra Deo has said that non-tribals cannot be given land in Fifth Schedule (tribal) areas even if gram sabhas agree, setting the stage for a potential controversy in the backdrop of a recent court judgment.

The minister cited Article 244 of the Constitution to back his argument that land in areas dominated by tribals cannot be transferred to non-tribals in any of the nine states that have Schedule V areas.

The Supreme Court had last week asked local gram sabhas — elected by tribals from among themselves — to decide whether the Vedanta Group could resume mining bauxite in Odisha’s Niyamgiri Hills.

The court directed the gram sabhas in Kalahandi and Rayagada districts to consider the cultural and religious claims of local tribals and forest dwellers and decide in three months whether clearance should be given for mining. The order clarified that ownership of the land would remain with the government.

Deo said Article 244 provided a safeguard against any transfer of land from tribals to people from other communities and non-locals.

“Non-tribals from outside cannot go to Fifth Schedule areas and possess land or take land on lease. Even the gram sabha cannot override the constitutional provision and decide to give land to anybody from outside,” he told The Telegraph.

Under Article 244, the governor can pass “regulations” to “prohibit” or “restrict” land transfer in tribal areas.

Deo said companies interested in mining in Fifth Schedule areas were outsiders and so could not be given land. He refused to comment on the court’s April 18 ruling.

“What I am speaking about is the constitutional provision. I cannot pass a comment on the Supreme Court judgment till I have read it,” Deo said. Kalahandi and Rayagada both fall under the Fifth Schedule.

As a follow-up to the constitutional provision, states like Odisha and Andhra Pradesh have passed rules to restrict land transfer to non-tribals in their Fifth Schedule areas. Odisha, for example, passed the Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulations, 1956, to check illegal transfer of land in such areas.

Most tribals, however, don’t have any record of their rights over the land they have been using for generations.

“Parliament has enacted the forest rights act, which says tribal people’s right over land has to be recognised and that they must be awarded heritable rights over their land and community resources,” Deo said.

He said another central law, the Panchayats Extension to the Scheduled Areas Act (Pesa), says gram sabhas in Fifth Schedule areas can decide how to use natural resources and conserve traditional rights.

Asked if this act could be used to seek the consent of the gram sabhas for diversion of forestland for mining, he said: “Under Pesa, people get the right to decide how to manage non-timber forest produce. It cannot be used to take their consent for transfer or diversion of land for mining.”

If a gram sabha allows land diversion for mining, the state governor can invoke his powers to scrap the transfer, Deo said.